The Cherokee Nation v. Bumble Bee Foods LLC et al

Filing 19

ORDER granting 16 Motion to Dismiss Cherokee Nations First Amended Complaint. Plaintiff may file an amended Complaint within thirty (30) days of the date on which this Order is electronically docketed. Signed by Judge Janis L. Sammartino on 9/05/2018. (All non-registered users served via U.S. Mail Service)(jpp)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 15-MD-2670 JLS (MDD)

IN RE: PACKAGED SEAFOOD
PRODUCTS ANTITRUST LITIGATION

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ORDER GRANTING MOTION TO
DISMISS

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(ECF No. 983)

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Presently before the Court is Defendants StarKist Co., Dongwon Industries, Co.,

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Bumble Bee Foods LLC, Del Monte Corporation, Tri-Union Seafoods LLC d/b/a Chicken

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of the Sea International Inc., and Thai Union Group PCL’s (“Defendants”) Joint Motion to

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Dismiss, (“MTD,” ECF No. 983). Also before the Court are Plaintiff the Cherokee

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Nation’s Opposition to, (“Opp’n,” ECF No. 1267), and Defendants’ Reply in Support of,

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(“Reply,” ECF No. 1284), the Motion. The Court heard oral argument on July 30, 2018.

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Having considered the parties’ arguments and the law, the Court rules as follows.

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BACKGROUND

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This case concerns an alleged conspiracy to fix the prices of packaged seafood

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throughout the United States. Plaintiff the Cherokee Nation is a federally recognized

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sovereign Indian nation and brings this action in its proprietary capacity and under its

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parens patriae authority against Defendants as part of a broader multi-district litigation

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(“MDL”) currently pending before this Court. (First Am. Compl. (“FAC”), ECF No. 823,

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¶¶ 11–12.)1 This particular aspect of the MDL concerns whether the Court has subject

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matter jurisdiction over Plaintiff’s claims.

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In 2015, various plaintiffs across the country brought civil suits concerning

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defendants StarKist, Chicken of the Sea, and Bumble Bee’s conduct. The several civil

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actions relating to this alleged conspiracy were consolidated in an MDL and the judicial

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panel on MDLs centralized pretrial proceedings to this Court on December 9, 2015, (see

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Transfer Order, ECF No. 1). The Cherokee Nation was a latecomer to this litigation and

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filed suit on November 16, 2017, (see No. 17-CV-2332, ECF No. 1), which was then

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consolidated with the MDL. Plaintiff originally requested the Court create a track solely

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for itself, (ECF No. 751-1, at 3), but later amended its motion to request placement in the

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indirect End Purchaser Payer (“EPP”) track, while also maintaining its own complaint,

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(ECF No. 798-1, at 2). On February 5, 2018, Plaintiff filed a First Amended Complaint,

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(ECF No. 823), and on February 23, 2018, the Court granted Plaintiff’s amended motion

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and assigned Plaintiff to the EPP track, (ECF No. 859).

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Plaintiff’s amended Complaint sets forth detailed allegations concerning alleged

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price-fixing schemes in the packaged seafood industry, which has resulted in a Department

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of Justice investigation into Defendants’ activities and guilty pleas by several packaged

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seafood executives. (FAC ¶¶ 213, 221–28.) Defendants are major producers of packaged

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seafood. The complaint presents allegations of increased packaged seafood prices resulting

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from anticompetitive behavior on the part of Defendants. (See id. ¶¶ 205, 208–10.)

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Plaintiff’s citizens, members of the Cherokee Nation, are indirect purchasers of packaged

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tuna. (Id. ¶ 10.) Plaintiff alleges that Defendants’ anticompetitive behavior has resulted in

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fixed or higher prices of packaged seafood, that indirect purchasers of packaged seafood

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have been deprived of free and open competition, and that indirect purchasers paid

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artificially inflated prices. (Id. ¶ 229.)

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The sealed version of The Cherokee Nation’s First Amended Complaint is located at ECF No. 825.
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Plaintiff’s amended Complaint brings the following claims. First, Plaintiff asserts a

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cause of action under section 1 of the Sherman Act, 15 U.S.C. § 1, which is Plaintiff’s only

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federal cause of action. Second, Plaintiff asserts causes of action for violation of State law;

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specifically, California, Kansas, Arizona, Colorado, New Mexico, Oklahoma, and Florida.

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Third, Plaintiff brings two causes of action under Cherokee Nation law—Unfair and

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Deceptive Practices Act (“CNUDPA”), 12 CNCA § 21 et seq., and unjust enrichment. (See

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generally FAC.) Defendants have filed the present joint motion to dismiss, (ECF No. 983),

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challenging this Court’s jurisdiction to hear Plaintiff’s claims under Rule 12(b)(1) and

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asserting, in the alternative, that the amended Complaint fails to state a claim under Rule

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12(b)(6).

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LEGAL STANDARD
I.

Rule 12(b)(1)

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A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) challenges

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a court’s subject matter jurisdiction. Federal district courts are courts of limited jurisdiction

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that “may not grant relief absent a constitutional or valid statutory grant of jurisdiction”

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and are “presumed to lack jurisdiction in a particular case unless the contrary affirmatively

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appears.” A–Z Int’l v. Phillips, 323 F.3d 1141, 1145 (9th Cir. 2003) (internal quotations

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and citations omitted).

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Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377; In re Dynamic Random Access

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Memory (DRAM) Antitrust Litig., 538 F.3d 1107, 1110 (9th Cir. 2008).

The plaintiff bears the burden of establishing jurisdiction.

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Rule 12(b)(1) motions may challenge jurisdiction facially or factually. Safe Air for

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Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “In a facial attack, the challenger

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asserts that the allegations contained in a complaint are insufficient on their face to invoke

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federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the

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allegations that, by themselves, would otherwise invoke federal jurisdiction.” Id. To

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adjudicate the factual challenge, the Court may review evidence beyond the complaint

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without converting the Rule 12(b)(1) motion into one for summary judgment. Savage v.

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Glendale Union High Sch., Dist. No. 205, Maricopa Cnty., 343 F.3d 1036, 1039 n.2 (9th
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Cir. 2003); David v. Giurbino, 488 F. Supp. 2d 1048, 1054 (S.D. Cal. 2007). Once the

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moving party makes a factual challenge by bringing evidence before the Court, the

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opposing party must furnish its own affidavits or other evidence to establish subject matter

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jurisdiction. Safe Air, 373 F.3d at 1039; Savage, 343 F.3d at 1039 n.2. Without assuming

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the truth of the complaint’s factual allegations, the Court nonetheless resolves factual

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disputes in favor of the non-moving party. Dreier v. United States, 106 F.3d 844, 847 (9th

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Cir. 1996); Farrah v. Monterey Transfer & Storage, Inc., 555 F. Supp. 2d 1055, 1067-68

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(N.D. Cal. 2008).

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Alternatively, in a facial challenge, the defendant asserts the insufficiency of the

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complaint’s allegations to invoke federal jurisdiction as a matter of law. Whisnant v.

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United States, 400 F.3d 1177, 1179 (9th Cir. 2005); Cross v. Pac. Coast Plaza Invs., L.P.,

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No. 6 CV 2543 JM (RBB), 2007 WL 951772, at *1 (S.D. Cal. Mar. 6, 2007). To adjudicate

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the facial challenge, the Court assumes the truth of the allegations in the complaint and

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draws all reasonable inferences in favor of the plaintiff. Whisnant, 400 F.3d at 1177; Wolfe

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v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004).

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II.

Rule 12(b)(6)

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Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the

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defense that the complaint “fail[s] to state a claim upon which relief can be granted,”

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generally referred to as a motion to dismiss. The Court evaluates whether a complaint

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states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil

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Procedure 8(a), which requires a “short and plain statement of the claim showing that the

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pleader is entitled to relief.”

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allegations,’ . . . it [does] demand more than an unadorned, the-defendant-unlawfully-

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harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, “a plaintiff’s obligation to

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provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and

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conclusions, and a formulaic recitation of the elements of a cause of action will not do.”

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Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). A

Although Rule 8 “does not require ‘detailed factual

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complaint will not suffice “if it tenders ‘naked assertion[s]’ devoid of ‘further factual

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enhancement.’” Iqbal, 556 U.S. at 677 (citing Twombly, 550 U.S. at 557).

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In order to survive a motion to dismiss, “a complaint must contain sufficient factual

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matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting

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Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible

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when the facts pled “allow the court to draw the reasonable inference that the defendant is

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liable for the misconduct alleged.” Iqbal, 556 U.S. at 677 (citing Twombly, 550 U.S. at

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556). That is not to say that the claim must be probable, but there must be “more than a

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sheer possibility that a defendant has acted unlawfully.” Id. Facts “‘merely consistent

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with’ a defendant’s liability” fall short of a plausible entitlement to relief. Id. (quoting

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Twombly, 550 U.S. at 557). Further, the Court need not accept as true “legal conclusions”

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contained in the complaint. Id. This review requires context-specific analysis involving

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the Court’s “judicial experience and common sense.”

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“[W]here the well-pleaded facts do not permit the court to infer more than the mere

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possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the

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pleader is entitled to relief.’” Id.

Id. at 678 (citation omitted).

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Where a complaint does not survive 12(b)(6) analysis, the Court will grant leave to

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amend unless it determines that no modified contention “consistent with the challenged

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pleading . . . [will] cure the deficiency.” DeSoto v. Yellow Freight Sys., Inc., 957 F.2d

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655, 658 (9th Cir. 1992) (quoting Schriber Distrib. Co. v. Serv-Well Furniture Co., 806

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F.2d 1393, 1401 (9th Cir. 1986)).

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ANALYSIS
I.

The Cherokee Nation’s Standing to Bring a Parens Patriae Action

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Plaintiff brings its claims as parens patriae on behalf of its citizens harmed by

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Defendants’ alleged conduct. Defendants challenge Plaintiff’s standing to bring a parens

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patriae civil action. Article III of the Constitution vests federal courts with the authority

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to hear “Cases” and “Controversies.” U.S. Const., art. III, § 2. “Standing to sue is a

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doctrine rooted in the traditional understanding of a case or controversy.” Spokeo, Inc. v.
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Robins, 136 S. Ct. 1540, 1547 (2016), as revised (May 24, 2016). “The doctrine limits the

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category of litigants empowered to maintain a lawsuit in federal court to seek redress for a

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legal wrong.” Id. (citations omitted). “[S]tanding jurisprudence contains two strands:

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Article III standing, which enforces the Constitution’s case-or-controversy requirement,

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and prudential standing,2 which embodies judicially self-imposed limits on the exercise of

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federal jurisdiction.” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004)

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(citation omitted), abrogated on other grounds by Lexmark Int’l, Inc. v. Static Control

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Components, Inc., 572 U.S. 118 (2014).

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One particular aspect of the standing doctrine is parens patriae3 standing. States or

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Indian nations asserting parens patriae standing must establish Article III standing and

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meet the “unique requirements” of the parens patriae doctrine. Missouri ex rel. Koster v.

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Harris, 847 F.3d 646, 651 (9th Cir. 2017) (citing Table Bluff Reservation (Wiyot Tribe) v.

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Philip Morris, Inc., 256 F.3d 879, 885 (9th Cir. 2001)). Generally, there are two elements

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to establish standing to bring a parens patriae claim. First, “the State must articulate an

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interest apart from the interests of particular private parties, i.e., the State must be more

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than a nominal party.” Id. (quoting Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel.

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Barez, 458 U.S. 592, 607 (1982) (“Snapp”)). Second, “[t]he State must express a quasi-

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sovereign interest.” Id. (alteration in original) (quoting Snapp, 458 U.S. at 607).
A. Parties’ Arguments

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Defendants advance three arguments why Plaintiff does not have parens patriae

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standing.4 First, the Cherokee Nation does not have a quasi-sovereign interest because the

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Prudential standing is not derived from Article III and encompasses at least three broad principles: “the
general prohibition on a litigant’s raising another person’s legal rights, the rule barring adjudication of
generalized grievances more appropriately addressed in the representative branches, and the requirement
that a plaintiff’s complaint fall within the zone of interests protected by the law invoked.” Lexmark Int’l,
Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1386 (2014) (quoting Elk Grove Unified Sch.
Dist. v. Newdow, 542 U.S. 1, 12 (2004)).
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“Parens patriae means literally ‘parent of the country.’” Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex
rel., Barez, 458 U.S. 592, 600 (1982) (footnote omitted).
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Defendants also contend that Plaintiff fails to meet the Article III standing requirements to the extent
that the Cherokee Nation purchased tuna in its proprietary capacity. (MTD 18–19.) Plaintiff’s Opposition
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alleged price fixing at issue in this case does not have anything to do with the health, safety,

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or welfare of the Cherokee Nation, nor is there sufficient allegations concerning protecting

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the Cherokee Nation’s economy. (See MTD 15–16.)5 Second, Defendants contend that

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the Cherokee Nation cannot assert parens patriae claims under the law of other states

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because it cannot bring claims under those states’ laws. (See id. at 17.) Third, the Cherokee

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Nation has not alleged injury to a substantial segment of their population. (See id. at 17–

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18.)

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Plaintiff contends that it does not need to meet the two requirements—interest apart

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from private parties and quasi-sovereign interest—for parens patriae standing. (Opp’n

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17.) Instead, Plaintiff argues that the Cherokee Constitution and Cherokee Code creates

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the requisite parens patriae standing. (Id. (citing 51 CNCA § 105.B.14 (2015); 12 CNCA

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§ 13); and Washington v. Chimei Innolux Corp., 659 F.3d 842, 847 (9th Cir. 2011)).)

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Plaintiff also contends that the Clayton Act provides statutory parens patriae authority and

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therefore does not require it to assert “quasi-sovereign or proprietary interests.” (Id. at 19

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(quoting Pennsylvania v. Mid-Atl. Toyota Distribs., Inc., 704 F.2d 125, 129–30, 132 (4th

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Cir. 1983)).) Instead, Plaintiff cites Burch v. Goodyear Tire & Rubber Co., 554 F.2d 633,

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635 (4th Cir. 1977), for the proposition that its Attorney General has authority to bring a

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parens patriae claim under federal antitrust law for non-monetary relief. (Opp’n 18.)

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brief does not discuss proprietary standing. (See generally Opp’n.) At oral argument, Plaintiff cited
paragraphs 339, 344, 354, 364, 369, and 376 of its amended Complaint, which address the purported harm
to Cherokee businesses. (See ECF No. 1321, at 18.) These paragraphs state the following allegation:
“Plaintiff purchased Packaged Tuna within the State of California,” (FAC ¶ 339), but change each state
in each cause of action, e.g., “Plaintiff purchased Packaged Tuna within the State of Kansas,” (id. ¶ 344).
These allegations provide no factual detail beyond such conclusory and vague statements. Furthermore,
proprietary standing is appropriate when a state itself has proprietary interests, such as “own[ing] land or
participat[ing] in a business venture.” Snapp, 458 U.S. at 602. Plaintiff has not alleged any facts that, for
example, the Cherokee Nation itself participated in any business venture harmed by Defendants’ conduct.
Therefore, Plaintiff’s proprietary claims must fail. To the extent Plaintiff’s vague allegations constitute
proprietary causes of action the Court GRANTS IN PART Defendants’ motion and DISMISSES
WITHOUT PREJUDICE those claims.
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Pin citations to docketed material refer to the CM/ECF page numbers electronically stamped at the top
of each page.
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In the alternative, Plaintiff states that it has alleged the requisite harm to its

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population, as well as expressed a quasi-sovereign interest in the economic well-being of

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its citizens. (Id. at 18 (citing FAC ¶¶ 10, 340, 350, 355, 360, 365, 370, 376; and New York

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ex rel. Spitzer v. Saint Francis Hosp., 94 F. Supp. 2d 399, 420 (S.D.N.Y. 2000)).)

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In reply, Defendants argue Plaintiff confuses Article III standing with statutory

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standing. (Reply 5.) Defendants assert that Snapp’s parens patriae requirements reflect

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Article III standing requirements, rather than requirements that can be replaced by

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Congress. (Id.) They would distinguish Plaintiff’s cases; Chimei Innolux required a quasi-

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sovereign interest, despite Plaintiff’s characterization of Chimei Innolux as relieving

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Plaintiff of such a requirement. (See id. at 5–6.) Next, Burch only stands for the

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proposition that state attorneys general have authority to proceed parens patriae in suits

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for injunctive relief under section 16 of the Clayton Act, but does not relieve them of the

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parens patriae requirements. (Id. at 6.) Finally, Defendants contend that Mid-Atlantic

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Toyota is distinguishable solely because it is a 35-year-old out-of-circuit case that is

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contrary to binding authority. (Id.) Defendants reiterate their earlier position that Snapp

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applies and Plaintiff cannot meet the Snapp requirements. (See id. at 6–7.)

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A. Parens Patriae Standing Under the Antitrust Improvements Act

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The parties differ sharply on whether Plaintiff’s parens patriae standing

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requirements are constitutional or prudential. If the requirements are prudential then

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Congress generally can expand standing to reach the full limits of Article III.

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Gladstone, Realtors v. Vill. of Bellwood, 441 U.S. 91, 100 (1979) (citing Warth v. Seldin,

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422 U.S. 490, 501 (1975)). Thus, if Congress has modified the standing requirements then

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Plaintiff would no longer need to meet the parens patriae standing test articulated by the

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Supreme Court in Snapp. For reasons discussed in more depth below the line,6 the Court

See

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Article III and prudential standing are distinct concepts; prudential standing is a judicially crafted
doctrine and does not derive from Article III. See Lexmark Int’l, 134 S. Ct. at 1386 (discussing prudential
standing doctrine). Some courts have determined that the parens patriae standing requirements are
prudential and not rooted in Article III. See Massachusetts v. EPA, 549 U.S. 497, 540 n.1 (2007) (Roberts,
C.J., dissenting); In re Elec. Books Antitrust Litig., 14 F. Supp. 3d 525, 535 (S.D.N.Y. 2014) (“[S]o long
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assumes without deciding that parens patriae standing is prudential and not constitutional.

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The Court makes this assumption because, as will be seen, Plaintiff cannot meet the

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applicable prudential standing requirements for the various causes of action alleged.

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Plaintiff argues two sources of authority extend its standing to the fullest extent of Article

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III: the Hart-Scott-Rodino Antitrust Improvements Act of 1976 and Cherokee Nation law.

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The Court discusses each in turn.

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In 1976, Congress passed and President Ford signed into law the Hart-Scott-Rodino

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Antitrust Improvements Act, 90 Stat. 1394, 15 U.S.C. § 15c et seq. The Act created a new

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right of action for States under existing federal antitrust law. Mid-Atl. Toyota Distribs.,

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704 F.2d at 128 (citing Reiter v. Sonotone Corp., 442 U.S. 330, 344 n.7 (1979)). The Act

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provides that an “attorney general of a State7 may bring a civil action in the name of such

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as [the States] have shown they have standing under Article III, the standing inquiry is at an end.”); New
York v. Microsoft Corp., 209 F. Supp. 2d 132, 149 (D.D.C. 2002).
On the other hand, Defendants direct the Court to dicta in Snapp where the Supreme Court stated,
“[f]ormulated so broadly, the concept [of quasi-sovereign interest] risks being too vague to survive the
standing requirements of Art. III: A quasi sovereign interest must be sufficiently concrete to create an
actual controversy between the State and the defendant.” 458 U.S. at 602. This might suggest that parens
patriae is rooted in Article III, but the language does not clearly hold that parens patriae is a constitutional
consideration. Given the Supreme Court’s language and this Court’s finding that Plaintiff is not bringing
a claim under the statutory parens patriae section, 15 U.S.C. § 15c, it is sufficient to assume without
deciding that parens patriae standing is prudential, not constitutional in nature.
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One issue mentioned in the parties’ footnotes is whether the Nation’s Attorney General falls within the
definition of State attorney general for purposes of § 15c. The definition section, 15 U.S.C. § 15g, defines
“State attorney general” as the “chief legal officer of a State.” § 15g(1). The statute then defines “State”
as a “State, the District of Columbia, the Commonwealth of Puerto Rico, and any other territory or
possession of the United States.” § 15g(2). The statute does not explicitly mention Indian nations.
Plaintiff directs the Court to an unreported district court opinion for the proposition that the United States
holds title to the land in trust on behalf of the Cherokee Nation and therefore the Nation should be
considered a possession of the United States. (Opp’n 18 n.9 (citing Buzzard v. Okla. Tax Comm’n, 1992
U.S. Dist. LEXIS 22864, at *7–8 (N.D. Okla. Mar. 3, 1992)).)
The Court is not persuaded that holding title to land translates to the Cherokee Nation being a
possession under the federal antitrust statute. In Wilson v. Marchington, the Ninth Circuit discussed two
Supreme Court decisions relating to whether Indian nations are territories or possession—the cases have
diverging conclusions. See 127 F.3d 805 (9th Cir. 1997). In United States ex rel. Mackey v. Coxe, 59
U.S. (18 How.) 100, 103–04 (1855), the Supreme Court “held the Cherokee nation was a territory as that
term was used in a federal letters of administration statute.” Wilson, 127 F.3d at 808. By contrast, in New
York ex rel. Kopel v. Bingham, 211 U.S. 468, 474–75 (1909), the Court cited with approval a district court
opinion that held the Cherokee Nation was not a “territory” under the federal extradition statute. Wilson,
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State, as parens patriae on behalf of natural persons residing in such State, in any district

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court of the United States having jurisdiction of the defendant, to secure monetary relief as

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provided in this section for injury sustained by such natural persons to their property by

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reason of any violation of sections 1 to 7 of this title.” 15 U.S.C. § 15c(a)(1) (emphasis

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added).

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Thus, Congress has expressly authorized state attorneys general to bring suit under

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the Antitrust Improvements Act and Plaintiff need not demonstrate prudential standing, so

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long as it brings a claim for monetary relief under § 15c. But here is the critical point:

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Plaintiff does not bring an action under § 15c. Its amended Complaint clearly states that it

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only seeks injunctive relief under the Sherman Act, (FAC ¶ 252); § 15c only allows

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monetary relief. To the extent it seeks monetary relief, Plaintiff does so under Cherokee

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Nation law. (Id., Prayer for Relief, ¶ b.) Logically, Plaintiff cannot rely on § 15c to provide

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standing when it has no claim under that section.

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Nonetheless, the Nation argues that the Antitrust Improvements Act, codified in

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§ 15c, provides standing to bring a non-monetary, i.e., injunctive, relief claim. (See Opp’n

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18–19.) Plaintiff’s reading of the law in incorrect. The Antitrust Improvements Act did

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not amend section 16 of the Clayton Act, codified at 15 U.S.C. § 26, which provides a

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private cause of action for injunctive relief. The plain language of the § 15c only mentions

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monetary—not injunctive—relief. Section 15c only created a new procedural means—the

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parens patriae civil action—through which a State could enforce already existing rights of

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127 F.3d at 808. In Wilson, the Ninth Circuit declined to extend full faith and credit to tribal court
decisions because the court construed the term “territory or possession of the United States” in 28 U.S.C.
§ 1738 to not include Indian tribes. Id. at 809. At oral argument, Plaintiff maintained that Coxe is on
point for the issue whether the Cherokee Nation is a territory or possession. (ECF No. 1321, at 14.) Coxe’s
applicability to the federal antitrust statute is far from certain, especially in light of the reasoning in
Bingham and Wilson.
The Court notes that should Plaintiff amend its complaint to rely on 15 U.S.C. § 15c it will likely
need to more thoroughly discuss this issue. Because Plaintiff does not explicitly rely on § 15c, the Court
will proceed with its analysis, assuming that Plaintiff could eventually demonstrate it has standing under
§ 15c.
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recovery under section 4 of the Clayton Act. See Ill. Brick v. Illinois, 431 U.S. 720, 733

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n.14 (1977).

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Plaintiff cites dicta in Burch, where the Fourth Circuit said that “the congressional

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intent regarding the Hart-Scott-Rodino Antitrust Improvements Act of 1976 disclosed

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congressional recognition that state attorneys general suing as parens patriae clearly have

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standing to seek injunctive relief under Section 16 of the Clayton Act.” 554 F.2d at 635

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(citations omitted). The Burch court’s statement did not hold that § 15c extends to

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injunctive relief, but merely recognized that the Supreme Court already allowed parens

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patriae actions for injunctive relief under section 16, id. at 635 n.3 (citing Georgia v. Pa.

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R.R., 324 U.S. 439 (1945)), and the Act did not disturb the Supreme Court’s holding. Thus,

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the Antitrust Improvement Act, 15 U.S.C. § 15c, does not supply the requisite standing for

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Plaintiff to request injunctive relief.

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B. Parens Patriae Standing Under Cherokee Nation Law

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The Cherokee Nation advances a second ground by which it has standing to assert a

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parens patriae action under both federal and state law without meeting the Snapp test. It

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argues that the Nation’s Attorney General has authority to initiate a civil action on behalf

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of the citizens of the Cherokee Nation under 51 CNCA § 105.B.28 and under the Cherokee

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Constitution, Article VII, § 13, which authorizes the Attorney General to represent the

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Nation in all civil actions “wherein the Cherokee Nation is named as a party.” (Opp’n 17.)

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Plaintiff also argues the Cherokee Nation Attorney General has standing to bring a parens

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Plaintiff’s Opposition brief cites to 12 CNCA § 13 and 51 CNCA § 105.B.14 as providing the requisite
statutory standing. These citations to the Cherokee Nation Code do not appear to be correct. For example,
12 CNCA § 13 concerns the tolling of the limitations period for minors or incompetents. 51 CNCA
§ 105.B.14 provides the Attorney General with authorization to prosecute all civil and criminal actions
against or within the jurisdiction of the Cherokee Nation. The Court believes title 51, section 105.B.2 is
the appropriate citation, which authorizes the Attorney General to “initiate or appear . . . in any action in
which the interests of the Nation or the People of the Nation are at issue.” If Plaintiff cites Cherokee
Nation Code going forward in this litigation, it should provide a copy of the relevant section, either by
reference or judicial notice, for the Court. The Code is not available on the commercial reporters and the
Cherokee Nation’s website only contains a copy of the Code from 2015.
8

11
15-MD-2670 JLS (MDD)

1

patriae civil action under the laws of other states. (Id. at 31.) To that end, recently enacted

2

Cherokee Nation law provides that:

3

The Cherokee Nation Attorney General acting as parens patriae,
may bring a civil cause of action in any district court of the
United States . . . having jurisdiction over a defendant, to secure
monetary or injunctive relief based on any applicable federal
statute, common law, or the laws of any state.

4
5
6
7

12 CNCA § 7 (2018) (emphasis added). Similarly, 51 CNCA § 105.B.2 authorizes the

8

Attorney General to “initiate or appear . . . in any action in which the interests of the Nation

9

or the People of the Nation are at issue.” Thus, the issue is whether these constitutional

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

and statutory sections allow the Cherokee Nation to displace the general rule articulated in
Snapp.
The Court reads the foregoing Cherokee Nation provisions as authorizing the
Attorney General to bring a suit under applicable substantive law, whether federal or state.
That is half the equation; the other half is what constitutes “applicable” law. Can the
Cherokee Nation Attorney General bring suit as if he is the Kansas attorney general simply
because Cherokee Nation law authorizes parens patriae but the Kansas legislature does not
explicitly do so? Plaintiff cites no authority for such a proposition. The proper inquiry is
whether the Nation’s Attorney General is within the scope of the cause of action authorized
by Congress or a state legislature. See D.R. Ward Const. Co. v. Rohm & Haas Co., 470 F.
Supp. 2d 485, 495 (E.D. Pa. 2006) (noting that “the concept of prudential standing in the
antitrust context is intertwined with the substantive content of and intent behind the
particular statute authorizing the cause of action”).
In sum, it is not enough that Cherokee Nation law authorizes the Attorney General
to bring suit; the Nation must also demonstrate that it meets the prudential standing
requirements of the state or federal substantive law in question, i.e., that it is within the
class of persons who can sue under a statute. The Court will shortly discuss Plaintiff’s
standing under section 16 of the Clayton Act, see infra section I.C, to request declaratory

28
12
15-MD-2670 JLS (MDD)

1

relief, see infra section I.D, and standing under various state substantive law, see infra

2

section II.

3

C. Parens Patriae Standing Under Section 16 of the Clayton Act

4

Plaintiff’s amended Complaint seeks injunctive relief for violation of section 1 of

5

the Sherman Act. (FAC ¶ 252.) Injunctive relief is governed by section 16 of the Clayton

6

Act, which provides “[a]ny person, firm, corporation, or association shall be entitled to sue

7

for and have injunctive relief, in any court of the United States having jurisdiction over the

8

parties, against threatened loss or damage by a violation of the antitrust laws.” 15 U.S.C.

9

§ 26.

10

1. The Parties’ Arguments

11

Defendants state that Plaintiff’s only federal claim is for an injunction under the

12

Sherman Act. (MTD 22 (citing FAC Prayer for Relief, ¶ d; id. ¶¶ 247–52).) Defendants

13

contend that Plaintiff has failed to state a claim such that the Court does not have subject

14

matter jurisdiction. Defendants also point out that this Court previously dismissed identical

15

claims made by other plaintiffs in this MDL for failing to “plead facts that plausibly

16

establish the continuing risk of threatened injury.” (Id. (citing In re Packaged Seafood

17

Prod. Antitrust Litig., No. 15-2670, 2017 WL 35571, at *12 (S.D. Cal. Jan. 3, 2017); and

18

In re Packaged Seafood Prod. Antitrust Litig., 277 F. Supp. 3d 1167, 1176 (S.D. Cal.

19

2017)).) They argue that Plaintiff, like the plaintiffs in the previous orders, have pleaded

20

no facts supporting an ongoing conspiracy and to the extent Plaintiff has pleaded facts, the

21

facts are inconsistent with an ongoing conspiracy or any real or immediate threat of harm

22

in the future. (Id. at 11–12 (citing FAC ¶¶ 2, 252).) Defendants conclude that Plaintiff’s

23

sole federal claim is defective and urge the Court to dismiss the entire complaint for lack

24

of subject matter jurisdiction. (Id. at 12.)

25

Plaintiff argues that jurisdictional dismissal is warranted only “where the alleged

26

claim under the Constitution or federal statutes clearly appears to be immaterial and made

27

solely for the purpose of obtaining jurisdiction or where such a claim is wholly

28

insubstantial and frivolous.” (Opp’n 12 (quoting Bell v. Hood, 327 U.S. 678, 682–83
13
15-MD-2670 JLS (MDD)

1

(1946)).) Plaintiff would apply Hood in this case because the Court’s prior rulings

2

determined that claims similar to Plaintiff’s claims were not frivolous. (Id. at 13 (citing

3

ECF Nos. 283, 295, 492).) Plaintiff advances a second argument; that injunctive relief is

4

appropriate to eliminate the “lingering effects” of illegal conduct. (Id. (quoting In re

5

Multidistrict Vehicle Air Pollution, 538 F.2d at 234).) Plaintiff avers that this Court’s

6

previous rulings should not apply here because Plaintiff has plausibly alleged lingering

7

effects from which Defendants continue to benefit. (Id. (citing FAC ¶¶ 131–33).)

8

Defendants respond that they only seek dismissal of Plaintiff’s injunctive relief

9

claim because the Nation fails to plead facts to support a claim. (Reply 2.) That is, they

10

do not seek dismissal on jurisdictional grounds; thus Bell v. Hood and its progeny are

11

inapplicable. (Id.)

12

2. Parens Patriae Standing for Injunctive Relief

13

Thus far in the analysis, Plaintiff’s federal antitrust claim has not cleared the first

14

hurdle—standing. Is § 15c sufficient to confer standing for injunctive relief? The answer

15

is no. Does Cherokee Nation law confer standing: yes, but only if the substantive law in

16

question, state or federal, allows standing by a parens patriae plaintiff. This section deals

17

with the question of whether Plaintiff may proceed with a federal antitrust injunctive relief

18

claim under parens patriae standing.

19

The Supreme Court’s decisions, in particular Georgia v. Pennsylvania Railroad and

20

Snapp, demonstrate that a parens patriae plaintiff must meet the two-part test outlined in

21

Snapp. In Pennsylvania Railroad, the state of Georgia alleged that twenty railroad

22

companies conspired to fix freight rates in violation of federal antitrust laws. See 324 U.S.

23

at 443–44. Georgia brought suit in its capacity as quasi-sovereign, i.e., parens patriae, and

24

in its proprietary capacity seeking both damages and injunctive relief. Id. at 443. The

25

Supreme Court surveyed the relevant authority to determine whether Georgia could

26

maintain the action under the Court’s original jurisdiction. See id. at 447–50 (citing, e.g.,

27

Pennsylvania v. West Virginia, 262 U.S. 553 (1923); Georgia v. Tenn. Copper Co., 206

28

U.S. 230 (1907); and Kansas v. Colorado, 206 U.S. 46 (1907)). The Court held that
14
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1

“Georgia may maintain this suit as parens patriae acting on behalf of her citizens.” Id. at

2

450. And, the Court also determined that Georgia stated a claim for injunctive relief under

3

section 16 of the Clayton Act. See id. at 460–62.

4

More than thirty years later, the Court revisited the requirements for parens patriae

5

in Snapp. The question presented was whether Puerto Rico could maintain a parens patriae

6

action seeking injunctive and declaratory relief based on harm to migrant workers who had

7

been recruited to work an apple harvest in the continental United States. See Snapp, 458

8

U.S. at 597–99. The Court again reviewed the line of cases permitting a parens patriae

9

action, focusing on the same authorities discussed in Pennsylvania Railroad, as well as the

10

holding of Pennsylvania Railroad itself. See id. at 600–06. The conclusion is worth

11

quoting:

12
13
14
15

This summary of the case law involving parens patriae actions
leads to the following conclusions. In order to maintain such an
action, the State must articulate an interest apart from the
interests of particular private parties, i.e., the State must be more
than a nominal party. The State must express a quasi-sovereign
interest.

16
17

Id. at 607. The upshot of Pennsylvania Railroad, Snapp, and similar cases is clear; where

18

a sovereign seeks to maintain a parens patriae action under section 16 of the Clayton Act,

19

it must meet the requirements outlined in Snapp.

20

This view was implicitly recognized by a district court considering similar issues in

21

New York v. Microsoft Corp., 209 F. Supp. 2d 132 (D.D.C. 2002). There, the United States

22

and several individual States filed suit against Microsoft alleging antitrust violations. Id.

23

at 136. Microsoft argued that the States did not meet the standing requirements under

24

section 16 of the Clayton Act to bring a parens patriae action. Id. at 150. In making this

25

argument, Microsoft proposed a rule that a state alleging a parens patriae action must

26

establish it is seeking to remedy some state-specific injury and must distinguish the injury

27

to its citizenry from the injury shared in common by all citizens of the United States. Id.

28

at 151. The court rejected this proposed rule relying on Snapp and Pennsylvania Railroad.
15
15-MD-2670 JLS (MDD)

1

Id. Instead, the court found the plaintiff States had standing because they had proven a

2

significant harm to their citizens:

7

It cannot, therefore, be said that this is a case where the “primary
thrust of an alleged wrong is injury to a narrowly limited class of
individuals, and the harm to the economy as a whole is
insignificant by comparison.” At a minimum, this is a case
where “the direct impact of the alleged wrong [is] felt by a
substantial majority, though less than all, of the state’s citizens,
so that the suit can be said to be for the benefit of the public.”

8

Id. at 152 (alteration in original) (quoting Pennsylvania ex rel. Shapp v. Kleppe, 533 F.2d

9

668, 675 (D.C. Cir. 1976)).

3
4
5
6

10

This Court sees no reason to depart from the general rule articulated in Snapp.

11

Plaintiff must demonstrate the parens patriae standing requirements outlined in Snapp to

12

bring a section 16 claim.

13

3. Applying Snapp’s Framework to Plaintiff’s Amended Complaint

14

Because section 16 does not explicitly confer Plaintiff standing to bring an injunctive

15

relief claim, Plaintiff must demonstrate it meets the standing requirements outlined by the

16

Supreme Court in Snapp. See 458 U.S. at 607. Defendants argue that the Cherokee Nation

17

has not alleged injury to a sufficiently substantial segment of its population. (MTD 17.)

18

Plaintiff argues that it has sufficiently alleged a quasi-sovereign interest in the economic

19

well-being of its citizens and has alleged such harm to its population. (Opp’n 18.)

20

The Court agrees with Defendants. While the Supreme Court “has not attempted to

21

draw any definitive limits on the proportion of the population of the State that must be

22

adversely affected by the challenged behavior,” the Court does require that “more must be

23

alleged than injury to an identifiable group of individual residents.” Snapp, 458 U.S. at

24

607. Plaintiff’s amended Complaint alleges that its citizens, “indirect purchasers of

25

Packaged Tuna, have overpaid for Packaged Tuna as a direct result of Defendants’

26

conspiracy and conduct.”

27

overcharged end payers, who made purchases of Defendants’ Packaged Tuna in California

28

at prices that were more than they would have been but for Defendants’ actions); ¶¶ 345,

(FAC ¶ 10; see also id. ¶ 340 (“Defendants unlawfully

16
15-MD-2670 JLS (MDD)

1

350, 355, 365, 370, 376 (copying allegation in paragraph 340 and changing the name of

2

the relevant state).) The allegations do not describe in any further depth the proportion or

3

magnitude of the injury to the Cherokee Nation.

4

One could imagine a case where the line between a significant proportion and an

5

insignificant proportion of a population is a close call. This is not one of those cases. The

6

Court cannot adjudicate whether Plaintiff has alleged injury to a significant proportion of

7

its population because Plaintiff has not alleged facts about any proportion of its population.

8

Rather, Plaintiff states, in conclusory fashion, that its citizens “have overpaid for Packaged

9

Tuna.” (Id. ¶ 10.) In an effort to fend off this conclusion, Plaintiff argues that it cannot

10

allege with more specificity the magnitude of the injury or the number of citizens injured

11

because of Defendants’ fraudulent concealment of their anticompetitive scheme. (Opp’n

12

18 n.8 (citing FAC ¶¶ 231–46).) Those fraudulent concealment allegations concern actions

13

by Defendants to conceal their own activities; such activities do not prevent Plaintiff from

14

gathering and alleging information about its own population. If Plaintiff cannot explain

15

how Defendants have injured a significant portion of the Cherokee Nation then perhaps the

16

proper recourse is for individual consumers to join putative class actions against

17

Defendants or bring their own claims.

18

By way of comparison, in the Microsoft case, the district court found that “millions

19

of citizens of, and hundreds, if not thousands, of enterprises in each of the United States

20

and the District of Columbia utilize PCs running on Microsoft software.” 209 F. Supp. 2d

21

at 152 (quoting United States v. Microsoft Corp., 87 F. Supp. 2d 30, 55 (D.D.C. 2000)).

22

The court went on to state, “[a]t a minimum, this is a case where ‘the direct impact of the

23

alleged wrong [is] felt by a substantial majority, though less than all, of the state’s citizens,

24

so that the suit can be said to be for the benefit of the public.’” Id. (second alteration in

25

original) (quoting Kleppe, 533 F.2d at 675). Here, we do not have similar information that

26

would demonstrate injury to the Cherokee Nation’s citizens.

27

The Court does not determine whether Plaintiff has a quasi-sovereign interest

28

because Plaintiff’s amended Complaint fails the first element of the Snapp standing test.
17
15-MD-2670 JLS (MDD)

1

The Court finds Plaintiff fails to meet its burden to demonstrate it has standing to bring an

2

injunctive relief claim under federal antitrust law.

3

D. Parens Patriae Standing Under the Declaratory Relief Act

4

Plaintiff also contends that this Court has jurisdiction to hear its claims under the

5

Sherman Act because it seeks declaratory relief. (Opp’n 13 (citing FAC Prayer for Relief

6

¶ a).) To that end, Plaintiff cites several cases where courts have held that a declaratory

7

relief action under the Sherman Act is sufficient to provide federal question jurisdiction.

8

(Id. at 14 (citing, e.g., S. Side Theatres, Inc. v. United W. Coast Theatres Corp., 178 F.2d

9

648, 651 (9th Cir. 1949)).) Plaintiff urges the Court to find subject matter jurisdiction

10

based on its declaratory relief claim.

11

Defendants respond that a declaratory relief claim must satisfy Article III’s standing

12

requirements. (Reply 2 (citing, e.g., Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d

13

1134, 1138 (9th Cir. 2000) (en banc)).) They assert Plaintiff does not meet the requirement

14

because Plaintiff fails to plead an ongoing conspiracy and the cases Plaintiff cites all

15

involved a party to an ongoing agreement. (Id. at 2–3.) Defendants also contend that

16

Article III requires ripeness and a declaratory action must raise “a substantial

17

controversy, . . . . of sufficient immediacy and reality to warrant the issuance of a

18

declaratory judgment.” (Id. at 3 (emphasis omitted) (quoting In re Coleman, 560 F.3d

19

1000, 1005 (9th Cir. 2009)).) Defendants argue that Plaintiff has not plead immediacy here

20

because the amended Complaint does not plausibly plead an ongoing conspiracy. (See id.)

21

A court may grant declaratory relief “[i]n a case of actual controversy within its

22

jurisdiction.” 28 U.S.C. § 2201(a). Accordingly, a district court must determine at the

23

outset whether the parties have presented an actual case or controversy within the court’s

24

jurisdiction. Principal Life Ins. Co. v. Robinson, 394 F.3d 665, 669 (9th Cir. 2005). The

25

Declaratory Judgment Act is a “procedural device only; it does not confer an independent

26

basis of jurisdiction on the federal court.” Guaranty Nat’l Ins. Co. v. Gates, 916 F.2d 508,

27

511 (9th Cir. 1990) (citing, e.g., Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667,

28

671–72 (1950)). “A declaratory judgment action may be entertained in federal court only
18
15-MD-2670 JLS (MDD)

1

if the coercive action that would have been necessary, absent the declaratory judgment

2

procedure, could have been heard in a federal court.” Id.; see also Morongo Band of

3

Mission Indians v. Cal. State Bd. of Equalization, 858 F.2d 1376 1382–83 (9th Cir. 1988)

4

(“The Declaratory Judgment Act merely creates a remedy in cases otherwise within the

5

court’s jurisdiction; it does not constitute an independent basis for jurisdiction.” (citing

6

Fiedler v. Clark, 714 F.2d 77, 79 (9th Cir. 1983) (per curiam)).

7

Declaratory relief is a remedy and does not modify standing requirements. In order

8

for Plaintiff to seek declaratory relief, it must still meet the parens patriae requirements

9

outlined in Snapp. Indeed, the respondent in Snapp “sought declaratory relief with respect

10

to the past practices of petitioners” and the Court applied the two-part test to the declaratory

11

relief claim. 458 U.S. at 598–99. As previously discussed, Plaintiff has not alleged an

12

interest apart from the interest of private parties. See id. at 607; supra section I.C.3. Thus,

13

Plaintiff does not have standing under the Sherman and Clayton Acts, as currently pled.

14

The Court finds that Plaintiff does not have standing to seek declaratory relief.

15

Plaintiff has no basis for standing under the Sherman Act. Accordingly, the Court

16

GRANTS IN PART Defendants’ Motion and DISMISSES WITHOUT PREJUDICE

17

Plaintiff’s first cause of action under the Sherman Act.

18

E. Parens Patriae Standing Under Laws of Other States

19

Plaintiff brings substantive claims not just under 15 U.S.C. § 1, but also under the

20

laws of several states, including California, Kansas, Arizona, Colorado, New Mexico,

21

Oklahoma, Florida and the Cherokee Nation’s own laws. This raises, as previously

22

discussed, the issue of whether the Cherokee Nation’s Attorney General needs

23

authorization to bring a parens patriae claim under the laws of other states. The Court

24

briefly discusses the relevance of this section; Plaintiff’s sole federal question claim has

25

been dismissed. Therefore, the Court must determine whether to exercise supplemental

26

jurisdiction over Plaintiff’s remaining State and Indian law claims. Before doing so, the

27

Court analyzes whether Plaintiff can bring any claim under State law.

28
19
15-MD-2670 JLS (MDD)

1

Defendants argue that California, Oklahoma, Colorado, and Florida law only allow

2

parens patriae actions pursuant to statutory grants of authority and the relevant authority

3

in each state only allows that state’s attorney general to bring a claim under state law.

4

(MTD 17.) As to the remaining states—Kansas, Arizona, and New Mexico—Defendants

5

cite California v. Infineon Technologies AG, 531 F. Supp. 2d 1124, 1165–66 (N.D. Cal.

6

2007), for the proposition that courts dismiss claims under state law when the plaintiff

7

cannot supply state authority that “expressly authorizes” a state attorney general to bring a

8

parens patriae claim. (MTD 17.) Defendants contend that the Cherokee Nation cannot

9

point to any such authority. (Id.)

10

As discussed, Plaintiff argues that the Cherokee Nation’s Attorney General has

11

statutory authority to bring a parens patriae action on behalf of all Nation citizens. (Opp’n

12

19.) It acknowledges that the Nation does not seek to represent its citizens of other states,

13

but the Nation would represent citizens who reside in other states and hold dual citizenship

14

with both the Cherokee Nation and the state in which they reside. (Id. at 20.) Plaintiff

15

advances two arguments concerning Infineon. First, Infineon held that if there is legal

16

authority in a state that expressly authorized a parens patriae action, then courts presume

17

the existence of such authority, and, here, the Cherokee Nation Attorney General has such

18

authorization under Cherokee Nation law. (Id. (citing Infineon, 531 F. Supp. 2d at 1165);

19

see also id. at 31 (citing 12 CNCA § 7).) Second, at oral argument, Plaintiff maintained

20

that Infineon does not apply because it was generally discussing California’s Cartwright

21

Act. (ECF No. 1321, at 16.)

22

Defendants respond by arguing Plaintiff ignores Infineon’s reasoning that prohibits

23

foreign attorneys general from bringing claims under the laws of states that limit parens

24

patriae authority to their own attorneys general. (Reply 5 (citing Infineon, 531 F. Supp. 2d

25

at 1133, 1140).)

26

1. California

27

Plaintiff’s second cause of action is for violation of the California Cartwright Act,

28

which is the State’s antitrust statute. (FAC ¶ 254.) The Act specifically authorizes the
20
15-MD-2670 JLS (MDD)

1

California Attorney General to bring suit on behalf of the people of California. See Cal.

2

Bus. & Prof. Code § 16760(a)(1) (“The Attorney General may bring a civil action in the

3

name of the people of the State of California, as parens patriae on behalf of natural persons

4

residing in the state, . . . .”). As the Infineon court observed,

5
6
7
8

This provision could not be plainer: where the Attorney General
is empowered to bring a damages action seeking relief for
violation(s) of the Cartwright Act, it is only the California
Attorney General who is so empowered, and on behalf of
California residents only. The out-of-state Attorneys General
therefore have no parens patriae authority under the Act.

9
10

531 F. Supp. 2d at 1133.

11

The Court agrees with the Infineon court; the plain language of the Cartwright Act

12

belies no statutory authorization for a foreign attorney general to bring a parens patriae

13

suit under California antitrust law. The plain language of the statute only discusses a

14

singular attorney general, i.e., the attorney general. This is different from statutory

15

language that authorizes multiple attorneys general. Cf. 15 U.S.C. § 15c (“Any attorney

16

general of a State . . . .”). Thus, only the California Attorney General can bring suit under

17

section 16760.

18

Plaintiff argues that it is not bringing a claim under California Business and

19

Profession Code § 16760, but is instead bringing a claim under § 16570(a), which supplies

20

a cause of action to “any person” who is injured. (Opp’n 30.) Thus, the Cherokee Nation

21

seeks to represent those persons, living in California, but having dual citizenship with the

22

Cherokee Nation, who would have a cause of action under § 16570(a).

23

This is an interesting argument considering dicta in the Supreme Court’s opinion in

24

Standard Oil, states: “Hawaii plainly qualifies as a person under both sections [4 and 16]

25

of the [Clayton Act], whether it sues in its proprietary capacity or as parens patriae.” 405

26

U.S. at 261 (citing Pa. R.R., 324 U.S. at 447). The issue then becomes, does this reasoning

27

extend to California law? The Infineon court said no. There, the court reasoned that the

28

California legislature provided a parens patriae cause of action in § 16760, which only
21
15-MD-2670 JLS (MDD)

1

authorized the California attorney general to bring such a claim. 531 F. Supp. 2d at 1132–

2

33. This Court thinks such reasoning sound. The California legislature clearly provided a

3

parens patriae cause of action under § 16760. It would not make sense for it to create the

4

same cause of action, sub silentio, in § 16570. Or, at least, the Court cannot assume the

5

legislature did so without some authority saying as much, which Plaintiff has not provided.

6

Accordingly, the Court finds Plaintiff has no standing to bring a parens patriae claim for

7

violation of the California Cartwright Act.

8

Plaintiff also brings a cause of action under California’s Unfair Competition Law,

9

Cal. Bus. & Prof. Code § 17200, et seq. (FAC ¶ 260.) Like the Cartwright Act, the Unfair

10

Competition Law authorizes damages “which shall be assessed and recovered in a civil

11

action brought in the name of the people of the State of California by the Attorney

12

General.” Cal. Bus. & Prof. Code § 17206(a); see also Cal. Bus. & Prof. Code § 17204

13

(“Actions for relief pursuant to this chapter shall be prosecuted exclusively in a court of

14

competent jurisdiction by the Attorney General . . . in the name of the people of the State

15

of California . . . .”). For the same reasons as discussed in the Cartwright Act analysis, the

16

Unfair Competition Law does not authorize foreign attorneys general to bring a parens

17

patriae suit. Thus, the Court finds Plaintiff has no standing to bring a parens patriae claim

18

for violation of the California Unfair Competition law.

19

Finally, Plaintiff brings a cause of action under California law for “unjust

20

enrichment.” (See FAC ¶¶ 338–42.) “[I]n California, there is not a standalone cause of

21

action for ‘unjust enrichment,’ which is synonymous with ‘restitution.’” Astiana v. Hain

22

Celestial Grp., Inc., 783 F.3d 753, 762 (9th Cir. 2015) (citing Durell v. Sharp Healthcare,

23

108 Cal. Rptr. 3d 682, 699 (Ct. App. 2010); and Jogani v. Superior Court, 81 Cal. Rptr. 3d

24

503, 511 (Ct. App. 2008)). “Rather, [California courts] describe the theory underlying a

25

claim that a defendant has been unjustly conferred a benefit ‘through mistake, fraud,

26

coercion, or request.’” Id. (citing 55 Cal. Jur. 3d Restitution § 2). A court may construe

27

an unjust enrichment claim as a quasi-contract claim seeking restitution. Id. (citing

28

Rutherford Holdings, LLC v. Plaza Del Rey, 166 Cal. Rptr. 3d 864, 872 (Ct. App. 2014)).
22
15-MD-2670 JLS (MDD)

1

Because no statute authorizes standing to bring an unjust enrichment claim, Plaintiff

2

must demonstrate it meets the prudential standing requirements outlined by the Supreme

3

Court in Snapp. See 458 U.S. at 607 (“[T]he State must articulate an interest apart from

4

the interests of particular private parties, i.e., the State must be more than a nominal

5

party.”). The Court previously determined Plaintiff fails to do so and reiterates prior

6

finding here. See supra section I.C.3. Accordingly, the Court finds Plaintiff does not have

7

standing to bring a parens patriae claim for unjust enrichment under California law.

8

2. Kansas

9

Plaintiff’s fourth cause of action is for violation of the Kansas Restraint of Trade

10

Act, Kan. Stat. Ann. § 50-101, et seq. (FAC ¶ 271.) The Act authorizes “[t]he attorney

11

general” to bring an action. Kan. Stat. Ann. § 50-103(a); see also § 50-109 (“The attorney

12

general shall: (a) Enforce this act throughout the state; . . . .”). The statute does not

13

explicitly authorize a foreign attorney general as evidenced by the use of the term “[t]he

14

attorney general” rather than “an” or “any” attorney general. Plaintiff directs the court to

15

a district court opinion that characterizes section 50-103 as the “functional equivalent of

16

parens patriae.” In re Lorazepam & Clorazepate Antitrust Litig., 205 F.R.D. 369, 386

17

(D.D.C. 2002). Even assuming the district court’s characterization of the statute was

18

correct, it provides no help to Plaintiff. In that case, the State of Kansas was a party to the

19

litigation and Kansas law conferred authority on the Kansas attorney general to bring an

20

action—the opinion did not discuss authorizing a foreign attorney general to bring an action

21

under Kansas law. See id. Thus, the Court finds Plaintiff does not have standing to bring

22

a parens patriae claim for violation of the Kansas Restraint of Trade Act.

23

Plaintiff also argues that Cherokee Nation citizens are persons as defined by the Act,

24

(Opp’n 33 (citing Kan. Stat. Ann. § 50-148)), and its Attorney General can bring suit on

25

their behalf, (id. (citing Kan. Stat. Ann. § 50-161(b)). Defendants argue that section 50-

26

148 does not explicitly reference attorneys general and a parens patriae action must have

27

some sort of affirmative statutory authorization. (Reply 4–5.)

28
23
15-MD-2670 JLS (MDD)

1

The Court agrees with Defendants. Kansas law allows the Kansas attorney general

2

to bring a representative action. Kan. Stat. Ann. § 50-103. It also allows private parties to

3

assert a private cause of action. § 50-148. It does not follow, however, that a private cause

4

of action allows a foreign attorney general, suing on behalf of a different sovereign, to

5

vindicate the public rights of the Cherokee Nation. See Infineon, 531 F. Supp. 2d at 1133

6

(“[A] parens patriae action is expressly defined as a means for a state to seek redress for

7

wrongs affecting the public at large, while a class action is generally a means by which

8

individual private rights may be collectively enforced.” (citing Standard Oil, 405 U.S. at

9

257–58)).9 The Court does not doubt that individual private citizens, residing in Kansas

10

and holding dual Cherokee-Kansan citizenship, could bring an action, but the Court will

11

not bootstrap the statutory language to presume a sovereign entity could bring a public

12

action under the same private provision without express authorization.

13

Finally, Plaintiff points to a harmonization provision in Kansas law that requires the

14

Act to be “construed in harmony with ruling judicial interpretations of federal antitrust law

15

by the United States supreme court.” Kan. Stat. Ann. § 50-163(b). Plaintiff argues that

16

although Kansas law does not explicitly contain the words “parens patriae” it is

17

appropriate, using the harmonization provision, to allow all types of actions permitted by

18

the Sherman Act. (Opp’n 34 (citing 15 U.S.C. § 15c).) This argument is unpersuasive.

19

Section 15c is a statutory provision, not a “judicial interpretation of federal antitrust law.”

20

Kan. Stat. Ann. § 50-163(b).

21

Plaintiff’s thirteenth cause of action is for unjust enrichment under Kansas law.

22

(FAC ¶¶ 343–47.) In Kansas, unjust enrichment is an equitable doctrine, a “modern

23

designation for the older doctrine of quasi-contracts.” Haz-Mat Response, Inc. v. Certified

24

Waste Servs. Ltd., 269 Kan. 166, 176 (1996) (citing Peterson v. Midland Nat’l Bank, 242

25
26
27
28

Plaintiff argues that Infineon does not address Kansas law and, presumably, is inapplicable. (Opp’n 34
n.21.) Simply because the Infineon court did not apply Kansas law does not also mean its reasoning is
inapplicable. The fundamental issue at the core of all Plaintiff’s state law claims is whether a foreign
attorney general can bring a parens patriae suit under the law of a state other than the one he represents.
Infineon dealt directly with that issue and the Court finds its reasoning sound.
9

24
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1

Kan. 266, 275 (1987)). Because unjust enrichment is not statutory, Snapp applies. For

2

reasons stated above, see supra section I.C.3, the Court finds Plaintiff cannot meet the

3

prudential parens patriae standing requirements for a Kansas unjust enrichment claim.

4

3. Arizona

5

Plaintiff’s fifth cause of action is for violation of the Arizona Uniform State Antitrust

6

Act. (FAC ¶ 277.) The Arizona Uniform State Antitrust Act, Ariz. Rev. Stat. § 44-1401,

7

et seq., provides that “[t]he attorney general . . . may bring an action for appropriate

8

injunctive or other equitable relief and civil penalties . . . in the name of the state for a

9

violation of this article.” Ariz. Rev. Stat. § 44-1407. The plain language of the statute

10

references the attorney general and authorizes the attorney general to bring suit in the name

11

of the state. As with other statutes previously discussed, Arizona law does not authorize a

12

foreign attorney general to bring a parens patriae action under Arizona law.

13

Plaintiff also argues that it could bring a cause of action under section 44-108, which

14

provides a cause of action to any “person threatened with injury or injured” by a violation

15

of the Act. (Opp’n 36 (quoting Ariz. Rev. Stat. § 44-1408(B)).) The Act elsewhere defines

16

person as “an individual, corporation, business trust, partnership, association or any other

17

legal entity.” Ariz. Rev. Stat. § 44-1401. Plaintiff is thus arguing that the Attorney General

18

is bringing a parens patriae claim on behalf of those persons who were allegedly harmed.

19

The plain language does not authorize such representative actions. The structure of the

20

statute confirms the plain language. Section 44-108(A) allows “[t]he state” to bring an

21

action for appropriate relief and, as previously discussed, section 44-107 authorizes the

22

Arizona attorney general to bring an action. Thus, the statute provides for public causes of

23

action in sections 44-108(A) and 44-107 and a private cause of action in section 44-108(B).

24

Because the structure distinguishes the causes of action, the Arizona legislature likely did

25

not intend to allow a representative type action in a private cause of action. Or, at least,

26

the Court does not make such a finding without authority saying so.

27
28
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1

Thus, the Arizona Uniform State Antitrust Act provides no authorization for a

2

foreign attorney general to bring a parens patriae suit and the Court finds Plaintiff cannot

3

bring a parens patriae claim for violation of the Arizona Uniform State Antitrust Act.

4

Plaintiff also alleges a cause of action for unjust enrichment under Arizona law.

5

(FAC ¶¶ 348–52.) In Arizona, unjust enrichment is a form of restitution to enforce contract

6

rights when there exists no valid contract. See Murdock-Bryant Const., Inc. v. Pearson,

7

146 Ariz. 48, 52–53 (1985). For reasons previously discussed, the Court finds Plaintiff has

8

not alleged sufficient facts for parens patriae standing, see supra section I.C.3.

9

4. Colorado

10

Plaintiff’s sixth cause of action is for violation of section 6-4-104 of the Colorado

11

Antitrust Act of 1992. (FAC ¶ 283.) Colorado law explicitly authorizes a parens patriae

12

civil action, but only “[t]he attorney general may bring” such an action. Colo. Rev. Stat.

13

Ann. § 6-4-111(3)(a). As was true with the statutes previously discussed, the reference to

14

“[t]he attorney general” means the Colorado attorney general, not foreign attorneys

15

general. Plaintiff contends that Cherokee Nation law authorizes the Cherokee Nation

16

Attorney General to bring an action under Colorado law and the right of the Colorado

17

attorney general should be extended to the Nation’s Attorney General. (Opp’n 35.) It is

18

not enough that Cherokee Nation law authorizes the Nation’s Attorney General to bring an

19

action under Colorado law; Colorado law must also authorize such a suit. The plain

20

language of the statute does not authorize such an action. The Court finds Plaintiff cannot

21

bring a parens patriae action under Colorado antitrust law.

22

Plaintiff’s fifteenth cause of action is for unjust enrichment under Colorado law.

23

(FAC ¶¶ 353–57.) Unjust enrichment is a judicially-created remedy under Colorado law.

24

Lewis v. Lewis, 189 P.3d 1134, 1141 (Colo. 2008), as modified on denial of reh’g (Aug.

25

18, 2008) (citing Salzman v. Bachrach, 996 P.2d 1263, 1265 (Colo. 2000)). Thus, the

26

Court finds Plaintiff has not alleged sufficient facts for parens patriae standing, see supra

27

section I.C.3.

28

///
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1

5. New Mexico

2

Plaintiff’s seventh cause of action is for violation of section 57-1-1 of the New

3

Mexico Antitrust Act. (FAC ¶ 289.) The Act states “[t]he attorney general may bring an

4

action in the name of the state against any person.” N.M. Stat. Ann. § 57-1-8. Like the

5

statutes previously discussed, the reference to “[t]he attorney general” means the New

6

Mexico attorney general, not foreign attorneys general. Plaintiff also argues that it can

7

bring a claim on behalf of persons threatened with injury under the New Mexico Antitrust

8

Act. (Opp’n 37 (citing N.M. Stat. Ann. § 57-1-3(A)).) Further, section 57-1-1.2 includes

9

“any governmental or other legal entity with the exception of the state” within its definition

10

of a person. Plaintiff contends that it is a governmental or other legal entity and thus the

11

statute can encompass the Nation’s Attorney General. (Id. at 37–38.)

12

This is a novel argument based on the unique language in the New Mexico statute;

13

indeed, no other statute examined in this order mentions any governmental entity.

14

However, a critical distinction should not be overlooked. The Nation’s Attorney General,

15

who would qualify as the “governmental entity,” is not the party who was injured. It is his

16

fellow Cherokee citizens who are injured and are the “persons” as defined by the Act.

17

Those persons have a cause of action under section 57-1-3; the New Mexico attorney

18

general has a cause of action under section 57-1-8. No provision or authority demonstrates

19

that a foreign attorney general may use either cause of action. Accordingly, the Court finds

20

Plaintiff cannot bring a parens patriae action under the New Mexico Antitrust Act.

21

Plaintiff’s sixteenth cause of action is for unjust enrichment under New Mexico law.

22

(FAC ¶¶ 358–62.) Under New Mexico law, unjust enrichment is a form of restitution

23

cutting across contract and tort law. See Hydro Conduit Corp. v. Kemble, 110 N.M. 173,

24

178 (1990). Thus, the Court finds Plaintiff has not alleged sufficient facts for parens

25

patriae standing, see supra section I.C.3.

26

6. Oklahoma

27

Plaintiff’s ninth cause of action is for violation of the Oklahoma Consumer

28

Protection Act. (FAC ¶ 302.) In its Opposition brief, Plaintiff states that it agrees to
27
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1

withdraw its ninth cause of action. (Opp’n 35.) Even if the Court were to consider, the

2

Consumer Protection Act, it states “[t]he attorney general or a district attorney may bring

3

an action.” Okla. Stat. Ann. tit. 15, § 756.1(A). As with the statutes previously discussed,

4

the reference to “[t]he attorney general” means the Oklahoma attorney general, not foreign

5

attorneys general. The Court finds Plaintiff cannot bring a parens patriae action under the

6

Oklahoma Consumer Protection Act.

7

Plaintiff’s eighteenth cause of action is for unjust enrichment under Oklahoma law.

8

(FAC ¶¶ 368–73.) Oklahoma treats unjust enrichment as an equitable remedy, not based

9

in statute. See French Energy, Inc. v. Alexander, 818 P.2d 1234, 1237 (Ok. 1991). For

10

reasons discussed above, the Court finds Plaintiff has not alleged sufficient facts for parens

11

patriae standing, see supra section I.C.3.

12

7. Florida

13

Plaintiff’s tenth cause of action is for violation of the Florida Deceptive and Unfair

14

Trade Practices Act. (FAC ¶ 314.) Unlike other states, Florida’s Deceptive and Unfair

15

Trade Practices Act does not empower the state attorney general; instead, the Act

16

authorizes “[t]he enforcing authority” to bring various remedies. See Fla. Stat. Ann.

17

§ 501.207(1). The Act defines “enforcing authority” as either the office of the state

18

attorney or the Department of Legal Affairs depending on the type of violation.

19

§ 501.203(2). Neither of these entities is a government entity outside Florida and the law

20

does not reference language indicative of a parens patriae action.

21

Plaintiff argues, however, that it is availing itself of the section of the Act whereby

22

“anyone aggrieved by a violation of this part may bring an action.” (Opp’n 33 (quoting

23

Fla. Stat. Ann. § 501.211(1), (2)).) The Nation’s Attorney General is not a person who was

24

aggrieved; the individual and private citizens of the Nation, residing in Florida, are the

25

aggrieved persons. As is the theme throughout these state law claims, Plaintiff conflates a

26

public action—parens patriae—with the private causes of action created under state law.

27

Accordingly, the Court finds Plaintiff cannot bring a parens patriae action under Florida’s

28

unfair trade practices law.
28
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1

Plaintiff’s seventeenth cause of action is for unjust enrichment under Florida law.

2

(FAC ¶¶ 363–67.) As with other states, Florida treats unjust enrichment as an equitable

3

remedy. See Henry M. Butler, Inc. v. Trizec Props., Inc., 524 So. 2d 710, 711–12 (Fla. Ct.

4

App. 1988).

5

patriae standing, see supra section I.C.3.

Thus, the Court finds Plaintiff has not alleged sufficient facts for parens

6

F. Standing Conclusion

7

In sum, injunctive relief under federal antitrust law requires a quasi-sovereign

8

interest and an interest apart from the interests of particular private parties. Plaintiff does

9

not meet this requirement and has no standing under federal law. With respect to Plaintiff’s

10

state statutory causes of action, no State explicitly authorizes an out-of-state attorney

11

general to bring an action in a federal court pursuant to out-of-state law. This same

12

observation was made by the court in Infineon and Judge Hamilton’s reasoning is worth

13

noting:

14
15
16
17
18
19

Not a single source relied on by plaintiffs expressly provides or
even implies that a representative action by an Attorney General
may be brought pursuant to another state’s laws, . . . . [E]ven the
most expansive of the general empowerment statutes relied on
by plaintiffs, while recognizing the Attorney General’s ability to
bring actions in out-of-state courts, stops short of actually
authorizing the Attorney General to bring actions in out-of-state
jurisdictions pursuant to out-of-state laws.

20

531 F. Supp. 2d at 1139. The same reasoning applies here. Plaintiff’s Attorney General

21

does not have parens patriae standing to bring claims based on the laws of other states.

22

Simply because citizens of the Cherokee Nation live in other states, the Nation’s Attorney

23

General cannot borrow other sovereign State’s laws. The Court GRANTS IN PART

24

Defendants’ Motion and DISMISSES WITH PREJUDICE Plaintiff’s claims to the

25

extent Plaintiff seeks to bring a parens patriae claim under other State’s statutory law. The

26

Court DISMISSES WITHOUT PREJUDICE Plaintiff’s unjust enrichment claims

27

because Plaintiff has not demonstrated prudential standing, but perhaps could amend its

28

complaint to meet the standing requirements.
29
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1

II.

Supplemental Jurisdiction

2

The only remaining claims are Plaintiff’s eighth and eleventh causes of action for a

3

violation of the Cherokee Nation’s Unfair and Deceptive Practices Act, 12 CNCA § 21 et

4

seq. and its nineteenth cause of action for unjust enrichment under Cherokee Nation law.

5

(See FAC ¶¶ 296, 328, 375.) Neither cause of action arises under federal law. Further,

6

Plaintiff has confirmed that it is not bringing a class action and it has not argued this Court’s

7

diversity jurisdiction applies.

8

jurisdiction is under the Court’s supplemental jurisdiction, 28 U.S.C. § 1367.

(Opp’n 15 n.4.)

Thus, the only remaining basis for

9

Defendants contend that the Court should decline to exercise supplemental

10

jurisdiction over Plaintiff’s pendent claims. (MTD 13.) They cite cases where other courts

11

have declined to exercise supplemental jurisdiction in similar factual situations. (Id.

12

(citing, e.g., Bass v. Cnty. of San Diego, No. 08-cv-2135-MMA (NLS), 2009 WL

13

10671992, at * 5 (S.D. Cal. Aug. 25, 2009)); Reply 3 n.2 (citing, e.g., Empagran, S.A. v.

14

F. Hoffman-La Roche Ltd., 453 F. Supp. 2d 1, 9, 13 (D.D.C. 2006)).)

15

Plaintiff argues that Court should retain supplemental jurisdiction even if it

16

dismisses Plaintiff’s Sherman Act claims. (Opp’n 15.) Plaintiff argues that the pendency

17

of this case, the Court’s familiarity with the issues, the overlap between Plaintiff’s federal

18

and non-federal claims, and judicial economy all weigh in favor of retaining pendent

19

jurisdiction over Plaintiff’s non-federal claims. (See id. at 16.) According to Plaintiff, if

20

the Court were to dismiss its non-federal claims, then such a dismissal would lead to a

21

duplicative action in state court. (See id. at 16–17.)

22

28 U.S.C. § 1367 allows a federal district court to hear all state law claims as long

23

as there is an independent basis for jurisdiction. Under section 1367, a district court “shall

24

have supplemental jurisdiction over all other claims that are so related to claims in the

25

action within such original jurisdiction that they form part of the same case or controversy

26

under Article III of the United States Constitution.” § 1367(a). The Supreme Court has

27

held that supplemental jurisdiction “may be exercised when federal and state claims have

28

a ‘common nucleus of operative fact’ and would ‘ordinarily be expected to [be tried] all in
30
15-MD-2670 JLS (MDD)

1

one judicial proceeding.’” Osborn v. Haley, 549 U.S. 225, 245 (2007) (alteration in

2

original) (quoting United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966)).

3

However, a Court may decline to exercise supplemental jurisdiction over any state claim

4

if (1) “the claim raises a novel or complex issue of State law,” (2) “the claim substantially

5

predominates over the claim or claims over which the district court has original

6

jurisdiction,” (3) “the district court has dismissed all claims over which it has original

7

jurisdiction,” or (4) “in exceptional circumstances, there are other compelling reasons for

8

declining jurisdiction.” 28 U.S.C. § 1367(c)(1)–(4).

9

“In Gibbs, the [Supreme] Court stated that “if federal claims are dismissed before

10

trial . . . the state claims should be dismissed as well.” Carnegie-Mellon Univ. v. Cohill,

11

484 U.S. 343, 350 n.7 (1988) (second alteration in original) (quoting Gibbs, 383 U.S. at

12

726). In Carnegie-Mellon, the Court clarified that this was not a mandatory rule, but rather

13

“simply recognizes that in the usual case in which all federal-law claims are eliminated

14

before trial, the balance of factors to be considered under the pendent jurisdiction

15

doctrine—judicial economy, convenience, fairness, and comity—will point toward

16

declining to exercise jurisdiction over the remaining state law claims.” Id. This is the most

17

logical approach here for three reasons. First, the federal claims have been dismissed for

18

lack of standing and, thus, Gibbs’ general proposition applies. Second, Plaintiff’s antitrust

19

claim has been dismissed without prejudice and the Court will grant leave to amend. Third,

20

there does not appear to be any reason why individual citizens of the Cherokee Nation

21

could not join in the putative class actions, if a class is certified and, if they are not certified,

22

could bring individual claims.

23

In light of the foregoing, the Court DECLINES to exercise its discretion to retain

24

jurisdiction over the supplemental claims and DISMISSES WITHOUT PREJUDICE

25

Plaintiff’s eighth, eleventh, and nineteenth causes of action.

26

III.

Leave to Amend

27

Pursuant to Federal Rule of Civil Procedure 15(a), a plaintiff may amend its

28

complaint once as a matter of course within specified time limits. Fed. R. Civ. P. 15(a)(1).
31
15-MD-2670 JLS (MDD)

1

“In all other cases, a party may amend its pleading only with the opposing party’s written

2

consent or the court’s leave. The court should freely give leave when justice so requires.”

3

Fed. R. Civ. P. 15 (a)(2).

4

While courts exercise broad discretion in deciding whether to allow amendment,

5

they have generally adopted a liberal policy. See United States ex rel. Ehmcke Sheet Metal

6

Works v. Wausau Ins. Cos., 755 F. Supp. 906, 908 (E.D. Cal. 1991) (citing Jordan v. Cnty.

7

of Los Angeles, 669 F.2d 1311, 1324 (9th Cir.), rev’d on other grounds, 459 U.S. 810

8

(1982)). Accordingly, leave is generally granted unless the court harbors concerns “such

9

as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to

10

cure deficiencies by amendments previously allowed, undue prejudice to the opposing

11

party by virtue of allowance of the amendment, futility of amendment, etc.” Foman v.

12

Davis, 371 U.S. 178, 182 (1962). “Amendments seeking to add claims are to be granted

13

more freely than amendments adding parties.” Union Pac. R.R. Co. v. Nev. Power Co.,

14

950 F.2d 1429, 1432 (9th Cir. 1991) (citing Martell v. Trilogy Ltd., 872 F.2d 322, 324 (9th

15

Cir. 1989)). Additionally, “the party opposing amendment has the burden of showing that

16

amendment is not warranted.” Wizards of the Coast LLC v. Cryptozoic Entm’t LLC, 309

17

F.R.D. 645, 649–50 (W.D. Wash. 2015) (citing, e.g., DCD Programs, Ltd. v. Leighton, 833

18

F.2d 183, 187 (9th Cir. 1987)).

19

Here, the Court GRANTS Plaintiff leave to amend its federal antitrust causes of

20

action and its state unjust enrichment causes of action. However, the Court finds that

21

Plaintiff cannot amend its complaint with regard to state statutory causes of action—

22

Plaintiff’s attorney general does not have authority under foreign state law to assert a

23

parens patriae cause of action. This is a legal issue that cannot be cured by additional

24

factual allegations. The only remaining question is whether the Court should permit

25

amendment to Plaintiff’s claims based on Cherokee Nation law.

26

Generally “a proposed amendment is futile only if no set of facts can be proved under

27

the amendment to the pleadings that would constitute a valid and sufficient claim or

28

defense.” Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988). Courts
32
15-MD-2670 JLS (MDD)

1

ordinarily do not consider the validity of a proposed amended pleading in deciding whether

2

to grant leave to amend, and instead defer consideration of challenges to the merits of a

3

proposed amendment until after leave to amend is granted and the amended pleadings are

4

filed. Netbula, LLC v. Distinct Corp., 212 F.R.D. 534, 539 (N.D. Cal. 2003) (citation

5

omitted); accord Green Valley Corp. v. Caldo Oil Co., No. 09cv4028-LHK, 2011 WL

6

1465883, at *6 (N.D. Cal. Apr. 18, 2011) (noting “the general preference against denying

7

a motion for leave to amend based on futility”). Arguments concerning the sufficiency of

8

the proposed pleadings, even if meritorious, are better left for briefing on a motion to

9

dismiss. Lillis v. Apria Healthcare, No. 12cv52-IEG (KSC), 2012 WL 4760908, at * 1

10

(S.D. Cal. Oct. 5, 2012).

11

Here, the Court acknowledges that Defendants raise challenges to the retroactivity and

12

legislative jurisdiction of Cherokee Nation law. At this stage, it is not clear that the

13

Cherokee Nation Code causes of action are futile such that no set of facts could constitute

14

a valid cause of action. Because the Court will allow amendment of the Cherokee Nation’s

15

complaint, the factual allegations regarding the Cherokee Nation Code may shift and is

16

better suited to a briefing on a future motion to dismiss. Accordingly, the Court GRANTS

17

leave to amend the Cherokee Nation causes of action.

18

CONCLUSION

19

In light of the foregoing, the Court GRANTS Defendants’ Motion, (ECF No. 983),

20

and DISMISSES WITHOUT PREJUDICE Plaintiff’s First Amended Complaint, except

21

to the extent that Plaintiff seeks to bring parens patriae claims under state law, such claims

22

are DISMISSED WITH PREJUDICE. The Court GRANTS LEAVE TO AMEND

23

Plaintiff’s Complaint; Plaintiff MAY FILE an amended Complaint within thirty (30) days

24

of the date on which this Order is electronically docketed.

25
26

IT IS SO ORDERED.
Dated: September 5, 2018

27
28
33
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