Jay Gerow, an individual and ZDI GAMING, INC, a Washington corporation v. State of Washington;

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAY GEROW, an individual and ZDI
GAMING, INC, a Washington
corporation,
Plaintiffs - Appellants,
v.
STATE OF WASHINGTON; et al.,
Defendants - Appellees.
No. 08-35885
D.C. No. 3:08-cv-05087-BHS
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Submitted June 10, 2010**
Seattle, Washington
Before: CANBY, CALLAHAN and IKUTA, Circuit Judges.
FILED
JUN 14 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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The district court did not err in granting the defendants’ motion for judgment
on the pleadings, see Fed. R. Civ. P. 12(c), because the individual defendants are
entitled to legislative immunity from suit. Here, under the four factors stated in
Kaahumanu v. County of Maui, 315 F.3d 1215, 1220 (9th Cir. 2003), we conclude
that the rulemaking at issue is legislative in character. First, the regulations are a
formulation of the Washington Gambling Commission’s policy because they are
rules that apply regardless of the circumstances of particular cases rather than being
ad hoc. See id. Second, the regulations, by their very terms, apply to the public at
large. See id. at 1222. Third, the Commission members voted on the regulations,
rendering them formally legislative. See id. at 1223. Fourth, the regulations bear
the hallmarks of traditional legislation because they have prospective implications.
See id.
Because this type of rulemaking is a legislative action, the defendant
Commissioners, including Prentice, have absolute immunity for their actions
associated with the passage of the rules. See Bogan v. Scott-Harris, 523 U.S. 44, 52
(1998). The immunity also extends to Gambling Commission Director Day for his
actions because they “were integral steps in the legislative process.” Id. at 55. The
alleged statements made by Prentice and Day cannot be the basis of liability: ZDI
does not allege that these statements caused it independent harm, but rather that

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they are evidence of the Commission’s retaliatory animus. However, “[t]he claim
of an unworthy purpose does not destroy the privilege” of legislative immunity.
Tenney v. Brandhove, 341 U.S. 367, 377 (1951).
After dismissing all federal claims, the district court did not abuse its
discretion in dismissing ZDI’s related state law claims. See 28 U.S.C. § 1367(c)(3).
Because a district court may not consider materials outside the pleadings in
adjudicating a Rule 12(c) motion, see Fleming v. Pickard, 581 F.3d 922, 925 & n.4
(9th Cir. 2009), the district court did not abuse its discretion in striking ZDI’s
supplemental materials. Defendants’ motion to strike ZDI’s reply brief is denied as
moot.
AFFIRMED.

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