                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 14 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



JAY GEROW, an individual and ZDI                 No. 08-35885
GAMING, INC, a Washington
corporation,                                     D.C. No. 3:08-cv-05087-BHS

              Plaintiffs - Appellants,
                                                 MEMORANDUM *
  v.

STATE OF WASHINGTON; et al.,

              Defendants - Appellees.



                    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.




        *
             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).
      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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