UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

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1 Case :-cv-00-vap-kk Document - Filed 0/0/ Page of Page ID #:0 0 George Forman (SBN 0 Kimberly A. Cluff (SBN Jay B. Shapiro (SBN 00 Jeffrey R. Keohane (SBN 00 FORMAN & ASSOCIATES 0 Redwood Highway, Suite E San Rafael, CA 0 Telephone: /-0 Facsimile: /- Attorneys for Defendant CRYSTAL MULLER, vs. Plaintiff, UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA MORONGO CASINO RESORT & SPA, et. al., Defendants. CASE NO.: EDCV -00 VAP (KKx MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS WITHOUT LEAVE TO AMEND Action Filed: /0/ Date: June, 0 Time: :00 p.m. Judge: Hon. Virginia A. Phillips 0 Case No. EDCV -00VAP(KKx

2 Case :-cv-00-vap-kk Document - Filed 0/0/ Page of Page ID #: 0 TABLE OF CONTENTS INTRODUCTION FACTS RELEVANT TO THE MOTION TO DISMISS UNDER F.R.CIV.P. (B( AND (B( ARGUMENT I. STANDARD FOR DETERMINING A MOTION TO DISMISS II. STATUTORY BASIS FOR SUBJECT MATTER JURISDICTION... A. The Court Lacks Jurisdiction Over Claims Against the Morongo Tribal Council Because the Tribe's Immunity Has Not Been Unequivocally Abrogated By an Act of Congress or Expressly and Unequivocally Waived by the Tribe The FMLA Does Not Abrogate Tribal Sovereign Immunity Morongo Has Not Waived Its Sovereign Immunity to a Private Suit Under the FMLA B. Muller's Claims Against MCRS C. The Tribe's Immunity Also Cloaks Defendants Kelley and Briton III. THE FAC SHOULD BE DISMISSED FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED (FRCP (b( A. The FMLA Does Not Apply to the Tribe IV. PROCESS HAS NOT BEEN SUFFICIENTLY SERVED CONCLUSION i Case No. EDCV -00VAP(KKx

3 Case :-cv-00-vap-kk Document - Filed 0/0/ Page of Page ID #: 0 0 TABLE OF AUTHORITIES CASES Alvarado v. Table Mtn. Rancheria, 0 F.d 00 (th Cir , Am. Vantage Cos. v. Table Mtn. Rancheria, F.d Bassett v. Mashentucket Indian Tribe, 0 F.d (d Cir Carsten v. Inter-Tribal Council of Nevada, --- Fed.Appx. ---, 0 WL (th Cir Chayoon v. Chao, F.d (d Cir passim Cook v. AVI Casino Enters., Inc., F.d (th Cir Daly-Murphy v. Winston, F.d (th Cir Exxon Mobil Corp. v. Allapattah Servs., U.S. ( Florida Paraplegic Ass'n. v. Miccosukee Indian Tribe, F.d (th Cir , Garcia v. Akwesasne Housing Authority, F.d (nd Cir In re Dynamic Random Access Memory Antitrust Litig. v. Micron Technology, Inc., F.d (th Cir Kiowa Tribe of Oklahoma v. Mfg. Technologies, Inc., U.S. ( , Kokkonen v. Guardian Life Ins. Co., U.S. ( Merrell Dow Pharm. Inc. v. Thompson, U.S. 0 ( Miller v. Wright, 0 F.d (th Cir , Morrison v. Viejas Enterprises., 0 WL 00 (S.D. Calif Pearson v. Chugach Government Services Inc., F.Supp.d (D.Del ii Case No. EDCV -00VAP(KKx

4 Case :-cv-00-vap-kk Document - Filed 0/0/ Page of Page ID #: 0 0 Safe Air for Everyone v. Meyer, F.d 0 (th Cir Santa Clara Pueblo v. Martinez, U.S. ( , State of Michigan v. Bay Mills Indian Community, U.S., S.Ct. 0 ( , Tenneco Oil v. Sac & Fox Tribe of Indians of Okl., F.d (0th Cir United States v. Testan, U.S. ( United States v. U.S. Fidelity & Guaranty Corp., 0 U.S. 0 ( UNITE-HERE Intern. Union v. Pala Band of Mission Indians, F.Supp.d 0 (S.D. Cal White v. Univ. of Calif., F.d 00 (th Cir RULES & REGULATIONS U.S.C. ((B U.S.C U.S.C. 0(b((A U.S.C U.S.C U.S.C U.S.C CFR U.S.C U.S.C , U.S.C U.S.C California Government Code Federal Rule of Civil Procedure (b( Federal Rule of Civil Procedure (b( , iii Case No. EDCV -00VAP(KKx

5 Case :-cv-00-vap-kk Document - Filed 0/0/ Page of Page ID #: Federal Rule of Civil Procedure (b( Federal Rule of Civil Procedure (b( Federal Rule of Civil Procedure (e Federal Rule of Civil Procedure (h Federal Rule of Evidence OTHER AUTHORITIES FMLA Regulations, Final Rule, Fed. Reg. No., pp. - (February, iv Case No. EDCV -00VAP(KKx

6 Case :-cv-00-vap-kk Document - Filed 0/0/ Page of Page ID #: 0 0 INTRODUCTION By her First Amended Complaint ("FAC" in this action, plaintiff, Crystal Muller ("Muller", seeks injunctive and declaratory relief, attorneys' fees and costs and unspecified other relief arising from termination of her employment as a slot machine attendant at the Morongo Casino Resort & Spa. The FAC names as defendants the Morongo Casino Resort & Spa ("MCRS" (the casino/hotel owned and operated by the federally-recognized Morongo Band of Mission Indians ("Tribe" on the Morongo Indian Reservation in Riverside County, California; the "Tribal Council for the Morongo Band of Mission Indians" ("Council" (the Tribe's elected governing body; Kandie Kelley ("Kelley" and Briton Cook ("Cook", both of whom are described in the FAC as "officials" of the Tribe, and "agency officers in their official capacities", but who the FAC does not allege were involved in Muller's termination; and fictitiously named Doe defendants. Muller asserts three purported claims for relief:. A "Federal Claim" that, in the words of the FAC,. Muller was discriminated and retaliated against because she sought arbitration and she sought the protection of the FMLA and under the Americans with Disabilities Act.[ ] 0. But-for the fact that she sought arbitration in order to follow the policies and procedures of Morongo and because she had a non-workrelated disability, she would not have been fired.. A "State Claim" that, in the words of the FAC,. Muller was discriminated and retaliated against her [sic] because she sought arbitration and a hearing before the tribal court and the protection Muller impliedly also alleges a violation of the Americans with Disabilities Act, U.S.C 0, et seq. ("ADA". However, U.S.C. ((B expressly excludes Indian Tribes from the definition of "employer", so the ADA doesn't apply to the Tribe or MCRS, and in any event does not give this Court jurisdiction over a private action against the Tribe. See Florida Paraplegic Ass'n. v. Miccosukee Indian Tribe, F.d (th Cir.. Case No. EDCV -00VAP(KKx

7 Case :-cv-00-vap-kk Document - Filed 0/0/ Page of Page ID #: 0 0 of the FMLA, under the Americans With Disabilities Act which would include California's CFRA.[ ].But-for the fact she sought arbitration and a hearing before the tribal court and had a disability and received the protection, she would not have been fired.. A "Federal Claim" that, in the words of the FAC,. Plaintiff sought to appear before the tribal court following the expressed policies and procedures of Morongo and sought arbitration but was denied.. Plaintiff not [sic] requests this Court compels arbitration so that the issue of her non-work-related issue of her requests for arbitration may be determined. In addition to the demands set forth in each of Muller's first two purported claims (no separate demands are included in her third purported claim, Muller prays for a permanent injunction requiring the Tribe to arbitrate her claims, a declaration that defendants' alleged "retaliatory conduct as alleged in this complaint violates Morongo's expressed compact to arbitrate", costs and attorneys' fees, and unspecified other relief. The Court should dismiss Muller's claims for lack of jurisdiction over either the subject matter of her action or the persons of the named defendants, and in any event because the FAC fails to state any claim upon which relief can be granted. FACTS RELEVANT TO THE MOTION TO DISMISS UNDER F.R.CIV.P. (B( AND (B( Only three of the FAC's actual or necessarily implied factual allegations are relevant to this motion to dismiss for lack of subject-matter jurisdiction (F.R.Civ.P. (b( and personal jurisdiction (F.R.Civ.P. (b(: (i the Tribal Council for the Morongo Band of Mission Indians is the Cal. Gov. Code,.. Case No. EDCV -00VAP(KKx

8 Case :-cv-00-vap-kk Document - Filed 0/0/ Page of Page ID #: governing body of the federally-recognized Indian Tribe that owns and operates MCRS (FAC b; (ii (iii all of the named defendants are agents of each other (FAC ; and Muller was employed by the Tribe/MCRS as a slot attendant and 0 then discharged from that employment (FAC. ARGUMENT I. STANDARD FOR DETERMINING A MOTION TO DISMISS Federal district courts are courts of limited jurisdiction and the law presumes that "a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co., U.S., (. As the master of the complaint, the plaintiff has the burden of affirmatively showing that jurisdiction exists. Thus, in response to a motion to dismiss for lack of subject-matter jurisdiction, the party seeking to invoke the district court's jurisdiction bears the burden of establishing subject matter jurisdiction, and dismissal for lack of jurisdiction is appropriate if the complaint, considered in its entirety, fails on its face to allege facts sufficient to establish subject matter jurisdiction. In re Dynamic Random Access Memory Antitrust Litig. v. Micron Technology, Inc., F.d, (th Cir. 00; Safe Air for Everyone v. Meyer, F.d 0, 0 (th Cir.00; UNITE-HERE Intern. Union v. Pala Band of Mission Indians, F.Supp.d 0, (S.D. Cal. 00 ("Although the 0 Morongo's status as a federally-recognized Indian Tribe is established beyond dispute not only by the admission in Muller's FAC, (b, but also by its listing in the Federal Register, Vol. 0, No., 0, pp. -, a true copy of which is attached as Document No. to the Request for Judicial Notice lodged herewith. Morongo's right to operate MCRS is recognized in the original and amended Class III Gaming Compact between Morongo and the State of California; a true copy of that Compact is attached as Document No. to the Request for Judicial Notice lodged herewith. The facts relevant to defendants' motion to dismiss pursuant to F.R.Civ.P. (b( are set forth in the Declaration of Faith Cartagena lodged herewith. That Declaration shows that the Proofs of Service filed in this action are false, and thus that service has been insufficient at least as to the Council, Kelley or Cook, if not all defendants, given that Ms. Cartagena has not been authorized to accept service on behalf of anyone, is not herself a defendant and is not the chief executive officer or otherwise in charge of MCRS. Case No. EDCV -00VAP(KKx

9 Case :-cv-00-vap-kk Document - Filed 0/0/ Page of Page ID #: 0 0 defendant is the moving party in a motion to dismiss, the plaintiff is the party invoking the court's jurisdiction. Therefore, the plaintiff bears the burden of proof on the necessary jurisdictional facts." "'Jurisdiction may not be sustained on a theory that the plaintiff has not advanced.'" Am. Vantage Cos. v. Table Mtn. Rancheria, F.d 0, at 0 (quoting Merrell Dow Pharm. Inc. v. Thompson, U.S. 0, 0, n. (. A long and well-established principle of federal law recognizes that American Indian Tribes possess inherent sovereign immunity to unconsented suit. State of Michigan v. Bay Mills Indian Community, U.S., S.Ct. 0, 00 (0; Miller v. Wright, 0 F.d, - (th Cir. 0; Cook v. AVI Casino Enters., Inc., F.d, (th Cir. 00; Kiowa Tribe of Oklahoma v. Mfg. Technologies, Inc., U.S., (; Santa Clara Pueblo v. Martinez, U.S., (; United States v. U.S. Fidelity & Guaranty Corp., 0 U.S. 0, (0; Santa Clara Pueblo v. Martinez, U.S., (. Sovereign immunity has two components: consent to the creation of a claim for relief, and consent to the adjudication of that claim in a particular court or court system. United States v. Testan, U.S., (. When invoked, tribal sovereign immunity deprives a federal court of jurisdiction and requires dismissal under F.R.Civ.P. (b(. Alvarado v. Table Mtn. Rancheria, 0 F.d 00, 0- (th Cir. 00 ("Sovereign immunity limits a federal court's subject matter jurisdiction over actions brought against a sovereign. Similarly, tribal immunity precludes subject matter jurisdiction in an action against an Indian tribe." II. STATUTORY BASIS FOR SUBJECT MATTER JURISDICTION "[T]he cornerstone of federal subject matter jurisdiction is statutory authorization." Alvarado, 0 F.d at 0- (citing Exxon Mobil Corp. v. Allapattah Servs., U.S., (00 ("[F]ederal courts have no jurisdiction without statutory authorization.". Case No. EDCV -00VAP(KKx

10 Case :-cv-00-vap-kk Document - Filed 0/0/ Page 0 of Page ID #: 0 0 By her FAC, Muller purports to invoke this Court's jurisdiction pursuant to numerous sections of the U.S. Code, some of which do not purport to confer jurisdiction at all, while others have no conceivable relationship to any purported claims alleged in Muller's FAC. The only federal statute invoked by Muller that has any relationship to her purported claims is the federal Family Medical Leave Act, U.S.C. 0, et seq. ("FMLA". Thus, assuming without conceding that Muller properly has pleaded a claim arising under the FMLA, this Court may exercise jurisdiction over that claim and the named defendants, but only if the exercise of that jurisdiction is not barred by the unwaived sovereign immunity of the Tribe, its Council, MCRS and its agents. Alvarado, 0 F.d at 0- (district court's jurisdiction over tribal defendant requires statutory basis and waiver of tribal sovereign immunity. As explained below, Muller has not made and cannot make the requisite jurisdictional showing. A. The Court Lacks Jurisdiction Over Claims Against the Morongo Tribal Council Because the Tribe's Immunity Has Not Been Unequivocally Abrogated By an Act of Congress or Expressly and Unequivocally Waived by the Tribe To invoke this Court's jurisdiction, Muller must establish as a matter of law that the Tribe's immunity either has been abrogated by an Act of Congress or expressly waived by the Tribe itself. See Alvarado, 0 F.d at 0-. Muller can demonstrate neither, so her claims against the Tribal Council must be dismissed. Muller names as a defendant the Morongo Tribal Council, which is the Tribe's elected governing body. To sue the Council is to sue the Tribe itself. As a federally recognized Indian Tribe, Morongo possesses sovereign immunity from suit, which U.S.C. defines certain terms used in Title ; U.S.C. pertains to venue, not jurisdiction. U.S.C. confers original jurisdiction over claims "arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies." 0 U.S.C. 0 pertains to suits for denial of equal educational opportunity. U.S.C. confers jurisdiction to redress deprivations of civil rights. Case No. EDCV -00VAP(KKx

11 Case :-cv-00-vap-kk Document - Filed 0/0/ Page of Page ID #:0 0 0 remains intact unless Congress has unequivocally abrogated it or the Tribe has expressly waived it. Bay Mills, S.Ct. at 0-; Kiowa Tribe, U.S. at ; Martinez, U.S. at.. The FMLA Does Not Abrogate Tribal Sovereign Immunity The only federal Courts of Appeals to have considered the question whether the FMLA abrogated tribal sovereign immunity have held that the FMLA did not abrogate tribal sovereign immunity. Carsten v. Inter-Tribal Council of Nevada, --- Fed.Appx. ---, 0 WL (th Cir. 0; Chayoon v. Chao, F.d, - (d Cir. 00 (per curiam. These decisions are well-reasoned, and Muller offers no reason not to follow them. Therefore, the Court should hold that Congress did not abrogate Morongo's sovereign immunity to a private cause of action under the FMLA.. Morongo Has Not Waived Its Sovereign Immunity to a Private Suit Under the FMLA Unable to credibly contend that the FMLA abrogated Morongo's sovereign immunity to her action, Muller is left to contend that Morongo's Amended Class III Gaming Compact with the State of California somehow contains a sufficiently express and unequivocal consent to the creation of the private claims for relief alleged in the FAC. However, an examination of the relevant Amended Compact language reveals that the Amended Compact did no such thing. Section 0.( provides, in its entirety, that the Tribe must, "Adopt and comply with standards no less stringent than the standards of the Fair Labor Standards Act, U.S.C. 0, et seq., and the United States Department of Labor regulations implementing the Fair Labor Standards Act ( CFR 00, et seq.." Apart from the fact that Muller's FAC does not attempt to assert a claim under the FLSA, the plain language of 0.( negates Muller's interpretation of that provision of the Amended Compact: 0.( simply requires the Tribe to adopt for Attached as Document No. to the Request for Judicial Notice lodged herewith. Case No. EDCV -00VAP(KKx

12 Case :-cv-00-vap-kk Document - Filed 0/0/ Page of Page ID #: 0 0 itself standards at least as strict as the FLSA and its implementing regulations. Simply put, adoption of tribal standards is not the same as expressly and unequivocally consenting to creation of a private claim for relief cognizable in this Court for violating the Tribe's own standards. Rather, the Amended Compact makes clear that if the Tribe fails to comply with an obligation under the Amended Compact, the State of California and only the State has the right to seek relief against the Tribe pursuant to and. of the Tribe's original Compact, which were not changed by the Amended Compact. Section 0.(d of Morongo's Amended Compact requires Morongo to obtain and maintain a commercial general liability insurance policy of at least $0 Million to cover claims for "bodily injury, property damage, and personal injury arising out of, connected with, or relating to the operation of the Gaming Facility or Gaming Activities." In order to effectuate that coverage,the Amended Compact provides that thetribe shall waive its right to assert sovereign immunity up to the limits of the Policy "in accordance with the tribal ordinance referenced in subdivision (d(ii below in connection with any claim for bodily injury, property damage or personal injury arising out of, connected with, or relating to the operation of the Gaming Facility..." [Emphasis added]. Compact 0.(d(ii requires the Tribe to "maintain in continuous force its Tort Liability Ordinance," which must provide at least that California tort law shall govern "all claims for bodily injury, property damage or personal injury arising out of, connected with, or relating to the operation of the Gaming Facility,... provided that any and all laws governing punitive damages need not be a part of the Ordinance[;]" that the Tribe waives its right to assert sovereign immunity to arbitration and court review "of such claims" up to policy limits; that, "the Tribe consents to binding arbitration before a single arbitrator,... in accordance with the comprehensive arbitration rules and procedures of JAMS... to the extent of the limits of the Policy; and that "To effectuate its consent to the foregoing arbitration Case No. EDCV -00VAP(KKx

13 Case :-cv-00-vap-kk Document - Filed 0/0/ Page of Page ID #: 0 0 procedure, the Tribe shall, in the exercise of its sovereignty, waive its right to assert its sovereign immunity in connection with the arbitrator's jurisdiction and in any action brought in federal court, or, if the federal court declines to hear the action, in any action brought in the courts of the State of California that are located in Riverside County, including courts of appeal, to ( enforce the parties' obligation to arbitrate, ( confirm, correct, modify, or vacate the arbitral award rendered in the arbitration, or ( enforce or execute a judgment based upon the award." Section 0.(d(ii(D of the Amended Compact allows Morongo to require exhaustion of the Tribe's administrative remedies, if any, for resolving claims for bodily injury, property damage or personal injury arising out of, connected with, or relating to the operation of the Gaming Facility. Section 0.(d(iii of the Amended Compact requires the Tribe to notify claimants about any exhaustion requirement, and the availability of de novo arbitration if dissatisfied with the outcome of the tribal process. Morongo's obligation to provide a remedy for claims by patrons and other visitors for bodily injury, property damage and personal injury is owed to the State, not to patrons and visitors. Thus, the Amended Compact provides, in 0.(d(iv, that, "Failure to comply with this Section 0., subdivision (d shall be deemed a material breach of the Compact." That also is why. of the Compact (unchanged by the Amendment provides that, Third Party Beneficiaries. Except to the extent expressly provided under this Gaming Compact, this Gaming Compact is not intended to, and shall not be construed to, create any right on the part of a third party to bring an action to enforce any of its terms. If the preceding provisions of the Amended Compact already constituted a self- Section. of Morongo's original Compact has a similar effect. Case No. EDCV -00VAP(KKx

14 Case :-cv-00-vap-kk Document - Filed 0/0/ Page of Page ID #: 0 0 executing express and unequivocal consent by the Tribe to the creation of private claims for relief that could be asserted in direct actions in this or any other court, there would have been no need to provide that the Tribe's failure to comply with the Amended Compact's provisions regarding the FLSA and tort liability would constitute compact violations entitling the State to invoke the dispute-resolution provisions of and. provisions that expressly preclude third-party beneficiaries (such as Muller. Morongo fulfilled its obligations under 0.(d of the Amended Compact by enacting an amended Tort Liability Ordinance that creates the requisite remedies and contains the requisite waivers. However, as permitted by the Amended Compact,. of Tribe's Tort Liability Ordinance specifically excludes from its definition of "Compensable Injury" "any injury allegedly sustained by a Tribal official, agent or employee in connection with his/her employment or performance of official duties,..." The Amended Compact does not ignore the Tribe's Class III gaming employees. The Amendment contains a separate section (VIII that amends 0. of the original Compact so as to state in greater detail the Tribe's obligation to provide "a system that provides redress for Gaming Facility employees' work-related injuries through requiring insurance or self-insurance" that is comparable to the substantive rights "mandated for comparable employees under state law." If the plain text of Tribe's Tort Liability Ordinance exclusion of employees from its scope were not sufficient, the inclusion of this section effectively negates any suggestion that the Tribe's gaming employees, such as Muller, may seek redress under Tribe's Tort Liability Ordinance. Moreover, nothing in the Amended Compact required Morongo to consent to the creation of employees' right to judicially compel arbitration of A copy of the Ordinance is attached as Document No. to the Request for Judicial Notice lodged herewith. Case No. EDCV -00VAP(KKx

15 Case :-cv-00-vap-kk Document - Filed 0/0/ Page of Page ID #: 0 0 claims for wrongful termination. 0 That the Tribe's Amended Compact does not consent to the creation of Muller's purported claims is even more conclusively demonstrated by provisions included in later compacts between California tribes and the state, but that were not included in the Tribe's Amended Compact. Specifically, several of the State's more recent new or amended compacts with other California Tribes have included provisions that require those Tribes to carry at least $ Million in employment practices liability insurance, expressly waive sovereign immunity to claims based on employment discrimination, harassment or retaliation, and enact ordinances that not only impose an explicit prohibition against gaming facility workplace discrimination, harassment and retaliation in accordance with California law, but also explicitly require enactment of ordinances and policies implementing those prohibitions by giving gaming operation employees the right to seek relief for violations of those policies through binding arbitration and subsequent judicial enforcement of arbitration awards in California courts. One example of such a compact is the 0 Class III gaming compact between the State of California and the Habematolel Pomo of Upper Lake ("Upper Lake Compact",. of which contains tort liability provisions almost identical to 0.(d of Tribe's Amended Compact. A true copy of the Upper Lake Compact may be viewed on the website of the California Gambling Control Commission, Tribal Gaming, List of Tribal Compacts; notice that the Upper Lake Compact was deemed approved by the Department of the Interior was published in Vol., No., p. 0 of the Federal Register. A true copy of pp. 0- of the 0 The only other waivers of Tribe's immunity that can be found in either the original Compact or the Amendment pertain to actions by the State of California itself (or its agencies to enforce various specific provisions of the Compact/Amendment in the event of a breach, and by Riverside County to compel The Tribe to arbitrate unresolved disputes over the terms of an intergovernmental agreement that may be required in connection with certain projects involving the modification or expansion of a gaming facility. None of those provisions effect or require a waiver of Tribe's immunity to a private action such as that brought by Muller. 0 Case No. EDCV -00VAP(KKx

16 Case :-cv-00-vap-kk Document - Filed 0/0/ Page of Page ID #: 0 0 Upper Lake Compact is attached as Document to the Request for Judicial Notice lodged herewith. There are many similarities between the Upper Lake Compact and the Tribe's Amended Compact, but in at least one critical respect most relevant to this action, the two compacts are very different. Specifically, the Tribe's Amended Compact has no counterpart to.(f of the Upper Lake compact, found at pp That section contains detailed provisions that require that tribe to purchase employment practices liability insurance and enact and implement an ordinance that expressly prohibits workplace discrimination, harassment and retaliation; makes California law applicable to claims of workplace discrimination, harassment and retaliation; creates enforceable remedies against the Tribe for violations; and expressly grants the Tribe's consent and waives the Tribe's sovereign immunity to JAMS arbitration of employees' claims for discrimination, harassment or retaliation including enforcement of arbitration awards in California courts. Hence, if. of the Upper Lake Compact which is basically identical to 0.(d of the Tribe's Amended Compact sufficed to waive that tribe's sovereign immunity to employee claims for discrimination, harassment or retaliation, the detailed anti-discrimination provisions of. of the Upper Lake Compact would be superfluous. In sum, Morongo has not expressly and unequivocally consented to be sued by a private party in this Court for an order compelling arbitration of a claim for wrongful termination. Given that Congress has not abrogated the Tribe's immunity under the FMLA, the Court lacks jurisdiction over Muller's claims against the Tribe The entire Upper Lake Compact is 0 pages long. In the interest of brevity, only the relevant pages are attached to the Request for Judicial Notice. Essentially the same provisions are contained in the State's compact with the Pinoleville Pomo Nation, and the most recent Amended Compact with the Shingle Springs Band of Miwok Indians; those compacts also can be viewed on the CGCC's website. Pursuant to F.R.Evid. 0, the Court also is requested to take judicial notice of these other compacts. Case No. EDCV -00VAP(KKx

17 Case :-cv-00-vap-kk Document - Filed 0/0/ Page of Page ID #: 0 0 and should dismiss the action with prejudice under FRCP (b( and (b. B. Muller's Claims Against MCRS Muller's claims against the MCRS suffer from the same fatal jurisdictional deficiency as do her claims against the Tribe itself, because the Tribe's sovereign immunity extends to its subordinate entities (usually referred to as a Tribe's "arms". White v. Univ. of Calif., F.d 00, 0 (th Cir. 0. In this case, Muller has failed to and cannot in good faith allege that the MCRS is anything other than an integral arm of the Tribe, a fact of which her counsel undoubtedly would be aware from the reasonable inquiry required by F.R.Civ.P. (b(. See Class III Gaming Compact between the Tribe and the State of California, attached as Document No. to the Request for Judicial Notice lodged herewith; see also, U.S.C. 0(b((A [a tribal gaming ordinance must provide, with limited exceptions inapplicable in this case, that the Tribe must be the sole owner of a gaming enterprise.] The FAC is devoid of any allegation that The MCRS has waived its immunity to suit or that Congress expressly has abrogated MCRS's immunity to Muller's claims in this Court, nor is there any chance that Muller could make any such allegation in good faith. Therefore, Muller's claims against MCRS also must be dismissed with prejudice. C. The Tribe's Immunity Also Cloaks Defendants Kelley and Briton Although Muller's FAC names Kelley and Cook in the caption of her FAC and alleges that both are tribal officials and "agency officers in their official capacities," (FAC II, b, the FAC does not allege that either of them committed any act related to the termination of Muller's employment at MCRS. Tribal sovereign immunity extends not only to a tribe's arms, but also to its officials, agents and employees acting within the scope of the authority that the Tribe may confer, even if the acts or omissions might be tortious or mistaken, as long as the individuals are sued in their official capacities and the relief sought against them would, in reality, expend itself against the Tribe. See Miller, 0 F.d at -; Case No. EDCV -00VAP(KKx

18 Case :-cv-00-vap-kk Document - Filed 0/0/ Page of Page ID #: 0 Cook, F.d at ; Tenneco Oil v. Sac & Fox Tribe of Indians of Okl., F.d, (0th Cir.. Morongo, acting through the MCRS as an arm of the Tribe, necessarily has the authority on behalf of the Tribe, to hire and fire its employees, including Muller. Morongo/MCRS can only exercise its authority to hire and fire employees through individual officials Indian or non-indian acting on its behalf in their respective official capacities; otherwise, no individual would have any authority to hire or fire anyone in connection with the operation of the MCRS. To the extent that Muller may contend that Kelley and/or Cook had some involvement in the decision to discharge her (the FAC does not make such an allegation, they could only have acted in the course and scope of their employment as officials/agents of the Tribe/MCRS, and it is against Morongo, not Kelley or Cook, against which the relief that Muller seeks (arbitration would expend itself. Therefore, Kelley and Cook necessarily are cloaked with the Tribe's unwaived sovereign immunity, and Muller's claims against them (to the extent that any claims are asserted against either of them must be dismissed with prejudice. 0 III. THE FAC SHOULD BE DISMISSED FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED (FRCP (b( A. The FMLA Does Not Apply to the Tribe No decision of a federal Court of Appeals has yet squarely decided whether the FMLA applies to Indian tribes. However, in Morrison v. Viejas Enterprises., 0 WL 00 (S.D. Calif. 0, the district court for the Southern District of California held that the FMLA not only did not abrogate tribal sovereign immunity, but also that it does not apply to tribal employers at all: The Family Medical Leave Act is a law of general application that is silent with respect to Indian tribes. See U.S.C. 0 et seq.; see also Chayoon v. Chao, F.d, (nd Cir.00 ("The FMLA makes no reference Case No. EDCV -00VAP(KKx

19 Case :-cv-00-vap-kk Document - Filed 0/0/ Page of Page ID #: 0 to the amenity of Indian tribes to suit." (citing Garcia v. Akwesasne Housing Authority, F.d, (nd Cir.00. In Chayoon, the Second Circuit found that federally recognized Indian tribes are immune from suit under the FMLA. See Chayoon v. Chao, F.d at ("[Plaintiff's] remedy, if there is to be one, lies with Congress."; see also Pearson v. Chugach Government Services Inc., F.Supp.d, (D.Del.00 ("The only courts to examine whether tribal organizations are subject to the FMLA's employer obligations held, based on the doctrine of tribal immunity, the there is not private cause of action under the FMLA against tribal organizations.". 0 WL 00 at *-. The U.S. Department of Labor apparently agrees that the FMLA does not apply to Tribes, because its FMLA regulations, Final Rule published on February, 0, Fed. Reg. No., pp. -, at 0, of which judicial notice hereby is requested pursuant to F.R.Evid. 0 and U.S.C. 0, contains the following statement: 0 XII. Executive Order, Indian Tribal Governments This rule was reviewed under the terms of E.O. and determined not to have tribal implications. The rule does not have ''substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.'' As a result, no tribal summary impact statement has been prepared. In other contexts, Courts of Appeals have held that statutes of general Case No. EDCV -00VAP(KKx

20 Case :-cv-00-vap-kk Document - Filed 0/0/ Page 0 of Page ID #: 0 application do not apply to Tribes without a clear expression of Congressional intent. See Florida Paraplegic Ass'n. v. Miccosukee Indian Tribe, F.d (th Cir. (Americans with Disabilities Act applies to tribe as provider of public accommodations, but does not abrogate tribe's immunity to private action to enforce the Act; Bassett v. Mashentucket Indian Tribe, 0 F.d, - (d Cir. 00 (Copyright Act did not abrogate tribal immunity to suit for infringement. If the FMLA does not apply to Morongo as Muller's employer, it logically follows that it does not apply to those who act on Morongo's behalf in administering Morongo's authority to supervise, hire and fire Morongo's employees. Thus, the FMLA would not apply to MCRS, Kelley or Cook, either, and Muller cannot state a claim under the FMLA upon which relief can be granted against any of the defendants. IV. PROCESS HAS NOT BEEN SUFFICIENTLY SERVED A defendant's awareness that a lawsuit has been filed is not an adequate 0 substitute for proper service of process. Daly-Murphy v. Winston, F.d, (th Cir.. Even if delivery of a single copy of the Summons and FAC to a receptionist in the MCRS Executive Offices could constitute sufficient service on MCRS (under F.R.Civ.P. (e and (h, that, alone, would not suffice, it could not possibly have constituted sufficient service on the Council, which is headquartered elsewhere on the Morongo Indian Reservation, or on Kelley or Cook, who never have been personally served. The Declaration of Faith Cartagena lodged herewith demonstrates that none of the named defendants ever have been served with this action, notwithstanding the false proofs of service filed with the Court, and the Court should impose appropriate sanctions to deter future attempts to circumvent the requirements of F.R.Civ.P. (e and (h. CONCLUSION For all of the reasons set forth above, Muller's FAC should be dismissed, and Case No. EDCV -00VAP(KKx

21 Case :-cv-00-vap-kk Document - Filed 0/0/ Page of Page ID #:0 because there is no way that Muller can in good faith amend her FAC so as to overcome the named defendants' unabrogated and unwaived sovereign immunity or state claims against them upon which relief can be granted, Muller's entire action should be dismissed without leave to amend. Dated: April, 0 Respectfully submitted, 0 0 By: /s/ George Forman George Forman FORMAN & ASSOCIATES Attorneys for Defendants Case No. EDCV -00VAP(KKx