Ireson v. AVI Casino Enterprises, Inc.

Filing 21

ORDER granting 8 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge James C. Mahan on 7/10/2017. (Copies have been distributed pursuant to the NEF - JM)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 *** 7 FRANK IRESON, 8 Plaintiff(s), 9 10 Case No. 2:17-CV-987 JCM (VCF) ORDER v. AVI CASINO ENTERPRISES, INC., 11 Defendant(s). 12 13 Presently before the court is defendant AVI Casino Enterprises, Inc., doing business as 14 AVI Resort & Casino’s (“AVI”) motion to dismiss for lack of jurisdiction. (ECF No. 8). Plaintiff 15 Frank Ireson (“Ireson”) filed a response (ECF No. 11), to which defendant replied (ECF No. 16). 16 I. 17 18 Facts The instant action concerns a slip-and-fall incident in a Fort Mojave Tribe casino. (ECF No. 1). 19 On April 8, 2015, AVI’s property was undergoing renovations. (ECF No. 1). As a result 20 of those renovations, and AVI’s alleged negligence, Ireson tripped on a piece of metal about two 21 to three inches long sticking out of the floor. (ECF No. 11 at 2). “There were no physical barriers 22 or warning signs present in the area” when Ireson was walking to indicate the hazardous condition. 23 (ECF No. 11 at 2). As a result of fall, Ireson slammed against the concrete floor, allegedly 24 sustaining “significant and substantial injuries upon his person requiring immediate medical care.” 25 (ECF No. 1 at 2–3). Ireson required an ambulance to take him to the hospital. (ECF No. 1 at 3). 26 On June 29, 2015, Ireson’s counsel sent a letter advising AVI of Ireson’s claim, to which 27 there was no reply. (ECF No. 11 at 3). On December 16, 2016, a demand for settlement was sent 28 James C. Mahan U.S. District Judge 1 to AVI, at which time Ireson received a response asserting he failed to comply with the Fort 2 Mojave Indian Tribal Tort Claims Ordinance. (ECF No. 11 at 3). 3 The instant action for negligence was filed on April 6, 2017. (ECF No. 1). 4 In the instant motion, AVI asserts sovereign immunity and moves to dismiss pursuant to 5 Rule 12(b)(1). (ECF No. 8). 6 II. Legal Standard 7 Federal courts are courts of limited jurisdiction. Owen Equip. & Erection Co. v. Kroger, 8 437 U.S. 365, 374 (1978). “A federal court is presumed to lack jurisdiction in a particular case 9 unless the contrary affirmatively appears.” Stock West, Inc. v. Confederated Tribes of Colville 10 Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989). Thus, federal subject matter jurisdiction must 11 exist at the time an action is commenced. Mallard Auto. Grp., Ltd. v. United States, 343 F. Supp. 12 2d 949, 952 (D. Nev. 2004). 13 Federal Rule of Civil Procedure 12(b)(1) allows defendants to seek dismissal of a claim or 14 action for a lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Dismissal under Rule 15 12(b)(1) is appropriate if the complaint, considered in its entirety, fails to allege facts on its face 16 sufficient to establish subject matter jurisdiction. In re Dynamic Random Access Memory (DRAM) 17 Antitrust Litig., 546 F.3d 981, 984–85 (9th Cir. 2008). 18 Although the defendant is the moving party in a 12(b)(1) motion to dismiss, the plaintiff is 19 the party invoking the court’s jurisdiction. As a result, the plaintiff bears the burden of proving 20 that the case is properly in federal court to survive the motion. McCauley v. Ford Motor Co., 264 21 F.3d 952, 957 (9th Cir. 2001) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 22 (1936)). More specifically, the plaintiff’s pleadings must show “the existence of whatever is 23 essential to federal jurisdiction, and, if [plaintiff] does not do so, the court, on having the defect 24 called to its attention or on discovering the same, must dismiss the case, unless the defect be 25 corrected by amendment.” Smith v. McCullough, 270 U.S. 456, 459 (1926). 26 In moving to dismiss under Rule 12(b)(1), the challenging party may either make a “facial 27 attack,” confining the inquiry to challenges in the complaint, or a “factual attack” challenging 28 subject matter on a factual basis. Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 James C. Mahan U.S. District Judge -2- 1 (9th Cir. 2003). For a facial attack, the court assumes the truthfulness of the allegations, as in a 2 motion to dismiss under Rule 12(b)(6). Trentacosta v. Frontier Pac. Aircraft Indus., Inc., 813 3 F.2d 1553, 1559 (9th Cir. 1987). By contrast, when presented as a factual challenge, a Rule 4 12(b)(1) motion can be supported by affidavits or other evidence outside of the pleadings. United 5 States v. LSL Biotechs., 379 F.3d 672, 700 n.14 (9th Cir. 2004) (citing St. Clair v. City of Chicago, 6 880 F.2d 199, 201 (9th Cir. 1989)). 7 III. 8 9 Discussion AVI argues in its motion to dismiss that the casino “functions as an arm of the tribe and is protected by tribal sovereign immunity.” (ECF No. 8 at 2). The court agrees. 10 “As a matter of federal law, an Indian tribe is subject to suit only where Congress has 11 authorized the suit or the tribe has waived its immunity.” Kiowa Tribe of Okla. v. Mfg. Techs., 12 523 U.S. 751, 754 (1998). If the casino benefits from sovereign immunity, then the motion to 13 dismiss must be granted. California ex rel. Cal. Dep’t of Fish & Game v. Quechan Tribe of 14 Indians, 595 F.2d 1153, 1155 (9th Cir. 1979) (“Sovereign immunity involves a right which courts 15 have no choice, in the absence of a waiver, but to recognize.”). 16 “[T]he settled law of our circuit is that tribal corporations acting as an arm of the tribe enjoy 17 the same sovereign immunity granted to a tribe itself.” Cook v. AVI Casino Enters., 548 F.3d 718 18 (9th Cir. 2008). The Ninth Circuit has held that casinos benefit from a tribe’s sovereign immunity 19 considering “the purposes for which the [t]ribe founded this [c]asino and the [t]ribe’s ownership 20 and control of its operations.” Allen v. Gold Country Casino, 464 F.3d 1044, 1047 (9th Cir. 2006). 21 Here, AVI is a tribal corporation. AVI is a tribal corporation formed under tribal law, is 22 wholly-owned and operated by the Fort Mojave Tribe, is governed by the tribal council, operates 23 on tribal land, and its revenue is deposited into the tribal treasury. (ECF No. 8 at 4); see also Cook, 24 548 F.3d at 724 (“As a tribal corporation, [AVI] was organized under the laws of the Fort Mojave 25 Tribe, which is a separate sovereign independent from state control.”). In fact, the Ninth Circuit 26 has confirmed its status as a tribal corporation that benefits from the tribe’s sovereign immunity. 27 See Cook, 548 F.3d at 725. 28 James C. Mahan U.S. District Judge -3- 1 Ireson contends in his response to AVI’s motion to dismiss that AVI’s “sovereign 2 immunity is not absolute under these facts” and that AVI has implicitly waived its sovereign 3 immunity. (ECF No. 11 at 3). To support his argument, Ireson relies on the “sue and be sued” 4 clause in the tribal enabling ordinance. (ECF No. 11 at 3). The court disagrees as “the cited 5 ordinance was repealed and replaced.” (ECF No. 16 at 5). Ireson never alleged a “sue or be sued” 6 provision existed in the tribal enabling ordinance in his complaint and relies on the petition for 7 writ of certiorari in Cook to argue that there is one despite the fact that Ireson “did not ask defense 8 counsel or the Tribe’s General Counsel to obtain a copy of the current enabling ordinance for tribal 9 businesses.” (ECF Nos. 11 at 3; 16 at 4–5, 5 n.1). 10 Further, Ireson contends that “when the [t]ribe fails to comply with its own requirements 11 to provide the procedures, including all applicable time limits, and contact information to the 12 patron or invitee . . . it should be deemed to waive immunity.” (ECF No. 11 at 7). Citing to an 13 Arizona gaming compact, Ireson argues that the tribe failed to comply with its own requirements 14 by failing to provide Ireson with a “copy of the procedures as well as the name, address and 15 telephone number of the [g]aming [f]acility [o]perator and the mailing address and telephone 16 number of the clerk of the [t]ribal court.” (ECF No. 11 at 6). The court disagrees. 17 “Any waiver of immunity is not to be lightly implied, but must be unequivocally 18 expressed.” California ex rel. Cal. Dep’t of Fish & Game 595 F.2d at 1155. To prevail on his 19 argument, Ireson must show “a ‘clear declaration’ that [the tribe] intends to submit itself to 20 jurisdiction.” Cook, 548 F.3d at 724 (quoting Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. 21 Expense Bd., 527 U.S. 666, 670 (1999)). 22 The existence of a tribal procedure for the provision of tort remedies is, itself, evidence 23 that the tribe has not waived sovereign immunity. Moreover, Ireson provides no legal basis for 24 the argument that failure to give notice of those tort remedies is grounds for waiver of sovereign 25 immunity. Finally, even if the court were inclined to accept either argument, Ireson has not 26 established why a compact between the Fort Mojave Tribe and Arizona would apply to or 27 otherwise influence AVI’s casino in Nevada. (See ECF No. 16 at 5). 28 James C. Mahan U.S. District Judge -4- In light of the foregoing, AVI’s motion to dismiss will be granted. Ireson’s complaint will 1 2 be dismissed without prejudice. 3 IV. Conclusion 4 Accordingly, 5 IT IS HEREBY ORDERED, ADJUDGED, and DECREED that AVI’s motion to dismiss 6 7 8 9 10 11 (ECF No. 8) be, and the same hereby is, GRANTED. IT IS FURTHER ORDERED that Ireson’s complaint (ECF No. 1) be, and the same hereby is, DISMISSED WITHOUT PREJUDICE. DATED July 10, 2017. __________________________________________ UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 James C. Mahan U.S. District Judge -5-

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