z ID Case 2:09-cv DAD Document 8 Filed 05/22/09 Page 1 of 12 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

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1 I Case 2:9-cv-742-DAD Document 8 Filed 5/22/9 Page 1 of 12 Clement J. Kong, Esq. (State Bar No. 6984) Jill C. Peterson, Esq. (State Bar No ) KORSHAK, KRACOFF, KONG & SUGANO, LLP 243 J Street Sacramento, California Telephone: (916) ; Facsimile: (916) Clement@kkks.com Jill@kkks.com Attorneys for Defendant Jackson Rancheria Band of Miwuk Indians UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA 1 z ID U [ 3 Id (I [ ID E fl L Id 1..W):ID o J ) 1 ) D -) o! [ Id [ ) U) STEVEN J. COLMAR V. Plaintiff, JACKSON BANI OF MIWUK INDIANS, DBA JACKSON RANCHERIA CASINO, HOTEL & CONFERENCE CENTER, and DOES 1 through 1, Inclusive, Defendants. CASE NO. CV-742-JAM-DAD DEFENDANT S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS PURSUANT TO FRCP 12(b)(l) OR, IN THE ALTERNATIVE, FRCP 12(b)(6) Date: Time: Courtroom: July 1,29 9: a.m Although a plaintiff is generally permitted to name Doe defendants in a federal question case, to do so properly in this matter, Colmar must satisfy California law regarding fictitious defendants. See Hartwell Corp. v. Boeing Co., 678 F.2d 482 (9th Cir.1982); Chisin v. National Heritage Life Insurance Co., 637 F.2d 13, 1329 n. 1(9th Cir. 1981) (federal courts allowed naming of doe defendants pursuant to CCP 474). Accordingly, if Colmar wanted to name additional defendants, but was ignorant of their names, he would have had to state that fact in his complaint and amend the pleading when the true names were discovered. Cal.Civ.Proc. Code 474. However, other than this caption, there is no mention of any Doe defendant in Colmar s complaint; nor does the plural term defendants appear at any other point in the pleading. As such, Colmar has identified the Does with insufficient specificity. Hartwell, supra, citingasherv. Pac/Ic Power & Light Co., 249 F.Supp. 671 (N.D.Cal.l965). MEMORANDUM IN SUPPORT OF JACKSON RANCHERIA BAND OF MIWUK INDIANS MOTION TO DISMIss.

2 Case 2:9-cv-742-DAD Document 8 Filed 5/22/9 Page 2 of 12 1 I. INTRODUCTION 2 Plaintiff Steven J. Colmar ( Plaintiff or Colmar ) filed a Complaint against the Jackson 3 Rancheria Band of Miwuk Indians (erroneously named herein as Jackson Band of Miwuk 4 Indians; hereinafter the Tribe or Defendant ) 2, setting forth three causes of action. U) D F < 5 Specifically, Plaintiff alleges that he was wrongfully terminated on the basis of his age in 6 violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. S ( ADEA ); the California Fair Employment and Housing Act, Cal. Gov t. Code 1294(a) 8 ( FEHA ); and a tort claim for wrongful tenriination in violation of public policy. However, 9 because Colmar failed to exhaust his administrative remedies, his First Cause of Action is 1 precluded. Furthermore, this Court lacks subject matter jurisdiction over his Second and Third 11 Causes of Action. As such, the Tribe requests that this action be dismissed in its entirety 12 pursuant to Fed.R.Civ.P. 12(b)(1) and/or Fed.R.Civ.P. 12(b)(6). 13 II. FACTS o 14 Defendant is a federally recognized Indian Tribe. [See Constitution of the Jackson U U) 15 Rancheria Band of Miwuk Indians ( Constitution ), at page 1, Preamble, attached as Exhibit A -) F 1 6 to the Tribe s Request for Judicial Notice ( RIN ) filed concurrently with this motion.] The U) 17 Tribe is included on the Federal Register s list of recognized Indian tribes. [67 Fed. Reg., p (July 12, 22)]. Pursuant to the Tribe s Constitution, the Tribal Council is the oniy 19 authorized entity to waive immunity on behalf of the Tribe, but no such waiver shall be 2 effective unless the intent to so waive immunity, and the extent to which it shall be waived, is 21 clearly stated in writing and approved by the Tribal Council pursuant to a duly called meeting. 22 [Article VI, Section 2, of the Constitution, attached as Exhibit A to the RIN.] The Tribe is a The only Defendant named in the Complaint is the Tribe DBA Jackson Rancheria Casino, Hotel & Conference Center ( JRC ). Plaintiffs Complaint is inconsistent in spots, jumping back and forth 25 between referencing the Tribe and JRC. [In suing the Tribe DBA JRC, Plaintiff acknowledges on the 26 face of his Complaint that the JRC is an arm of the Tribe.] See also Complaint at J 19, 24 (JRC is owned and operated by a sovereign state ). Regardless of Plaintiffs muddled description of the Defendant, because JRC is a wholly owned entity of the Tribe, the Tribe s immunity from this suit extends to the JRC. Kiowa Tribe of Okla. V Mfg. Techs., Inc., (1998) 523 U.S. 751, 76, 118 S.Ct. 17; Am. Vantage Cos. v. Table Mountain Rancheria, 292 F.3d 191, 11 (9th Cir.22). See extended argument, infra. 2 MEMORANDUM IN SUPPORT OF JACKSON RANCHERIA BAND OF Miwuk INDIANS MOTION TO DISMISS.

3 (D bj Z u z 1 sovereign state. [Complaint at 5]. 2 Jackson Rancheria Casino and Hotel ( JRC ) is wholly owned by the Tribe. [Complaint 3 at 5, 19 and 24]. JRC was established by the Tribal Council pursuant to its powers of self 4 government, and it has no legal existence separate and apart from the Tribe. All of JRC s 5 operations are conducted on tribal lands. [Ordinance at I, Ex. B to RIN.]. 6 Colmar was employed in various positions at JRC from June 21 through May. 7 [Complaint at J 7, 9 and 14]. He claims that on May 23,, he was wrongfully terminated 8 based on his age in violation of state and federal law. [Complaint at J 1, 14]. Colmar also 9 states that he is unable to pursue administrative remedies under the Equal Employment 1 Opportunity Commission, ( EEOC ) or the California Department of Fair Employment and 11 Housing ( DFEH ), because defendant is owned and operated by a sovereign state. 12 [Comp1aintat19,24] III. ARGUMENT - 14 A. Colmar Failed to Timely Exhaust His Administrative Remedies Which o < 15 Precludes His Federal ADEA Claim This Court Lacks Subject Matter Jurisdiction Over Colmar s First Cause 17 of Action and it Should be Dismissed Under FRCP 12(b)(1). 1 8 AIEA actions camot proceed in federal court unless a charge of discrimination has first 19 been filed with the EEOC. See 29 U.S.C. 626(d). Colmar admits in his Complaint that he has 2 never filed a charge with the EEOC or DFEH. [See Complaint at 19, 24.] The deadline for 21 him to do so has passed. His federal ADEA claim is therefore barred as a matter of law. 22 The AfEA provides that [n]o civil action may be commenced by an individual under 23 this section until 6 days after a charge alleging unlawful discrimination has been filed with the 24 [EEOC]. Id. Moreover, failure to exhaust administrative remedies before filing a complaint is 25 a jurisdictional defect and strips the federal court of power to hear the case. Shek v. Stanford 26 Case 2:9-cv-742-DAD Document 8 Filed 5/22/9 Page 3 of 12 For puioses of a Rule 12(b)(6) motion, the Court must assume the truth of all factual allegations and must construe all inferences from them in the light most favorable to the nonmoving party. S Thompson v. Davis, 295 F.3d 89, 895 (9th Cir.22). 3 MEMORANDUM IN SUPPORT OF JACKSON RANCHERIA BAND OF Miwuk INDIANS MOTION TO DISMISS.

4 Case 2:9-cv-742-DAD Document 8 Filed 5/22/9 Page 4 of 12 1 University Medical Center, Case No. C PJH, WL , at 1 (N.D.Cal. Aug. 2 13, ) (not reported in F.Supp.2d, a copy of which is attached hereto). Therefore, to establish 3 federal subject matter jurisdiction for an ADEA claim, a plaintiff must exhaust his or her 4 administrative remedies by satisfying the statutory filing requirement in 29 U.S.C. 626(d). 5 B.K.B. v. Maui Police Dept., 6 F.3d 191, 199 (9th Cir.22) (plaintiff must exhaust 6 administrative remedies to establish subject matter jurisdiction over Title VII claim). 4 7 Generally, an individual must file a charge with the EEOC within 18 days of the alleged 8 unlawful practice. See 29 U.S.C. 626(d)(1). In a deferral state (a state that has a law 9 prohibiting age discrimination in employment and authorizes a state agency to grant or seek 1 relief), the filing period is extended to the earlier of 3 days after the occurrence of the unlawful z 11 practice or 3 days after an individual receives notice of termination of state proceedings. Scc U.S.C. 633(b); 29 U.S.C. 626(d)(2). If a plaintiff files a timely charge with the EEOC, he 13 or she must then wait 6 days after filing the charge to commence a private civil action. See 29 U).D D LJZmLU U.S.C. 626(d). However, if a plaintiff never brings the complaint to the appropriate U. Ui U) 15 administrative agency, the district court lacks jurisdiction to hear the case. Shek, supra at *3 1 6 (emphasis added). 17 The instant case is governed by the extended filing deadline (3 days) because 18 California has its own law prohibiting age discrimination (FEHA) and a state agency (DFEH) 1 9 that is authorized to grant relief from such discrimination. Thus, Colmar s charge would have 2 been timely filed so long as it was filed with the EEOC (or DFEH) within 3 days after the 21 alleged unlawful practice occurred. 29 U.S.C. 626(d)(2). The unlawful practice occurred, and 22 the 3 day filing period began, when Colmar was terminated on May 23,. See Lukovsky v. 23 City and County of San Francisco, 535 F.3d 144, 149 (9th Cir. 5); Thelen v. Marc s Big 24 Although the exhaustion requirements of Title VII and the ADEA are not identical, each requires the 25 filing of a charge with the EEOC prior to filing a lawsuit. 42 U.S.C. 2e-5(e)(1); 29 U.S.C. 626(d). 26 Therefore, the Court s interpretation of the exhaustion of remedies requirement in Title VII provides highly persuasive authority for the interpretation of the exhaustion of remedies requirement in the ADEA. SeeNaton v. Bankof California, 649 F.2d 691, 695 fn.3 (9thCir. 198). Case involved 1981 and 1983 claims, but relied on ADEA case as instructive. See Lukovsky, supra, 535 F.3d at 149, fn.3. 4 MEMORANDUM IN SUPPORT OF JACKSON RANCHERIA BAND OF MIWUK INDIANS MOTION TO DISMISS.

5 Case 2:9-cv-742-DAD Document 8 Filed 5/22/9 Page 5 of 12 1 Boy Corp., 64 F.3d 264 (7th Cir.1995) (holding that plaintiffs ADEA cause of action accnied 2 upon his termination). As such, Colmar was required to file a charge with the EEOC or DFEH 3 by March 19, 29 (i.e. within 3 days of May 23, ). He failed to do so. Sçç Complaint at 4 19,24. 5 Colmar s failure to file with either agency within the required 3 days means that he has 6 failed to timely exhaust his administrative remedies and, as a result, this Court lacks the power to 7 exercise federal jurisdiction over his ADEA claims. See Shek, supra at *3 Therefore, because 8 the Court lacks subject matter jurisdiction, Colmar s First Cause of Action must be dismissed 9 pursuant to Fed.R.Civ.P. 12(b)(1). ( 1 ii Alternatively, Colmar Cannot State a Claim Because He Failed to Exhaust His Administrative Remedies and His First Cause of Action Should be Dismissed Under FRCP 12b(6). 13 The Tribe makes its motion to dismiss Colmar s First Cause of Action under both FRCP 14 12(b)(1) and 12(b)(6) because the law is unsettled as to whether failure to exhaust administrative remedies under the ADEA is a question of subject matter jurisdiction or amounts to failure to -) 1 6 state a claim upon which relief can be granted. The Northern District of California held in, i 7 that the failure to exhaust administrative remedies in an ADEA action is a question of subject 18 matter jurisdiction. See in She/c supra, WL Previously, the Ninth Circuit held 19 that the failure to exhaust administrative remedies prior to filing an ADEA claim is not a 2 jurisdictional issue but, rather, is analogous to a plaintiffs failure to satisfy a limitations period. 21 Naton, supra, 649 F.2d at 697 (the limitations period set forth in the ADEA is not 22 jurisdictional, but is of the nature of a statute of limitations). 23 In April of this year, this Court acknowledged that authority exists to support the 24 proposition that failure to exhaust administrative remedies in the context of Title VII is a 25 question of jurisdiction, while other authority exists to support the argument that it is not a 26 jurisdictional issue. See Mounts v. California, No. 1:9-CV-214-OWW-SMS, 29 WL , at 4 (E.D.Cal. Apr. 22, 29). As recognized in Mounts, the Ninth Circuit itself is split 5 MEMORANDUM IN SUPPORT OF JACKSON RANCHERIA BAND OF MIwUK INDIANS MOTION TO DISMISS.

6 Case 2:9-cv-742-DAD Document 8 Filed 5/22/9 Page 6 of 12 1 on the issue of whether failure to exhaust is a jurisdictional question in the context of Title Vu. 6 2 On one hand, there is authority to support a finding that failure to file a charge with the EEOC is 3 jurisdictional. See B.KB., supra, 6 F.3d at 199 (plaintiff must exhaust administrative 4 remedies to establish subject matter jurisdiction over Title VII claim); Sommatino v. United 5 States, 255 F.3d 74, 78 (9th Cir.21) (failure to file any EEOC administrative complaint is a 6 jurisdictional bar to a Title VII claim); EEOC v. Farmer Bros. Co., 31 F.3d 891, 899 (9th 7 Cir. 1994) (to establish federal subject matter jurisdiction over Title VII claims, a plaintiff must 8 first exhaust his or her administrative remedies before seeking federal adjudication of those 9 claims); Lowe v. City ofmonrovia, 775 F.2d 998, 13 (9th Cir.1986) ( When a plaintiff fails to H 1 raise a Title VII claim before the EEOC, the district court lacks subject matter jurisdiction to 11 hear it. ); Serpe v. Four-Phase Systems, Inc., 718 F.2d 935, 936 (9th Cir.1983) ( In a Title VII 12 action, the subject matter of the court s jurisdiction extends only to those claims made before the (D b. Id U). 13 EEOC. ). 14 On the other hand, several Ninth Circuit decisions state that failure to exhaust 1 5 administrative remedies in the context of Title VII is not jurisdictional, but more of a limitations Jo 4: U) 1 6 period. See ç1g, Albano v. Schering-Plough Corp., 912 F.2d 384 (9th Cir. 199) ( It is well 17 settled that the failure to file an EEOC charge is not jurisdictional but is merely a condition 18 precedent to suit. ); Valenzuela v. Krafz Inc., 81 F.2d 117, 1174 (9th Cir.1986) (In a Title VII 19 suit, failure to file an EEOC charge within the prescribed 3-day period is not a jurisdictional 2 bar, but it is treated as a violation of a statute of limitations.). 21 The U.S. Supreme Court weighed in on this issue in 1981 in the context of a sex 22 discrimination case under Title VII and held that the timely filing of a charge of discrimination 23 with the EEOC is not a jurisdictional prerequisite but a requirement like a statute of limitations. 24 Trans World Airlines, Inc. Independent Federation offlight Attendants v. Trans World 25 Airlines, et.al. (1981) 455 U.S. 385, 12 S.Ct. 11. This ruling is cited in some, but not all of 26 the Ninth Circuit court decisions referenced above, despite the fact that they were all decided 6 While these cases fall under Title VII, and not EA, the 9th Circuit generally applies the same basic standards to both ADEA and Title VII cases. Albano v. Schering-Plough Corp., 912 F.2d 384, 386 n.1 (9thCir. 199). 6 MEMORANDUM IN SUPPORT OF JACKSON RANCHERIA BAND OF Miwuk INDIANS MOTION TO DISMISS.

7 Case 2:9-cv-742-DAD Document 8 Filed 5/22/9 Page 7 of 12 1 after Trans World. 2 Regardless of how this question is resolved, the bottom line is that Colmar s First Cause 3 of Action is barred. The only question is whether it is dismissed under 12(b)(1) due to lack of 4 jurisdiction, or under 12(b)(6) based on Colmar s failure to state a claim. If the Court determines 5 that the question of Colmar s failure to timely exhaust his administrative remedies with the 6 EEOC (or DFEH), as required by the ADEA is not a question of subject matter jurisdiction but, 7 rather, amounts to a failure to state a claim, the Tribe requests that Colmar s First Cause of 8 Action be dismissed for failure to state a claim pursuant to Federal Rule of Civil Procedure Rule 9 12(b)(6). See Banks v. Ackerman Security Systems, Inc., Case No.1 :9-CV-229-CC, 29 WL , at *2 (N.D.Ga. Apr. 1, 29) (slip opinion) (dismissing ADEA claims pursuant to Rule 11 12(b)(6) for failing to exhaust administrative remedies); see also Vlaselc supra, 29 WL U Z w Z o (granting defendant s Rule 12(b)(6) motion to dismiss where plaintiff admittedly failed 13 to file a charge of discrimination with the EEOC within 3 days of the date of her alleged 14 wrongful termination). FO< <iu_ 15.. o -) B. If the Court Dismisses Colmar s First Cause of Action Pursant to FRCP 16 12(b)(l), the Court Should Also Dismiss Colmar s Second and Third Causes of Action Pursuant to FRCP 12(b)(1) Because the Court Cannot Exercise 17 Supplemental Jurisdiction Over These Claims Absent Original Federal Jurisdiction Colmar s Second Cause of Action alleges that he was wrongfully terminated based on his 2 age, in violation FEHA, and his Third Cause of Action alleges the tort of wrongful termination in 21 violation of public policy. In order for a court to exercise supplemental jurisdiction over state 22 law claims, the court must have original jurisdiction over a federal claim. Here, if the Court 23 dismisses Colmar s first cause of action based on lack of subject matter jurisdiction pursuant to 24 FRCP 12(b)(1), it must dismiss Colmar s state law claims in his Second and Third Causes of 25 Action because it will have no authority to rule on their merits. Herman Family Revocable Trust 26 v. Tedd Bear, 254 F.3d 82, (9th Cir.21). [ [S]upplemental jurisdiction cannot exist without original jurisdiction. Id. at 85; Scott v. Pasadena Unfled School District 36 F.3d 646, 664 (9th Cir.22).] 7 MEMORANDUM IN SUPPORT OF JACKSON RANCHERIA BAND OF MIWUK INDIANS MOTION TO DISMISS.

8 Case 2:9-cv-742-DAD Document 8 Filed 5/22/9 Page 8 of 12 C. Alternatively, the Court Should Dismiss Colmar s Second and Third Causes 1 of Action for Lack of Subject Matter Jurisdiction Pursuant to FRCP 12(b)(1) 2 Because of the Tribe s Sovereign Immunity If the Court detemiines that Colmar s failure to exhaust his administrative remedies.. results in a dismissal of his First Cause of Action for failure to state a claim pursuant to FRCP 12(b)(6), the Court has discretion to decline to exercise supplemental jurisdiction over the remaining state law claims subject to the factors set forth in 23 U.S.C (c)(1)-(4). Here, there is no basis for the Court to exercise supplemental jurisdiction over the remaining claims because they are barred by the doctrine of sovereign immunity. Moreover, assuming, arguendo, U o D -) o a that the Court for any reason deteiines that Colmar s First Cause of Action should not be 1 dismissed, the Court still lacks jurisdiction over Colmar s Second and Third Causes of Action 11 because of the Tribe s Sovereign Immunity The Tribe s Sovereign Immunity Bars Colmar s Second and Third Causes 13 of Action. 14 Tribal sovereign immunity is an issue of subject matter jurisdiction. See, e.g., Great 15 Western Casinos, Inc. v. Morongo Band ofmission Indians (1999)74 Cal.App.4th 147, [88 Cal.Rptr.2d 8]; E.F. W. v. St. Stephen s Indian High School, 264 F.3d 1297, 132 (1th 17 Cir.21). Immunity deprives both state and federal courts of subject matter jurisdiction. On a 18 motion invoking sovereign immunity to dismiss for lack of subject matter jurisdiction, the 19 plaintiff bears the burden of proving by a preponderance of evidence that jurisdiction exists. 2 Garcia v. Akwesasne Hous. Auth., 268 F.3d 76, 84 (2d Cir.21). Colmar cannot meet this 21 burden Indian Tribes, as sovereign nations, are immune to private suit absent express 23 authorization by Congress or clear waiver by the Tribe. Kiowa, supra, 523 U.S. 751, 756; 24 7The Tribe does not here raise the argument that Plaintiffs first claim under the ADEA is barred by the 25 doctrine of sovereign immunity. However, it is not waiving this right to challenge the Court s subject matter jurisdiction over the ADEA claim on the basis of tribal sovereign immunity. A sovereign can 26 assert immunity at any time during judicial proceedings. Cook v. A VI Casino Enterprises, Inc., 548 F.3d 718, 724 (9th Cir.) citing In re Jackson, 184 F3d 146, 148 (9th Cir.1999). In this motion, the Tribe has chosen to raise the failure to exhaust administrative remedies as barring Plaintiffs ADEA claim since the Complaint on its face acknowledges this failure which results in this Court lacking any jurisdiction over that claim. 8 MEMORANDUM IN SUPPORT OF JACKSON RANCHERIA BAND OF MIWUK INDIANS MOTION TO DISMISS.

9 c D< LJZWWZj Case 2:9-cv-742-DAD Document 8 Filed 5/22/9 Page 9 of 12 1 Oklahoma Tax Comm n v. Citizen Band Potawatomi Indian Tribe, (1991) 498 U.S. 55, 51; 2 Santa Clara Pueblo v. Martinez, (1978) 436 U.S. 49; Cook v. Avi C asino, supra, 548 F.3d at In Kiowa, supra, the Supreme Court summarized the doctrine of tribal sovereign immunity from 4 suit as follows: As a matter of federal law, an Indian tribe is subject to suit only where 5 Congress has authorized the suit or the tribe has waived its immunity. Id. (Emphasis added.) 6 citing Three Affiliated Tribes offort Berthold Reservation v. World Engineering, (1986) U.S. 877, 89, 16 S.Ct. 235, ; Santa Clara Pueblo v. Martinez, (1978) 436 U.S. 49, 8 58, 98 S.Ct. 167, ; United States v. US. Fidelity &Guaranty Co., (194) 39 U.S. 9 56, 512, 6 S.Ct. 653, 656. The Supreme Court has also explained that, [t]o abrogate tribal 1 immunity, Congress must unequivocally state that purpose... Similarly, to relinquish its 11 immunity, a tribe s waiver must be clear. C&L Enters., Inc. v. Citizen Band Potawatomi 12 Indian Tribe of Okla., (21) 532 U.S. 411, 418, 121 S.Ct. 1589, 1594 citing, Santa Clara 13 Pueblo, supra, 436 U.S. at 58, 98 S.Ct 167 and Oklahoma Tax Comm n. v. Citizen Band 14 Potawatomi Tribe of Okla., (1991) 498 U.S. 55, 59, 111 S.Ct. 95. Moreover, any waiver of U o g 1 5 tribal immunity cannot be implied but must be stated in clear and unequivocal language. -J -) 16 Santa Clara Pueblo, supra, 436 U.S. at 59, citing United States v. Testan, (1976) 424 U.S. 392, ; see also Pan Am. Co. v. Sycuan Band ofmission Indians, 884 F.2d 416 (9th Cir.1989). 18 These bedrock principles of federal Indian law must frame the analysis for suits brought 1 9 against the Tribe and its arms, agencies and representatives. In this case, sovereign immunity 2 precludes this Court from exercising jurisdiction (and would also deprive a state court from 21 exercising jurisdiction) over the Second and Third Causes of Action, absent an express waiver by 22 the Tribe or some other action by Congress to abrogate this immunity. 23 There is no such abrogation of the Tribe s sovereign immunity either by Congress or by 24 the Tribe itself. Colmar can point to no Congressional abrogation of the Tribe s immunity to 25 allow the pursuit of his Second and Third Causes of Action. In the absence of such a waiver by 26 Congress, Colmar must demonstrate an unequivocally expressed waiver of immunity by the Tribe to his Second and Third Causes of Action. To be effective, a waiver of immunity by the tribe must be an official act of the tribal government that unequivocally expresses consent to suit. 9 MEMORANDUM IN SUPPORT OF JACKSON RANCHERIA BAND OF MIwUK INDIANS MOTION TO DISMISS.

10 1 See, g., American Indian Agric. Credit Consortium, supra, 78 F.2d at 1378 (signing of 2 promissory note that provided for collection attorney, mentioned remedies provided by law, and 3 designated applicable law, not express waiver of immunity). See also, Santa Clara Pueblo, 4 supra, 436 U.S. at 59, 98 S.Ct. at See Hartman v. Golden Eagle Casino, 243 F.Supp.2d 5 12 (D. Kan. 23). No such waiver exists. 6 As discussed, the Tribe s Constitution expressly states that any waiver of immunity must 7 be authorized by the Tribal Council. In order to waive such immunity, the Council s intent to do 8 so must be clearly stated in writing and approved by the Council pursuant to a duly-called 9 meeting. (Article VI, Section II, Exh. A to RIN). There is no such written waiver of the Tribe s 1 immunity to suit under any of the claims asserted by Colmar. C Z The Tribe s Immunity Extends to JRC. CD Case 2:9-cv-742-DAD Document 8 Filed 5/22/9 Page 1 of As the United States Supreme Court declared in Kiowa, sovereign immunity protects not 13 only Indian tribes but also tribally-owned entities engaging in commercial activity. Kiowa, j D <ID U g 14 supra, 523 U.S. at ; see also, Am. Vantage Cos. v. Table Mountain Rancheria, see also, C 15 Redding Rancheria v. Super. Ct. (21) 88 Cal.App.4th 384, ; Trudgeon v. Fantasy 16 Springs Casino (1999) 71 Cal.App.4th JRC is wholly owned by the Tribe and has no separate existence apart from the Tribe. 18 Colmar recognizes that JRC is an an of the Tribe based on his filing suit against the Tribe DBA 1 9 JRC. Thus, JRC possesses the same immunity from Colmar s claims as the Tribe. çç, çg., 2 Pinkv. Modoc Indian Health Project, Inc., 157 F.3d 1185, (9th Cir.1998) (purpose of 21 sovereign immunity is to promote ability of Indian tribes to control their own enterprises ); 22 Allen v. Gold Country Casino, 464 F.3d 144 (9th Cir.26); Cook, supra, 548 F.3d at California State Courts Have no Jurisdiction Over Colmar s Second and 24 Third Causes of Action Rather than simply decline to exercise supplemental jurisdiction, it is important that this Court issue a ruling finding that sovereign immunity bars Colmar s Second and Third Claims as a matter of law and dismiss them with prejudice, as it would be a waste ofjudicial resources if Colmar was able to simply refile his Second and Third Causes of Action in State Court. This 1 MEMORANDUM IN SUPPORT OF JACKSON RANCHERIA BAND OF Miwuk INDIANS MOTION TO DISMISS.

11 a neither as have Case 2:9-cv-742-DAD Document 8 Filed 5/22/9 Page 11 of 12 I Court has the authority to do so in the interest ofjudicial economy and to avoid a futile round of 2 litigation in the state courts. Coe v. County of Cook, 162 F.3d 491, 496 (7th Cir.1998); Sholle 7 3 v. Town ofholliston, 49 F.Supp.2d 14, 22 (D. MA 1999). 4 The law is clear that States have no jurisdiction (either by statute or common law) to 5 regulate activities occurring on tribal lands absent a congressional abrogation of immunity or an 6 unequivocal waiver of immunity. McClanahan v. Ariz. State Tax Comm ii, (1973) 411 U.S [citing Barona Group of the apitan Grande Band ofmission Indians v. Duffi, 694 F.2d 1185, (9th Cir. 1982)]; People ex rel. Dep t of Transp. v. Naegele (1985) 38 Cal.3d 59, [213 Cal.Rptr. 247]. This principle was recognized and applied in Middletown Rancheria 1 Porno Indians v. Workers Comp. Appeals Bd., (1998) 6 Cal.App.4th 134 [71 Cal.Rptr.2d 15] of 11 case in which an Indian tribe that owned a casino argued that sovereign immunity precluded 1 2 an employee s workers compensation claim against the tribe as an employer. In affirming the wz 1 3 sovereign immunity doctrine, the appellate court stated: 14 In summary, our review of decisional law teaches that a policy of leaving 1 5 Indians free from state jurisdiction and control is deeply rooted in this nation s history.... Here, the Tribe s sovereign status is an independent 1 6 barrier for holding California s workers compensation laws inapplicable because their enforcement... unlawfully infringes on the right of the 1 7 Tribe to govern its own employment affairs. 18 Middletown, supra, 6 Cal.App.4th at 1348 (quoting McClanahan, supra, 411 U.S. at 168). S 19 also, ReddingRancheria v. Super. Ct. (21) 88 Cal.App.4th 384, ; Trudgeon v. Fantasy 2 Springs Casino (1999) 71 Cal.App.4th As the Middletown decision instructs, Indian tribes sovereign nations the 22 power to establish the rights of their employees and be free from state laws that infringe on the 23 tribes rights of self governance. Middletown, supra, 6 Cal.App.4th at In order for 24 such employees to bring claims against a tribe, the tribe must either waive its sovereign 25 immunity or Congress must abrogate it 26 Pueblo, supra, 436 U.S. at 59. of which has occurred here. S.c Santa Clara /1/ /1/ 11 MEMORANDUM IN SUPPORT OF JACKSON RANCHERIA BAND OF MIWUK INDIANS MOTION TO DISMISS.

12 Case 2:9-cv-742-DAD Document 8 Filed 5/22/9 Page 12 of 12 1 D. The Tribe s Motion Should be Granted Without Leave to Amend Because Colmar Cannot Cure the Defects. 2 When granting a Rule 12(b) motion to dismiss, it is within the court s discretion as to 3 whether to grant leave to amend. However, leave to amend should be denied if the allegation of 4 other facts consistent with the challenged pleading could not possibly cure the deficiency. See, 5 SchreiberDistrib. Co. v. Serv- Well Furniture Co., 86 F.2d 1393, 141 (9th Cir.1986). Colmar 6 bears the burden to show in what manner he can amend the Complaint and how that amendment 7 will change the legal effect of the pleading. As a matter of law, Colmar cannot cure the legal 8 defects of the Complaint. First, Colmar s last day to file a timely charge with the EEOC, March 19, 29, has passed and he cannot, therefore, resurrect his First Cause of Action. In addition, 1 his Second and Third Causes of Action are barred as a matter of law by the doctrine of sovereign immunity. Therefore, Defendant s motion to dismiss should be wanted without leave to amend. 12 IV. CONCLUSION F 13 As discussed herein, Colmar s claims are barred as a matter of law. Colmar s failure to z m 14 exhaust his administrative remedies as required by the ADEA precludes this Court from 15 adjudicating Colmar s First Cause of Action. Furthermore, the doctrine of sovereign immunity 16 precludes this court from adjudicating Colmar s Second and Third Causes of Action in the 17 Complaint. Therefore, Colmar s Complaint must be dismissed as a matter of law pursuant to 18 FRCP 12(b)(1) or, in the alternative, under Rule 12(b)(6). 19 Dated: May21, KORSHAK, KRACOFF, KONG & SUGANO, LLP 22 By: /s/ 23 Jill C. Peterson 24 Attorneys for Defendants Jackson Rancheria Band of Miwuk Indians MEMORANDUM IN SUPPORT OF JACKSON RANCHERIA BAND OF Miwuk INDIANS MOTION TO DISMISS.