Longo v. Seminole Indian Casino- Immokalee

Filing 31

ORDER granting 24 Defendant Seminole Indian Casino - Immokalee's Motion to Dismiss. This case is DISMISSED with prejudice. The Clerk of the Court is directed to terminate all pending motions and deadlines, and close this case. Signed by Judge Sheri Polster Chappell on 5/21/2015. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
STANLEY LONGO, an individual
Plaintiff,
v.

Case No: 2:14-cv-334-FtM-38CM

SEMINOLE
INDIAN
IMMOKALEE,

CASINO-

Defendant.
/
ORDER1
This matter comes before the Court on Defendant Seminole Indian Casino Immokalee's Motion to Dismiss (Doc. #24) filed on March 2, 2015. Plaintiff filed a
Response in Opposition on March 16, 2015 (Doc. #25), to which Defendant filed a Reply
(Doc. #28). Thereafter, Plaintiff filed a Surreply on April 13, 2015. (Doc. #29). The matter
is ripe for review.
Background
Plaintiff Stanley Longo is a former employee of Defendant.

(Doc. #1 at 1).

Defendant Seminole Indian Casino – Immokalee is a business wholly owned and
operated by the Seminole Tribe of Florida (“the Tribe”). (Doc. #1 at 1). In October 2008,
Defendant hired Plaintiff to serve as a security guard at its casino. (Doc. #1 at 2). Plaintiff
enjoyed success in this position until January 2013, when a patron of the casino started

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to sexually harass, stalk, and physically touch him on a continual basis. (Doc. #1 at 3).
Because these actions created a hostile work environment, Plaintiff sought to remedy this
situation by reporting the incidents to Defendant.

But Defendant failed to take any

corrective action. (Doc. #1 at 3). Instead, Defendant terminated Plaintiff’s employment
one month later, stating that Plaintiff “was ‘discourteous to team members.’” (Doc. #1 at
3).
Based on these facts, Plaintiff brought the instant action against Defendant,
asserting four counts: Violation of Title VII of the Civil Rights Act of 1964 (Count 1);
Violation of the Florida Civil Rights Act of 1992 (Count 2); Violation of Title VII of the Civil
Rights Act of 1964 (Count 3); and Violation of the Florida Civil Rights Act of 1992 (Count
4). (Doc. #1 at 4-12). Now, Defendant seeks to dismiss Plaintiff’s Complaint. (Doc. #24).
Legal Standard
Tribal sovereign immunity concerns the Court’s subject matter jurisdiction to hear
an action. See Taylor v. Alabama Intertribal Council, Title IV J.T.P.A., 261 F.3d 1032,
1034 (11th Cir. 2001); Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 754, 118
S.Ct. 1700, 140 L.Ed.2d 981 (1998). Dismissal on tribal immunity grounds may be raised
in a Motion to Dismiss under Fed. R. Civ. P. 12(b)(1). Holt v. United States, 46 F.3d 1000,
1002-03 (10th Cir. 1995). Generally, Rule 12(b)(1) motions to dismiss for lack of subject
matter jurisdiction take two forms: facial attacks and factual attacks. “A ‘facial attack’ on
the complaint requires the court merely to look and see if the plaintiff has sufficiently
alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken
as true for the purposes of the motion.”

McElmurray v. Consol. Gov’t of Augusta-

Richmond Cnty., 501 F.3d 1244, 1251 (11th Cir. 2007) (internal quotation marks and

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citation omitted). In contrast, “a factual attack on a complaint challenges the existence of
subject matter jurisdiction using material extrinsic from the pleadings, such as affidavits
or testimony.” Stalley ex rel. United States v. Orlando Reg’l Healthcare Sys., Inc., 524
F.3d 1229, 1232-33 (11th Cir. 2008). During a factual attack, the defendant challenges
the accuracy of the allegations, not their sufficiency. Norkunas v. Seahorse NB, LLC, 720
F.Supp.2d 1313, 1314 (M.D. Fla. 2010), aff’d, 444 F.App’x 412 (11th Cir. 2011).
Here, Defendant has raised a factual attack on this Court’s subject matter
jurisdiction because its Motion to Dismiss is accompanied by attached exhibits. When
evaluating a factual attack, the trial court is free to weigh the evidence in support of the
jurisdictional claim even when material issues of fact exist. Morrison v. Amway Corp.,
323 F.3d 920, 924-25 (11th Cir. 2004). A court also has wide discretion to allow affidavits,
other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts
under Rule 12(b)(1). E.F.W. v. St. Stephen’s Indian High Sch., 264 F.3d 1297, 1302-03
(10th Cir. 2001). In these circumstances, a court’s reference to evidence outside of the
pleadings does not convert the motion into a Rule 56 motion.
Discussion
Defendant argues that tribal immunity divests the Court of subject matter
jurisdiction because the Seminole Tribe of Florida is a federally recognized tribe immune
from Plaintiff’s statutory claims under Title VII and the Florida Civil Rights Act of 1992.
(Doc. #24 at 6-16). In response, Plaintiff contends that this Court, the Eleventh Circuit
Court of Appeals, and the Florida Supreme Court have “rotely” accepted this improper
argument, and that this Court should go against clear precedent to find that Defendant is

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not a federally recognized tribe entitled to immunity. (Doc. #25 at 2-20). The Court finds
Defendant’s argument persuasive, and therefore declines to pioneer Plaintiff’s contention.
In addressing an identical scenario, the Eleventh Circuit, albeit in an unpublished
opinion, recently adopted and affirmed Defendant’s exact argument. See Mastro v.
Seminole Tribe of Florida, 578 F.App’x 801 (11th Cir. 2014). In Mastro, the plaintiff, an
employee of the exact casino at issue in this action, sued the Seminole Tribe of Florida
(“the Tribe”), alleging violations of the Title VII of the Civil Rights Act of 1964 and the
Florida Civil Rights Act. Id. at 802. At the trial level, this Court dismissed the plaintiff’s
action, holding that sovereign immunity barred the plaintiff’s claims against the Tribe and
that the Tribe’s casino, which is wholly-owned by the Tribe, enjoyed the same. Id. On
appeal, the plaintiff contended “that [this Court] erred in concluding that the Tribe and [its
casino] should be afforded tribal sovereign immunity and hence are not subject to suit
under Title VII.” Id. The Eleventh Circuit rejected this argument, finding that it did “not
carry the day.” Id.
As the Eleventh Circuit explained, it is well established that “an Indian Tribe is
subject to suit only where Congress has authorized the suit or the tribe has waived its
immunity.” Id. (citing Kiowa Tribe of Okla., 523 U.S. at 754, 118 S.Ct. 1700). And there
is no exception from this rule for a Title VII action. Id. In fact, “Congress chose to
expressly exempt Indian tribes from Title VII’s definition of ‘employer.’” Id. (citing 42
U.S.C. § 2000e(b)’s definition of “employer”). Because of this, the Eleventh Circuit held
that “Title VII, by its own terms, does not apply to the Tribe, Congress did not authorize
suits against the Tribe under the Act, and [] district court[s] therefore lack[] subject-matter
jurisdiction as to the Tribe.” Id.

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Remarkably, Plaintiff demands that the Court ignore this clear and dispositive
analysis, and hold that the Tribe is not actually a federally recognized tribe. Plaintiff
acknowledges that to do so, this Court would have to find not only that its own previous
opinion, Mastro v. Seminole Tribe of Florida, No. 2:12-cv-411-SPC-38UAM, 2013 WL
3350567, at *1 (M.D. Fla. 2013), was incorrect, but also that the Eleventh Circuit has erred
on multiple occasions too, see Mastro, 578 F.App’x 801; Contour Spa at the Hard Rock,
Inc. v. Seminole Tribe of Florida, 692 F.3d 1200 (11th Cir. 2012). To support this sizeable
request, Plaintiff provides the Court with numerous pages of historical context and
argument, explaining how the Tribe, to this date, has failed to achieve federal recognition
as an Indian tribe. But this argument is completely without merit. This Court, the Eleventh
Circuit, and the Florida Supreme Court “rotely” accept that the Tribe is federally
recognized because it is. Unsurprisingly, this has not changed in 2015. A simple search
in the Federal Register reveals as much. To be sure, the United States Bureau of Indian
Affair’s most recent list of “Indian entities . . . acknowledged to have the immunities and
privileges available to federally recognized Indian tribes” includes the Seminole Tribe
of Florida. Indian Entities Recognized and Eligible To Receive Services From the United
States Bureau of Indian Affairs, 80 FR 1942-02 (2015) (emphasis added).
Having determined that the Tribe is federally recognized, and therefore entitled to
the “immunities and privileges” that accompany this recognition, the Court finds that it
lacks subject matter jurisdiction over this action. Plaintiff fails to offer any facts that
differentiate this action from the Eleventh Circuit’s opinion in Mastro. Without such facts,
the Tribe cannot face an action for Title VII violations when Congress expressly excluded
them from Title VII’s definition of “employer.” See Taylor v. Ala. Intertribal Council Title

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IV J.T.P.A., 261 F.3d 1032, 1035 (11th Cir. 2001) (“Congress expressly exempts Indian
tribes from the definition of employer under Title VII.”). And this remains true even though
the Tribe operates its Immokalee, Florida, Casino under the fictitious name Seminole
Indian Casino – Immokalee. See Mastro, 578 F.App’x at 803.
Based on the foregoing, the Court holds that the Seminole Tribe of Florida is a
federally recognized Indian tribe that enjoys sovereign immunity from this action.
Accordingly, it is now
ORDERED:
1. Defendant Seminole Indian Casino - Immokalee's Motion to Dismiss (Doc. #24)
is GRANTED.
2. This case is DISMISSED with prejudice.
3. The Clerk of the Court is directed to terminate all pending motions and
deadlines, and close this case
DONE and ORDERED in Fort Myers, Florida, this 20th day of May, 2015.

Copies: All Parties of Record

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