Case 8:15-cv CJC-KES Document 22-1 Filed 04/14/16 Page 1 of 32 Page ID #:94

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1 Case :-cv-0-cjc-kes Document - Filed 0// Page of Page ID #: WILSHIRE BLVD PH BEVERLY HILLS, CA 0-0 DENNIS L. WILSON (Cal. Bar No. 0) DWilson@kilpatricktownsend.com KOLLIN J. ZIMMERMANN (Cal. Bar No. 0) KZimmermann@kilpatricktownsend.com LLP Wilshire Blvd PH Beverly Hills, CA 0 Telephone: (0) -0 Facsimile: (0) 0-0 DAVID C. SMITH (D.C. Bar No. ) DCSmith@kilpatricktownsend.com Pro Hac Vice Application to be submitted LLP 0 th Street, N.W., Suite 00 Washington, D.C. 00 Telephone: () 0-00 Facsimile: () 0- (Additional counsel identified on next page) UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION SANTA ANA VIRTUALPOINT, INC., Case No.: : cv 0 CJC (KESx) v. Plaintiff, POARCH BAND OF CREEK INDIANS, dba PCI GAMING AUTHORITY, et al. Defendants. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS Judge: Cormac J. Carney Hearing Date: May, Time: :0 p.m. Action Filed: December, Trial Date: [Not Set] MEMORANDUM OF POINTS AND AUTHORITIES

2 Case :-cv-0-cjc-kes Document - Filed 0// Page of Page ID #: WILSHIRE BLVD PH BEVERLY HILLS, CA 0-0 MARK H. REEVES (Ga. Bar No. ) MReeves@kilpatricktownsend.com Pro Hac Vice Application to be submitted LLP Enterprise Mill 0 Greene Street, Suite 0 Augusta, GA 00 Telephone: (0) - Facsimile: (0) - Attorneys for Defendant Poarch Band of Creek Indians, dba PCI Gaming Authority MEMORANDUM OF POINTS AND AUTHORITIES

3 Case :-cv-0-cjc-kes Document - Filed 0// Page of Page ID #: WILSHIRE BLVD PH BEVERLY HILLS, CA 0-0 TABLE OF CONTENTS INTRODUCTION... BACKGROUND... ARGUMENT... I. The Tribe s Sovereign Immunity Deprives the Court of Subject Matter Jurisdiction Over Counts I-III in the Amended Complaint... II. A. Standard of review for the Tribe s Motion to Dismiss under Federal Rule of Civil Procedure (b)()... B. The Tribe is immune from suit for the claims asserted in Counts I-III of the Amended Complaint... C. The Tribe has not waived immunity for Counts I-III because the Tribe s agreement to this Court s jurisdiction is limited to the administrative decision to transfer the domain name... D. Congress did not abrogate the tribe s sovereign immunity in the Lanham Act... Plaintiff s Amended Complaint Should Be Dismissed for Lack of Personal Jurisdiction... A. Standard of review for the Tribe s Motion to Dismiss for Lack of Personal Jurisdiction... B. The Tribe has not consented to suit in California for the claims asserted in the Amended Complaint... C. The Tribe is not subject to general jurisdiction in California... D. The Tribe is not subject to specific jurisdiction for Plaintiff s claims.... Plaintiff has failed to allege any facts to support specific jurisdiction, which does not exist.... Even if Plaintiff could somehow rely on the UDRP proceedings, Plaintiff s claims do not arise out of or relate to the UDRP complaint... i MEMORANDUM OF POINTS AND AUTHORITIES

4 Case :-cv-0-cjc-kes Document - Filed 0// Page of Page ID #: WILSHIRE BLVD PH BEVERLY HILLS, CA 0-0 III.. Further assuming that Plaintiff could meet the first two prongs, the exercise of personal jurisdiction over the Tribe is not reasonable... The Stay of the Transfer of the WINDCREEK Domain Name Should Lifted as Plaintiff s Original Complaint Was Never Timely Served... CONCLUSION... ii MEMORANDUM OF POINTS AND AUTHORITIES

5 Case :-cv-0-cjc-kes Document - Filed 0// Page of Page ID #: WILSHIRE BLVD PH BEVERLY HILLS, CA 0-0 Cases Alabama v. PCI Gaming Auth., 0 F.d (th Cir. )..., Amba Mktg. Sys., Inc. v. Jobar Int'l, Inc., F.d (th Cir. )... Arizona v. Tohono O odham Nation, F.d, WL (th Cir. Mar., )..., Bancorp Bank v. Blackburn, C.A. -0-LPS, WL 00 (D. Del. Aug., )... Beers v. Arkansas, U.S. ()... 0 Breakthrough Mgmt. Grp., Inc. v. Chukchansi Gold Casino & Resort, F.d (0th Cir. 0)... Burger King Corp. v. Rudzewicz, U.S. ()...,,, Cioce v. County of Westchester, No. 0 Civ.0 HB, 0 WL 00 (S.D.N.Y. 0), aff d, Fed.Appx. (d Cir. 0)... Clifford E. v. United States, No. SACV -0-CJC(DFMx), WL (C.D. Cal. Jan., ), 0 Cook v. AVI Casino Enters., Inc., F.d (th Cir. 0)... Core-Vent Corp. v. Nobel Indus. AB, F.d (th Cir. )... Daimler AG v. Bauman, S. Ct. ()... Data Disc., Inc. v. Sys. Tech. Assocs., Inc., F.d 0 (th Cir. )... Demontiney v. United States, F.d 0 (th Cir. 0)... Doe v. Unocal Corp., F.d (th Cir. 0)... Douglas Furniture Co. of Cal., Inc. v. Wood Dimensions, Inc., F. Supp. (C.D. Cal. )... Florida v. Seminole Tribe of Fla., F.d (th Cir. )... Gerritsen v. Warner Bros. Entm t, Inc., F. Supp. d 0 (C.D. Cal. )... iii MEMORANDUM OF POINTS AND AUTHORITIES

6 Case :-cv-0-cjc-kes Document - Filed 0// Page of Page ID #: WILSHIRE BLVD PH BEVERLY HILLS, CA 0-0 Goodyear Dunlop Tires Operations, S.A. v. Brown, S. Ct. ()... Gristede's Foods, Inc. v. Unkechuage Nation, 0 F. Supp. d (E.D.N.Y. 0)... Hardin v. White Mountain Apache Tribe, F.d (th Cir. )... Harris v. Cnty. of Orange, F.d (th Cir. )... Helicopteros Nacionales de Columbia, S.A. v. Hall, U.S. 0 ()..., Idaho v. Coeur d Alene Tribe, F.d 0 (th Cir. )... In re Dynamic Random Access Memory (DRAM) Antitrust Litig., F.d (th Cir. 0)... Ingrassia v. Chicken Ranch Bingo & Casino, F. Supp. d (C.D. Cal. 0)..., Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, U.S. ()... Int l Shoe Co. v. Washington, U.S. 0 ()... Kiowa Tribe of Okla. v. Mfg. Techs., Inc., U.S. ()... Kokkonen v. Guardian Life Ins. Co. of Am., U.S. ()... Lake v. Lake, F.d (th Cir. )... Love v. United States, F.d (th Cir. 0)... McCarthy v. United States, 0 F.d (th Cir. )... McClendon v. United States, F.d (th Cir. )..., 0 Michigan v. Bay Mills Indian Cmty., S. Ct. ()...,, Miller v. Wright, 0 F.d (th Cir. ), cert. den., S. Ct. ()... Mo. Riv. Servs., Inc. v. Omaha Tribe of Neb., F.d (th Cir. 0), cert. denied, U.S. 0 (0)... 0 iv MEMORANDUM OF POINTS AND AUTHORITIES

7 Case :-cv-0-cjc-kes Document - Filed 0// Page of Page ID #:00 WILSHIRE BLVD PH BEVERLY HILLS, CA 0-0 Muller v. Morongo Casino Resort & Spa, No. EDCV 00 VAP (KKx), WL 0 (C.D. Cal. June, )...,, OMI Holdings, Inc. v. Royal Ins. Co. of Canada, F.d 0 (0th Cir. )... Osage Tribe of Indians v. Dep t of Labor, F.d (0th Cir. )... Pebble Beach Co. v. Caddy, F.d (th Cir. 0)... People of State of Cal. ex rel. Cal. Dep't of Fish & Game v. Quechan Tribe of Indians, F.d (th Cir. )... Picot v. Weston, 0 F.d (th Cir. )... Pistor v. Garcia, F.d 0 (th Cir. )... Santa Clara Pueblo v. Martinez, U.S. ()... Schwarder v. United States, F.d (th Cir. )... 0 Schwarzenegger v. Fred Martin Motor Co., F.d (th Cir. 0)... Scott v. Breeland, F.d (th Cir. )..., Sher v. Johnson, F.d (th Cir. 0)..., Smart Stop Self Storage Operating P ship LP v. Can Dev ULC, Case No. SACV -0-CJC(DFMx) (C.D. Cal. Oct., )... Tatung Co. v. Shu Tze Hsu, F. Supp. d 0 (C.D. Cal. )... Terracom v. Valley Nat l Bank, F.d (th Cir. )... United States v. Testan, U.S. ()... 0 Virtual Point, Inc v. Navista S.A., No. SACV-00 AG (RNBx) (C.D. Cal. )... Virtual Point, Inc. v. Mastercard Int l, Inc., No :0-cv-000-RAJ (W.D. Wash. 0)... v MEMORANDUM OF POINTS AND AUTHORITIES

8 Case :-cv-0-cjc-kes Document - Filed 0// Page of Page ID #:0 WILSHIRE BLVD PH BEVERLY HILLS, CA 0-0 Virtual Point, Inc. v. Nat l Rest. Ass n Educ. Found., Case No. 0-cv-00-DOC (ANx)... Virtual Point, Inc. v. Rosenzweig, No. :-cv- (C.D. Cal. )... Wei v. State of Hawaii, F.d 0 (th Cir. )... Winnebago Tribe of Neb. v. Stovall, F. Supp. d (D. Kan. 0)... Yahoo! Inc. v. La Ligua Contre Le Racisme Et L Antisemitisme, F.d (th Cir. 0)... Ziegler v. Indian River County, F.d 0 (th Cir. )... Statutes U.S.C U.S.C U.S.C U.S.C.... U.S.C. (d)..., U.S.C. (d)()(d)... U.S.C.... U.S.C.... U.S.C Rules Cal. Civ. P Fed. R. Civ. P. (b)()..., Fed. R. Civ. P. (b)()...,, Fed. R. Civ. P. (b)()... Fed. R. Civ. P. (b)()... Fed. R. Civ. P.... Fed. R. Civ. P. (m)...,, vi MEMORANDUM OF POINTS AND AUTHORITIES

9 Case :-cv-0-cjc-kes Document - Filed 0// Page of Page ID #:0 WILSHIRE BLVD PH BEVERLY HILLS, CA 0-0 Regulations Fed. Reg. 0, 0 (Jan., )... vii MEMORANDUM OF POINTS AND AUTHORITIES

10 Case :-cv-0-cjc-kes Document - Filed 0// Page 0 of Page ID #:0 WILSHIRE BLVD PH BEVERLY HILLS, CA 0-0 INTRODUCTION The Uniform Domain Name Resolution Policy ( UDRP ) adopted by the Internet Corporation for Assigned Names and Numbers ( ICANN ), establishes mandatory administrative procedures for the resolution of conflicts over the registration of domain names where those names are confusingly similar to registered trademarks. The Defendant Poarch Band of Creek Indians dba PCI Gaming ( PBCI or the Tribe ), a federally recognized Indian tribe, initiated and participated in a UDRP administrative proceeding against Plaintiff Virtual Point, Inc. ( Virtual Point or Plaintiff ), obtaining an order requiring the transfer of the domain name WINDCREEK.COM to PBCI. By filing the complaint in that administrative proceeding, PBCI consented to jurisdiction in this District in a finite set of circumstances a challenge[] to a decision in the administrative proceeding. As a federally recognized Indian tribe, PBCI is entitled to sovereign immunity from any legal action unless that immunity has been unequivocally abrogated by Congress or expressly waived by the Tribe. Tribal sovereign immunity is a matter of this Court s subject matter jurisdiction, the burden of which it is on Plaintiff to establish. Even if a tribe has consented to a limited waiver of its immunity, that consent must be strictly construed and any doubts or ambiguities must be resolved in favor of retaining immunity. The decision in the underlying UDRP administrative proceeding ordering the transfer of the domain name was a limited one, and PBCI s consent to this Court s jurisdiction was restricted to that decision. However, Plaintiff s Amended Complaint, apart from referencing the administrative proceeding, bears little resemblance to it. Each of the claims asserted against PBCI are broad and far reaching, asserting theories of recovery and rights to relief which are well outside the scope of the UDRP hearing and decision. Accordingly, each of those claims must be dismissed with prejudice for MEMORANDUM OF POINTS AND AUTHORITIES

11 Case :-cv-0-cjc-kes Document - Filed 0// Page of Page ID #:0 WILSHIRE BLVD PH BEVERLY HILLS, CA 0-0 lack of subject matter jurisdiction pursuant to Rule (b)() of the Federal Rules of Civil Procedure ( FRCP ). Likewise, apart from PBCI s limited consent to this Court s jurisdiction with respect to a decision in the administrative proceeding, PBCI lacks sufficient contacts with this jurisdiction to justify the exercise of personal jurisdiction over the Tribe. Therefore, the Amended Complaint should be dismissed pursuant to Rule (b)() as well. Finally, should the Amended Complaint not be dismissed in its entirety, Plaintiff purportedly obtained a stay of the UDRP transfer decision by initiating this action on December,, within a 0 day window provided by the Rules of the UDRP. However, it sat on that complaint, allowing the summons to expire under FRCP (m) prior to service. Plaintiff should not obtain the benefit of an administrative stay by filing a Complaint it never timely served. Accordingly, the original Complaint should be deemed dismissed for insufficiency of process and service of process under FRCP (b)() and () and the stay of the transfer decision lifted. BACKGROUND The Defendant Poarch Band of Creek Indians dba PCI Gaming ( PBCI or the Tribe ) is a federally recognized Indian Tribe within the exterior boundaries of the State of Alabama. (Am. Compl. ). PCI Gaming is a tribal enterprise wholly owned by the Tribe. Declaration of Brent Pinkston ( Pinkston Decl. ) (filed contemporaneously herewith); see also Alabama v. PCI Gaming Auth., 0 F.d, (th Cir. ) (explaining that PCI Gaming is a tribally owned entity). It manages several resort and gaming facilities including the Wind Creek Casino and Hotel in Atmore, Alabama, and owns three trademark registrations pertinent to this See also Fed. Reg. 0, 0 (Jan., ) (identifying PBCI as a federally recognized tribe). Inclusion on the Federal Register list of recognized tribes is generally sufficient to establish entitlement to sovereign immunity. Muller, WL 0 at *; Ingrassia v. Chicken Ranch Bingo & Casino, F. Supp. d, (C.D. Cal. 0). MEMORANDUM OF POINTS AND AUTHORITIES

12 Case :-cv-0-cjc-kes Document - Filed 0// Page of Page ID #:0 WILSHIRE BLVD PH BEVERLY HILLS, CA 0-0 motion: (a) Registration No.,, for the character mark WIND CREEK. It was first used January. 0, filed September,, and issued February,. It covers, among other things, casinos, entertainment services, gambling services and hotel, restaurant and catering services. (b) Registration No.,, for the character mark WIND CREEK CASINO & HOTEL. It was first used January, 0, filed February, 0, and issued June, 0. It covers, among other things, casinos and hotel and restaurant services. (c) Registration No.,, for the character mark ESCAPE AT WIND CREEK. It was first used November,, filed on January, and issued on June,. (Am. Compl. ). PBCI does not have any offices or employees in California, it is not registered or licensed to do business in California, it has not designated any agent to accept service of process in California, it does not pay any taxes in California, it does not sell any products in California, it does not regularly transact business in California, and it does not perform any services in California. Pinkston Decl.. While PBCI engages in various business operations, including the operation of hotel, resort, and gaming facilities, it has no business operations in the State of California. Id.. Other than being sued in this action, PCBI s only contact with California is a contract between the Tribe s economic development arm (the Creek Indian Enterprise Development See also Smith Decl., Ex. (PBCI s Complaint in the administrative proceeding) at - (Exhibit ). As Plaintiff references the National Arbitration Forum Complaint and the trademark registrations in its Amended Complaint, see,,, they may be properly considered by this Court on a motion to dismiss. See Gerritsen v. Warner Bros. Entm t, Inc., F. Supp. d 0, - (C.D. Cal. ) (explaining court may consider on a motion to dismiss documents attached to the complaint, incorporated in the complaint or referenced in the complaint unless authenticity of the documents is disputed); see also McCarthy v. United States, 0 F.d, 0 (th Cir. ) (court considers evidence outside the pleadings on a motion to dismiss for lack of subject matter jurisdiction). MEMORANDUM OF POINTS AND AUTHORITIES

13 Case :-cv-0-cjc-kes Document - Filed 0// Page of Page ID #:0 WILSHIRE BLVD PH BEVERLY HILLS, CA 0-0 Authority) and a California entity to assist in identifying investment capital. Id. -. Plaintiff Virtual Point, Inc. ( Virtual Point or Plaintiff ) describes itself as a premier website developer. (Am. Compl. ). However, Plaintiff previously acknowledged in pleadings filed with this Court that it is, and was found to be in the administrative proceeding below, a domain name reseller. It has admitted to having a portfolio of more than five thousand domain names including such readily recognizable names as SONICGAMES.COM, JIMMYFALLON.COM and UDRPSEARCH.COM. One of those domain names of which it claims ownership is WINDCREEK.COM. These domain names are not intended by Plaintiff to be used in connection with any goods or services. Am. Compl. at. To the contrary, according to Plaintiff at least some of these domain names, including WINDCREEK.COM, are parked with a parking service which refers users to related categories of internet sites, essentially as a form of pay-per-click advertising. In the case of the WINDCREEK domain name, users were referred to tourist sites such as hotel services. Id. at -. Not surprisingly, Plaintiff s domain names are frequently found to be confusingly similar to registered trademarks. Plaintiff has aggressively litigated against persons or entities that threaten to institute or successfully proceed with UDRP administrative proceedings against it, filing against them actions similar to the present one in this and other districts. See Smith Decl., Ex. (Complaint in Virtual Point, Inc v. Navista S.A., No. SACV-00 AG (RNBx) (C.D. Cal. )) at. Plaintiff s prior pleadings are matters of which this Court may take judicial notice. See Harris v. Cnty. of Orange, F.d, (th Cir. ) (court may take judicial notice of undisputed matters of public record... including documents on file in federal or state courts ). Oddly, Plaintiff contests the neutral s conclusion that it is a domain name reseller, see Am. Compl. at, despite specifically admitting this in its previous filings in this Court. See Smith Decl., Ex. at. The decision of the neutral is referenced repeatedly in Plaintiff s Amended Complaint. Am. Compl. at -,,. It is also at See Smith Decl., Ex. (Complaint in Virtual Point, Inc. v. Nat l Rest. Ass n Educ. Found., Case No. 0-cv-00-DOC (ANx)) at. See, e.g., Smith Decl., Ex. (requesting Declaratory Judgment as to trademark infringement, unfair competition and violation of the Anti-Cybersquatting Consumer Protection Act and alleging unfair MEMORANDUM OF POINTS AND AUTHORITIES

14 Case :-cv-0-cjc-kes Document - Filed 0// Page of Page ID #:0 WILSHIRE BLVD PH BEVERLY HILLS, CA 0-0 When registering the WINDCREEK domain name, Plaintiff agreed to submit to a mandatory administrative proceeding conducted by a dispute resolution service provider as specified in (a) of the UDRP in one circumstance where a third party complains that: (i) Plaintiff s domain name is identical or confusingly similar to a trademark or service mark in which the third party has rights; (ii) That Plaintiff has no rights or legitimate interests in respect of the domain name; and (iii) That Plaintiff s domain name has been registered and is being used in bad faith. On September,, PBCI filed a complaint against Plaintiff with the National Arbitration Forum, one of the authorized dispute resolution service providers, in accordance with the mandatory administrative proceeding requirements of (a). See Declaration of David C. Smith (Smith Decl. ), Ex.. The Complaint alleged that Plaintiff registered the domain name WINDCREEK.COM on October,, and used it as a pay-per-click website featuring sponsored linked advertisements for various commercial websites, including resorts and hotels. It asserted that the domain name was confusingly similar to PBCI s registered marks, that Plaintiff had no legitimate rights or interest in the domain name, and that it had been registered and used in bad faith. PBCI requested that the domain name be transferred to it. competition after filing of UDRP proceeding); Ex. (requesting Declaratory Judgment as to trademark infringement, unfair competition and violation of the Anti-Cybersquatting Consumer Protection Act after threat of UDRP proceeding); Ex. (Complaint in Virtual Point, Inc. v. Oxymagic Franchise Dev., No. SACV-0-CJC(ANx) (C.D. Cal. )) (same); Ex. (Complaint in Virtual Point, Inc. v. Rosenzweig, No. :-cv- (C.D. Cal. )) (requesting Declaratory Judgment as to trademark infringement, unfair competition and violation of the Anti- Cybersquatting Consumer Protection Act and asserting claims for fraud, wire fraud and unfair competition after threat of UDRP proceeding); Ex. (Complaint in Virtual Point, Inc. v. Mastercard Int l, Inc., No :0-cv-000-RAJ (W.D. Wash. 0)) (requesting Declaratory Judgment as to trademark infringement after adverse UDRP proceeding). A copy of the UDRP is attached as Exhibit to Smith Decl. and can also be found at MEMORANDUM OF POINTS AND AUTHORITIES

15 Case :-cv-0-cjc-kes Document - Filed 0// Page of Page ID #:0 WILSHIRE BLVD PH BEVERLY HILLS, CA 0-0 In filing the Complaint, in accordance with the requirements of (b)(xii) of the Rules for the UDRP, PBCI agreed to this Court s jurisdiction solely in the event that Plaintiff challenged the decision in the administrative proceeding. PBCI s Complaint stated: Complainant agrees to submit with respect to any challenges to a decision in the administrative proceeding to the jurisdiction of the courts in one specified Mutual Jurisdiction, in this case, the court having jurisdiction of the principal office of the Respondent, which is the United States District Court for the Central District of California. See Ex. at IX. (emphasis added). Antonina Pakharenko-Anderson was appointed as the neutral to oversee the administrative proceeding. Ex. at. After considering the evidence and arguments submitted by both parties, she found that PBCI acquired rights in the Wind Creek name by February, 0, the filing date in Reg. No.,,, and that Plaintiff s domain name was confusingly similar to PBCI s trademark. Id. at 0-. The neutral further found that Plaintiff had no rights or legitimate interest in the domain name as it was not commonly known by the name Wind Creek and merely used it as a confusingly similar domain name to resolve to a website that displayed hyperlinks to other sites. Id. at -. The neutral further found that Plaintiff had engaged in bad faith. Specifically, it found that Plaintiff had used the domain name to refer individuals to competing resort and hotel sites. Moreover, it was found that Plaintiff had engaged in a pattern of bad faith registration and use as evidenced by prior UDRP proceedings in which adverse findings were made against it. Id. at -. Accordingly, it ordered the domain name transferred to PBCI. Importantly for purposes of this case, the neutral refused to consider Plaintiff s arguments that PBCI failed to disclose to the United States Patent and Trademark Office ( USPTO ) the alleged geographic nature of the mark as it was outside the scope of UDRP The Rules of the UDRP are attached as Exhibit to the Smith Declaration. They can also be located at MEMORANDUM OF POINTS AND AUTHORITIES

16 Case :-cv-0-cjc-kes Document - Filed 0// Page of Page ID #:0 WILSHIRE BLVD PH BEVERLY HILLS, CA 0-0 proceedings. Id. at. The UDRP provides a respondent ten days to file a complaint in an appropriate jurisdiction to cause a stay of a transfer decision by a neutral. Plaintiff filed its original complaint against PBCI and Defendant National Arbitration Forum, Inc. on December, [Dkt. No. ]. A summons was issued on December,. However, no effort was made to serve PBCI until March,, after the summons expired under FRCP (m). On March 0,, this Court issued an order to show cause as to why the complaint should not be dismissed for failure to prosecute. [Dkt. No. 0]. Plaintiff responded on March [Dkt. No. ], and was permitted to serve an amended complaint by March. [Dkt. No. ]. The Amended Complaint was filed March [Dkt. No. ], a new summons issued on March [Dkt. No. ] and service effected on PBCI on March. The Amended Complaint asserts three counts against PBCI: (i) Count I a claim for declaratory relief that it is not infringing PBCI s trademark rights or violating unfair competition laws. (ii) Count II a claim under U.S.C. (d) of the Anti-Cybersquatting Consumer Protection Act ( ACPA ) included in the Trademark Act of (the Lanham Act ), 0 Stat., as amended, U.S.C. 0 et seq., alleging the registrations were procured through fraud and that PBCI made misleading representations in procuring the transfer order. (iii) Count III Cancellation of the trademark registrations under U.S.C. 0 and of the Lanham Act based on alleged false representations to the USPTO. See Am. Comp. at UDRP at (k) (Smith Decl., Ex. ). 0 In amending its complaint, Plaintiff withdrew its state law claims. MEMORANDUM OF POINTS AND AUTHORITIES

17 Case :-cv-0-cjc-kes Document - Filed 0// Page of Page ID #:0 WILSHIRE BLVD PH BEVERLY HILLS, CA 0-0 ARGUMENT I. The Tribe s Sovereign Immunity Deprives the Court of Subject Matter Jurisdiction Over Counts I-III in the Amended Complaint. A. Standard of review for the Tribe s Motion to Dismiss under Federal Rule of Civil Procedure (b)(). On a Rule (b)() motion to dismiss for lack of subject-matter jurisdiction, the party asserting jurisdiction bears the burden of establishing it. Kokkonen v. Guardian Life Ins. Co. of Am., U.S., (); Scott v. Breeland, F.d, (th Cir. ); Clifford E. v. United States, No. SACV -0-CJC(DFMx), WL, at * (C.D. Cal. Jan., ). This is equally true where the basis for the motion is tribal sovereign immunity. Pistor v. Garcia, F.d 0, (th Cir. ). Dismissal is appropriate if the complaint, on its face, fails to allege facts sufficient to establish subject-matter jurisdiction. See In re Dynamic Random Access Memory (DRAM) Antitrust Litig., F.d, - (th Cir. 0); Love v. United States, F.d, (th Cir. 0). B. The Tribe is immune from suit for the claims asserted in Counts I- III of the Amended Complaint. Tribal sovereign immunity is a matter of subject-matter jurisdiction. Pistor, F.d at 0; McClendon v. United States, F.d, (th Cir. ). It is not a discretionary doctrine. It is the sovereign s right and acts as an absolute bar to suit. People of State of Cal. ex rel. Cal. Dep't of Fish & Game v. Quechan Tribe of Indians, F.d, (th Cir. ). As the Supreme Court recently reaffirmed, Indian tribes possess sovereign immunity from unconsented lawsuits. See Michigan v. Bay Mills Indian Cmty., S. Ct. (). The Court has time and again treated the doctrine of tribal immunity as settled law and dismissed any suit against a tribe absent congressional authorization or a waiver of the tribe s immunity. Id. at 0- (internal quotations omitted); see also Arizona v. Tohono O odham Nation, F.d, Nos. -, -, -, WL, at *0 (th Cir. Mar., ). Tribal sovereign immunity not only shields Indian tribes from MEMORANDUM OF POINTS AND AUTHORITIES

18 Case :-cv-0-cjc-kes Document - Filed 0// Page of Page ID #: WILSHIRE BLVD PH BEVERLY HILLS, CA 0-0 unconsented suits, but also tribal entities acting as an arm of the tribe, for both on- and off-reservation conduct whether deemed commercial or governmental. Kiowa Tribe of Okla. v. Mfg. Techs., Inc., U.S., (); Cook v. AVI Casino Enters., Inc., F.d, (th Cir. 0); Muller v. Morongo Casino Resort & Spa, No. EDCV 00 VAP (KKx), WL 0, at *- (C.D. Cal. June, ). Here, sovereign immunity applies to acts of the Tribe both independently and through its wholly owned enterprise PCI Gaming. That immunity is effective not only as to suits requesting monetary relief but also to those seeking declaratory and injunctive relief. Florida v. Seminole Tribe of Fla., F.d, - (th Cir. ); see also Hardin v. White Mountain Apache Tribe, F.d, (th Cir. ) (suit for declaratory and injunctive relief, as well as damages, barred by tribal immunity). Absent clear congressional abrogation or express tribal waiver, tribal sovereign immunity demands that any claim against an Indian tribe be dismissed. See Bay Mills, S. Ct. at 0-. There is a strong presumption against waiver of tribal sovereign immunity, Demontiney v. United States, F.d 0, (th Cir. 0) (citation omitted), and the plaintiff bears the burden of establishing such a waiver. Ingrassia v. Chicken Ranch Bingo & Casino, F. Supp. d, (E.D. Cal. 0). C. The Tribe has not waived immunity for Counts I-III because the Tribe s agreement to this Court s jurisdiction is limited to the administrative decision to transfer the domain name. In its Amended Complaint, Plaintiff premises subject matter jurisdiction on U.S.C. (federal question jurisdiction), U.S.C. (diversity of citizenship) and U.S.C. 0-0 (the Declaratory Judgment Act). (Am. Comp. at ). However, it never discusses sovereign immunity despite PCI Gaming, 0 F.d at (finding PCI Gaming is entitled to sovereign immunity as an arm of the Tribe). MEMORANDUM OF POINTS AND AUTHORITIES

19 Case :-cv-0-cjc-kes Document - Filed 0// Page of Page ID #: WILSHIRE BLVD PH BEVERLY HILLS, CA 0-0 acknowledging that PBCI is a federally recognized tribe. (Am. Comp. at.) While intimating that PBCI consented to jurisdiction in this District (Am. Comp. at ), it also never discloses the specific limitations on that consent. In filing its complaint in the UDRP administrative proceeding challenging Plaintiff s registration of the WINDCREEK.COM domain name, PBCI did not expressly waive its immunity. To the contrary, it agreed to submit to this Court s jurisdiction in a very limited circumstance with respect to any challenges to a decision in the administrative proceeding. Ex. at IX. As a sovereign entity, PBCI had the right to prescribe the terms and conditions on which it consent[ed] to be sued, and the manner in which the suit shall be conducted. Mo. Riv. Servs., Inc. v. Omaha Tribe of Neb., F.d, (th Cir. 0), cert. denied, U.S. 0 (0) (quoting Beers v. Arkansas, U.S., ()). As this Circuit has expressed, the terms of [a sovereign's] consent to be sued in any court define that court's jurisdiction to entertain the suit. McClendon, F.d at 0 (quoting United States v. Testan, U.S., ()). Therefore, PBCI had the right to restrict the scope of any action to the issues necessary to decide the action brought by it in the administrative proceeding and to exclude from consideration related matters, even if those matters arise from the same set of underlying facts. Id. Where the Tribe does consent to suit, any conditional limitation it imposes on that consent must be strictly construed and applied, Mo. Riv. Servs., F.d at, and any doubts or ambiguities must be resolved in favor of retaining immunity. See Clifford E. v. United States, No. SACV -0-CJC(DFMx), WL, at * (C.D. Cal. Jan., ); Schwarder v. United States, F.d, (th Cir. ). The jurisdiction of the UDRP mandatory administrative proceeding is limited in scope to three issues () was Plaintiff s domain name identical or confusingly similar to PBCI s registered trademark; () did Plaintiff have any rights or legitimate interest in the domain name; and () was the domain name registered and being used in bad faith. Ex., (a). The relief available in the administrative proceeding is 0 MEMORANDUM OF POINTS AND AUTHORITIES

20 Case :-cv-0-cjc-kes Document - Filed 0// Page of Page ID #: WILSHIRE BLVD PH BEVERLY HILLS, CA 0-0 likewise clearly defined transfer or cancellation of the domain name. PBCI s UDRP Complaint reflected the limited nature of the administrative proceeding. There were no damages requested or available. Moreover, while Plaintiff attempted to interject into the proceedings issues of fraud on the USPTO and misrepresentation issues it now presents in its Amended Complaint the neutral refused to consider them, finding them well outside the scope of the UDRP proceedings. Ex. at. The administrative decision was confined to the three requirements of (a) of the UDRP for establishment of a claim and the relief allowed was limited to transfer of the domain name. Therefore, PBCI s consent to jurisdiction in this forum is limited to the decision of the neutral that PBCI properly established that Plaintiff s WINDCREEK domain name was confusingly similar to PBCI s registered trademark, that Plaintiff had no rights or legitimate interests in the WINDCREEK domain name, that the domain name was registered and being used in bad faith, and that the domain name should be transferred to PBCI. PBCI has not consented to and has not waived its sovereign immunity with respect to any of the various theories of recovery and damage claims now asserted by Plaintiff in the Amended Complaint. In particular, Count I of the Amended Complaint for declaratory relief never references the administrative decision. Instead, it claims that the phrase Wind Creek is geographically descriptive and that PBCI has no exclusive right to use of that phrase as a registered trademark. Am. Comp. at. Similarly, Count II seeking relief under the ACPA of the Lanham Act, while referencing the administrative decision, makes a broad range of allegations regarding the Tribe s registrations being procured through inequitable conduct directed at the USPTO and purported misrepresentations, as well as rights to compensatory damages, statutory damages and fees (Am. Compl. at - Count III is confusing in that it references U.S.C. (d). This section confers liability only on persons that are a domain name registrant or that registrant s authorized licensee. U.S.C. (d)()(d). Here, the Tribe is not the registrant or authorized licensee of the domain name at issue and, thus, this section is inapplicable to the Tribe. MEMORANDUM OF POINTS AND AUTHORITIES

21 Case :-cv-0-cjc-kes Document - Filed 0// Page of Page ID #: WILSHIRE BLVD PH BEVERLY HILLS, CA 0-0, -), all of which were either excluded or not considered by the neutral as they were outside the scope of the UDRP proceeding. Claim III alleges violations of U.S.C. 0 and of the Lanham Act, seeking cancellation of PBCI s marks based on alleged misrepresentations to the USPTO (Am. Compl at 0-), once again allegations that were never addressed and could not have been addressed in the administrative proceeding and do not form a basis of the neutral s decision. While PBCI may have consented to jurisdiction in this District with respect to a complaint contesting the decision of the UDRP neutral that the WINDCREEK domain name was confusingly similar to PBCI s registered trademark, or that Plaintiff had no rights in the domain name, and had registered and used it in bad faith, justifying a challenge to the transfer of the domain name to PBCI, such a claim is not apparent from the far reaching allegations of the Amended Complaint. Accordingly, Counts I-III against PBCI should be dismissed for lack of subject matter jurisdiction. D. Congress did not abrogate the tribe s sovereign immunity in the Lanham Act. While Congress may abrogate tribal sovereign immunity, Plaintiff has made no such allegation in its Amended Complaint and it is evident that Congress did not expressly abrogate tribal sovereign immunity under the circumstances alleged in Plaintiffs Amended Complaint. Congressional abrogation of tribal sovereign immunity cannot be implied but must be unequivocally expressed. Santa Clara Pueblo v. Martinez, U.S., () (citation omitted); see also Bay Mills, S. Ct. at ; Idaho v. Coeur d Alene Tribe, F.d 0, 0 (th Cir. ). Any purported abrogation of tribal rights must be construed narrowly and most favorably toward tribal interests. Arizona, WL, at *0. Counts II and III of the Amended Complaint premise liability on various sections of Title. Each of these sections are part of the Lanham Act. The Lanham Act expressly waives the sovereign immunity only of the United States and states. U.S.C.. It does not do so as to Indian Tribes. Courts have found a waiver of MEMORANDUM OF POINTS AND AUTHORITIES

22 Case :-cv-0-cjc-kes Document - Filed 0// Page of Page ID #: WILSHIRE BLVD PH BEVERLY HILLS, CA 0-0 tribal sovereign immunity where, for example, an enforcement action under the Safe Drinking Water Act was specifically defined to encompass an action against a tribe. Osage Tribe of Indians v. Dep t of Labor, F.d, - (0th Cir. ). However, no such language exists in the Lanham Act that would waive tribal sovereign immunity. In Miller v. Wright, 0 F.d (th Cir. ), cert. den., S. Ct. (), this Circuit considered whether Congress had abrogated tribal immunity under the federal antitrust laws. Noting that the Sherman Act referred to states and foreign nations, and the Clayton Act to corporations and associations, the Court held that the antitrust laws did not employ the sort of expansive language that we and other circuits have held to unequivocally abrogate tribal sovereign immunity. Id. at. Similarly in Muller, supra, this Court found that tribal immunity had not been abrogated by Congress in the enactment of the Family Medical Leave Act where the Act was silent as to Indian tribes, dismissing the complaint for lack of subject-matter jurisdiction. WL 0, at *. Similarly, the Lanham Act makes no mention of Indian tribes and waives sovereign immunity only for state and federal government entities. There has been no unequivocal abrogation of the Tribe s sovereign immunity. Accordingly, Counts II and III of the Amended Complaint should be dismissed on this ground as well. See generally Gristede's Foods, Inc. v. Unkechuage Nation, 0 F. Supp. d, - (E.D.N.Y. 0) (barring Lanham Act claims based on tribal sovereign immunity); Breakthrough Mgmt. Grp., Inc. v. Chukchansi Gold Casino & Resort, F.d, (0th Cir. 0) (dismissing action including claim for trademark infringement because tribal sovereign immunity applied). II. Plaintiff s Amended Complaint Should Be Dismissed for Lack of Personal Jurisdiction. Just as with subject matter jurisdiction, the only possible basis for personal jurisdiction in this Court is the Tribe s narrow consent to suit in California for review MEMORANDUM OF POINTS AND AUTHORITIES

23 Case :-cv-0-cjc-kes Document - Filed 0// Page of Page ID #: WILSHIRE BLVD PH BEVERLY HILLS, CA 0-0 of the UDRP Order. Indeed, Plaintiff does not allege any facts other than the Tribe s consent that could support personal jurisdiction over the Tribe in this Court, and the Tribe does not have any other contacts with California on which jurisdiction could be based. See Pinkston Decl. -. Yet, the Tribe s limited consent does not encompass any of the claims asserted in the Amended Complaint. Hence, dismissal under FRCP (b)() is also warranted. A. Standard of review for the Tribe s Motion to Dismiss for Lack of Personal Jurisdiction. On a motion to dismiss under FRCP (b)(), unless there is formal discovery or an evidentiary hearing, a plaintiff must make a prima facie showing that personal jurisdiction is proper. Pebble Beach Co. v. Caddy, F.d, (th Cir. 0). To make such a showing, plaintiff may rely on the allegations in its complaint, to the extent that the moving party does not dispute such allegations. See Doe v. Unocal Corp., F.d, (th Cir. 0). If the defendant presents evidence that controverts the complaint s allegations, the plaintiff must come forward with facts, by affidavit or otherwise, supporting personal jurisdiction. Scott v. Breeland, F.d, (th Cir. ) (quoting Amba Mktg. Sys., Inc. v. Jobar Int'l, Inc., F.d, (th Cir. )); see also Tatung Co. v. Shu Tze Hsu, F. Supp. d 0, 0 (C.D. Cal. ). Moreover, in this Circuit, personal jurisdiction must exist for each claim asserted against a defendant. Data Disc., Inc. v. Sys. Tech. Assocs., Inc., F.d 0, n. (th Cir. ). Because California s long arm statute is coextensive with federal due process requirements, the personal jurisdictional analysis collapses into a single inquiry. Pebble Beach, F.d at 0; see also Cal. Code Civ. Proc Plaintiff must demonstrate that the Tribe either consented to suit in this forum for the claims asserted against it, or that the Tribe has minimum contacts with the forum such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. Int l Shoe Co. v. Washington, U.S. 0, (). MEMORANDUM OF POINTS AND AUTHORITIES

24 Case :-cv-0-cjc-kes Document - Filed 0// Page of Page ID #: WILSHIRE BLVD PH BEVERLY HILLS, CA 0-0 Minimum contacts may be established under a general or specific jurisdiction theory. Helicopteros Nacionales de Columbia, S.A. v. Hall, U.S. 0, - (). None of these theories is satisfied in this case. B. The Tribe has not consented to suit in California for the claims asserted in the Amended Complaint. The defense of personal jurisdiction is intended to protect a defendant s liberty interests. See Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, U.S., 0 (). As such, parties may consent to personal jurisdiction where it would otherwise not exist. See Bancorp Bank v. Blackburn, C.A. -0-LPS, WL 00, at * (D. Del. Aug., ). Consent to suit for a specific claim, however, strongly suggests that the defendant reserved its right to object to personal jurisdiction for purposes of different claims. Id., at * (consent to jurisdiction for a confession by judgment was not consent to jurisdiction for an action alleging breach of contract). As discussed above, the Tribe consented to jurisdiction only for an action challenging enforcement of the UDRP order. The Tribe reserved its right to object to personal jurisdiction for purposes of any other claims. C. The Tribe is not subject to general jurisdiction in California. General jurisdiction can also be dispensed with quickly. The Supreme Court held in Daimler AG v. Bauman, S. Ct. (), that general jurisdiction only exists when an organization has continuous operations in the forum, such that it is essentially at home in the forum State, i.e. it is either incorporated in that State or maintains its principal place of business there. Id. at 0- (citing Goodyear Dunlop Tires Operations, S.A. v. Brown, S. Ct., (), but overturning the continuous and systematic contacts test). Because the Amended Complaint Before Daimler, Plaintiff s allegations that the Tribe regularly conducts and solicits business, engages in other forms of conduct and derives substantial revenue from doing business in this judicial district (Am. Compl. ), would have gone to a general jurisdiction argument; however, after Daimler, these allegations are irrelevant to the personal jurisdiction analysis. See id. These allegations are also refuted by the Tribe. Pinkston Decl. -. MEMORANDUM OF POINTS AND AUTHORITIES

25 Case :-cv-0-cjc-kes Document - Filed 0// Page of Page ID #: WILSHIRE BLVD PH BEVERLY HILLS, CA 0-0 acknowledges that the Tribe is a federally recognized tribe with its principal place of business somewhere other than California specifically within the exterior borders of Alabama (Am. Compl. at ) and the Tribe does not maintain any offices in California or regularly transact any business in this state (Pinkston Decl. ), there is no basis for general jurisdiction. D. The Tribe is not subject to specific jurisdiction for Plaintiff s claims. Plaintiff also fails to allege minimum contacts sufficient to support specific jurisdiction over the Tribe. The Ninth Circuit applies a three-prong test to determine if jurisdiction comports with due process: () The nonresident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; () the claim must be one which arises out of or relates to the defendant s forum-related activities; and () the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable. Lake v. Lake, F.d, (th Cir. ). If the plaintiff does not carry the burden of satisfying either of the first two prongs personal jurisdiction is not established. Schwarzenegger v. Fred Martin Motor Co., F.d, 0 (th Cir. 0) (citing Sher v. Johnson, F.d, (th Cir. 0)). If the plaintiff satisfies those prongs, the burden shifts to the defendant to present a compelling case that the exercise of jurisdiction would not be reasonable. Id. (citing Burger King Corp. v. Rudzewicz, U.S., - ()).. Plaintiff has failed to allege any facts to support specific jurisdiction, which does not exist. MEMORANDUM OF POINTS AND AUTHORITIES

26 Case :-cv-0-cjc-kes Document - Filed 0// Page of Page ID #: WILSHIRE BLVD PH BEVERLY HILLS, CA 0-0 Specific jurisdiction turns on whether a defendant has purposefully availed himself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws. Picot v. Weston, 0 F.d, (th Cir. ) (alterations omitted). The Court s inquiry is limited to examining contacts that proximately result from actions by the defendant himself. Id. at (citing Burger King, U.S. at ) (emphasis in original). Significantly, the Amended Complaint does not allege that the Tribe came to California to do anything, or that the Tribe took any actions directed to California that are the basis for this action and the Tribe does not in-fact direct any contacts to California. See Pinkston Decl. -. Although the Amended Complaint alleges that the Tribe somehow availed itself of this forum by demanding that Plaintiff cease use of the Domain Name and transfer of the same to Defendant and by filing a complaint against Plaintiff pursuant to UDRP (Am. Compl. ), demand letters are generally not a basis for personal jurisdiction. See Douglas Furniture Co. of Cal., Inc. v. Wood Dimensions, Inc., F. Supp., 0 (C.D. Cal. ) ( If any attempt by an intellectual property holder to put an alleged wrongdoer on notice forced the property holder to submit to the jurisdiction of the alleged wrongdoer's forum, an intellectual property owner would be forced to file an action in his own jurisdiction in order to avoid the threat of being haled before a court in another, possibly distant state. ). The UDRP proceeding is also not a basis for personal jurisdiction because as discussed supra, the Tribe consented to jurisdiction in this forum only for review of The Amended Complaint makes a passing reference to an from a Tribal employee to Plaintiff regarding the potential purchase of the domain name, but then states that there were no further communications between the parties. (Am. Comp..) Such an is insufficient to establish jurisdiction because it does not promote the transaction of business within the State. Smart Stop Self Storage Operating P ship LP v. Can Dev ULC, Case No. SACV -0-CJC(DFMx), at (C.D. Cal. Oct., ) (unpublished); Sher, F.d at 0, (finding no personal jurisdiction where Florida law firm made several phone calls and sent various communications by mail to California plaintiff because those contacts did not promote business in California). MEMORANDUM OF POINTS AND AUTHORITIES

27 Case :-cv-0-cjc-kes Document - Filed 0// Page of Page ID #: WILSHIRE BLVD PH BEVERLY HILLS, CA 0-0 the UDRP order s three specific findings, and the scope of relief was appropriately limited transfer or cancellation of the domain name. Ex., (a). None of Plaintiff s claims challenge the findings or relief in the Order. Thus, neither the Tribe s demand nor its participation in the UDRP proceeding and related, limited consent to jurisdiction constitute purposeful availment.. Even if Plaintiff could rely on the UDRP proceedings, Plaintiff s claims do not arise out of or relate to the UDRP complaint. In order to support specific jurisdiction, each of Plaintiff s claims must arise out of or relate to the Tribe s forum-directed activity. Burger King, U.S. at (citation omitted). Indeed, a connection between the Tribe s actions and this forum, if any, is the essential foundation of in personam jurisdiction. Helicopteros, U.S. at. Yet, Counts I-III, while discussing the UDRP complaint and proceedings, assert claims that arise independently from those proceedings. Plaintiff then seeks not relief from the transfer order but separate declaratory relief, damages and attorneys fees, and cancellation of the Tribe s trademarks. (Am. Comp., -,.) None of these claims arise out of or relate to the Tribe s filing of the UDRP complaint, the findings of the panel, or the order transferring the domain name to the Tribe, as would be required to support specific jurisdiction. See Helicopteros, U.S. at.. Further assuming that Plaintiff could meet the first two prongs, the exercise of personal jurisdiction over the Tribe is not reasonable. Even if Plaintiff could establish purposeful availment, its claims against the Tribe should nonetheless be dismissed under the seven factor reasonableness test, which considers: () the extent of defendant s purposeful injection into the forum state, () the burden on the defendant of defending in the forum, () the extent of the Plaintiff s claims also do not arise out of or relate to the Tribe s lone contract with another California company to identify investment capital. Pinkston Decl.. MEMORANDUM OF POINTS AND AUTHORITIES

28 Case :-cv-0-cjc-kes Document - Filed 0// Page of Page ID #: WILSHIRE BLVD PH BEVERLY HILLS, CA 0-0 conflict with the sovereignty of the defendant s state, () the forum state s interest in adjudicating the dispute, () the most efficient judicial resolution of the controversy, () the importance of the forum to the plaintiff s interest in convenient and effective relief, and () the existence of an alternative forum. Core-Vent Corp. v. Nobel Indus. AB, F.d, - (th Cir. ), overruled on other grounds by Yahoo! Inc. v. La Ligua Contre Le Racisme Et L Antisemitisme, F.d, (th Cir. 0). These factors are weighed on a sliding scale: the weaker the plaintiff s showing on minimum contacts, the less a defendant need show in terms of unreasonableness to defeat jurisdiction. OMI Holdings, Inc. v. Royal Ins. Co. of Canada, F.d 0, 0 (0th Cir. ) (internal citation omitted). Here, these factors overwhelmingly weigh against finding personal jurisdiction. First, the Tribe purposefully availed itself of this forum, if at all, for the limited purpose of review of the UDRP proceedings. Plaintiff has alleged no other facts to support purposeful availment of this forum. Thus, the first factor weighs heavily in the Tribe s favor. Second, the burden on the Tribe, which is located in Alabama (Am. Comp. ), of defending in the forum would be great. Third, unlike a corporate defendant, the Tribe is a federally recognized Indian tribe (Am. Comp. ), which shifts the scales uniquely in its favor on the third factor the conflict with the sovereignty of the defendant s state. Here, the Tribe itself is the sovereign who will be irreparably harmed if personal jurisdiction is exercised beyond its limited consent. Winnebago Tribe of Neb. v. Stovall, F. Supp. d, (D. Kan. 0) (holding that injury to tribal sovereignty is irreparable because it cannot be measured in dollars ). The fourth factor California s interest in adjudicating the dispute is also in the Tribe s favor because although California has some interest in this case (because Plaintiff is a California corporation), Plaintiff has alleged no activity by the Tribe in or directed to California. Plaintiff s allegations that the Tribe made misrepresentations to the USPTO regarding its trademarks also tip the fifth factor efficient judicial resolution in MEMORANDUM OF POINTS AND AUTHORITIES