Case 2:13-cv JAD-GWF Document 31 Filed 07/19/13 Page 1 of 12

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1 Case :-cv-00-jad-gwf Document Filed 0// Page of i NICHOLAS M. WIECZOREK Nevada Bar No. 0 MORRIS POLICH & PURDY LLP 00 South Rancho Drive, Suite Las Vegas, Nevada Telephone: (0) -00 Facsimile: (0) nwieczorek@mpplaw.com Attorneys for Defendants DAVID JOHN CIESLAK; NICHOLAS PETER "CHIP" SCUTARI; and SCUTARI & CIESLAK PUBLIC RELATIONS, INC. UNITED STATES DISTRICT COURT DISTRICT OF NEVADA GRAND CANYON SKY WALK DEVELOPMENT, LLC, a Nevada limited liability company; DAVID JIN, an individual; THEODORE (TED) R. QUASULA, an individual; VS. Plaintiffs, RUBY STEELE, CANDIDA HUNTER, WAYLONG HONGA, CHARLES VAUGHN, SR., SHERRY COUNTS, WILFRED WHATONAME, SR., each individuals and members of the Hualapai Tribal Council; PATRICIA CESSPOOCH, an individual and member of the Hualapai Tribe; DAVID JOHN CIESLAK, an individual; NICHOLAS PETER "CHIP" SCUTARI, an individual; SCUTARI & CIESLAK PUBLIC RELATIONS, INC., an Arizona corporation. Defendants. Case No.: : -cv-00-rcj-gwf REPLY TOHPLAINTIFFS OPPOSITION TO DEFENDANTS DAVID JOHN CIESLAK, NICHOLAS PETER "CHIP" SCUTARI, AND SCUTARI & CIESLAK PUBLIC RELATIONS, INC. S MOTION TO DISMISS FOR IMPROPER VENUE PURSUANT TO FRCP (b)() OR, IN THE ALTERNATIVE, FOR DISMISSAL OF PLAINTIFFS COMPLAINT Defendants David John Ceislak ("Cieslak"), Nicholas Peter "Chip" Scutari ("Scutari"), and Scutari & Cieslak Public Relations, Inc. ("Scutari & Cieslak") (collectively the "Scutari Defendants"), by and through counsel Morris Pouch & Purdy LLP, hereby submit their Reply to Plaintiffs Grand Canyon Skywalk Development, LLC s ("GCSD"), David Jin s ("Jin"), and Ted Page of

2 Case :-cv-00-jad-gwf Document Filed 0// Page of Quasula s ("Quasula") (collectively "Plaintiffs"), Opposition to Defendants David John Ceislak, Nicholas Peter "Chip" Scutari, and Scutari and Cieslak Public Relations, Inc s Motion to Dismiss for Improper Venue Pursuant to FRCP (b)() or, in the Alternative, for Dismissal of Plaintiffs Complaint filed June, (DOC ) ("Opposition"). This Reply is made and based upon the pleadings and papers on file herein, the following Points and Authorities, any attached exhibit(s), and any oral argument that may be entertained by this Honorable Court at the hearing on this I matter. REPLY MEMORANDUM OF POINTS AND AUTHORITIES U PLAINTIFFS MISREPRESENTATIONS REGARDING SCUTARI DEFENDANTS CONTENTIONS. Plaintiffs Opposition misstates/misrepresents certain Scutari Defendant s statements. For instance, the Scutari Defendants at no time admitted creating and engaging in a media campaign concerning the Plaintiffs which targeted Las Vegas, Nevada. See Opposition, at p. :-. Rather, the only representations the Scutari Defendants underlying Motion made were that they were working with the Tribe to bring media attention to the current status of the Grand Canyon Skywalk. See Scutari Defendants Motion, at pp. :-:. Also, contrary to Plaintiffs Opposition, the Scutari Defendants did not state that their media campaign to bring attention/awareness to this issue was targeted at the Las Vegas, Nevada, area or that it only concerned this vicinity. To support their argument that this court has jurisdiction, Plaintiff s argue the Scutari Defendants alleged defamation campaign against Plaintiffs was targeted in Las Vegas, Nevada, where Plaintiffs reside and work, and the most severe impact of the harm was intended to be suffered in Las Vegas. See Opposition, at p. :-. In support, Plaintiffs point to the Scutari Defendants internal memorandum which shows potential media targets, listing the following: The Las Vegas Review Journal The Las Vegas Sun KNPR-FM (LAS Vegas NPR affiliate) Page of

3 Case :-cv-00-jad-gwf Document Filed 0// Page of KVBC-TV (Las Vegas NBC affiliate) KTNV-TV (Las Vegas ABC affiliate) KLAS-TV (Las Vegas CBS affiliate) KVVU-TV (LAS Vegas Fox affiliate) Plaintiffs, however, fail to acknowledge that not only were Las Vegas media outlets considered, but other news publications and media outlets were also referenced in the memorandum, including Phoenix, Los Angeles, and New York. In fact, out of the listed possible outlets spanning the weeks of April - April, only seven were in Las Vegas, Nevada. Also, it should not be forgotten, the memorandum lists these possible areas to be pitched to the Tribal Council, and not confirmed outlets being utilized. Also, the internal memorandum which explains the "communications strategy" for the Hualapai people and potential media outlets never states the purpose of the memorandum or that communications were "designed to ruin Jin s reputation and turn public opinion against GCSD and its employees" as insinuated by Plaintiffs. See Opposition, at p. :-. In direct contradiction, the first paragraph of this internal memorandum states "[T]he Hualapai Nation has a fascinating and important story to tell... They are now facing... some considerable challenges - with their planned legal action against David Jin." See Plaintiffs Complaint, Exhibit I memorandum. III. CONTENTIONS REGARDING SOVEREIGN IMMUNITY., Scutari Defendants internal Plaintiffs Opposition argues the Scutari Defendants ignore the general rule that individual tribal members are not protected by sovereign immunity, and that a tribe may not have legal authority over activities involving non-members. The Scutari Defendants are not arguing they are tribal members but rather that, based on the fact that members of the tribal council have been sued and that the construction in question is located on tribal land, the proper venue is in fact the Peach Springs Arizona Tribal Court. In addition to the points and authorities raised in their Motion, the Plaintiffs also have contradicted themselves in their Opposition by arguing the Scutari Defendants targeted Las Vegas, Nevada, but then also argued defendants "chose to initiate a multi-state media campaign." See Opposition, at p. :. Page of

4 Case :-cv-00-jad-gwf Document Filed 0// Page of I Scutari Defendants also join in the Hualapi Tribal Council Defendants Motion to Dismiss and/or Stay filed June, (DOC ) and its arguments and authority addressing such matters. To clarify, the Scutari Defendants are requesting that if Plaintiffs Complaint is not dismissed in its entirety, then the allegations and said case against the Scutari Defendants follow the case against the co-defendants, the members of the Hualapai Tribal Council and be heard by one tribunal, whether this court or the tribal court. IlL CONTENTIONS THE SCUTARI DEFENDANTS WERE NOT WORKING FOR OR WITH THE HUALAPAI TRIBE. Plaintiffs Opposition argues there is no evidence the Scutari Defendants were acting with or under the specific auspice of the Hualapai Tribe. See Opposition, at p. :-; see also pp. -. These arguments made in Plaintiffs Opposition, however, run counter to allegations in Plaintiffs Complaint. For instance, the complaint alleges, at paragraph : "The Tribal Defendants, or others j acting On the Tribe s behalf, hired Defendant Scutari & Cieslak Public Relations, Inc. to formulate a public relations campaign against Plaintiffs." See Complaint, at p. :-. Similarly, at paragraph, the Plaintiffs Complaint alleges, "[t]he public statements that Scutari & Cieslak made as spokesmen for the Tribe mirror the statements..." Moreover, as stated in Plaintiffs Complaint, the Scutari Defendants entered into a contract with the Hualapai Tribe. See Exhibit A, Communications and Public Relations Agreement, dated March,. Thus, contrary to Plaintiffs Opposition but consistent with Plaintiffs Complaint, the Scutari Defendants were working with and for the Hualapai tribe. The Scutari Defendants are not contending or arguing they are part of the Hualapai tribe or should be afforded tribal sovereign immunity. However, because of the nature of the work and relationship the Scutari Defendants have with the Hualapai tribe and because the construction in question is located on tribal land, the Scutari Defendants request that if this court is not found to be the proper venue, Plaintiffs claims against the Scutari defendants, if any remain, should be heard where and with the claims against the Hualapai Tribal council member defendants. Page of

5 Case :-cv-00-jad-gwf Document Filed 0// Page of II IV. CONTENTIONS REGARDING JURISDICTION. The Scutari Defendants hereby join in the Hualapai Tribal Council Members Motion regarding jurisdiction, i.e., personal jurisdiction, general jurisdiction, specific jurisdiction, and subject matter jurisdiction. See Hualapai Tribal Council Members Motion, at pp. -, -. The Scutari Defendants defer to co-defendants Motion as not to be redundant and duplicative in their arguments. I V. TRIBAL COURT HAS JURISDICTION. - As stated in Co-defendants Motion to Dismiss, the Hualapai Law and Order Code. grants Tribal Court jurisdiction over plaintiffs claims against the tribal council defendants. As Plaintiffs causes of action are alleged against all defendants, including the Scutari Defendants, the entire matter should be heard by tribal court. If not, the tribal court would hear the matters Plaintiffs have alleged against the Tribal council and this Court may hear the matters alleged by Plaintiffs against non-tribal council members. Such an outcome would not be judicially efficient and would cause unnecessary legal expense and inconsistent court rulings. Co-Defendants Motion further notes the Ninth Circuit has held a Tribal Court can exercise jurisdiction over a non-indian "in a civil matter between Indians and non-indians that arises on an Indian reservation" or that "involve[s] reservation affairs." Stock West Corp. v. Taylor, F.d, - (th Cir. ). Under this rule, if tribal jurisdiction is even "colorable" or "plausible," the Tribal Court determines in the first instance whether it has jurisdiction. Hous. Auth., 0 F.d, (h Cir. 0). Co-Defendants Motion provides: Marceau v. Blackfeet In Stock West Corp., the Ninth Circuit found colorable questions regarding tribal court jurisdiction over the plaintiffs tort claims where "the alleged tortious conduct... may have commenced on the reservation." F.d, -. In that case, a non-indian reservation attorney wrote an opinion letter to a bank to induce the bank to loan money to a non-indian corporation for the construction of a sawmill on the reservation. The corporation later sued the reservation attorney in federal court, alleging that the opinion letter contained misrepresentations that the corporation relied on to its detriment. The district court dismissed the case because the corporation had not exhausted its tribal remedies. Id. at -. Page of

6 Case :-cv-00-jad-gwf Document Filed 0// Page of On appeal, the Ninth Circuit stated that the plaintiff s "strongest argument is that abstention was improper because the letter opinion [that contained the alleged misrepresentation] was delivered to [the defendant] off the reservation." Id. at. Still, the Ninth Circuit rejected this argument because, among other things, "the opinion letter was researched and drafted on... reservation", the "letter was necessary to qualify the tribal corporation for a loan to build a sawmill on the reservation", and the defendant, "although a non-indian, was the Reservation Attorney.., when he drafted the letter opinion. Id. In sum, the Ninth Circuit found that tribal tribal jurisdiction was colorable because some parts of the tortious action occurred on the reservation, and the off-reservation action were related to the reservation: Id. at. Whether Colville Tribal law applies to a tort that involved certain acts committed on reservation land and other act committed outside its territorial jurisdiction to induce another to perform a contract on tribal lands presents a colorable question that must be resolved in the first instance by Colville Tribal Courts. In Marceau, Indian homeowners brought a contract claim against the Tribal Housing Authority in federal court, alleging that construction defects in their homes made the homes uninhabitable and led to health problems. The district court dismissed the action, and the Ninth Circuit affirmed, holding that the homeowners had to exhaust their tribal remedies. The Ninth Circuit found that tribal jurisdiction over the claim was "unquestionably colorable" because both plaintiffs and the defendant were tribal entities and because "at least some key events - the construction of the homes, for instance - occurred on tribal lands." 0 F.d at. For support, the Ninth Circuit pointed to its holding in Stock West, where "tribal court jurisdiction was colorable where a non-tribe member sued a tribe in a contract and tort dispute and the key events may have taken place on tribal lands." Id. See Hualapi Tribal Council Defendants Motion, at pp. :-0:. Like the plaintiffs in Stock West, Plaintiffs best argument here is that some of the alleged defamatory statements were published by off-reservation news outlets, or that defendants provided interviews for Las Vegas news channels, but that argument does not plainly preclude the Tribal Court s jurisdiction. Instead, as in Stock West, although the Scutari Defendants are not Hualapai tribe members, every other key event pinpointed was an event that occurred on the reservation:. Defendants met with certain representatives/members of the tribe, including a law firm, with respect to the ongoing issues with the Grand Canyon Skywalk; Page of

7 Case :-cv-00-jad-gwf Document Filed 0// Page of. Defendants, alongside these other parties, drafted/created an internal memorandum detailing the current state of the Grand Canyon Skywalk.. The memorandum specifically states under Week of April, "Meet with Hualapai Tribal Council" and "tour skywalk facilities" all of which would have taken place on the reservation.. The contract at the heart of the dispute which Cieslak and Scutari was to bring attention to was for the construction and management of an on-reservation tourist attraction, the Grand Canyon Skywalk;. Plaintiffs GCSD and Jin, who are not members of the Hualapai Tribe, entered into a consensual business relationship with the Tribe;. Defendants Cieslak and Scutari, who are also not members of the Hualapai Tribe, through their public relations firm, Scutari & Cieslak Public Relations, Inc., entered into a consensual business relationship with the Tribe;. As in Marceau, one of the plaintiffs is a member of the Hualapai Tribe, making this at least in part an intra-tribal dispute. Thus, even when taking into account the points dealing with the Scutari Defendants, Tribal Court jurisdiction is more colorable than in Stock West or Marceau. Page of

8 Case :-cv-00-jad-gwf Document Filed 0// Page of I VI. CONCLUSION. Based on the foregoing and their underlying Motion, Scutari Defendants respectfully request that this Court dismiss the matter pursuant to Federal Rule of Civil Procedure (b)() for improper venue, based upon the defendants status as Indian Tribe members and the proper venue being Tribal Court. In the alternative, if this Court finds this is the proper venue for this litigation, Plaintiffs Complaint should be dismissed as the comments/statements made by Defendants do not rise to the level of defamation and the speech engaged in by Defendants is protected by the Anti- SLAPP statutes. DATED this day of July. MORRIS POLICH & PURDY LLP By: )Q.. w NICHOLP M. WIECZOREK Nevada Bar No South Rancho Drive, Suite Las Vegas, Nevada Attorneys for Defendants DAVID JOHN CIESLAK; NICHOLAS PETER "CHIP" SCUTARI; and SCUTARI & CIESLAK PUBLIC RELATIONS, INC. Page of

9 Case :-cv-00-jad-gwf Document Filed 0// Page of CERTIFICATE OF SERVICE I certify that I am an employee of Morris Pouch & Purdy LLP, and that on this day of July, I served a true and correct copy of the foregoing REPLY TO PLAINTIFFS OPPOSITION TO DEFENDANTS DAVID JOHN CIESLAK, NICHOLAS PETER "CHIP" SCUTARI, AND SCUTARI & CIESLAK PUBLIC RELATIONS, INC. S MOTION TO DISMISS FOR IMPROPER VENUE PURSUANT TO FRCP (b)() OR, IN THE ALTERNATIVE, FOR DISMISSAL OF PLAINTIFFS COMPLAINT via the Court s CM/ECF to the parties and their counsel identified below: GREENBERG TRAURIG, LLP MARK TRATOS Nevada Bar No. DONALD L. PRUNTY Nevada Bar No. 0 LARAINE M. I. BURRELL Nevada Bar No. Howard Hughes Parkway Ste. 00 North Las Vegas, Nevada Telephone: (0) - Facsimile: (0) TratosM@gtlaw.c o BurrelL(,gtlaw.com Attorneys for Plaintiffs GRAND CANYON SKY WALK DEVELOPMENT, LLC; DAVID JIN; THEODORE (TED) R. QUASULA LEWIS & ROCA LLP THOMAS G. RYAN Nevada Bar No. LINDSAY C. DEMAREE Nevada Bar No. Howard Hughes Parkway Las Vegas, Nevada TºiØjhoæŒ: 0--0 Facsimile: Tryan@lrlaw.com Ldernaree@lrlaw.com Attorneys for Defendants RUBY STEELE, CANDIDA HUNTER, WAYLON HONGA, CHARELS VAUGHN, SR., SHERRY COUNTS AND WILFRED WHATONAME, SR. I L-WwA - w~~- An Employee of Moi*i,ich & Purdy LLP Page of

10 Case :-cv-00-jad-gwf Document Filed 0// Page of EXHIBIT A EXII]RIT A EXHIBIT A

11 Case :-cv-00-jad-gwf Document Filed 0// Page of COMMUNICATIONS AND PUBLIC RELATIONS AGREEMENT SCUTARI AND CIESLAK, INC. (hereinafter "SandC"), accepts this agreement and proudly begins a relationship with the Hualapai Tribal Nation (hereinafter "HTJALAPAI"), this st day of March,.. Initial Scope of Services: SandC agrees to provide the following services to HTJALAFAI: Advice and counsel on public relations strategy, effective messaging and media relations Crisis management consultation Comprehensive, on-camera media training for tribal spokespeople (normally a separate $,000 charge that will be included at no cost for the Hualapai Nation) Direct communications with newspaper editorial board members and key reporters/editors Coordination of timely media coverage (including press releases, potential press events and facility tours) "Ghostwritten" guest columns and op-eds. Billing and Payment: SandC will bill HUALAPAI monthly beginning March, through March,. All billings are due and payable within 0 days of delivery of invoice. For our services, HUALAPA! agrees to payment schedule of $,00 per month. Any additional projects requested by HUALAPAI that fall outside the above scope of work will be billed separately from the retainer. The initial term of this agreement runs through March,, at which time the parties will revisit the agreement.. Cancellation of Agreement This agreement shall continue until March, (with provisions revisited at that time) or until terminated early by either party by giving thirty (0) days advance notice in writing to the other party. Notice will be deemed complete upon mailing or written notice to the addresses stated In this agreement. The rights and duties of the parties shall continue during such period of notice. SandC is entitled to its normal fees through the end of the 0-day notification period. After the expiration of the notification period, no rights or liabilities shall arise out of this relationship, regardless of any plans which may have been made for future services.. Indemnification: a. SandC shall indemnify and hold HUALAPAI harmless with respect to any claims or actions against HUALAPAI, based upon material prepared by SandC, involving any claim for libel, slander, piracy, plagiarism, invasion of privacy or infringement of copyright, except where any such claim or action may arise out of material supplied by HIJALAPAI to SaridC and incorporated in material prepared by SandC. b. HIJALAPAI will indemnify and hold SandC harmless with respect to any claims or actions instituted by third parties which result from the use by SandC of material furnished by HUALAPAI or where material created by SandC is substantially changed by HUALAPAL Information or data obtained by SandC from HUALAPAI to substantiate claims made in advertising shall be deemed to be "materials furnished by HUALAPAJ."

12 Case :-cv-00-jad-gwf Document Filed 0// Page of c. In the event of any proceeding against HIJALAPAI by any regulatory agency or in the event of any court action or self-regulatory action challenging any work prepared by SandC, we shall assist in the preparation of the defense of such action or proceeding and cooperate with HUALAPAI and your attorney. HUALAPAI will reimburse SandC all reasonable out-of-pocket costs we may incur in connection with any such action or proceeding, unless the defense of such action is our responsibility pursuant to () above.. Entire Agreement: The entire contract is embodied in this writing, and no other warranties or representations are given beyond those set forth in this written contract. This writing constitutes the final expression of the parties agreement, and it is a complete and exclusive statement of the terms of that agreement. This agreement may only be amended by written instrument executed by both parties stating that It is an amendment hereto. The laws of the state of Arizona shall govern this agreement. XXX,FzalapafTribal Nation If Dave Cieslalc, SandC Scutari and Cieslak, Inc. N. 0i St., Suite A- Phoenix, AZ. 0