Case 3:16-cv BAS-AGS Document 15-1 Filed 01/03/17 PageID.670 Page 1 of 24

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1 Case :-cv-00-bas-ags Document - Filed 0/0/ PageID.0 Page of 0 KATHLEEN A. KENEALY Acting Attorney General of California SARA J. DRAKE Senior Assistant Attorney General JENNIFER T. HENDERSON State Bar No. 0 T. MICHELLE LAIRD State Bar No. Deputy Attorneys General 00 I Street, Suite Sacramento, CA P.O. Box Sacramento, CA -0 Telephone: () - Fax: () - Jennifer.Henderson@doj.ca.gov Michelle.Laird@doj.ca.gov Attorneys for Defendants State of California and Governor Edmund G. Brown Jr. IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA PAUMA BAND OF LUISENO MISSION INDIANS OF THE PAUMA & YUIMA RESERVATION, a/k/a PAUMA BAND OF MISSION INDIANS, a federally-recognized Indian Tribe, v. Plaintiff, UNITE HERE INTERNATIONAL UNION; STATE OF CALIFORNIA; and EDMUND G. BROWN, JR., as Governor of the State of California, Defendants. :-cv-00-bas/ags DEFENDANTS STATE OF CALIFORNIA AND GOVERNOR EDMUND G. BROWN JR. S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR () MOTION TO DISMISS THE FIRST AMENDED COMPLAINT; () MOTION TO STRIKE THE FIRST AMENDED COMPLAINT [F.R.C.P. (b)(), (b)(), & (f)] NO ORAL ARGUMENT UNLESS REQUESTED BY THE COURT Courtroom: B Judge: Hon. Cynthia Bashant Trial Date: N/A Action Filed: //0 Defs. Mem. of P s & A s in Support of () Mot. to Dismiss the First Am. Compl.; and () Mot. to Strike the First Am. Compl. (:-cv-00-bas/ags)

2 Case :-cv-00-bas-ags Document - Filed 0/0/ PageID. Page of 0 TABLE OF CONTENTS Page Introduction... Factual Allegations and Claims for Relief in the First Amended Complaint... Standard of Review... Summary of Argument... Argument in Support of Motion to Dismiss... I. The first claim in the FAC for declaratory relief fails to plead the existence of a live, justiciable case or controversy between Pauma and State defendants... II. The fourteenth claim in the FAC fails to allege a viable claim for breach of the covenant of good faith and fair dealing against State defendants... III. State defendants enjoy sovereign immunity from suit under the Eleventh Amendment to the United States Constitution... IV. Pauma fails to plead a proper basis for federal jurisdiction... Argument in support of Motion to Strike... I. The allegations disclosing communications relating to an offer to compromise should be stricken from the FAC, and from any claim grounded thereupon... II. All requests for relief in the form of money damages should be stricken from the FAC... Conclusion... i Defs. Mem. of P & A s in Support of their () Mot. to Dismiss the st Am. Compl.; and () Mot. to Strike the st Am. Compl. (:-cv-00-bas/ags)

3 Case :-cv-00-bas-ags Document - Filed 0/0/ PageID. Page of 0 CASES TABLE OF AUTHORITIES Page Bell v. Hood U.S. ()... Bruton v. Gerber Prods. Co. F. Supp. d (N.D. Cal. 0)... Cabazon Band of Mission Indians v. Wilson F.d 0 (th Cir. )... Cachil Dehe Band of Wintun Indians of the Colusa Indian Community v. California F.d (th Cir. 0)... Clinton v. Acequia, Inc. F.d (th Cir. )... Conservation Force v. Salazar F.d 0 (th Cir. 0)... Dichter-Mad Family Partners, LLP v. United States 0 F. Supp. d (C.D. Cal. 0)... Green v. Mansour U.S. ()... In re Indian Gaming Related Cases F.d (th Cir. 00)... McClain v. Octagon Plaza, LLC Cal. App. th (00)... McCrary v. Elations Co., LLC No. EDCV -0, 0 U.S. Dist. LEXIS (C.D. Cal. July, 0)..., McKnight v. Torres F.d 0 (th Cir. 00)... ii Defs. Mem. of P & A s in Support of their () Mot. to Dismiss the st Am. Compl.; and () Mot. to Strike the st Am. Compl. (:-cv-00-bas/ags)

4 Case :-cv-00-bas-ags Document - Filed 0/0/ PageID. Page of 0 TABLE OF AUTHORITIES (continued) Page McVey v. McVey F. Supp. d 0,... Mitchell v. Brown No. :-cv-, 0 U.S. Dist. LEXIS (E.D. Cal. June 0, 0)... Morongo Band of Mission Indians v. Cal. State Bd. of Equalization F.d (th Cir. )..., Moses H. Cone Mem l Hosp. v. Mercury Constr. Corp. 0 U.S. ()... NLRB v. Little River Band of Ottawa Indians Tribal Gov t F.d (th Cir. 0) (dissenting opn., McKeague, J.)... Oneida Indian Nation of N.Y. v. County of Oneida U.S. ()... Parks School of Business, Inc. v. Symington F.d 0 (th Cir. )... San Jose Prod. Credit Ass n v. Old Republic Life Ins. Co. F.d 00 (th Cir. )... San Pasqual Band of Mission Indians v. State of California Cal. App. th (0)...,, Schneider v. Cal. Dept. Of Corrections F.d (th Cir. )... Scott v. Breeland F.d (th Cir. )... Seminole Tribe v. Florida U.S. ()... Tongol v. Donovan F.d (th Cir. )... iii Defs. Mem. of P & A s in Support of their () Mot. to Dismiss the st Am. Compl.; and () Mot. to Strike the st Am. Compl. (:-cv-00-bas/ags)

5 Case :-cv-00-bas-ags Document - Filed 0/0/ PageID. Page of 0 TABLE OF AUTHORITIES (continued) Page Unite Here v. Pala Band of Mission Indians F. Supp. d 0 (S.D. Cal. 00)... Veoh Networks, Inc. v. UMG Recordings, Inc. F. Supp. d (S.D. Cal. 00)... Westlands v. NRDC F. Supp. d (E.D. Cal. 00) (Westlands)... STATUTES United States Code.... et seq.... United States Code -... United States Code United States Code...,, United States Code et seq.... California Government Code 00...,,, CONSTITUTIONAL PROVISIONS United States Constitution, Eleventh Amendment...,,, United States Consituttion, Article I, Cl.... iv Defs. Mem. of P & A s in Support of their () Mot. to Dismiss the st Am. Compl.; and () Mot. to Strike the st Am. Compl. (:-cv-00-bas/ags)

6 Case :-cv-00-bas-ags Document - Filed 0/0/ PageID. Page of 0 COURT RULES TABLE OF AUTHORITIES (continued) Page Federal Rule of Civil Procedure Rule (b)()...,,,, Rule (b)()...,, Rule (f)...,, Federal Rule of Evidence Rule 0..., Rule 0(a)... OTHER AUTHORITIES Restatement (Second) of Contracts... v Defs. Mem. of P & A s in Support of their () Mot. to Dismiss the st Am. Compl.; and () Mot. to Strike the st Am. Compl. (:-cv-00-bas/ags)

7 Case :-cv-00-bas-ags Document - Filed 0/0/ PageID. Page of 0 INTRODUCTION Defendants the State of California and Edmund G. Brown Jr., as Governor of the State of California (collectively, State Defendants), submit this Memorandum of Points and Authorities in support of their motion to dismiss and motion to strike pursuant to Federal Rule of Civil Procedure (b)(), (b)(), and (f). By this motion, State Defendants challenge the first and fourteenth claims against them in the First Amended Complaint (FAC) filed by plaintiff the Pauma Band of Luiseno Mission Indians of the Pauma & Yuima Reservation, a/k/a Pauma Band of Mission Indians, a federally-recognized Indian Tribe (Pauma). FACTUAL ALLEGATIONS AND CLAIMS FOR RELIEF IN THE FIRST AMENDED COMPLAINT The general allegations in the FAC cover a wide range of factual and legal matters going back approximately sixty years, including a chronicle of the National Labor Relations Act s (NLRA) application to businesses owned by Indian tribes (Doc., pp. -, -); the birth of Indian gaming in California (id., pp. -0); the tribal-state compacting process under the Indian Gaming Regulatory Act, U.S.C. -; U.S.C. 0- (IGRA) (id., pp. -); accounts of earlier lawsuits relating to Indian gaming in California brought both before and after legislative ratification of the Tribal-State Compact ( Compact) (id., pp. -, -, -, -); Pauma s execution of the Compact with the State of California, which includes a provision requiring Pauma to adopt procedures for addressing the rights of employees at Pauma s gaming enterprise (id., pp. - ); Pauma s execution of an amendment to the Compact and its subsequent judicial rescission (id., p. -); and relations between Pauma and defendant UNITE HERE International (the Union) (id.,, pp. -, -). All subsequent Rule references are to the Federal Rules of Civil Procedure. Defs. Mem. of P s & A s in Support of () Mot. to Dismiss the First Am. Compl.; and () Mot. to Strike the First Am. Compl. (:-cv-00-bas/ags)

8 Case :-cv-00-bas-ags Document - Filed 0/0/ PageID. Page of 0 Fourteen claims for relief emerge from these varied events. The crux of the twelve claims against the Union is the alleged breach of the Compact based on the Union filing unfair labor practice charges with the National Labor Relations Board (NLRB) rather than pursuing the dispute resolution procedures made available under the Tribal Labor Relations Ordinance (TLRO) that Pauma approved pursuant to the Compact. Only the first and fourteenth claims for relief are alleged against State Defendants. Pauma s first claim is entitled [Declaration of Procedure Governing the Resolution of Work Related Disputes ( Compact, Addendum B at (a) & U.S.C. et seq. versus U.S.C. et seq.)] (Doc., p. ). In support of this claim, the FAC alleges that the express signatories to the Compact are Pauma and the State,... the State inserted a provision in Section. of the Compact requiring the first wave of signatory tribes to sit down with the Union... and negotiate an agreement that would apply... protections [for workers rights] and create an alternative forum for resolving labor issues, that the Union is circumvent[ing] the arbitration process in the TLRO by filing charges directly with the NLRB, and that the State [is] feigning indifference about whether the TLRO s dispute resolution procedures or the NLRA govern the resolution of labor disputes between the Union and Pauma. (Id., pp. -.) On this basis, the FAC alleges that an actual controversy has arisen and now exists between the parties, (id., p. ) and seeks a declaration that the TLRO is valid and enforceable against all parties to the Compact (including the Union). (Id., p..) Pauma s fourteenth claim is entitled [Breach/Violation of the Implied Covenant of Good Faith and Fair Dealing Inaction Following Notice of Breaches /Attempt to Block Court Action (Restatement (Second) of Contracts and other General Principles of Federal Contract Law)] (Doc., p..) This claim appears Defs. Mem. of P s & A s in Support of () Mot. to Dismiss the First Am. Compl.; and () Mot. to Strike the First Am. Compl. (:-cv-00-bas/ags)

9 Case :-cv-00-bas-ags Document - Filed 0/0/ PageID. Page of 0 to be based on the alleged failure of State Defendants to direct the Union to comply with the TLRO following a September, 0 pre-suit dispute resolution meeting between Pauma and Joginder Dhillon, Governor Brown s Senior Advisor for Tribal Negotiations. (Id., pp. -,.) This claim is also partially based on communications between State Defendants and Pauma s counsel of record regarding an offer to compromise made within the context of a December, 0 conference of counsel in compliance with Rule.A. of Judge Bashant s Standing Order for Civil Cases. (Id., pp.,.) Pauma alleges that these events produced breaches of the implied covenant of good faith and fair dealing underlying the Compact, and requests damages as a remedy therefor. (Id., pp. -.) The core dispute upon which the FAC is based is between the Union and Pauma. Pauma includes State Defendants as parties to the action in an apparent attempt to invoke the jurisdiction of this Court. STANDARD OF REVIEW A Rule (b)() dismissal is proper if there is a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Conservation Force v. Salazar, F.d 0, (th Cir. 0) (quoting Balistreri v. Pacifica Police Dep t, 0 F.d, (th Cir. 0)). A Rule (b)() motion to dismiss tests whether a complaint alleges grounds for federal subject matter jurisdiction. Bruton v. Gerber Prods. Co., F. Supp. d, (N.D. Cal. 0). When a defendant challenges the jurisdiction of the court, the plaintiff bears the burden of establishing jurisdiction. Scott v. Breeland, F.d, (th Cir. ). Generally, the court s analysis is limited to the contents of the complaint. See Schneider v. Cal. Dept. Of Corrections, F.d, n. (th Cir. ). However, [w]hen a plaintiff has attached various exhibits to the complaint, those exhibits may be considered in determining whether dismissal [is] proper. Parks School of Business, Inc. v. Symington, F.d 0, (th Cir. ). This is Defs. Mem. of P s & A s in Support of () Mot. to Dismiss the First Am. Compl.; and () Mot. to Strike the First Am. Compl. (:-cv-00-bas/ags)

10 Case :-cv-00-bas-ags Document - Filed 0/0/ PageID. Page of 0 true whether the challenge is for failure to state a claim or lack of jurisdiction. See Dichter-Mad Family Partners, LLP v. United States, 0 F. Supp. d, & n. (C.D. Cal. 0). Under a Rule (f) motion to strike, the Court may strike any material that is redundant, immaterial, impertinent or scandalous. Courts may use Rule (f) to strike allegations from complaints that detail settlement negotiations within the ambit of [Federal Rule of Evidence] 0. McCrary v. Elations Co., LLC, No. EDCV -0, 0 U.S. Dist. LEXIS, at * (C.D. Cal. July, 0), citing Stewart v. Wachowski, No. CV0-, 00 U.S. Dist. LEXIS 0, at * (C.D. Cal. Sept., 00). SUMMARY OF ARGUMENT The FAC should be dismissed for the following reasons:. As to the first claim for declaratory relief, Pauma fails to allege facts demonstrating the existence of a live case or controversy between it and State Defendants. The claim thus seeks an impermissible advisory opinion over which the Court lacks subject matter jurisdiction.. As to the fourteenth claim for breach of the implied covenant of good faith and fair dealing, Pauma fails to allege facts demonstrating that State Defendants acted or failed to act in a manner causing injury to Pauma s right to receive the benefits of express terms in the parties Compact.. State Defendants enjoy immunity from suit in federal court under the Eleventh Amendment to the United States Constitution, and have not waived their immunity from suit for the claims alleged in the FAC.. Pauma s FAC fails to plead a proper basis for federal subject matter jurisdiction. In addition, portions of the FAC should be stricken for the following reasons:. The fourteenth claim for relief is based, in part, on communications between the parties relating to a compromise offer, which are inadmissible to prove Defs. Mem. of P s & A s in Support of () Mot. to Dismiss the First Am. Compl.; and () Mot. to Strike the First Am. Compl. (:-cv-00-bas/ags)

11 Case :-cv-00-bas-ags Document - Filed 0/0/ PageID.0 Page of 0 the claim under Federal Rule of Evidence 0. All references to the compromise offer, and the portions of the claim for breach of the implied covenant of good faith and fair dealing based upon such references, should be stricken from the FAC.. Pursuant to the Compact, money damages are not available as a remedy against State Defendants. All requests for, and references to, money damages against State Defendants should be stricken from the FAC. ARGUMENT IN SUPPORT OF MOTION TO DISMISS I. THE FIRST CLAIM IN THE FAC FOR DECLARATORY RELIEF FAILS TO PLEAD THE EXISTENCE OF A LIVE, JUSTICIABLE CASE OR CONTROVERSY BETWEEN PAUMA AND STATE DEFENDANTS The judicial power of the federal courts is limited to genuine cases or controversies. Westlands v. NRDC, F. Supp. d, (E.D. Cal. 00) (Westlands), citing U.S. Const., Art. III, sec.. The court s role is neither to issue advisory opinions nor to declare rights in hypothetical cases, but to adjudicate live cases or controversies consistent with the powers granted the judiciary in Article III of the Constitution. Westlands, F. Supp. d at 0, citing Thomas v. Anchorage Equal Rights Commission, 0 F.d (th Cir. 000) (en banc). [W]hether the relief sought is monetary, injunctive or declaratory, in order for a case to be more than a request for an advisory opinion, there must be an actual dispute between adverse litigants and a substantial likelihood that a favorable federal court decision will have some effect. Westlands, F. Supp. d at 0. In the absence of a live dispute, or an immediate and certain injury to a party, the matter is not ripe for judicial review. Clinton v. Acequia, Inc., F.d, (th Cir. ). Where there is no case or controversy, a complaint will be dismissed for lack of subject matter jurisdiction under Rule (b)(). Westlands, F. Supp. d at ; see also Veoh Networks, Inc. v. UMG Recordings, Inc., F. Supp. d, (S.D. Cal. 00) (unspecified threats of litigation and the suggestion in Defs. Mem. of P s & A s in Support of () Mot. to Dismiss the First Am. Compl.; and () Mot. to Strike the First Am. Compl. (:-cv-00-bas/ags)

12 Case :-cv-00-bas-ags Document - Filed 0/0/ PageID. Page of 0 the complaint of a disagreement between the parties deemed insufficient to survive a motion to dismiss). Pauma s FAC conclusorily alleges that the action presents an actual and live controversy as to whether the TLRO obligates the Union to resolve any work related disputes... through the binding dispute resolution process set forth in the TLRO. (Doc., p. ). To be sure, Pauma describes ongoing disputes between itself and the Union in connection with the dispute resolution process and other matters, but it does not contend that State Defendants have taken a position adverse to Pauma or threatened any concrete action against it in connection with the TLRO. Nor does the FAC allege that State Defendants have supported or aided the Union in filing unfair labor practice charges with the NLRB. On the contrary, Pauma contends that State Defendants are feigning indifference and hold no official position on whether the TLRO or the NLRA governs disputes between the Union and Pauma. (Id. at pp.,.) The FAC also sheds no light whatsoever on how a decision holding that Pauma s TLRO displaces the NLRA would effect the legal relations between Pauma and State Defendants. With respect to the first claim for declaratory relief, the FAC facially fails to allege the existence of a genuine dispute between Pauma and State Defendants, and fails to allege how a decision favorable to Pauma will effect the legal relations between them. The FAC thus merely presents a request for an impermissible advisory opinion regarding the applicability of the TLRO to disputes between Pauma and the Union. As Pauma fails to allege the existence of a justiciable case or controversy between it and State Defendants, the matter is not ripe for judicial intervention, and this Court thus lacks subject matter jurisdiction to issue the It bears noting here that the federal circuit courts do not agree about whether the NLRA applies to labor organizing activities of non-tribal member employees of a tribe s commercial gaming enterprise. See NLRB v. Little River Band of Ottawa Indians Tribal Gov t, F.d, (th Cir. 0) (dissenting opn., McKeague, J.) (discussing circuit court split). Defs. Mem. of P s & A s in Support of () Mot. to Dismiss the First Am. Compl.; and () Mot. to Strike the First Am. Compl. (:-cv-00-bas/ags)

13 Case :-cv-00-bas-ags Document - Filed 0/0/ PageID. Page of 0 declaratory relief requested by the first claim. The first claim for declaratory relief should, therefore, be dismissed without leave to amend. II. THE FOURTEENTH CLAIM IN THE FAC FAILS TO ALLEGE A VIABLE CLAIM FOR BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING AGAINST STATE DEFENDANTS Pauma s fourteenth claim alleges that State Defendants breached the implied covenant of good faith and fair dealing (hereafter, the implied covenant). implied covenant imposes a burden that requires each party to a contract to refrain from doing anything to injure the right of the other to receive the benefits of the agreement. San Jose Prod. Credit Ass n v. Old Republic Life Ins. Co., F.d 00, 0 (th Cir. ) (quoting Egan v. Mutual of Omaha Ins. Co., Cal. d 0,, ()). The implied covenant s application is limited to assuring compliance with the express terms of the agreement and cannot impose substantive duties or limits on the contracting parties beyond those incorporated in the specific terms of their agreement. McClain v. Octagon Plaza, LLC, Cal. App. th (00). Accord, McKnight v. Torres, F.d 0, (th Cir. 00) (citing Spinks v. Equity Residential Briarwood Apartments, Cal. App. th 0, (00)). The implied covenant neither alter[s] specific obligations set forth in the contract nor add[s] duties independent of the contractual relationship. McKnight v. Torres, F.d at, quoting Shawmut Bank, N.A. v. Kress Assocs., F.d, 0 (th Cir. ). Although not made clear by the FAC, State Defendants assume for purposes of this motion only that Pauma s claim for breach of the implied covenant sounds in contract and not tort. General principles of federal contract law govern interpretation of the Compact. Cachil Dehe Band of Wintun Indians of the Colusa Indian Community v. California, F.d, (th Cir. 0). From a practical standpoint, this means courts will rely on California contract law and Ninth Circuit decisions interpreting California law unless there is a discernable difference between California and federal contract law. Id., citing Idaho v. Shoshone-Bannock Tribes, F.d, (th Cir. 00); Accord San Pasqual Band of Mission Indians v. State of California, Cal. App. th, (0). Defs. Mem. of P s & A s in Support of () Mot. to Dismiss the First Am. Compl.; and () Mot. to Strike the First Am. Compl. (:-cv-00-bas/ags) The

14 Case :-cv-00-bas-ags Document - Filed 0/0/ PageID. Page of 0 Pauma asserts two factual bases to support its claim for breach of the implied covenant. First, that State Defendants breached the implied covenant by failing to direct the Union to comply with the TLRO, or to otherwise become involved in the matter, when Pauma brought to State Defendants attention, during a pre-suit dispute resolution meeting on September, 0, that the Union was filing unfair labor practice charges with the NLRB rather than utilizing the dispute resolution procedures contained in the TLRO. (Doc., pp., -.) Second, that State Defendants breached the implied covenant when its counsel of record, during and subsequent to a December, 0 conference call to comply with Rule.A. of Judge Bashant s Standing Order for Civil Cases, discussed a compromise offer from Pauma with Pauma s counsel, and subsequently communicated State Defendants rejection of the offer a rejection Pauma characterizes as an attempt by the State to prevent [Pauma] from obtaining clarity about the terms of the Compact. (Id., at pp. -,, -.) As to State Defendants alleged failure to take action to ensure the Union followed the TLRO procedures, Pauma specifies no contractual obligation in the Compact requiring State Defendants to take any such action. Compact section., the labor relations provision, provides that Pauma must provide an agreement or procedure acceptable to the State for addressing organizational and representational rights of certain employees, but it imposes no duties on State Defendants aside from authorizing them to deem the agreement null and void if Pauma fails to provide such an agreement by a date certain. See In re Indian Gaming Related Cases, F.d, (th Cir. 00) (discussing Compact section. as requiring tribes to adopt a stand alone procedure in the Compact section. provides a threshold requirement that disputes between the parties first be subjected to a process of meeting and conferring in good faith to attempt to resolve their dispute before resort is made to court action. Pauma has attached the Compact to its FAC as Exhibit. Defs. Mem. of P s & A s in Support of () Mot. to Dismiss the First Am. Compl.; and () Mot. to Strike the First Am. Compl. (:-cv-00-bas/ags)

15 Case :-cv-00-bas-ags Document - Filed 0/0/ PageID. Page of 0 form of an ordinance (the TLRO) to address organizational and representational rights of gaming employees). The TLRO, attached to the Compact as Appendix B, imposes no obligation on State Defendants to direct, nor does it give them control over, a union s activities. The FAC s second basis for breach of the implied covenant, founded upon State Defendants alleged rejection of an offer to compromise communicated by and between the parties counsel of record, is frivolous on its face. First, Pauma does not specify any provision in the Compact imposing a duty upon State Defendants to accept conditional offers to dismiss litigation filed against them. Nor does Pauma specify any promise by State Defendants not to defend against such actions or to waive defenses available to them. In addition, the alleged communications surrounding the alleged compromise offer are inadmissible to prove the claim under Federal Rule of Evidence 0. Both of the alleged factual bases for Pauma s breach of the implied covenant rely on substantive duties or limits beyond those incorporated in the specific terms of the Compact. As such, Pauma has failed to state a claim upon which relief can be granted, and the fourteenth claim against State Defendants should be dismissed without leave to amend. III. STATE DEFENDANTS ENJOY SOVEREIGN IMMUNITY FROM SUIT UNDER THE ELEVENTH AMENDMENT TO THE UNITED STATES CONSTITUTION A court may grant a motion to dismiss pursuant to Rule (b)() for failure to state a claim based on the defense of sovereign immunity. See Mitchell v. Brown, No. :-cv-, 0 U.S. Dist. LEXIS, at * (E.D. Cal. June 0, 0) (A motion to dismiss on the ground of state sovereign immunity is considered under the standards applicable to Rule (b)().). IGRA does not operate to abrogate a state s sovereign immunity from suit under the Eleventh Amendment. Seminole Tribe v. Florida, U.S., (). Thus, notwithstanding the alleged existence of a class III gaming compact Defs. Mem. of P s & A s in Support of () Mot. to Dismiss the First Am. Compl.; and () Mot. to Strike the First Am. Compl. (:-cv-00-bas/ags)

16 Case :-cv-00-bas-ags Document - Filed 0/0/ PageID. Page of 0 entered under IGRA, a state retains its Eleventh Amendment immunity, and is subject to suit in federal court only to the extent it has expressly and unequivocally consented to be sued. See Green v. Mansour, U.S., (). Sovereign immunity waivers must be strictly and narrowly construed. Tongol v. Donovan, F.d, 0 (th Cir. ). Pauma alleges that State Defendants waived their sovereign immunity under section.(a) of the Compact and, alternatively, waived their immunity under California Government Code section 00. (Doc., p..) State Defendants address each alleged waiver of immunity separately. Compact Section.(a) Section.(a) of the Compact contains a limited and reciprocal sovereign immunity waiver from suit in federal court. Section.(a) states that the State and the Tribe expressly consent to be sued and waive any immunity... provided that... () [n]either side makes any claim for monetary damages and () [n]o person or entity other than the Tribe and the State is a party to the action.... Compact,.(a). While Pauma admits that the Union is a non-signatory to the Compact (Doc., p. ), it seeks to hold it liable for breach of the Compact as a privy, co-participant, and/or joint promisor with the State. (Doc., pp.,.) Taking this allegation as true, as the Court must on a motion to dismiss, it is insufficient to affect a waiver of State Defendants sovereign immunity under the express language of section.(a). That provision provides for waiver only when [n]o person or entity other than the Tribe and the State is a party to the action. Compact,.(a)(). All others not the Tribe [or] the State are considered third part[ies]. Id. A strict and narrow construction of the express waiver language allows for no exception when persons or entities other than the Tribe and the State are alleged to be privies, co-participants, or joint promisors to the Compact. Defs. Mem. of P s & A s in Support of () Mot. to Dismiss the First Am. Compl.; and () Mot. to Strike the First Am. Compl. (:-cv-00-bas/ags)

17 Case :-cv-00-bas-ags Document - Filed 0/0/ PageID. Page of 0 The Union is alleged to be a labor union that represents service and manufacturing employees. (Doc., p..) It is neither the Tribe nor the State. It is a third party to this action, and its presence as a third party renders section.(a) s limited sovereign immunity waiver inapplicable to permit Pauma s first and fourteenth claims to proceed against State Defendants. Additionally, section.(a) s limited waiver contains an express reservation of sovereign immunity to claims seeking monetary damages. Compact,.(a)(). In San Pasqual Band of Mission Indians v. State of California, Cal. App. th (0), the Court of Appeal held that section.(a)() is, by its plain terms, a waiver of money damages provision applicable in both state and federal court. Id. at,. In its FAC, Pauma seeks an award of damages against State Defendants as a remedy for its fourteenth claim alleging violation of the implied covenant. (Doc., pp. -.) As State Defendants retain their immunity from any and all claims seeking monetary damages, this provides an additional basis for dismissal of Pauma s fourteenth claim for relief in the FAC. California Government Code Section 00 pertinent part: California Government Code section 00, enacted in, states, in The State of California hereby submits to the jurisdiction of the courts of the United States in any action brought against the state by any federally recognized California Indian tribe asserting any cause of action arising from... the state s violation of the terms of any Tribal-State compact to which the state is or may become a party. (Cal. Gov. Code 00.) There are several reasons why section 00 does not provide for a waiver of State Defendants sovereign immunity from the claims in Pauma s FAC. First, Compact section. places a limit on the operation of section 00 by the following specific language appearing at section.(a)()(c): Except as stated herein or elsewhere in this Compact, no other Defs. Mem. of P s & A s in Support of () Mot. to Dismiss the First Am. Compl.; and () Mot. to Strike the First Am. Compl. (:-cv-00-bas/ags)

18 Case :-cv-00-bas-ags Document - Filed 0/0/ PageID. Page of 0 waivers or consents to be sued, either express or implied, are granted by either party. Thus, parties to the Compact, like Pauma, have contractually relinquished their right to establish a waiver of state sovereign immunity by way of section 00. They are constrained by the limited waiver in Compact section.(a), which the parties agreed to in May, 000, after the enactment of Government Code section 00. (Doc., p..) Next, even if section 00 provides Compact tribes with an alternative basis for establishing waiver of state sovereign immunity under certain circumstances as specified therein, and despite Compact section.(a)()(c), it is not applicable to waive State Defendants immunity to the allegations underlying Pauma s first and fourteenth claims. Pauma s first claim for declaratory relief is alleged to arise from State Defendants feigning indifference to the question of whether the TLRO or the NLRA govern the resolution of disputes between Pauma and the Union. (Doc., p..) The claim does not arise from an alleged violation of the terms of the Compact. Applying the stringent test for finding an unequivocal and express sovereign immunity waiver to the relevant language in section 00, it does not clearly establish a waiver where, as here, the claim is founded upon something other than an alleged violation of a Tribal-State compact. With respect to the fourteenth claim for relief, Pauma alleges that State Defendants breached the implied covenant underlying the Compact. (Doc., pp.,.) Again, assuming arguendo that section 00 s language could affect a waiver for claims alleging violation of the Compact despite section.(a)()(c), section 00, construed narrowly and in favor of the sovereign, as it must be, does not expressly and unequivocally waive immunity from claims Section 00 provides for a waiver of sovereign immunity in other circumstances not implicated by the facts alleged in the FAC. Defs. Mem. of P s & A s in Support of () Mot. to Dismiss the First Am. Compl.; and () Mot. to Strike the First Am. Compl. (:-cv-00-bas/ags)

19 Case :-cv-00-bas-ags Document - Filed 0/0/ PageID. Page of 0 seeking monetary damages, which state sovereigns ordinarily receive protection from under the Eleventh Amendment. Thus, section 00 does not affect a waiver of State Defendants immunity from Pauma s fourteenth claim which seeks damages. IV. PAUMA FAILS TO PLEAD A PROPER BASIS FOR FEDERAL JURISDICTION Pauma lists seven sources of federal jurisdiction over this action. None of the cited sources provide a proper basis for federal jurisdiction. The FAC should be dismissed pursuant to Rule (b)() for lack of subject matter jurisdiction. See Morongo Band of Mission Indians v. Cal. State Bd. of Equalization, F.d, 0 (th Cir. ). IGRA and U.S.C. (Federal Question Jurisdiction) The FAC alleges that the Court has jurisdiction under IGRA and U.S.C.. (Doc., p..) Allegations of breach of a gaming compact entered pursuant to IGRA may invoke the jurisdiction of the federal courts. See Cabazon Band of Mission Indians v. Wilson, F.d 0 (th Cir. ). Although the fourteenth claim alleges that State Defendants breached the implied covenant underlying the Compact, a close examination of the facts underlying the claim reveals that the core issue does not involve the Compact, or breach by State Defendants of any provision therein. Rather, it involves the non-federal issue of the Union s alleged failure to follow the dispute resolution procedures in the TLRO. The FAC does not allege that the TLRO is a contract between State Defendants and Pauma. Although the FAC alludes to the importance of labor issues to the State during negotiations for the Compact (Doc., p. ), Pauma alleges that the TLRO was directly negotiated, accepted, and agree[ed] upon by the Union, and merely approved by State Defendants. (Doc., pp.,,,.) And while Pauma asserts that a tribe s failure to comply with the terms of the TLRO could lead to a claim for material breach by State Defendants, it concedes that Addendum B, attached to the Contract, instructs only that the Defs. Mem. of P s & A s in Support of () Mot. to Dismiss the First Am. Compl.; and () Mot. to Strike the First Am. Compl. (:-cv-00-bas/ags)

20 Case :-cv-00-bas-ags Document - Filed 0/0/ PageID. Page 0 of 0 [f]ailure of the Tribe to maintain the Ordinance in effect during the term of this Compact shall constitute a material breach entitling the State to terminate this Compact. (Id., p..) Accepting as true, as this court must, the allegation that the TLRO is an agreement between Pauma and the Union, the Union s alleged failure to comply with that agreement is not a matter arising under the Constitution, laws, or treaties of the United States. See e.g., Unite Here v. Pala Band of Mission Indians, F. Supp. d 0, (S.D. Cal. 00) (declining jurisdiction to enforce arbitration award under the same model TLRO involved here, because the core issue was non-federal and the TLRO was not a contract subject to extensive federal regulation). Thus, the court lacks jurisdiction to entertain this action under IGRA and U.S.C.. There exists an alternate reason for this court to decline to assert subject matter jurisdiction over this action. Dismissal of actions on the basis of jurisdiction is appropriate when the alleged federal claim is so insubstantial, implausible, foreclosed by prior decisions of [the Supreme] Court, or otherwise completely devoid of merit as not to involve a federal controversy. Oneida Indian Nation of N.Y. v. County of Oneida, U.S., (). Accord, Bell v. Hood, U.S., - () (dismissal is appropriate where the alleged claim appears to be immaterial and made solely for the purpose of obtaining federal jurisdiction or where such claim is wholly insubstantial and frivolous ). Courts are also authorized, under U.S.C., to dismiss claims in which a party has been improperly or collusively joined to invoke the jurisdiction of the court. Here, the original complaint asserted a single declaratory relief claim against State Defendants. That claim was based on the same allegation in the FAC that the State is feigning indifference to news that the Union was filing NLRB claims pursuant to federal law rather than utilizing the dispute resolution process contained in the TLRO. Upon being advised during the conference of counsel that the complaint failed to allege the existence of a dispute with State Defendants, and that Defs. Mem. of P s & A s in Support of () Mot. to Dismiss the First Am. Compl.; and () Mot. to Strike the First Am. Compl. (:-cv-00-bas/ags)

21 Case :-cv-00-bas-ags Document - Filed 0/0/ PageID.0 Page of 0 it alleged only a dispute with the Union (Doc., p. ), Pauma added a claim for breach of the implied covenant to the FAC in an apparent effort to obtain jurisdiction under IGRA, and in response to the State Defendants expected no case or controversy defense to the declaratory relief claim. To appreciate how wholly insubstantial and frivolous the new claim for breach of the implied covenant claim is, this Court need only consider that the claim is based solely on interactions between the parties (or their counsel) during conferences intended to serve as good faith efforts to resolve disputes, and arise solely from two of the three instances during which the parties discussed issues involved in this case one instance being the pre-suit dispute resolution conference required by the Compact, and the other the first of the two pre-motion conferences convened pursuant to this Court s Standing Order. As the claim for breach of the implied covenant claim is wholly frivolous and was clearly added to invoke the jurisdiction of the Court, this Court should decline to exercise jurisdiction over the action. U.S.C. (Indian Tribes Jurisdiction) Like U.S.C., claims brought under U.S.C., must arise under the Constitution, laws, or treaties of the United States. Pauma cites only to IGRA as the federal law under which its claims allegedly arise. The same reasons for declining to exercise jurisdiction discussed in connection with IGRA and federal question jurisdiction are applicable to Indian Tribes Jurisdiction under U.S.C.. The Indian Commerce Clause The Indian Commerce Clause confers power on Congress. U.S. Const., Art. I,, Cl.. The FAC does not present any issue relating to Congress authority under the Indian Commerce Clause. Defs. Mem. of P s & A s in Support of () Mot. to Dismiss the First Am. Compl.; and () Mot. to Strike the First Am. Compl. (:-cv-00-bas/ags)

22 Case :-cv-00-bas-ags Document - Filed 0/0/ PageID. Page of 0 The Declaratory Judgment Act and Federal Arbitration Act The Declaratory Judgment Act, U.S.C. 0, and the Federal Arbitration Act, U.S.C., are not independent sources of federal jurisdiction. They each only provide authority for a court to impose a remedy where a district court would otherwise have original jurisdiction. McVey v. McVey, F. Supp. d 0, n. (C.D. Cal. 0) (Declaratory Judgment Act); Moses H. Cone Mem l Hosp. v. Mercury Constr. Corp., 0 U.S., n., () (Federal Arbitration Act). Section.(d) of The Compact Section.(d) of the Compact provides that disagreements between a tribe and the State that are not otherwise resolved by arbitration, may be resolved in the United States District Court where the Tribe s Gaming Facility is located, or is to be located, and the Ninth Circuit Court of Appeals.... Parties to a contract have no power to confer jurisdiction on the district court by agreement or consent. Morongo Band of Mission Indians v. Cal. State Bd. of Equalization, F.d, 0 (th Cir. ). Thus, section.(d) cannot serve to confer jurisdiction on this Court. ARGUMENT IN SUPPORT OF MOTION TO STRIKE I. THE ALLEGATIONS DISCLOSING COMMUNICATIONS RELATING TO AN OFFER TO COMPROMISE SHOULD BE STRICKEN FROM THE FAC, AND FROM ANY CLAIM GROUNDED THEREUPON Under Rule (f), the Court may strike any material that is redundant, immaterial, impertinent or scandalous. Courts may use Rule (f) to strike allegations from complaints that detail settlement negotiations within the ambit of [Federal Rule of Evidence] 0. McCrary v. Elations Co., LLC, No. EDCV - 0, 0 U.S. Dist. LEXIS, at * (C.D. Cal. July, 0), citing Stewart v. Wachowski, No. CV0-, 00 U.S. Dist. LEXIS 0, at * (C.D. Cal. Sept., 00). Pauma s FAC includes the alleged details of a discussion among the parties legal representatives regarding a compromise offer made by Defs. Mem. of P s & A s in Support of () Mot. to Dismiss the First Am. Compl.; and () Mot. to Strike the First Am. Compl. (:-cv-00-bas/ags)

23 Case :-cv-00-bas-ags Document - Filed 0/0/ PageID. Page of 0 Pauma to conditionally dismiss State Defendants from this suit. The claim for breach of the implied covenant is partially based on these discussions, and on State Defendants response to the offer. Under the above authorities, such communications are inadmissible by any party either to prove or disprove the validity... of a disputed claim. Fed. R. Evid. 0(a). Accordingly, to the extent the breach claim survives the motion to dismiss, or if the Court grants the motion to dismiss with leave to amend, State Defendants request that the Court order stricken from the operative complaint all references to the compromise offer made during and immediately following the December, 0 conference of counsel, State Defendants response to the offer, and all portions of the breach of the implied covenant claim founded on such references. II. ALL REQUESTS FOR RELIEF IN THE FORM OF MONEY DAMAGES SHOULD BE STRICKEN FROM THE FAC As discussed in Argument section C. of the motion to dismiss portion of this memorandum, San Pasqual Band of Mission Indians v. State of California, holds that Compact section.(a)() is, by its plain terms, a waiver of money damages provision applicable in both state and federal court. San Pasqual Band of Mission Indians v. State of California, Cal. App. th at,. Pauma s FAC seeks money damages against State Defendants in conjunction with its breach of the implied covenant claim. As Pauma is not authorized to pursue money damages against State Defendants, State Defendants request that, to the extent the FAC survives the motion to dismiss, or if the Court grants the motion with leave to amend, the Court order stricken from the operative pleading all requests for relief in the form of money damages against State Defendants. Defs. Mem. of P s & A s in Support of () Mot. to Dismiss the First Am. Compl.; and () Mot. to Strike the First Am. Compl. (:-cv-00-bas/ags)

24 Case :-cv-00-bas-ags Document - Filed 0/0/ PageID. Page of 0 CONCLUSION For the foregoing reasons, State Defendants respectfully request that the Court grant their motion to dismiss, without leave to amend, and, if the motion is denied or granted with leave to amend, then to grant their motion to strike. Dated: January, 0 SA00 Pauma Points and Authorities Final.doc Respectfully Submitted, KATHLEEN A. KENEALY Acting Attorney General of California SARA J. DRAKE Senior Assistant Attorney General JENNIFER T. HENDERSON Deputy Attorney General s/t. Michelle Laird T. MICHELLE LAIRD Deputy Attorney General Attorneys for Defendants State of California and Governor Edmund G. Brown Jr. Defs. Mem. of P s & A s in Support of () Mot. to Dismiss the First Am. Compl.; and () Mot. to Strike the First Am. Compl. (:-cv-00-bas/ags)