Case 5:07-cv VAP-JCR Document 29 Filed 02/18/2008 Page 1 of 11

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1 Case :0-cv-0-VAP-JCR Document Filed 0//00 Page of 0 0 LESTER J. MARSTON - California State Bar No marston@pacbell.net RAPPORT AND MARSTON 0 West Perkins Street P.O. Box Ukiah, CA Telephone: (0 - FAX: (0 - Attorneys for Defendants GREGORY F. MULLALLY, v. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Plaintiff, HAVASU LANDING CASINO, an enterprise of e Chemehuevi Indian Tribe; JACKIE GORDON, Personally and as General Manager of e Havasu Landing Casino; MANUEL JACQUES, Personally; and MARY PETERSON, Personally, Does -0, Defendants. INTRODUCTION Case No. ED CV 0- VAP (JCRx DEFENDANTS REPLY TO PLAINTIFF S OPPOSITION TO THE DEFENDANTS MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT Date: February, 00 Time: 0:00 a.m. Judge: Hon. Virginia A. Phillips Location: Ctrm. In his Opposition to Motion to Dismiss, or in e Alternative, for Summary Judgment ( Opposition, plaintiff makes six arguments: ( e Havasu Landing Casino ( Casino is an entity separate from e Chemehuevi Indian Tribe ( Tribe ; ( e General Manager ( G.M. of e Casino, not e Tribe, is e employer of all casino employees; ( neier e Casino nor e G.M. enjoy sovereign immunity from suit; ( e Tribal Court lacks jurisdiction over e plaintiff because ere is no pending Tribal Court action regarding e issues raised in is case, and no tribal law is implicated; ( plaintiff does not have to exhaust his administrative remedies because plaintiff has asserted no claims S:\LJM\Pldgs0\Chem\MULLALLY\Replybrief.wpd

2 Case :0-cv-0-VAP-JCR Document Filed 0//00 Page of 0 0 against e Tribe, and ( e Family and Medical Leave Act of, U.S.C. 0 et seq. ( FMLA applies to is case because plaintiff s lawsuit is against e Casino, not e Tribe. In is brief, e defendants shall demonstrate at; ( e Tribe is e owner and operator of e Casino; ( e Tribe is also e employer of all Casino employees; ( because e Tribe and Casino are one and e same, e defendants, and each of em, enjoy sovereign immunity from suit and cannot be sued wiout e Tribe s consent; ( e plaintiff must exhaust his tribal court remedies even ough no action is pending before e Tribal Court involving e plaintiff; ( plaintiff s claims are against e Tribe, its officers and its employees, erefore, plaintiff must exhaust his tribal administration remedies and; ( e FMLA does not apply to e Tribe, doing business under e fictitious business name of e Havasu Landing Casino. For ese reasons, plaintiff s Complaint must be dismissed. I. THE CASINO IS THE TRIBE WHICH ENJOYS SOVEREIGN IMMUNITY FROM SUIT. Plaintiff does not contest at e Tribe enjoys sovereign immunity from suit (Opposition, p., ll. -. Instead, plaintiff argues at Indian tribes do not enjoy sovereign immunity from suits brought by e federal government (Opposition, p., ll. -; at Congress can abrogate a tribe s immunity (Opposition p., ll. - and at e Casino is an entity separate from e Tribe at does not possess sovereign immunity. Opposition, p., ll. -. The Court can give short shift to ese arguments. The Tribe is e owner and operator of e Casino. Declaration of Lester J. Marston in Support of Defendants Motion to Dismiss, or in e Alternative, for Summary Judgment ( Marston Declaration, p.. The Tribe operates e Casino under e fictitious business name of e Havasu Landing Casino. Id. The Casino is not a S:\LJM\Pldgs0\Chem\MULLALLY\Replybrief.wpd

3 Case :0-cv-0-VAP-JCR Document Filed 0//00 Page of 0 0 person, organization, or entity at exists separate and apart from e Tribe. Id. The Tribe is e Casino. Id. The plaintiff himself has conceded is issue. In his complaint, e plaintiff specifically alleges at e Havasu Landing Casino is an enterprise of e Chemehuevi Indian Tribe, (Complaint for Violation of e Family and Medical Leave Act of 00, Defamation, Deliberate Inference wi Contract, and Conversion ( Complaint, p., and at e Chemehuevi Tribe owns e Havasu Landing Casino, situated on e Chemehuevi Indian Reservation. Complaint p.,. As such, e Tribe, doing business under e fictitious name of e Havasu Landing Casino, enjoys sovereign immunity from suit and cannot be sued wiout its consent. Chemehuevi Indian Tribe v. California State Board of Equalization, F. d 0 ( Cir.. The Tribe s immunity from suit applies to suits for damage as well as ose for declaratory and injunctive relief. Imperial Granite Co. v. Pala Band of Mission Indians, 0 F. d, ( Cir.. The Tribe s immunity also extends to e Tribe s commercial, as well as governmental activities, and to activities engaged in off of e Reservation. Kiowa Tribe v. M.G. Technologies Inc., U.S., 0 (. Finally, e Tribes immunity extends to entities at are arms of e Tribe and which carry out essential tribal governmental functions, such as enterprises at engage in tribal governmental gaming. Worrall v. Mashantucket Pequot Gaming Enterprise, F. Supp. d (D. Conn. 00 (holding at suit against casino, owned and operated by an Indian Tribe could not be sued for negligence by casino patron because e casino was protected by e tribe s sovereign immunity. Because e Casino, as an arm and branch of e Tribe s tribal government In ruling on e defendants motion to dismiss, e Court must accept as true all well-pleaded allegations of e plaintiff s complaint. Miller v. Glanz, F.d (0 Cir.. S:\LJM\Pldgs0\Chem\MULLALLY\Replybrief.wpd

4 Case :0-cv-0-VAP-JCR Document Filed 0//00 Page of 0 0 is e Tribe, e Casino is protected by e Tribe s sovereign immunity from suit and must be dismissed from is lawsuit. Id. II. THE INDIVIDUAL DEFENDANTS ALSO ENJOY SOVEREIGN IMMUNITY FROM SUIT. Plaintiff has attempted to avoid e effect of e Tribe s sovereign immunity by suing employees of e Tribe in eir individual capacities. This mechanism for avoiding tribal sovereign immunity has long been rejected by federal courts. The defense of sovereign immunity applies to tribal employees and officials acting in eir official capacity wiin e scope of eir auority. Wendt v. Smi, F.Supp.d 0, 0 (D. Cal. 00. Here, all of e individual defendants are officials or employees of e Tribe who, at all times relevant to is lawsuit, were acting in eir official capacity. Marston Declaration, p., ; Declaration of Ronald Escobar in Support of Defendants Motion to Dismiss or, in e Alternative, For Summary Judgment, p.,. In Santa Clara Pueblo v. Martinez, U.S. (, e Court stated at tribal officials may be sued in eir official capacities when it is shown at ey acted outside e bounds of eir lawful auority, but only for declaratory and injunctive relief. Id., at. Likewise, tribal officials and employees can be sued in eir individual capacities for money damages but, again, only if e individuals exceed e lawful scope of eir auority. Id. The Complaint contains no facts alleging at e individual defendants acted outside e course and scope of eir auority. Having failed to allege any such facts, e Complaint must be dismissed because it is barred by e Tribe s and e employees sovereign immunity. Fletcher v. United States, F.d, (0 Cir. ; Hardin v. White Mountain Apache Tribe, F.d, S:\LJM\Pldgs0\Chem\MULLALLY\Replybrief.wpd

5 Case :0-cv-0-VAP-JCR Document Filed 0//00 Page of 0 0 ( Cir. ; Romanella v. Hayward, F.Supp., (D. Conn. ; Kizis v. Morse Diesel Int l Inc., 0 Conn., A.d (S.Ct. Conn. 00 (holding tribal employee acting wiin scope of his employment was protected by tribal sovereign immunity. In his Opposition, plaintiff confuses e concepts of exhaustion of tribal court remedies and exhaustion of administrative remedies. The defendants will respond to ose arguments separately, to e extent at ey can be separated. III. PLAINTIFF AND HIS CLAIMS ARE SUBJECT TO TRIBAL COURT JURISDICTION AND PLAINTIFF FAILED TO EXHAUST AVAILABLE TRIBAL COURT REMEDIES. Plaintiff bases his argument at exhaustion of tribal court and administrative remedies on e factually false argument at e Tribe is not involved in is case, at e employees are not employees of e Tribe, and at ey are not protected by e Tribe s sovereign immunity. Opposition, p. -. The foregoing arguments, as well as e allegations of plaintiff s Complaint, leave no room for doubt at e Casino is owned and operated by e Tribe, at e defendants are all employees of e Tribe, at ey enjoy e protection of e Tribe s sovereign immunity, and at e Tribe has not waived its immunity or at of e defendants wi regard to e plaintiff s claims. Marston Declaration, p.,, see also footnote ante. Thus, plaintiff s foundation for asserting at e available tribal court remedy should not be exhausted is, simply false. To e extent at plaintiff offered any legal argument in support of his argument at he is not required to exhaust his tribal court remedies, it is based on Tidwell v. Harrah s Kansas Casino Corporation, F. Supp. d 00 (D. Kan. 00. That case has no application to e present case for several reasons. First, Tidwell is a district court case from outside of e Nin Circuit Court of Appeals. It has no precedential value for e present case. S:\LJM\Pldgs0\Chem\MULLALLY\Replybrief.wpd

6 Case :0-cv-0-VAP-JCR Document Filed 0//00 Page of 0 0 Second, e facts are entirely different. In Tidwell, e defendant Harrah s was a non-indian entity operating a gaming facility under an operating agreement wi e Potawatomi Indian Nation. Correctly or not, e district court based its decision on is fact. In e present case, by contrast, e Casino is wholly owned and operated by e Tribe. Thus, e Tidwell court s distinction at: The Court finds it difficult to discern what sovereignty concerns are reatened by plaintiff's suit. Her suit is between two non-indian entities and plainly involves issues of federal law, has no application to is case. Tidwell, F. Supp. d at 0. Here e suit is against e Tribe doing business as e Casino and e named defendants are tribal officials and employees. Any award would be paid out of e Tribe s tribal governmental funds. Wiout e plainly inapplicable FLMA cause of action, furermore, plaintiff s claims are not federal claims, but raer common law tort claims under state or tribal law. The present suit, furermore, implicates tribal law, e Tribe s Tort Claims Ordinance, Limited Liability Ordinance, and Casino Personnel Policy and Procedure Manual. These tribal laws would have to be interpreted by is Court in conflict wi e long standing policy of allowing a tribal court to interpret tribal law. Middlemist v. Secretary of e United States Department of e Interior, F.Supp. 0, - (D. Mon. (holding e fact at e case raises issues of federal law does not defeat e exhaustion requirement. While it is true at ere is not now an action pending in tribal court, e Nin Circuit has, in contrast wi e district court of Kansas, found at e existence of such a pending action is not necessary for e exhaustion requirement to apply. LaPlante v. Genuine Parts Co., F.d 0, 0 ( Cir. (holding [w]heer proceedings are actually pending in e... tribal court is Plaintiff s citation of is case, Tidwell v. Harrah s Kansas Casino Corporation, F. Supp. d 00, was incorrect. S:\LJM\Pldgs0\Chem\MULLALLY\Replybrief.wpd

7 Case :0-cv-0-VAP-JCR Document Filed 0//00 Page of 0 0 irrelevant. In addition, ere was some question as to wheer e casino in Tidwell was operated on fee or trust land. That factor was also cited by e district court as a basis for asserting jurisdiction, whereas, here, ere is no question at e Casino is located on tribal trust land. Marston Declaration, p.,. Third, e Tidwell court recognized at federal precedent generally requires at civil jurisdiction over actions on reservation lands lies in e tribal courts unless affirmatively limited by a specific treaty provision or federal statute, except: where e assertion of tribal court jurisdiction is motivated by harassment or conducted in bad fai; when e tribal court action violates express jurisdictional prohibitions... ; where tribal court exhaustion would be futile because of an inadequate opportunity to challenge e tribal court s jurisdiction, and ( when it is plain at no federal grant provides for e governance of non-indian members conduct. Id., at 0. The Tidwell court held in ese situations a federal court should not apply e tribal exhaustion doctrine because it would serve no purpose oer an delay. Id. None of ese exceptions apply here. The assertion at tribal court remedies should have been exhausted is not motivated by harassment or bad fai. The appropriate forum for addressing a suit against e Tribe s officials acting in eir official capacities wi regard to claims of a former employee of a wholly owned and operated economic entity of e Tribe, and at implicate e Tribe s Tort Claims and Limited Liability Ordinances, is e Tribe s tribal court. National Farmers Insurance Cos. v. Crow Tribe, U.S. (; Iowa Mutual Insurance Co. v. LaPlante, 0 U.S. (. The assertion of tribal court jurisdiction would not violate any express jurisdictional prohibitions under any law cited by plaintiff. Furermore, not only do e plaintiff s claims fall wiin e jurisdiction of e tribal court, but e assertion of tribal court jurisdiction would be appropriate even under e test set for in Montana v. United States, S:\LJM\Pldgs0\Chem\MULLALLY\Replybrief.wpd

8 Case :0-cv-0-VAP-JCR Document Filed 0//00 Page of U.S. ( regarding jurisdiction over non-indians whose activities take place on non-indian fee land wiin a reservation: A tribe may regulate, rough taxation, licensing, or oer means, e activities of nonmembers who enter consensual relationships wi e tribe or its members, rough commercial dealing, contracts, leases, or oer arrangements. Montana v. United States, 0 U.S. at (emphasis added. Here, plaintiff voluntarily entered into an employment contract wi e Tribe, which clearly constitutes a consensual relationship wi e Tribe. Four, ere is no basis for claiming at ere would be no adequate opportunity to challenge e tribal court s jurisdiction. To e extent at plaintiff could articulate such a challenge, it could be brought in e federal district court after e tribal court has had an opportunity to address e issue of its own jurisdiction. Finally, e Tribe s Tribal Court has been granted jurisdiction over reservation lands and resources and e activities of non-indians under e Tribe s Tribal Court Ordinance and Montana. Therefore, ere is no basis for concluding at e exercise of tribal court jurisdiction would merely lead to a delay in is case. IV. PLAINTIFF ADMITS THAT HE HAS FAILED TO EXHAUST TRIBAL ADMINISTRATIVE REMEDIES. As stated in plaintiff s Complaint and as revealed in e foregoing arguments, plaintiff s claims against e defendants amount to claims against e Tribe. As such, plaintiff was required to meet e requirements of e Tribe s Tort Claims Ordinance. See Memorandum of Points and Auorities in Support of Defendants Motion to Dismiss for Lack of Jurisdiction or, in e Alternative, for Summary Judgment ( Brief, pp. -. In his Opposition, plaintiff specifically S:\LJM\Pldgs0\Chem\MULLALLY\Replybrief.wpd

9 Case :0-cv-0-VAP-JCR Document Filed 0//00 Page of 0 0 admits at he did not exhaust at remedy: As discussed in great detail, Plaintiff has made no claim against e Tribe. It is erefore, of no consequence in is particular action at e Chemehuevi Tribe s Tort Claims Ordinance provides an administrative remedy for a person who has a claim sounding in tort or contract against e Tribe, as no claim has been made. Opposition, p.. By his own admission, plaintiff failed to exhaust his administrative remedy for claims against e Tribe and its officials. The requirement of exhaustion of tribal remedies is not discretionary; it is mandatory. Burlington N.R.R. Co. v. Crow Tribal Council, 0 F.d, ( Cir.. On is ground alone, e Complaint should be dismissed. THE FMLA DOES NOT APPLY TO THE TRIBE OR WAIVE ITS SOVEREIGN IMMUNITY. V. In its Brief, defendants demonstrated at e FMLA does not apply to e Tribe, doing business as e Casino. Plaintiff responds by citing to case law at applies to oer federal statutes at have no bearing on e present case and to Department of Labor final rules at have no application to e Tribe. To determine wheer e Tribe is a person wiin e meaning of e FMLA, e Court must examine at statute. Likewise, e Court must look to e language of e FMLA, and not oer federal statutes, to determine if Congress intended to abrogate e Tribe s sovereign immunity by enacting e FMLA. The federal court of appeals has determined at an Indian tribe is not a person wiin e meaning of e FMLA and at e FMLA does not waive a tribe s immunity from suit. Chayoon v. Chao, F.d, (d Cir. 00, cert. denied, U.S. (00. The plaintiff has cited no auority to e Court to e contrary. Thus, Chayoon is controlling and is Court should grant e Tribe s motion for S:\LJM\Pldgs0\Chem\MULLALLY\Replybrief.wpd

10 Case :0-cv-0-VAP-JCR Document Filed 0//00 Page 0 of 0 0 summary judgment on is issue. VI. THE DEFENDANTS OPPOSE A CONTINUANCE AND DO NOT WAIVE THEIR RIGHT TO ORAL ARGUMENT. Plaintiff filed his Complaint on December, 00. At e time he filed his Complaint, or shortly ereafter, he scheduled his knee surgery. Marston Declaration, p.,. Plaintiff knew, or had reason to know, based upon e Federal Rules of Civil Procedure, at e defendants could move to dismiss his Complaint or for summary judgment, and set e hearing on e motion for e period set for his knee surgery. Yet, plaintiff did not raise e issue of his knee surgery until after defendants filed eir motion to dismiss and for summary judgment. Marston Declaration, p.,. Defendants desire to attempt to resolve is lawsuit before April 0, 00, so at its Casino can have a clean audit. Defendants believe at eir interests are best served and at e Court would benefit from oral argument. Defendants, erefore, are opposed to continuing e hearing on eir motion to dismiss or in e alternative for summary judgment and plaintiff s ex parte motion to waive oral argument. Dated: February, 00 By: Respectfully submitted, RAPPORT & MARSTON /s/ Lester J. Marston LESTER J. MARSTON Attorney for Defendants Defendants request at plaintiff s Exhibit A to his Opposition be stricken or in e alternative not be considered by e Court because e documents have not been auenticated as required by F.R.E. Rule 0(a. Plaintiff has offered no explanation as to why his motion for a continuance and for a ruling wiout oral argument was made ex parte and, us, has provided e Court wi no basis for granting is extraordinary form of relief. Granny Good Foods, Inc., v. Broerhood of Teamsters, U.S., (. S:\LJM\Pldgs0\Chem\MULLALLY\Replybrief.wpd 0

11 Case :0-cv-0-VAP-JCR Document Filed 0//00 Page of 0 PROOF OF SERVICE I am employed in e County of Mendocino, State of California. I am over e age of years and not a party to e wiin action; my business address is at of Rapport & Marston, 0 West Perkins Street, P.O. Box, Ukiah, CA. On February, 00, served e below listed document(s described as:. Defendants Reply to Plaintiff s Opposition to e Defendants Motion to Dismiss or, in e Alternative, For Summary Judgment;. Declaration of Lester J. Marston by placing a true copy ereof enclosed in a sealed envelope addressed as follows and by ing e above documents to: Gregory F. Mullally Cinnamon Drive Lake Havasu City AZ 0 gmullally@hotmail.com I deposited such envelope in e mail at Ukiah, California. The envelope was mailed wi postage ereon fully prepaid. I declare under penalty of perjury under e laws of e State of California at e foregoing is true and correct; executed on February, 00, at Ukiah, California. Christine Feller 0 S:\LJM\Pldgs0\Chem\MULLALLY\Replybrief.wpd