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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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Malcolm Emory;
Longhair Tribe,

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Cherokee

No. CV-13-02580-PHX-GMS
ORDER

Plaintiffs,

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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

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City of Phoenix, Aaron Carreon-Ainsa, Elizabeth Suggs, and R.K. Gavin.

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following reasons the Motion is granted.

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For the

BACKGROUND

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Plaintiffs filed their Complaint (Doc. 1) on December 18, 2013. The Complaint

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concerns a piece of property that Plaintiffs claim is owned by “The Western Cherokee

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Longhair Trial Land Trust” and is located “within the city of Phoenix, but not part of the

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city of Phoenix.” (Id. at 1.) Plaintiffs claim the land is a “tribal enrollment office and a

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private residence.” (Id.) They claim the property is “borderland and therefore the U.S.

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District Court should have jurisdiction over this matter.” (Id.) Plaintiffs seek relief from

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the city of Phoenix and its name and unnamed agents for trespassing, harassing, and

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violation of other unspecified rights including “tribal rights guaranteed under the Treaty

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of Hopewell and other treaties as well as federal law.” (Id.)

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On December 19, 2013, the Court issued an order requiring that “the parties must

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meet and confer prior to the filing of a motion to dismiss” and that “motions to dismiss

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must contain a certification of conferral indicating that the parties have conferred to

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determine whether an amendment could cure a deficient pleading.” (Doc. 3 at 1.) On

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January 7, 2014, Defendants filed a Motion to Dismiss for lack of subject matter

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jurisdiction. On the same day, the Court issued an order (Doc. 7) reaffirming the Court’s

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previous order requiring the parties to meet and confer before filing a motion to dismiss.

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The Court’s January 7 order also gave the specific requirement that Defendants take the

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steps to meet and confer set forth in the initial order within seven days. (Id.) On January

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13, 2014, Defendants filed the Declaration of Robert Hyde Regarding Conferral on

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Defendants’ Motion to Dismiss (Doc. 8). The Declaration stated that Mr. Hyde, an

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attorney for the City of Phoenix, had made multiple attempts to contact Plaintiff Malcolm

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Emory using the telephone number and address listed on the Complaint. (Doc. 8 at ¶ 3-

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11.) Mr. Hyde also declared that he left multiple voice messages detailing the reason for

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the call and his contact information on the 2nd, 3rd, and 7th of January, 2014. (Id. at ¶ 3,

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4, 7.) After no response, Defendants filed the Motion to Dismiss (Doc. 6) on January 7,

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2014. The Declaration also stated that continued attempts to reach Mr. Emory resulted in

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the following message: “At the subscriber’s request, this phone does not accept incoming

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calls. Message NV86158.” (Id. at ¶ 9.) Mr. Hyde’s Declaration stated he received no

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response from Mr. Emory at all. (Id. at ¶ 11.)

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On February 14, 2014, the Court issued an order stating that “an opposing party to

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a motion to dismiss for lack of jurisdiction ‘may, unless otherwise ordered by the Court,

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have thirty (30) days after service within which to serve and file a responsive

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memorandum in opposition.’” (Doc. 9 at 1.) The Court then ordered “that Plaintiffs file

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and serve a responsive memorandum to Defendants’ Motion (Doc. 6) before 5:00 p.m. on

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February 28, 2014.” (Id. at 2.) If not, “the Court may consider such failure to respond as

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consent to the granting of the motion. This could result in the dismissal of Plaintiffs’

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claim(s).” (Id.) The deadline set by the Court has now passed with no response from

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Plaintiffs.
DISCUSSION

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Local Rule of Civil Procedure 7.2 provides that an unrepresented party’s failure to

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respond to a motion “may be deemed a consent to the . . . granting of the motion and the

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Court may dispose of the motion summarily.” LRCiv 7.2(i). Federal Rule of Civil

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Procedure 60(b)(1) provides that a court “may relieve a party or its legal representative

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from a final judgment, order, or proceeding” for “mistake, inadvertence, surprise, or

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excusable neglect.” However, “mistakes construing the rules do not usually constitute

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‘excusable’ neglect.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S.

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380, 392 (1993). This Circuit has made clear that “[p]ro se litigants must follow the same

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rules of procedure that govern other litigants.” King v. Atiyeh, 814 F.2d 565, 567

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(9th Cir. 1986); see Jacobsen v. Filler, 790 F.2d 1362, 1364-65 (9th Cir. 1986) (pro se

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litigants should not be treated more favorably than parties represented by attorneys);

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United States v. Flewitt, 874 F.2d 669, 675 (9th Cir. 1989) (pro se litigants are subject to

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the same good faith limitations imposed on lawyers). Plaintiff’s failure to respond to

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Defendants’ Motion to Dismiss and the Court’s order are sufficient grounds for dismissal.

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Nevertheless, the Motion to Dismiss is also well taken.

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In their Complaint, Plaintiffs claim that jurisdiction is proper in U.S. District Court

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because the property at issue “is borderland,” though it is allegedly located “within the

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city of Phoenix, but not part of the city of Phoenix.” (Doc. 1 at 1.) Though Plaintiffs do

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not cite authority for this grant of subject matter jurisdiction, it appears to be based on 28

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U.S.C. § 1362:

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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.

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However, the Western Cherokee Longhair Tribe is not among the list of 566 tribal

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entities recognized by the Department of Interior. 78 FR 26384-02. As is clear from the

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statute, Section 1362 only applies to tribes “duly recognized by the Secretary of the

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Interior.” See Price v. State of Hawaii, 764 F.2d 623, 626 (9th Cir. 1985), cert. denied,

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474 U.S. 1055 (1986) (“Because neither the [tribe] nor their governing body have been

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‘duly recognized’ by the Secretary, they do not qualify for § 1362 jurisdiction even if we

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assume that they are an ‘Indian tribe or band.’”). Section 1362 is therefore not an

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appropriate ground for subject matter jurisdiction in this matter.

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There also appears to be no diversity jurisdiction as Plaintiff Emory and all

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Defendants are residents of the state of Arizona, thus defeating complete diversity under

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28 U.S.C. § 1332(a)(1).

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While Plaintiffs’ failure to respond to Defendants’ Motion to Dismiss and the

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Court’s order are sufficient grounds for dismissal, there is no subject matter jurisdiction

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to allow the Court to hear this case.

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Therefore,

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IT IS ORDERED that Defendants’ Motion to Dismiss (Doc. 6) is granted.

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IT IS FURTHER ORDERED directing the Clerk of Court to terminate this

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action and enter judgment accordingly.
Dated this 20th day of March, 2014.

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