UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON

Transcription

1 Gabriel S. Galanda, WSBA #0 Anthony S. Broadman, WSBA #0 Ryan D. Dreveskracht, WSBA # 0 th Ave. NE, Suite L P.O. Box Seattle, WA (0) - Attorneys for Defendant Yakama Nation Hon. Lonny R. Suko UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 0 0 STATE OF WASHINGTON, WASHINGTON DEPARTMENT OF LICENSING, CHRISTINE GREGOIRE, Governor, and ALAN HAIGHT, Director of Washington State Department of Licensing; Plaintiffs, v. THE TRIBAL COURT FOR THE CONFEDERATED TRIBES AND BANDS OF THE YAKAMA NATION, and its CHIEF TRIBAL COURT JUDGE TED STRONG, and the CONFEDERATED TRIBES AND BANDS OF THE YAKAMA NATION, a Federally Recognized Indian Tribe, Defendants. NO. CV---LRS MOTION TO DISMISS FOR INEFFECTIVE SERVICE May, 0 Without Oral Argument MOTION TO DISMISS FOR INEFFECTIVE SERVICE 0 th Ave. NE, Suite L P.O. Box Seattle, WA (0) -

2 0 0 Defendant Confederated Tribes and Bands of the Yakama Nation respectfully requests that the Court dismiss Plaintiffs Compliant pursuant to FED. R. CIV. PROC. (b)(). I. STATEMENT OF FACTS On December, 0, Plaintiffs filed a Complaint against the Tribal Court for the Confederated Tribes and Bands of the Yakama Nation ( Yakama Tribal Court ), Yakama Nation Chief Tribal Court Judge Ted Strong, and the Confederated Tribes and Bands of the Yakama Nation ( Yakama Nation collectively Defendants ). ECF No.. On January, 0, a process server delivered three Summonses and Complaints, one set for each defendant, to Zoretta Westfield, an administrative clerk for the Yakama Tribal Court. ECF Nos. -. This Motion is made without waiver of any objections to the jurisdiction of the Court. The Yakama Nation does not waive, alter or otherwise diminish any rights, privileges, remedies or services guaranteed by the Treaty With The Yakama of, Stat. (). Nor does the Yakama Nation waive its sovereign immunity, in any form, or otherwise consent any Yakama agent or instrumentality to the jurisdiction of this Court or any tribunal. The Proofs of Service filed with the Court incorrectly identifies Ms. Westfield as the Yakama Nation Court Clerk. ECF Nos. ECF Nos. -. Ms. Westfield is not a Court Clerk for the Yakama Tribal Court; she is merely an administrative clerk. MOTION TO DISMISS FOR INEFFECTIVE SERVICE 0 th Ave. NE, Suite L P.O. Box Seattle, WA (0) -

3 Although the summonses were addressed to 0 Fort Road, Toppenish, WA, the Yakama Tribal Court is located at Wishpoosh Road, Toppenish, WA. Id. Ms. Westfield subsequently delivered the Summonses and Complaint to the undersigned counsel. Undersigned counsel has appeared on behalf of only the Yakama Nation only, and not the Yakama Tribal Court or Judge Strong. Nos. -0. ECF 0 The Yakama Tribal Court is a separate and distinct branch of Yakama governance that is not authorized to accept service of process for the Nation. It is generally accepted federal law that, unless otherwise stated in tribal law, tribal courts are separate and distinct from other branches of tribal government. See Grand Canyon Skywalk Dev. v. SA NYU WA, No. -00, 0 WL 0, at * (D. Ariz. Mar., 0) (finding that conduct of the Hualapai Tribal Council and its attorneys and the actions of litigants or other branches of tribal government cannot be attributed to actions of the Tribal Court ); Basil Cook Enter. v. St. Regis Mohawk Tribe, F.Supp.d, (N.D.N.Y. ) Notably, even in their Notices of Appearance, attorneys for the Yakama Nation 0 made a continuing objection to the sufficiency of Plaintiffs alleged service of process under FED. R. CIV. PROC. (b)(). ECF No., at. Further, during oral argument on January, 0, the Nation s counsel advised the Court and Plaintiffs counsel that Plaintiffs had failed to properly serve Defendants. MOTION TO DISMISS FOR INEFFECTIVE SERVICE 0 th Ave. NE, Suite L P.O. Box Seattle, WA (0) -

4 ( [T]ribal courts are an independent branch of the [tribal] government, whatever that government is or may become. ) (quotation omitted). The same holds true for the Yakama Nation. The Yakama Nation Tribal Council, the executive and legislative branch of the Yakama Nation, did not authorize the Yakama Tribal Court and/or Ms. Westfield to accept service of process on its behalf. The Yakama Nation identifies its governmental structure in a clearly accessible manner that is made available to the public on the Internet. See YAKAMA NATION PROGRAM LISTING, (last visited Apr., 0) ( The Tribal Court system continues to maintain the independence of its judiciary to secure its role in the Yakama Nation governmental system of checks and balances. ).; see also generally YAKAMA NATION ORGANIZATIONAL STRUCTURE, (last visited Apr., 0). Counsel for Plaintiffs failed to obtain a waiver of service as required by Rule (d). See generally FED. R. CIV. PROC. (d). Plaintiffs failed to serve Defendants with the Summons and Complaint by any other method. The Yakama Nation has acted as promptly as practicable and raised the defense of failure to timely serve in the first motion and in all subsequent filings, and otherwise put Plaintiffs on notice that service of process was not properly effected on any Defendant. Mata v. MOTION TO DISMISS FOR INEFFECTIVE SERVICE 0 th Ave. NE, Suite L P.O. Box Seattle, WA (0) -

5 Anderson, 0 F.Supp.d 0, 0 (D.N.M. 00). II. LAW AND ARGUMENT Rule (b)() allows a defendant to move to dismiss an action where the service of process of a summons and complaint is improper. FED. R. CIV. PROC. (b)(). Tribal governments must be served pursuant to Rule (j), which applies to foreign, state, and local governments. FED. R. CIV. PROC. (j); see e.g. E.E.O.C. v. Peabody W. Coal, No. 0-00, 0 WL 0, at * (D. Ariz. Mar., 0). Usually, courts will look to Rule (j)() to determine whether process was 0 correctly served pursuant to tribal law. Id. Under this rule, states, municipal corporations, and any other state-created governmental organization that is subject to suit may be served by either delivering a copy of the summons and of the complaint to its chief executive officer or serving a copy of each in the manner prescribed by that state s law for serving a summons or like process on Rule (j)() requires that [a] foreign state or its political subdivision, agency, or instrumentality must be served in accordance with U.S.C. 0. FED. R. CIV. PROC. (j)(). Section 0, however, is largely inapplicable to tribal governments. This comports with the general rule that service within [a] tribal court s 0 territorial jurisdiction be executed in accordance with tribal process. Water Wheel Camp Recreational Area v. LaRance, F.d 0, (th Cir. 0). MOTION TO DISMISS FOR INEFFECTIVE SERVICE 0 th Ave. NE, Suite L P.O. Box Seattle, WA (0) -

6 0 0 such a defendant. FED. R. CIV. PROC. (j)()(a)-(b). The other rule that might be applicable to tribal governments were the Nation were properly considered an association instead of a foreign, state, or local government is Rule (h). Peabody W. Coal, 0 WL 0, at *. Rule (h) requires that a defendant must be served: (A) in the manner prescribed by Rule (e)() for serving an individual; or (B) by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and if the agent is one authorized by statute and the statute so requires by also mailing a copy of each to the defendant.... FED. R. CIV. PROC. (h)(a)-(b). Rule (e)(), in turn, provides that service may be made following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made. FED. R. CIV. PROC. (e)(). Rule (m) requires that service of process be properly effected on the defendant within 0 days after the filing of the complaint. FED. R. CIV. PROC. (m). If proper service is not accomplished within 0 days after the complaint is filed, and the party on whose behalf service was required cannot show good cause why such service was not made, the action must be dismissed. Ortiz v. Gates, F.d, (th Cir. 000) (emphasis added). Even where a defendant has actual knowledge of the lawsuit, actual MOTION TO DISMISS FOR INEFFECTIVE SERVICE 0 th Ave. NE, Suite L P.O. Box Seattle, WA (0) -

7 0 0 knowledge does not substitute for proper service of process. Tavake v. Allied Ins., No. -, 0 WL, at * (E.D. Cal. Apr., 0); see also Omni Capital Int l v. Rudolf Wolff & Co., U.S., 0 () ( [B]efore a court may exercise personal jurisdiction over a defendant, there must be more than notice to the defendant and a constitutionally sufficient relationship between the defendant and the forum. ); Prewitt Enter. v. Org. of Petroleum Exp. Countries, F.d, n. (th Cir. 00) ( [A]ctual notice alone [i]s not enough to allow the court personal jurisdiction over the defendant. ) (Grand Entm t Group v. Star Media Sales, F.d, (d Cir. ) ( Notice to a defendant that he has been sued does not cure defective service, and an appearance for the limited purpose of objecting to service does not waive the technicalities of the rule ). Here, 0 days have lapsed since Plaintiffs filed the Complaint against Defendants on December, 0. ECF No.. Plaintiffs have yet to properly effect service of process on any Defendant. The Complaint must be dismissed. Russell v. Rook, F.Supp., (E.D. Wash. ). A. Plaintiffs Failed To Effectively Serve The Yakama Nation. Rules (j)(), (e)(), and (h)(a) all look to tribal law. Section.0.0 of the Revised Yakama Law and Order Code ( R.Y.C ) requires that a summons and complaint be served on the respondent by personal service or by mail. R.Y.C..0.0 (emphasis added). MOTION TO DISMISS FOR INEFFECTIVE SERVICE 0 th Ave. NE, Suite L P.O. Box Seattle, WA (0) -

8 Here, Plaintiffs did not serve the respondent. Plaintiffs served Zoretta 0 Westfield, a court administrator for the Yakama Tribal Court. As noted above, the Yakama Tribal Court is not the Yakama Nation. The Yakama Nation has separate offices, in separate buildings, with separate addresses and separate secretaries. Although the summons to the Yakama Nation was addressed to MR HARRY SMISKIN, IN HIS OFFICIAL CAPACITY AS CHAIRMAN OF THE YAKAMA NATION TRIBAL COUNCIL, and addressed to 0 FORT ROAD, Chairman Smiskin was never served. ECF No., at. Nor were copies of the Summons and Complaint left at the offices of the Yakama Nation at the listed address. Thus, service was not effected pursuant to Rules (j)()(a)-(b), (e)(), and (h)(a). Rule (h)(b) treats the Yakama Nation like a corporation. Ms. Westfield, however, is not an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process. FED. R. CIV. PROC. (h)(b). The Yakama Nation has not authorized Ms. Westfield, or anyone else for that matter, to receive service of process. Further, even if the summons and complaint reached the correct office it did not service on an administrative clerk or secretary is insufficient. See Larry M. Rosen & Assoc. v. Hurwitz, A.d, (D.C. Ct. App. ) ( A receptionist in one s office, even if authorized to sign for and open all of the mail, is not necessarily authorized to 0 accept service of process. ). The State s attempted service of Chairman Smiskin MOTION TO DISMISS FOR INEFFECTIVE SERVICE 0 th Ave. NE, Suite L P.O. Box Seattle, WA (0) -

9 0 0 by giving its lawsuit to a Yakama Tribal Court employee is akin to Governor Inslee being served with a U.S. District Court lawsuit through a court administrator at the Thurston County Superior Courthouse. Service was not effected upon the Yakama Nation pursuant to Rule (h)(b). B. Plaintiffs Failed to Effectively Serve The Yakama Tribal Court And Yakama Nation Chief Tribal Court Judge Ted Strong. First, the Summons issued to the Yakama Tribal Court and Judge Strong is invalid for the reasons discussed above. See generally Mousseaux v. U.S., F.d (th Cir. ). In the case that Rule (h)() applies, that Rule requires that the summons be directed to an officer, a managing or general agent or to any other agent authorized by appointment or law to receive service of process for the defendant. FED. R. CIV. PROC. (h)(). Neither the Yakama Tribal Court nor Judge Strong has authorized Ms. Westfield to receive service of process. Id. Ms. Westfield is a general employee of the Yakama Tribal Court she is not an officer or a managing/general agent of the Yakama Tribal Court and/or Judge Strong. Id. In the case that Rules (j)(), (e)(), or (h)(a) applies, the Summons and Complaint was not served on the respondent by personal service or by mail, as required by R.Y.C..0.0 (emphasis added). Again, they were served upon Ms. Westfield, a general employee of the Yakama Tribal Court. Proper service upon these Defendants was not accomplished. Second, tribal sovereign immunity extends to tribal officials, such as Judge MOTION TO DISMISS FOR INEFFECTIVE SERVICE 0 th Ave. NE, Suite L P.O. Box Seattle, WA (0) -

10 0 0 Strong, acting within the scope of their authority, and renders them immune from service of summons. Fletcher v. U.S., F.d, (0th Cir. ). This immunity serves to protect tribal officers from legal process, and applies to suits seeking declaratory or injunctive relief. U.S. v. Menominee Tribal Enter., No. 0-0, 00 WL, at *0 (E.D. Wis. June, 00) (citing U.S. v. James, 0 F.d (th Cir. )); see also Catskill Dev. v. Park Place Entm t, 0 F.R.D., (S.D.N.Y. 00) (same) (citing Davis v. Littell, F.d, - (th Cir. )). Although this immunity can be waived, such waiver must be unequivocally expressed. Santa Clara Pueblo v. Martinez, U.S., (). Although the Nation disagrees that it has waived its sovereign immunity under the terms of the Consent Decree and because it has twice previously ( and 00) invoked this court s jurisdiction over its dispute with the Plaintiffs regarding motor vehicle fuel taxation, neither Judge Strong nor the Yakama Tribal Court were parties to those actions. ECF No., at -. Neither Judge Strong nor the Yakama Tribal Court has waived immunity from service of summons. Neither Judge Strong nor the Yakama Tribal Court has been properly served. III. CONCLUSION Though dismissal is a harsh penalty that should only be imposed in extreme circumstances, when a Plaintiff repeatedly fails to correctly serve a MOTION TO DISMISS FOR INEFFECTIVE SERVICE 0 0 th Ave. NE, Suite L P.O. Box Seattle, WA (0) -

11 defendant, despite ample notice and opportunity to do, dismissal is warranted. Guthrie v. JD Enter. & Fin. Serv., No. -0, 0 WL 000, at * (S.D. Cal. June, 0) (citing Link v. Wabash R.R. Co., 0 U.S., -0 ()). The Nation has objected to Plaintiffs method of service in every pleading filed in this Court, and further notified Plaintiffs, in the presence of the Court, that service of process was not properly effected on any Defendant. Plaintiffs have acknowledged their failure to address the deficiency, ECF No., at n., but have refused to address the problem. Plaintiffs disregard of the Federal Rules 0 warrants dismissal. See e.g. Russell, F.Supp. at ; Holmes v. Gonzalez, No. 0 Indeed, throughout this litigation Plaintiffs have flouted the Federal and Local Rules. To name but a few examples: ECF No. still includes a fabricated version of the most critical portion of the most critical contract in dispute. It is not the best evidence to prove its content, see FED. R. EVID. 00, and would be inappropriately prejudicial since it is fabricated. See FED. R. EVID. 0. Despite admitting in a February, 0, to the Nation s counsel that, [y]ou are correct that the caption in the federal court case need [sic] to be changed, per Fed. R. Civ. P. (d), to reflect the fact that Jay Inslee has succeeded Christine Gregoire as the Governor of the State of Washington, now over a MOTION TO DISMISS FOR INEFFECTIVE SERVICE 0 th Ave. NE, Suite L P.O. Box Seattle, WA (0) -

12 , 00 WL 0, at * (E.D. Tenn. Apr., 00) (dismissal where, as here, the defendants put Plaintiff on notice of the problem in their initial motion ). Without rules, there is no civility. Without enforcement, the rules are worthless. Allen v. Interstate Brands Corp., F.R.D., (S.D. Ind. ). [T]he power to sanction through dismissal is essential to the district courts ability to manage efficiently their heavy case loads and thus protect the interests of all litigants. Roland v. Salem Contract Carriers, F.d, - (th Cir. ). This power serves not only to protect defendants but also to aid courts in keeping administrative control over their own dockets. Ladien v. Astrachan, F.d 0, 0- (th Cir. ). Here, the use of this power is appropriate. The Yakama Nation respectfully requests that the Court dismiss Plaintiffs Complaint, without prejudice, pursuant to FED. R. CIV. PROC. (b)(). DATED this th day of April, 0. month later and three months into the Governor s tenure the State has not yet made that change. ECF No. is still not sequentially paginated in its entirety. See LR 0.. The Federal Rules of Civil Procedure are intended to govern the procedure in all civil actions and proceedings in the United States district courts... FED. R. CIV. PROC.. The Court should not further sanction Plaintiffs disregard for the rules. MOTION TO DISMISS FOR INEFFECTIVE SERVICE 0 th Ave. NE, Suite L P.O. Box Seattle, WA (0) -

13 s/gabriel S. Galanda Gabriel S. Galanda, WSBA# 0 Anthony S. Broadman, WSBA #0 Ryan D. Dreveskracht, WSBA # Attorneys for Confederated Tribes and Bands of the Yakama Nation GALANDA BROADMAN, PLLC 0 th Ave. NE, Suite L P.O. Box Seattle, WA (0) - Fax: (0) -0 gabe@galandabroadman.com anthony@galandabroadman.com ryan@galandabroadman.com 0 0 MOTION TO DISMISS FOR INEFFECTIVE SERVICE 0 th Ave. NE, Suite L P.O. Box Seattle, WA (0) -

14 0 CERTIFICATE OF SERVICE I, Gabriel S. Galanda, declare as follows:. I am now and at all times herein mentioned a legal and permanent resident of the United States and the State of Washington, over the age of eighteen years, not a party to the above-entitled action, and competent to testify as a witness.. I am employed with the law firm of, 0 th Ave. NE, Suite L, Seattle, WA.. On April, 0, I filed the foregoing document, which will provide service to the following via ECF: Fronda Woods Rob Costello Bill Clark The foregoing statement is made under penalty of perjury and under the laws of the State of Washington and is true and correct. Signed at Seattle, Washington, this th day of April, 0. s/gabriel S. Galanda 0 MOTION TO DISMISS FOR INEFFECTIVE SERVICE 0 th Ave. NE, Suite L P.O. Box Seattle, WA (0) -