DEFENDANTS MOTION TO DISMISS. Defendants PCI Gaming d/b/a Creek Entertainment Center; Wind Creek Casino & Hotel;

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1 ELECTRONICALLY FILED 6/21/2013 3:11 PM 30-CV CIRCUIT COURT OF ESCAMBIA COUNTY, ALABAMA JOHN FOUNTAIN, CLERK IN THE CIRCUIT COURT FOR ESCAMBIA COUNTY, ALABAMA AMANDA HARRISON, as mother and next friend of BENJAMIN C. HARRISON Plaintiff, Vs. Case No. 30-CV PCI GAMING d/b/a CREEK ENTERTAINMENT CENTER, et al. Defendants DEFENDANTS MOTION TO DISMISS Defendants PCI Gaming d/b/a Creek Entertainment Center; Wind Creek Casino & Hotel; Creek Indian Enterprises; Poarch Band of Creek Indians; and Lee Fountain and Kaweta J. Coon, individually and as officers of the Poarch Band of Creek Indians Police Department, respectfully move the Court, pursuant to Rules 12(b(1 and 12(b(6 of the Alabama Rules of Civil Procedure, to dismiss the complaint against them. As grounds therefore, the Defendants assert this Court has no subject matter jurisdiction over the claims presented because of (1 the sovereign immunity of the Defendants and (2 the exclusive jurisdiction of the tribal court of the Poarch Band of Creek Indians over Plaintiffs claims, which arose on Tribal lands. In addition, the Complaint fails to state a cause of action against Defendants Fountain and Coon, either individually or as officers of the Poarch Band of Creek Indians Police Department, because there are no facts plead which constitute negligence or wantonness and any possible or imagined negligence was not the proximate cause of Plaintiff s injury as a matter of law. For all of the foregoing reasons, all of the Plaintiff s claims should be dismissed with prejudice. 1

2 I. The Court Lacks Jurisdiction because the Tribal Defendants are Immune Defendant Poarch Band of Creek Indians ( PCI is a federally recognized Indian tribe. Freemanville Water Sys., Inc. v. Poarch Band of Creek Indians, 563 F.3d 1205, 1206 (11th Cir As such, PCI is a sovereign entity which, along with other Indian tribes, retain their original natural rights which vested in them, as sovereign entities, long before the genesis of the United States. Paraplegic Assoc., Inc. v. Miccosukee Tribe of Indians of Florida, 166 F.3d 1126, 1130 (11th Cir (internal quotation marks omitted. Sovereign immunity bars actions against Indian tribes and their entities, regardless of whether the entity is commercial and governmental in nature. See, e.g., id. at 1127 (holding tribe was immune from suit seeking injunctive relief to compel tribe s restaurant and entertainment facility to conform to the requirements of the Americans With Disabilities Act; Freemanville, 563 F.3d at 1207 n.1 (Creek Indian Enterprises and PCI Gaming, as Tribal enterprises, share the Tribe s immunity; Cook v. Avi Casino Ent., 548 F.3d 718, 725 (9 th Cir ( This immunity applies to the tribe s commercial as well as governmental activities. ; Bassett v. Mashantucket Pequot Museum and Research, 221 F.Supp.2d 271, 277 (D. Conn ( Tribal sovereign immunity even covers certain commercial activities occurring off a tribe s reservation.... [and] entities that are agencies of the tribe. Sovereign immunity deprives a court of subject matter jurisdiction. Sanderlin v. Seminole Tribe, 243 F.3d 1282, 1292 (11 th Cir ( Accordingly, the Tribe s sovereign immunity deprives the district court of subject matter jurisdiction over Sanderlin s complaint. In this case, Plaintiff has sued not only PCI but other tribal entities (PCI Gaming d/b/a Creek Entertainment Center, Wind Creek Casino & Hotel, Creek Indian Enterprises as well as two tribal police officers who were acting within the line and scope of their authority as police 2

3 officers. The tribal entities are entitled to sovereign immunity just as PCI, and the Tribe s sovereign immunity extends to all of its officials and employees, who are protected by tribal sovereign immunity when they act in their official capacity and within the scope of their authority. Tamiami Partners, Ltd. v. Miccosukee Tribe of Indians of Florida, 177 F.3d 1212, 1225 (11 th Cir ( Tribal officers are protected by tribal sovereign immunity when they act in their official capacity and within the scope of their authority. ; Paszkowski v. Chapman, 2001 WL , at *4 (Conn. Aug. 30, 2001 (holding Tribal casino employees immune and noting [t]here is no basis for distinguishing between the actions of officials or employees. ; Terry v. Smith, 2011 U.S. Dist. Lexis , at * 20 (July 20, 2011( The Tribe s sovereign immunity extends to its governmental personnel (i.e. tribal officials such as tribal council members and the tribal police chief.. Of upmost importance, the Eleventh Circuit Court of Appeals recently upheld an Indian tribe s sovereign immunity as a bar to allegations of violations of dram shop law. In Furry v. Miccosukee Tribe of Indians of Florida, 685 F.3d 1224 (11 th Cir. 2012, a father sued the Miccosukee Indian Tribe alleging the tribe violated Florida s dram shop law by serving his daughter excessive amounts of alcohol. Shortly after leaving the casino, the daughter was killed in a head-on collision with another automobile. Id. Her blood alcohol content was four times Florida s legal limit. Id. at The Court held the doctrine of sovereign immunity provided a shield from suit for even the most sophisticated enterprises of Indian tribes and affirmed the dismissal of the complaint for lack of subject matter jurisdiction. Id. at For the same reasons set forth in Furry and because the Defendants are entitled to sovereign immunity just as the defendants in Furry, Plaintiff s claims against all of the Defendants should be dismissed for lack of subject matter jurisdiction. 3

4 II. This Courts Lacks Subject Matter Jurisdiction over Claims Arising from Dealings between the Plaintiff and PCI because PCI Tribal Court has Exclusive Jurisdiction. According to the allegations of the complaint, PCI and its related enterprises unlawfully served alcohol to Roil Hadley at the Wind Creek Casino and negligently trained its employees on the legal requirements for serving alcohol at the casino. The alleged wrongful actions occurred, if at all, at the Wind Creek Casino which is located on lands which are held in trust by the United States of America for the benefit of PCI. It is will settled that a state court lacks jurisdiction over disputes that occur in Indian Country. In Williams v. Lee, 358 US 217 (1959, a non-indian who voluntarily engaged in the commercial activities of the Tribe on tribal lands attempted to bring claims in state court, but the United States Supreme Court held that state courts have no jurisdiction over a claim against an Indian or Tribe when the claim arises in Indian country. The assertion of state jurisdiction in such circumstances would infringe on the right of reservation Indians to make their own laws and be governed by them. 358 US at 221. The Supreme Court was emphatic that state courts have no jurisdiction in these situations stating: Today the Navajo Courts of Indian Offenses exercise broad criminal and civil jurisdiction which covers suits by outsiders against Indian Defendants. No Federal Act has given state courts jurisdiction. 358 US at 222. (emphasis added. The tribal court of the Poarch Band of Creek Indians, similar to the Navajo Courts referenced in Williams, exercises the broadest jurisdiction over civil cases. Section of the PCI Tribal Code states: (a The tribal court shall have original and exclusive jurisdiction over all civil matters within the jurisdiction of the Tribal Court. (b The State of Alabama shall have no jurisdiction, criminal or civil, within the reservation or territorial jurisdiction of the tribe for civil or criminal matters. 4

5 Under Williams v. Lee, supra., the exclusive jurisdiction over Plaintiff s claims lies with PCI s tribal court. Like in Williams, the Plaintiff in this matter is a non-indian who according to the complaint would have voluntarily engaged in commerce with PCI on Indian land and has now attempted to bring suit in state court. Courts have recently and repeatedly applied the principle delineated in Williams and its progeny in holding that state courts lack jurisdiction over such claims, and this Court should continue to apply this principle. III. The Complaint Fails to State a Cause of Action Against Defendants Fountain and Coon Plaintiff has failed to state a cause of action against Defendants Fountain and Coon. Furthermore, assuming Plaintiff could ultimately present facts of a breach of duty by Defendants Fountain and Coon, their actions cannot be deemed the proximate cause of Benjamin Harrison s injuries. According to the complaint: 11. At said time and place, Roil Hadley, while highly intoxicated, was operating a motor vehicle on Jack Springs Road at the intersection of Saint Ann's Drive in Escambia County, Alabama. 12. At said time and place, Defendants initiated pursuit of the vehicle being driven by Roil Hadley. 13. Roil Hadley was attempting to elude the police, lost control of his vehicle, and ran off the road and his vehicle overturned. 14. Benjamin C. Harrison was ejected from the vehicle and sustained serious injuries in the collision. Complaint, paragraphs Following these factual allegations, Plaintiff asserts in Count Three that the negligence, wantonness, violation of statutes, and the wrongful conduct of all of the Defendants combined and concurred to cause the injuries to Plaintiff. There is no other allegation or charge of negligence against Defendants Fountain and Coon. 5

6 Simply stated, the hot pursuit of a drunk driver by police officers is not negligence. In Gooden v. City of Talldega, 966 So.2d 232 (Ala. 2007, the Alabama Supreme Court held that pursuit of a motorist, who drove at excessive speeds and ran off the road during a pursuit by police officers, was justified under a policy requiring hot pursuit when the officer knows or has reasonable grounds to believe the suspect presents a clear and immediate threat to the safety of other motorists. According to the complaint, Hadley was highly intoxicated while operating a motor vehicle and attempted to elude police officers who were pursuing him. The pursuit was justified. There are no facts to imply otherwise. Still, even if Plaintiff were to concoct a set of facts which sufficiently charged Defendants Fountain and Coon with negligence, the complaint would still fail because the actions of Fountain or Coon did not proximately cause the injury to Plaintiff. In Gooden, the Alabama Supreme Court further held the driver who drove at excessive speeds to elude the police was the proximate cause of the wreck and the injuries plaintiff suffered. Id.; see also Blair v. City of Rainbow City, 542 So.2d 275 (Ala (holding police officers in hot pursuit were not the proximate cause of plaintiff s wreck and injuries; Doran v. City of Madison, 519 So.2d 1308 (Ala (holding a person attempting to elude police at high rate of speed was the proximate cause of the wreck and injury to third persons, not the police officer in pursuit.. In this case, Officers Fountain and Coon did not cause Hadley to attempt to elude the police or cause Hadley to lose control of his vehicle. Neither one of them proximately caused the injuries to Plaintiff. For the foregoing reasons, separately and severally, Plaintiff s complaint should be dismissed with prejudice. 6

7 Respectfully Submitted, s/ Charles A. Dauphin Charles A. Dauphin (DAU001 DAUPHIN PARIS, LLC 300 Vestavia Parkway Suite 3400 Birmingham, Alabama Telephone: Facsimile: Attorney for the Defendants CERTIFICATE OF SERVICE I hereby certify that I have on this the 21stday of June, 2013 I have electronically served a true and correct copy of the foregoing pleading on counsel of record by the court s AlaFile system. R. Graham Esdale (ESD002 Beasley Allen, Crow, Methvin, Portis & Miles, P.C. P.O. Box 4160 Montgomery, AL Kasie M. Braswell (BRA127 D. Brian Murphy (MUR059 Braswell Murphy, LLC 59 St.Joseph Street Mobile, AL s/ Charles A. Dauphin OF COUNSEL 7