Grand Canyon Skywalk Development, LLC et al v. Steele et al

Filing 143

ORDER that 96 third-party defendant's Motion to Dismiss is GRANTED. FURTHER ORDERED that 112 Motion to Sever, 132 Request for Oral Argument, and 140 second Request for a Date for Oral Argument are DENIED as moot. Signed by Judge Jennifer A. Dorsey on 11/30/15. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Grand Canyon Skywalk Development, et al.,

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Plaintiffs,

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Case No.: 2:13-cv-00596-JAD-GWF
Order Granting Third-Party
Defendant’s Motion to Dismiss and
Denying Related Motions as Moot

v.
Ruby Steele, et al.,

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Defendants.

[ECF 96, 112, 132, 140]

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David John Cieslak, et al.,
Third-Party Plaintiffs

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v.

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Hualapai Tribe
Third-Party Defendant

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Scutari & Cieslak Public Relations, Inc. is a public-relations firm hired by the Hualapai

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Indian Tribe of the Hualapai Indian Reservation to promote the Grand Canyon Skywalk, a tourist

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attraction built on tribal land in the Grand Canyon. When the relationship between the Tribe and the

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project’s developer began to fracture, Scutari & Cieslak launched a public-relations campaign

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that—the developer claims—was defamatory and designed to disparage the developer. After the

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developer sued Scutari & Cieslak and its principals (collectively “S&C”) for defamation and

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conspiracy, S&C filed third-party claims against the Tribe for indemnity and contribution.

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The Tribe now moves to dismiss S&C’s claims, arguing that this court lacks jurisdiction over

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these third-party claims because the Tribe has not waived its sovereign immunity from suit in federal

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court. I agree and grant the Tribe’s motion to dismiss.1 I then deny as moot S&C’s motion to sever

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Because I grant the motion based on sovereign immunity, I do not reach the Tribe’s alternate
arguments that it was not properly served or that S&C failed to exhaust tribal-court remedies.
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the third party claims and its two requests for oral argument.2

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Discussion

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In a previous order, I set out the facts of the first-party action, which centers around a series

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of allegedly defamatory and disparaging statements made about the management of the Skywalk. 3

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The relevant details of these third-party claims center on the Tribe4 and the contract it signed with

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Scutari & Cieslak. The contract, which S&C drafted, contains an indemnification provision in which

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the Tribe agreed to “indemnify and hold [S&C] harmless with respect to any claims or actions

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instituted by third parties [that] result from the use by [S&C] of material furnished by [the Tribe] or

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where material created by [S&C] is substantially changed by [the Tribe].”5 But nowhere in the

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contract, or in any other document, does the Tribe explicitly waive its sovereign immunity.

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The Tribe’s immunity from suit in all but its tribal courts is clearly articulated in its

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constitution—“the Tribe is immune from suit except to the extent that the Tribal Council expressly

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waives sovereign immunity”6—and well-protected by case law.7 S&C argues that the Tribe waived

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its sovereign immunity by agreeing to the indemnification provision and by agreeing to have the

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contract governed by Arizona law. As support, it cites C&L Enterprises, Inc. v. Citizen Band

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I find this motion appropriate for disposition without oral argument. See Local Rule 78-2.

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See ECF 66 at 1-3.

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The Tribe limited its appearance in court for the purpose of challenging jurisdiction. ECF 96 at
2 (citing Federal Rules of Civil Procedure 12(b)(1) and 12(b)(5)).

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ECF 96-1. The third-party complaint references this contract, so I can consider it without
converting the Tribe’s motion to dismiss into a motion for summary judgment. United States v.
Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).
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Article XVI, Section 1 of the Constitution of the Hualapi.

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See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978) (“Indian tribes have long been
recognized as possessing the common-law immunity from suit traditionally enjoyed by
sovereign powers.”); accord Michigan v. Bay Mills Indian Community, 134 S. Ct. 2024,
2030–31 (2014) (describing immunity from suit as one of “the core aspects of sovereignty that
tribes possess”).
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Potawatomi Indian Tribe of Oklahoma, 8 in which the Supreme Court ruled that a construction

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contract’s “provision for arbitration and related prescriptions lead us to [the conclusion that the Tribe

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waived its immunity from suit].”9 The Court focused in particular on the arbitration provision,

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noting that “the contract specifically authorizes judicial enforcement of the resolution through

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arbitration.”10 “In sum,” it concluded, “the Tribe agreed, by [that] express contract, to adhere to

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certain dispute resolution procedures.”11

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No such agreement exists here. At no point has the Tribe agreed to arbitration, judicial

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enforcement of an arbitration award, or any other provision authorizing this court to resolve this

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dispute between it and S&C. It is true that the Tribe, like the tribe in C&L, agreed to a choice-of-law

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provision: the tribe in C&L agreed to be governed by Oklahoma law; the tribe in this case agreed to

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be governed by Arizona law. But a choice-of-law provision simply identifies the body of law that

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will help define the parties’ obligations. It does not commit the parties to a particular court, nor in

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this case automatically trigger jurisdiction or a sovereign-immunity waiver.

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Given the “strong presumption against waiver of tribal sovereign immunity”12 and the fact

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that waiver “‘cannot be implied but must be unequivocally expressed,’”13 I therefore find that the

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Tribe has not waived its immunity. Accordingly, I grant its motion to dismiss, and I deny as moot

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S&C’s alternate motion to sever and its two motions for oral argument.

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Conclusion

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IT IS HEREBY ORDERED that third-party defendant’s Motion to Dismiss [ECF 96] is
GRANTED.

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C&L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 532 U.S. 411
(2001).
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Id. at 418.

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Id.

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Id. at 419.

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Santa Clara Pueblo, 436 U.S. at 58 (citing United States v. Testan, 424 U.S. 392, 399 (1976)).

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Id.
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IT IS FURTHER ORDERED that the third-party plaintiffs’ Motion to Sever [ECF 112],

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request for a date for oral argument [ECF 132], and second request for a date for oral argument

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[ECF 140] are DENIED as moot.

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DATED this 30th day of November, 2015

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_________________________________
_____________________
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__ _ _ __ __ __
_
JENNIFER A. DORSEY
JENNIFER A. DORSEY
NN E
O E
UNITED STATES DISTRICT JUDGE
UNITED
TE
TE
S DISTR

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