Emory et al v. Phoenix, City of et al

Filing 10

ORDER, granting Defendants' 6 Motion to Dismiss; directing the Clerk to terminate this action and enter judgment accordingly. Signed by Judge G Murray Snow on 3/20/14.(REW)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Malcolm Emory; Longhair Tribe, 10 13 14 15 16 Cherokee No. CV-13-02580-PHX-GMS ORDER Plaintiffs, 11 12 Western v. Phoenix; City of; Aaron J Carreon Ainsa; Elizabeth A Suggs; R.K. Gavin; Unknown Parties, Defendants. Pending before the Court is the Motion to Dismiss (Doc. 6) filed by Defendants 17 City of Phoenix, Aaron Carreon-Ainsa, Elizabeth Suggs, and R.K. Gavin. 18 following reasons the Motion is granted. 19 For the BACKGROUND 20 Plaintiffs filed their Complaint (Doc. 1) on December 18, 2013. The Complaint 21 concerns a piece of property that Plaintiffs claim is owned by “The Western Cherokee 22 Longhair Trial Land Trust” and is located “within the city of Phoenix, but not part of the 23 city of Phoenix.” (Id. at 1.) Plaintiffs claim the land is a “tribal enrollment office and a 24 private residence.” (Id.) They claim the property is “borderland and therefore the U.S. 25 District Court should have jurisdiction over this matter.” (Id.) Plaintiffs seek relief from 26 the city of Phoenix and its name and unnamed agents for trespassing, harassing, and 27 violation of other unspecified rights including “tribal rights guaranteed under the Treaty 28 of Hopewell and other treaties as well as federal law.” (Id.) 1 On December 19, 2013, the Court issued an order requiring that “the parties must 2 meet and confer prior to the filing of a motion to dismiss” and that “motions to dismiss 3 must contain a certification of conferral indicating that the parties have conferred to 4 determine whether an amendment could cure a deficient pleading.” (Doc. 3 at 1.) On 5 January 7, 2014, Defendants filed a Motion to Dismiss for lack of subject matter 6 jurisdiction. On the same day, the Court issued an order (Doc. 7) reaffirming the Court’s 7 previous order requiring the parties to meet and confer before filing a motion to dismiss. 8 The Court’s January 7 order also gave the specific requirement that Defendants take the 9 steps to meet and confer set forth in the initial order within seven days. (Id.) On January 10 13, 2014, Defendants filed the Declaration of Robert Hyde Regarding Conferral on 11 Defendants’ Motion to Dismiss (Doc. 8). The Declaration stated that Mr. Hyde, an 12 attorney for the City of Phoenix, had made multiple attempts to contact Plaintiff Malcolm 13 Emory using the telephone number and address listed on the Complaint. (Doc. 8 at ¶ 3- 14 11.) Mr. Hyde also declared that he left multiple voice messages detailing the reason for 15 the call and his contact information on the 2nd, 3rd, and 7th of January, 2014. (Id. at ¶ 3, 16 4, 7.) After no response, Defendants filed the Motion to Dismiss (Doc. 6) on January 7, 17 2014. The Declaration also stated that continued attempts to reach Mr. Emory resulted in 18 the following message: “At the subscriber’s request, this phone does not accept incoming 19 calls. Message NV86158.” (Id. at ¶ 9.) Mr. Hyde’s Declaration stated he received no 20 response from Mr. Emory at all. (Id. at ¶ 11.) 21 On February 14, 2014, the Court issued an order stating that “an opposing party to 22 a motion to dismiss for lack of jurisdiction ‘may, unless otherwise ordered by the Court, 23 have thirty (30) days after service within which to serve and file a responsive 24 memorandum in opposition.’” (Doc. 9 at 1.) The Court then ordered “that Plaintiffs file 25 and serve a responsive memorandum to Defendants’ Motion (Doc. 6) before 5:00 p.m. on 26 February 28, 2014.” (Id. at 2.) If not, “the Court may consider such failure to respond as 27 consent to the granting of the motion. This could result in the dismissal of Plaintiffs’ 28 claim(s).” (Id.) The deadline set by the Court has now passed with no response from -2- 1 Plaintiffs. DISCUSSION 2 3 Local Rule of Civil Procedure 7.2 provides that an unrepresented party’s failure to 4 respond to a motion “may be deemed a consent to the . . . granting of the motion and the 5 Court may dispose of the motion summarily.” LRCiv 7.2(i). Federal Rule of Civil 6 Procedure 60(b)(1) provides that a court “may relieve a party or its legal representative 7 from a final judgment, order, or proceeding” for “mistake, inadvertence, surprise, or 8 excusable neglect.” However, “mistakes construing the rules do not usually constitute 9 ‘excusable’ neglect.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 10 380, 392 (1993). This Circuit has made clear that “[p]ro se litigants must follow the same 11 rules of procedure that govern other litigants.” King v. Atiyeh, 814 F.2d 565, 567 12 (9th Cir. 1986); see Jacobsen v. Filler, 790 F.2d 1362, 1364-65 (9th Cir. 1986) (pro se 13 litigants should not be treated more favorably than parties represented by attorneys); 14 United States v. Flewitt, 874 F.2d 669, 675 (9th Cir. 1989) (pro se litigants are subject to 15 the same good faith limitations imposed on lawyers). Plaintiff’s failure to respond to 16 Defendants’ Motion to Dismiss and the Court’s order are sufficient grounds for dismissal. 17 Nevertheless, the Motion to Dismiss is also well taken. 18 In their Complaint, Plaintiffs claim that jurisdiction is proper in U.S. District Court 19 because the property at issue “is borderland,” though it is allegedly located “within the 20 city of Phoenix, but not part of the city of Phoenix.” (Doc. 1 at 1.) Though Plaintiffs do 21 not cite authority for this grant of subject matter jurisdiction, it appears to be based on 28 22 U.S.C. § 1362: 23 24 25 26 The district courts shall have original jurisdiction of all civil actions, brought by any Indian tribe or band with a governing body duly recognized by the Secretary of the Interior, wherein the matter in controversy arises under the Constitution, laws, or treaties of the United States. 27 However, the Western Cherokee Longhair Tribe is not among the list of 566 tribal 28 entities recognized by the Department of Interior. 78 FR 26384-02. As is clear from the -3- 1 statute, Section 1362 only applies to tribes “duly recognized by the Secretary of the 2 Interior.” See Price v. State of Hawaii, 764 F.2d 623, 626 (9th Cir. 1985), cert. denied, 3 474 U.S. 1055 (1986) (“Because neither the [tribe] nor their governing body have been 4 ‘duly recognized’ by the Secretary, they do not qualify for § 1362 jurisdiction even if we 5 assume that they are an ‘Indian tribe or band.’”). Section 1362 is therefore not an 6 appropriate ground for subject matter jurisdiction in this matter. 7 There also appears to be no diversity jurisdiction as Plaintiff Emory and all 8 Defendants are residents of the state of Arizona, thus defeating complete diversity under 9 28 U.S.C. § 1332(a)(1). 10 While Plaintiffs’ failure to respond to Defendants’ Motion to Dismiss and the 11 Court’s order are sufficient grounds for dismissal, there is no subject matter jurisdiction 12 to allow the Court to hear this case. 13 Therefore, 14 IT IS ORDERED that Defendants’ Motion to Dismiss (Doc. 6) is granted. 15 IT IS FURTHER ORDERED directing the Clerk of Court to terminate this 16 17 action and enter judgment accordingly. Dated this 20th day of March, 2014. 18 19 20 21 22 23 24 25 26 27 28 -4-

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