Case 2:15-cv TLN-KJN Document 31-1 Filed 03/01/16 Page 1 of 9

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1 Case :-cv-0-tln-kjn Document - Filed 0/0/ Page of 0 0 Linda S. Mitlyng, Esquire CA Bar No. 0 P.O. Box Eureka, California mitlyng@sbcglobal.net Attorney for defendants Richard Baland & Robert Davis UNITED INDIAN HEALTH SERVICES, v. Plaintiff JULIE SU; KEVIN KISH; ROBERT DAVIS; and RICHARD BALAND, Defendants. IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA Case No. :-CV-0-GEB/KJN DEFENDANTS RICHARD BALAND S AND ROBERT DAVIS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SANCTIONS PURSUANT TO FED. R. CIV. P. Before: Hon. Troy L. Nunley Date: April, 0 Time: :00 PM Courtroom:, th Floor COME NOW defendants RICHARD BALAND ( Baland and Robert Davis ( Davis (collectively as Defendants, and hereby move this Court for entry of an Order of sanctions against the attorneys and law firm of Plaintiff, United Indian Health Services ( UIHS, pursuant to Fed. R. Civ. P. (b and in support thereof, state as follows. I. INTRODUCUTION Litigation is not a game. The federal courts are not a vehicle for litigants, to harass others by filing frivolous claims, which wholly lack any conceivable merit under the existing facts or law. UIHS has already unsuccessfully litigated its claim of tribal sovereign immunity before the Superior Court of Humboldt County. The claim here of

2 Case :-cv-0-tln-kjn Document - Filed 0/0/ Page of 0 0 tribal sovereign immunity, is identical as that addressed in Green, et al v. UIHS, et al, Humboldt County Superior Court No. DR00. Because of UIHS s meritless filings, defendants Baland and Davis have been forced to defend themselves against the claim of tribal sovereign immunity in multiple forums spending thousands of dollars in attorneys fees and expenses and wasting valuable resources in the process. Rule sanctions in this matter are appropriate to deter future abusive litigation that may be contemplated by UIHS, and to compensate Baland and Davis for the amounts they have incurred in responding to the instant matter. II. PERTINENT FACTS Within one week of an investigative hearing in Defendants cases before the California Labor Court of the California Division of Labor Standards Enforcement, a hearing which had been scheduled for more than three months in cases, which had been filed for over a year, UIHS filed this complaint in this court, also requesting ex parte a temporary restraining order enjoining the labor court hearing from going forward and the investigation by the California Division of Labor Standards Enforcement ( DLSE from continuing in any form. UIHS has amended the original complaint to now include as a defendant the Director of the Department of Fair Employment and Housing ( DFEH and is also asking this court to enjoin that investigation from going forward. Although UIHS claimed tribal sovereign immunity as a defense in its answer to the complaints before the DLSE, the issue had not been raised further until UIHS filed its federal complaint in this court. The TRO was initially denied and this court required UIHS to serve the parties and set up a briefing schedule and a hearing to be heard within three court days. In an effort to expedite the process to resolve the issues in the state labor court, the parties agreed to brief the issue of UIHS s tribal sovereign

3 Case :-cv-0-tln-kjn Document - Filed 0/0/ Page of 0 0 immunity and take the pending federal court hearing on the TRO off calendar. The parties extensively briefed the issue of tribal sovereign immunity before the DLSE. On November, 0, Defendants counsel Linda. S. Mitlyng, was notified by the DLSE that the hearing would be rescheduled and that UIHS s claim of tribal sovereign immunity had been denied. Ms. Mitlyng then telephoned Wayne Maire and asked him whether he was going to dismiss the federal case in light of the DLSE ruling. He stated he would not be dismissing the federal case. Ms. Mitlyng advised Mr. Maire that she would be forced to file the instant motion if he did not dismiss the federal case. On November, 0, this motions for sanctions was served on defendants attorneys. See: Declaration of Linda S. Mitlyng In Support Of Defendants Richard Baland s and Robert Davis Motion For Sanctions Pursuant to Fed. R. Civ. P. filed herewith. ( Dec LSM. A. United Indian Health Services UIHS makes a material misstatement of fact when it claims in its First Amended Complaint for Declaratory Relief (hereinafter Complaint that UIHS is formed by a consortium of nine federally recognized Native American tribes to provide health services to members of the tribe. Complaint :-0. It is undisputed that Indian communities formed UIHS in 0. In, UIHS began at Humboldt State University under the California Regional Medical Programs. See: UIHS Historical Timeline, Exhibit A, a true and correct copy of which is attached to the Dec LSM. It is also undisputed that in 0, UIHS incorporated in the state of California as a nonprofit corporation. UIHS and its board are privately insured by Nonprofits Insurance Alliance of California ( NIAC. In fact, the federal litigation and the DLSE and DFEH investigations are being defended by NIAC. Dec LSM :-:.

4 Case :-cv-0-tln-kjn Document - Filed 0/0/ Page of 0 0 B. United Indian Health Services Articles of Incorporation According to its Articles of Incorporation ( AOI, [UIHS] is a regional, comprehensive, health-service corporation serving the Indian people living in or near the two North Coast counties of Del Norte and Humboldt in California. See: UIHS Articles of Incorporation, Exhibit B, Article, Section, a true and correct copy of which is attached to the Dec LSM, filed herewith, and incorporated herein by this reference. In its AOI, UIHS established that its board of directors would be elected from five ( areas. Exhibit B, Article,Section. UIHS also established that the corporation would have the powers to: enter into and perform contracts; receive, own, possess, administer and dispose of money and property or any description individually, as trustee or fiduciary, jointly or in any manner. Exhibit B, Article. UIHS was organized pursuant to the General Non-profit Corporation Law of the State of California. Exhibit B, Article. The directors listed in the AOIs were individuals, there is no mention of any Indian tribes. Exhibit B, Article. Upon dissolution, if the corporation holds any assets in trust, or otherwise, such assets shall be disposed of in such a manner as may be directed by decree of the Superior Court of the county in which the corporation has its principal office... Exhibit B, Article 0. The AOI also provide for amendment procedures. Exhibit B, Article. UIHS has not changed, modified, or amended its Articles of Incorporation since they were originally filed in 0. In its Complaint (Complaint :-, by asserting that Section.. of the DLSE Enforcement Policies and Interpretations Manual applies in this case, UIHS impliedly claims that it is a business owned by the tribes. This is simply not true, as demonstrated by Exhibits B. C. Ruling on United Indian Health Services Tribal/Sovereign Immunity The issue of UIHS tribal sovereign immunity was adjudicated in Green, et al v.

5 Case :-cv-0-tln-kjn Document - Filed 0/0/ Page of 0 0 UIHS, et al, Humboldt County Superior Court No. DR00, (challenging the validity of the board of directors elections. In Green, the issue of tribal sovereign immunity was extensively briefed, examined, and subsequently denied by the superior court. In ruling on UIHS s Motion to Quash Service of Summons and Dismiss the Action, the superior court considered the pleading, testimony, and documentary evidence. See Exhibit C, Green, et al v. UIHS, et al, Humboldt County Superior Court No. DR00, Order Re: Defendants Motion to Quash Service of Summons and Complaint and to Dismiss, (hereinafter Order UIHS Immunity, p :-, a true and correct copy of which is attached to the Dec LSM, filed herewith, and incorporated herein by this reference. Not satisfied with the court s ruling, UIHS asked for reconsideration of the issue. See Exhibit D, Green, et al v. UIHS, et al, Humboldt County Superior Court No. DR00, Order Re: Defendants Motion to Reconsider Denial of Motion to Quash and Dismiss, a true and correct copy of which is attached to the Dec LSM, filed herewith, and incorporated herein by this reference. The court denied UIHS s motion for reconsideration. UHIS next filed a Petition for Writ of Mandate/Prohibition in the California Court of Appeal. The appellate court denied UIHS s writ on two grounds: The petition lacks a record sufficient to enable informed appellate review. Additionally, the petition, which does not sufficiently address the superior court s detailed analysis set forth in the challenged orders, fails to demonstrate petitioners entitlement to writ relief. See Exhibit E, United Indian Health Services v. Superior Court, California Court of Appeal, First Appellate District, No. A, Order, a true and correct copy of which is attached to the Dec LSM, filed herewith, and incorporated herein by this reference. Should UIHS lose at the labor court hearing, its recourse would be to file an appeal to the Superior Court of Humboldt County.

6 Case :-cv-0-tln-kjn Document - Filed 0/0/ Page of 0 0 III. APPLICABLE LAW AND ARGUMENT Rule allows a court to impose sanctions on a party who has presented a pleading, motion or other paper to the court without evidentiary support or for any improper purpose. See Fed. R. Civ. P. Rule (b. An improper purpose may be inferred from the filing of frivolous papers. See In re Kunstler, F.d 0, (th Cir. 0. The standard is an objective one; whether a reasonable party would have acted in a particular way. See Chambers v. NASCO Inc., 0 U.S., (. An attorney has a duty prior to filing a complaint not only to conduct a reasonable factual investigation, but also to perform adequate legal research that confirms whether the theoretical underpinnings of the complaint are warranted by existing law or a good faith argument for an extension, modification or reversal of existing law. Golden Eagle Distrib. Corp. v. Burroughs Corp., 0 F.d, (th Cir.. One of the fundamental purposes of Rule is to reduce frivolous claims, defenses or motions and to deter costly meritless maneuvers,... [thereby] avoid[ing] delay and unnecessary expense in litigation. Id. at (internal quotation marks and citations omitted. Nonetheless, a finding of significant delay or expense is not required under Rule. Where, as here, the complaint is the primary focus of Rule proceedings, a district court must conduct a two-prong inquiry to determine ( whether the complaint is legally or factually baseless from an objective perspective, and ( if the attorney has conducted a reasonable and competent inquiry before signing and filing it. Buster v. Greisen, 0 F.d, 0 (th Cir.; Christian v. Mattel, Inc. F.d, (th Cir. 00. A. No Federal Question is Presented in the Instant Case. Title USC states that: The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. In relying upon federal question jurisdiction, in this case UIHS states

7 Case :-cv-0-tln-kjn Document - Filed 0/0/ Page of 0 0 that all of the claims arise under the Constitution, laws or treaties of the United States. Plaintiff s First Amended Complaint for Declaratory Relief (hereinafter Complaint, p. :-. The only issue raised by UIHS is tribal sovereign immunity. Nevertheless, UIHS has failed to point to any constitutional article, federal statute or relevant treaty, which grants original jurisdiction to the federal courts to determine tribal sovereign immunity. Instead, UIHS relies exclusively on the Indian Self- Determination and Education Assistance Act of, Public Law - ( ISDEAA in its claim of exclusive federal jurisdiction to address a claim of tribal sovereign immunity.. The ISDEAA Does Not Confer Federal Subject Matter Jurisdictions In Pink v. Modoc Indian Health Project, Inc. ( F.d the Ninth Circuit agreed with the district court in holding that the ISDEAA does not confer subject matter jurisdiction in the federal courts. Congress sought to achieve essentially the same goal when it enacted the ISDEAA as when it excluded tribes from the operation of Title VII. Both the ISDEAA and the Title VII tribe exemption attempt to aid tribal entities in their efforts to conduct their own affairs and economic activities with as much autonomy as possible. See IU 0 F.d at. Accordingly, the ISDEAA states, [n]othing in this Act shall be construed as affecting, modifying, diminishing, or otherwise impairing the sovereign immunity from suit enjoyed by an Indian tribe. U.S.C. 0n(. Because the ISDEAA does not effect tribal sovereign immunity, the district court was correct in holding that the ISDEAA could not confer subject matter jurisdiction. Pink v. Modoc Indian Health Project, Inc., F.d at -. Clearly plaintiff s attorneys are familiar with the Pink case since they have cited it in their complaint. Complaint :. As discussed in Bodi v. Shingle Springs Band of Miwok Indians, F.Supp.d (ED California, 0, tribal sovereign immunity may equally be invoked in state or federal courts. Id. at. The Bodi Court noted the numerous California state cases in

8 Case :-cv-0-tln-kjn Document - Filed 0/0/ Page of 0 0 which tribes successfully raised an immunity defense. Id. The Bodi Court went on to state that: Because there is no dedicated removal statute for Indian tribes (as there is for foreign states, the defendants herein were only able to remove this action because respondent pled a federal claim. Id. The federal claim alleged by Bodi was a violation of the Family Medical Leave Act. No federal claim has been alleged by these Defendants in their complaints filed with DFEH and DLSE, or by UIHS in its Complaint filed in this Court. There is no exclusive federal jurisdiction on the issue of tribal sovereign immunity.. Federal Preemption Is Not Applicable. For the same reasons discussed supra, UIHS s claim of federal preemption is baseless. UIHS has failed to point to any federal law at issue here much less one that is so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it...because the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject. (Citations. Complaint :-:. The only federal law UIHS cites in its Complaint is the ISDEAA. B. UIHS Has Filed in the Wrong Venue. UIHS and its attorneys are clearly forum shopping. UIHS makes a glaring misstatement of fact in its Complaint. Specifically, UIHS claims that: Venue is proper in the United States District Court, Eastern District of California, because a substantial part of the events giving rise to the claim occurred in the Sacramento, California area. Complaint :-. None of the events giving rise to the claim asserted here or claims asserted by Defendants in the DSLE or DFEH investigations, occurred in the Sacramento area or even in the Eastern District of California. UIHS is located in Arcata, California, Humboldt County, which is located in the Northern District of California.

9 Case :-cv-0-tln-kjn Document - Filed 0/0/ Page of 0 0 During their employment with UIHS the Defendants worked and lived in Humboldt County. The DLSE hearing was, and is scheduled to be heard in Eureka, California, in Humboldt County. Although the venue in the Eastern District of California is convenient for UIHS attorneys whose law offices are located in Redding, California, the potential witnesses and Defendants attorney are all located in the Northern District of California. UIHS attorneys have selected this venue as a convenience to them and an inconvenience to almost everyone else involved in this litigation. IV. CONCLUSION For the foregoing reasons, defendants Baland and Davis respectfully request that this Court enter an Order of sanctions against Wayne Maire and the law firm of Maire and Deeton, and award to Davis and Baland their reasonable attorneys fees, costs and expenses incurred in responding to the instant action and for such other and further relief that this court deems just and proper. Dated: February, 0 By: Respectfully Submitted, /s/ Linda S. Mitlyng Linda S. Mitlyng, Esquire CSB#0 Attorney for Defendants Robert Davis and Richard Baland

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