UNITED STATES DISTRICT COURT CENTRAL … · San Rafael, CA 94903 Telephone: 415/491-2310 Facsimile: 415/491-2313 Attorneys for Defendant UNITED STATES DISTRICT COURT CENTRAL DISTRICT

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George Forman (SBN 047822)Kimberly A. Cluff (SBN 196139)Jay B. Shapiro (SBN 224100)Jeffrey R. Keohane (SBN 190201)FORMAN & ASSOCIATES4340 Redwood Highway, Suite E352San Rafael, CA 94903Telephone: 415/491-2310Facsimile: 415/491-2313

Attorneys for Defendant

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CRYSTAL MULLER,

Plaintiff,

vs.

MORONGO CASINO RESORT & SPA,et. al.,

Defendants.

)))))))))))))))

CASE NO.: EDCV 14-02308 VAP(KKx)

MEMORANDUM OF POINTSAND AUTHORITIES INSUPPORT OF DEFENDANTS'MOTION TO DISMISSWITHOUT LEAVE TO AMEND

Action Filed: 11/10/14Date: June 1, 2015Time: 2:00 p.m.Judge: Hon. Virginia A. Phillips

DEFENDANT'S MEMORANDUM OF POINTS AND

AUTHORITIES ISO MOTION TO DISMISS Case No. EDCV 14-02308VAP(KKx)

Case 5:14-cv-02308-VAP-KK Document 14-1 Filed 04/08/15 Page 1 of 21 Page ID #:60

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TABLE OF CONTENTS

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

FACTS RELEVANT TO THE MOTION TO DISMISS UNDER F.R.CIV.P. 12(B)(1)AND (B)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I. STANDARD FOR DETERMINING A MOTION TO DISMISS. . . . . . 3

II. STATUTORY BASIS FOR SUBJECT MATTER JURISDICTION. . . 4

A. The Court Lacks Jurisdiction Over Claims Against the MorongoTribal Council Because the Tribe's Immunity Has Not BeenUnequivocally Abrogated By an Act of Congress or Expressly andUnequivocally Waived by the Tribe. . . . . . . . . . . . . . . . . . . . . . . 5

1. The FMLA Does Not Abrogate Tribal Sovereign Immunity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

2. Morongo Has Not Waived Its Sovereign Immunity to aPrivate Suit Under the FMLA. . . . . . . . . . . . . . . . . . . . . . . 6

B. Muller's Claims Against MCRS.. . . . . . . . . . . . . . . . . . . . . . . . . 12

C. The Tribe's Immunity Also Cloaks Defendants Kelley and Briton. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

III. THE FAC SHOULD BE DISMISSED FOR FAILURE TO STATE ACLAIM UPON WHICH RELIEF CAN BE GRANTED (FRCP 12(b)(5)).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

A. The FMLA Does Not Apply to the Tribe.. . . . . . . . . . . . . . . . . . 13

IV. PROCESS HAS NOT BEEN SUFFICIENTLY SERVED. . . . . . . . . . 15

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15


AUTHORITIES ISO MOTION TO DISMISS Case No. EDCV 14-02308VAP(KKx)i


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TABLE OF AUTHORITIES

CASESAlvarado v. Table Mtn. Rancheria,509 F.3d 1008 (9th Cir. 2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5

Am. Vantage Cos. v. Table Mtn. Rancheria,292 F.3d 1091. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Bassett v. Mashentucket Indian Tribe,204 F.3d 343 (2d Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Carsten v. Inter-Tribal Council of Nevada,--- Fed.Appx. ---, 2015 WL 1345535 (9th Cir. 2015).. . . . . . . . . . . . . . . . . . . . . . . . . 6

Chayoon v. Chao,355 F.3d 141 (2d Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Cook v. AVI Casino Enters., Inc.,548 F.3d 718 (9th Cir. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Daly-Murphy v. Winston,837 F.2d 348 (9th Cir. 1987).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Exxon Mobil Corp. v. Allapattah Servs.,545 U.S. 546 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Florida Paraplegic Ass'n. v. Miccosukee Indian Tribe,166 F.3d 1126 (11th Cir. 1999).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 15

Garcia v. Akwesasne Housing Authority,268 F.3d 76 (2nd Cir.2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

In re Dynamic Random Access Memory Antitrust Litig. v. Micron Technology, Inc.,546 F.3d 981 (9th Cir. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Kiowa Tribe of Oklahoma v. Mfg. Technologies, Inc.,523 U.S. 751 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 6

Kokkonen v. Guardian Life Ins. Co.,511 U.S. 375 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Merrell Dow Pharm. Inc. v. Thompson,478 U.S. 804 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Miller v. Wright,705 F.3d 919 (9th Cir. 2012).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 12

Morrison v. Viejas Enterprises.,2011 WL 3203107 (S.D. Calif. 2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Pearson v. Chugach Government Services Inc.,669 F.Supp.2d 467 (D.Del.2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14


AUTHORITIES ISO MOTION TO DISMISS Case No. EDCV 14-02308VAP(KKx)ii


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Safe Air for Everyone v. Meyer,373 F.3d 1035 (9th Cir.2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Santa Clara Pueblo v. Martinez,436 U.S. 49 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 6

State of Michigan v. Bay Mills Indian Community,___ U.S. ___, 134 S.Ct. 2024 (2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 6

Tenneco Oil v. Sac & Fox Tribe of Indians of Okl.,725 F.2d 572 (10th Cir. 1984).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

United States v. Testan,426 U.S. 392 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

United States v. U.S. Fidelity & Guaranty Corp.,309 U.S. 506 (1940). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

UNITE-HERE Intern. Union v. Pala Band of Mission Indians,583 F.Supp.2d 1190 (S.D. Cal. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

White v. Univ. of Calif.,765 F.3d 1010 (9th Cir. 2014).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

RULES & REGULATIONS2 U.S.C. § 12111(5)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

20 U.S.C. § 1706. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

25 U.S.C. § 2710(b)(2)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

28 U.S.C. § 1337. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

28 U.S.C. § 1343. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

28 U.S.C. § 1391. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

28 U.S.C. § 451. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

29 CFR § 500.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

29 U.S.C. § 201. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

29 U.S.C. § 2601. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 13

42 U.S.C § 12101. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

44 U.S.C. § 1507. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

California Government Code § 12945.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Federal Rule of Civil Procedure 11(b)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Federal Rule of Civil Procedure 12(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4


AUTHORITIES ISO MOTION TO DISMISS Case No. EDCV 14-02308VAP(KKx)iii


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Federal Rule of Civil Procedure 12(b)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Federal Rule of Civil Procedure 12(b)(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Federal Rule of Civil Procedure 4(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Federal Rule of Civil Procedure 4(h). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Federal Rule of Evidence 201. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

OTHER AUTHORITIESFMLA Regulations, Final Rule,78 Fed. Reg. No. 25, pp. 8834-8947 (February 6, 2013). . . . . . . . . . . . . . . . . . . . . . 14


AUTHORITIES ISO MOTION TO DISMISS Case No. EDCV 14-02308VAP(KKx)iv


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INTRODUCTION

By her First Amended Complaint ("FAC") in this action, plaintiff, Crystal

Muller ("Muller"), seeks injunctive and declaratory relief, attorneys' fees and costs

and unspecified other relief arising from termination of her employment as a slot

machine attendant at the Morongo Casino Resort & Spa. The FAC names as

defendants the Morongo Casino Resort & Spa ("MCRS") (the casino/hotel owned and

operated by the federally-recognized Morongo Band of Mission Indians ("Tribe") on

the Morongo Indian Reservation in Riverside County, California; the "Tribal Council

for the Morongo Band of Mission Indians" ("Council") (the Tribe's elected governing

body); Kandie Kelley ("Kelley") and Briton Cook ("Cook"), both of whom are

described in the FAC as "officials" of the Tribe, and "agency officers in their official

capacities", but who the FAC does not allege were involved in Muller's termination;

and fictitiously named Doe defendants.

Muller asserts three purported claims for relief:

1. A "Federal Claim" that, in the words of the FAC,

19. Muller was discriminated and retaliated against because she sought

arbitration and she sought the protection of the FMLA and under the

Americans with Disabilities Act.[1]

20. But-for the fact that she sought arbitration in order to follow the

policies and procedures of Morongo and because she had a non-work-

related disability, she would not have been fired.

2. A "State Claim" that, in the words of the FAC,

22. Muller was discriminated and retaliated against her [sic] because she

sought arbitration and a hearing before the tribal court and the protection

1 Muller impliedly also alleges a violation of the Americans with Disabilities Act,42 U.S.C § 12101, et seq. ("ADA"). However, 42 U.S.C. § 12111(5)(B) expresslyexcludes Indian Tribes from the definition of "employer", so the ADA doesn't apply tothe Tribe or MCRS, and in any event does not give this Court jurisdiction over a privateaction against the Tribe. See Florida Paraplegic Ass'n. v. Miccosukee Indian Tribe, 166F.3d 1126 (11th Cir. 1999).


AUTHORITIES ISO MOTION TO DISMISS Case No. EDCV 14-02308VAP(KKx)1


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of the FMLA, under the Americans With Disabilities Act which would

include California's CFRA.[2]

23.But-for the fact she sought arbitration and a hearing before the tribal

court and had a disability and received the protection, she would not

have been fired.

3. A "Federal Claim" that, in the words of the FAC,

26. Plaintiff sought to appear before the tribal court following the

expressed policies and procedures of Morongo and sought arbitration but

was denied.

27. Plaintiff not [sic] requests this Court compels arbitration so that the

issue of her non-work-related issue of her requests for arbitration may be

determined.

In addition to the demands set forth in each of Muller's first two purported

claims (no separate demands are included in her third purported claim), Muller prays

for a permanent injunction requiring the Tribe to arbitrate her claims, a declaration

that defendants' alleged "retaliatory conduct as alleged in this complaint violates

Morongo's expressed compact to arbitrate", costs and attorneys' fees, and unspecified

other relief.

The Court should dismiss Muller's claims for lack of jurisdiction over either the

subject matter of her action or the persons of the named defendants, and in any event

because the FAC fails to state any claim upon which relief can be granted.

FACTS RELEVANT TO THE MOTION TO DISMISSUNDER F.R.CIV.P. 12(B)(1) AND (B)(2)

Only three of the FAC's actual or necessarily implied factual allegations are

relevant to this motion to dismiss for lack of subject-matter jurisdiction (F.R.Civ.P.

12(b)(1)) and personal jurisdiction (F.R.Civ.P. 12(b)(2)):

(i) the Tribal Council for the Morongo Band of Mission Indians is the

2 Cal. Gov. Code, § 12945.2.




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governing body of the federally-recognized Indian Tribe that owns and operates

MCRS (FAC ¶2b);3

(ii) all of the named defendants are agents of each other (FAC ¶4); and

(iii) Muller was employed by the Tribe/MCRS as a slot attendant and

then discharged from that employment (FAC ¶5).4

ARGUMENT

I. STANDARD FOR DETERMINING A MOTION TO DISMISS

Federal district courts are courts of limited jurisdiction and the law presumes

that "a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins.

Co., 511 U.S. 375, 377 (1994). As the master of the complaint, the plaintiff has the

burden of affirmatively showing that jurisdiction exists. Thus, in response to a motion

to dismiss for lack of subject-matter jurisdiction, the party seeking to invoke the

district court's jurisdiction bears the burden of establishing subject matter jurisdiction,

and dismissal for lack of jurisdiction is appropriate if the complaint, considered in its

entirety, fails on its face to allege facts sufficient to establish subject matter

jurisdiction. In re Dynamic Random Access Memory Antitrust Litig. v. Micron

Technology, Inc., 546 F.3d 981, 985 (9th Cir. 2008); Safe Air for Everyone v. Meyer,

373 F.3d 1035, 1039 (9th Cir.2004); UNITE-HERE Intern. Union v. Pala Band of

Mission Indians, 583 F.Supp.2d 1190, 1194 (S.D. Cal. 2008) ("Although the

3 Morongo's status as a federally-recognized Indian Tribe is established beyonddispute not only by the admission in Muller's FAC, ¶ 2(b), but also by its listing in theFederal Register, Vol. 80, No. 9, 80, pp. 1942-1948, a true copy of which is attached asDocument No. 1 to the Request for Judicial Notice lodged herewith. Morongo's right tooperate MCRS is recognized in the original and amended Class III Gaming Compactbetween Morongo and the State of California; a true copy of that Compact is attachedas Document No. 2 to the Request for Judicial Notice lodged herewith.

4 The facts relevant to defendants' motion to dismiss pursuant to F.R.Civ.P.12(b)(5) are set forth in the Declaration of Faith Cartagena lodged herewith. ThatDeclaration shows that the Proofs of Service filed in this action are false, and thus thatservice has been insufficient at least as to the Council, Kelley or Cook, if not alldefendants, given that Ms. Cartagena has not been authorized to accept service on behalfof anyone, is not herself a defendant and is not the chief executive officer or otherwisein charge of MCRS.




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defendant is the moving party in a motion to dismiss, the plaintiff is the party

invoking the court's jurisdiction. Therefore, the plaintiff bears the burden of proof on

the necessary jurisdictional facts.") "'Jurisdiction may not be sustained on a theory

that the plaintiff has not advanced.'" Am. Vantage Cos. v. Table Mtn. Rancheria, 292

F.3d 1091, at 1101 (quoting Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804,

809, n. 6 (1986).

A long and well-established principle of federal law recognizes that American

Indian Tribes possess inherent sovereign immunity to unconsented suit. State of

Michigan v. Bay Mills Indian Community, ___ U.S. ___, 134 S.Ct. 2024, 2030

(2014); Miller v. Wright, 705 F.3d 919, 923-24 (9th Cir. 2012); Cook v. AVI Casino

Enters., Inc., 548 F.3d 718, 725 (9th Cir. 2008); Kiowa Tribe of Oklahoma v. Mfg.

Technologies, Inc., 523 U.S. 751, 754 (1998); Santa Clara Pueblo v. Martinez, 436

U.S. 49, 58 (1978); United States v. U.S. Fidelity & Guaranty Corp., 309 U.S. 506,

513 (1940); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978). Sovereign

immunity has two components: consent to the creation of a claim for relief, and

consent to the adjudication of that claim in a particular court or court system. United

States v. Testan, 426 U.S. 392, 399 (1976).

When invoked, tribal sovereign immunity deprives a federal court of

jurisdiction and requires dismissal under F.R.Civ.P. 12(b)(1). Alvarado v. Table Mtn.

Rancheria, 509 F.3d 1008, 1015-16 (9th Cir. 2007) ("Sovereign immunity limits a

federal court's subject matter jurisdiction over actions brought against a sovereign.

Similarly, tribal immunity precludes subject matter jurisdiction in an action against an

Indian tribe.")

II. STATUTORY BASIS FOR SUBJECT MATTER JURISDICTION

"[T]he cornerstone of federal subject matter jurisdiction is statutory

authorization." Alvarado, 509 F.3d at 1015-16 (citing Exxon Mobil Corp. v.

Allapattah Servs., 545 U.S. 546, 553 (2005) ("[F]ederal courts have no jurisdiction

without statutory authorization.")).




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By her FAC, Muller purports to invoke this Court's jurisdiction pursuant to

numerous sections of the U.S. Code, some of which do not purport to confer

jurisdiction at all,5 while others have no conceivable relationship to any purported

claims alleged in Muller's FAC.6

The only federal statute invoked by Muller that has any relationship to her

purported claims is the federal Family Medical Leave Act, 29 U.S.C. § 2601, et seq.

("FMLA"). Thus, assuming – without conceding – that Muller properly has pleaded a

claim arising under the FMLA, this Court may exercise jurisdiction over that claim

and the named defendants, but only if the exercise of that jurisdiction is not barred by

the unwaived sovereign immunity of the Tribe, its Council, MCRS and its agents.

Alvarado, 509 F.3d at 1015-16 (district court's jurisdiction over tribal defendant

requires statutory basis and waiver of tribal sovereign immunity.) As explained

below, Muller has not made – and cannot make – the requisite jurisdictional showing.

A. The Court Lacks Jurisdiction Over Claims Against the MorongoTribal Council Because the Tribe's Immunity Has Not BeenUnequivocally Abrogated By an Act of Congress or Expressly andUnequivocally Waived by the Tribe

To invoke this Court's jurisdiction, Muller must establish as a matter of law

that the Tribe's immunity either has been abrogated by an Act of Congress or

expressly waived by the Tribe itself. See Alvarado, 509 F.3d at 1015-16. Muller can

demonstrate neither, so her claims against the Tribal Council must be dismissed.

Muller names as a defendant the Morongo Tribal Council, which is the Tribe's

elected governing body. To sue the Council is to sue the Tribe itself. As a federally

recognized Indian Tribe, Morongo possesses sovereign immunity from suit, which

5 28 U.S.C. § 451 defines certain terms used in Title 28; 28 U.S.C. § 1391 pertainsto venue, not jurisdiction.

6 28 U.S.C. § 1337 confers original jurisdiction over claims "arising under any Actof Congress regulating commerce or protecting trade and commerce against restraintsand monopolies." 20 U.S.C. § 1706 pertains to suits for denial of equal educationalopportunity. 28 U.S.C. § 1343 confers jurisdiction to redress deprivations of civil rights.




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remains intact unless Congress has unequivocally abrogated it or the Tribe has

expressly waived it. Bay Mills, 134 S.Ct. at 2031-32; Kiowa Tribe, 523 U.S. at 754;

Martinez, 436 U.S. at 58.

1. The FMLA Does Not Abrogate Tribal Sovereign Immunity

The only federal Courts of Appeals to have considered the question whether

the FMLA abrogated tribal sovereign immunity have held that the FMLA did not

abrogate tribal sovereign immunity. Carsten v. Inter-Tribal Council of Nevada, ---

Fed.Appx. ---, 2015 WL 1345535 (9th Cir. 2015); Chayoon v. Chao, 355 F.3d 141,

142-43 (2d Cir. 2004) (per curiam). These decisions are well-reasoned, and Muller

offers no reason not to follow them. Therefore, the Court should hold that Congress

did not abrogate Morongo's sovereign immunity to a private cause of action under the

FMLA.

2. Morongo Has Not Waived Its Sovereign Immunity to a PrivateSuit Under the FMLA

Unable to credibly contend that the FMLA abrogated Morongo's sovereign

immunity to her action, Muller is left to contend that Morongo's Amended Class III

Gaming Compact with the State of California7 somehow contains a sufficiently

express and unequivocal consent to the creation of the private claims for relief alleged

in the FAC. However, an examination of the relevant Amended Compact language

reveals that the Amended Compact did no such thing.

Section 10.2(1) provides, in its entirety, that the Tribe must, "Adopt and

comply with standards no less stringent than the standards of the Fair Labor

Standards Act, 29 U.S.C. § 201, et seq., and the United States Department of Labor

regulations implementing the Fair Labor Standards Act (29 CFR § 500, et seq.)."

Apart from the fact that Muller's FAC does not attempt to assert a claim under the

FLSA, the plain language of § 10.2(1) negates Muller's interpretation of that

provision of the Amended Compact: § 10.2(1) simply requires the Tribe to adopt for

7 Attached as Document No. 2 to the Request for Judicial Notice lodged herewith.




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itself standards at least as strict as the FLSA and its implementing regulations.

Simply put, adoption of tribal standards is not the same as expressly and

unequivocally consenting to creation of a private claim for relief cognizable in this

Court for violating the Tribe's own standards. Rather, the Amended Compact makes

clear that if the Tribe fails to comply with an obligation under the Amended Compact,

the State of California – and only the State – has the right to seek relief against the

Tribe pursuant to §§ 9 and 15.1 of the Tribe's original Compact, which were not

changed by the Amended Compact.

Section 10.2(d) of Morongo's Amended Compact requires Morongo to obtain

and maintain a commercial general liability insurance policy of at least $10 Million to

cover claims for "bodily injury, property damage, and personal injury arising out of,

connected with, or relating to the operation of the Gaming Facility or Gaming

Activities." In order to effectuate that coverage,the Amended Compact provides that

theTribe shall waive its right to assert sovereign immunity up to the limits of the

Policy "in accordance with the tribal ordinance referenced in subdivision (d)(ii)

below in connection with any claim for bodily injury, property damage or personal

injury arising out of, connected with, or relating to the operation of the Gaming

Facility ..." [Emphasis added].

Compact § 10.2(d)(ii) requires the Tribe to "maintain in continuous force its

Tort Liability Ordinance," which must provide at least that California tort law shall

govern "all claims for bodily injury, property damage or personal injury arising out

of, connected with, or relating to the operation of the Gaming Facility, ... provided

that any and all laws governing punitive damages need not be a part of the

Ordinance[;]" that the Tribe waives its right to assert sovereign immunity to

arbitration and court review "of such claims" up to policy limits; that, "the Tribe

consents to binding arbitration before a single arbitrator, . . . in accordance with the

comprehensive arbitration rules and procedures of JAMS . . . to the extent of the

limits of the Policy; and that "To effectuate its consent to the foregoing arbitration




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procedure, the Tribe shall, in the exercise of its sovereignty, waive its right to assert

its sovereign immunity in connection with the arbitrator's jurisdiction and in any

action brought in federal court, or, if the federal court declines to hear the action, in

any action brought in the courts of the State of California that are located in Riverside

County, including courts of appeal, to (1) enforce the parties' obligation to arbitrate,

(2) confirm, correct, modify, or vacate the arbitral award rendered in the arbitration,

or (3) enforce or execute a judgment based upon the award."

Section 10.2(d)(ii)(D) of the Amended Compact allows Morongo to require

exhaustion of the Tribe's administrative remedies, if any, for resolving claims for

bodily injury, property damage or personal injury arising out of, connected with, or

relating to the operation of the Gaming Facility. Section 10.2(d)(iii) of the Amended

Compact requires the Tribe to notify claimants about any exhaustion requirement, and

the availability of de novo arbitration if dissatisfied with the outcome of the tribal

process.

Morongo's obligation to provide a remedy for claims by patrons and other

visitors for bodily injury, property damage and personal injury is owed to the State,

not to patrons and visitors. Thus, the Amended Compact provides, in § 10.2(d)(iv),

that, "Failure to comply with this Section 10.2, subdivision (d) shall be deemed a

material breach of the Compact." That also is why§ 15.1 of the Compact (unchanged

by the Amendment) provides that,

Third Party Beneficiaries. Except to the extent expressly

provided under this Gaming Compact, this Gaming

Compact is not intended to, and shall not be construed to,

create any right on the part of a third party to bring an action

to enforce any of its terms.8

If the preceding provisions of the Amended Compact already constituted a self-

8 Section 9.4 of Morongo's original Compact has a similar effect.




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executing express and unequivocal consent by the Tribe to the creation of private

claims for relief that could be asserted in direct actions in this or any other court,

there would have been no need to provide that the Tribe's failure to comply with the

Amended Compact's provisions regarding the FLSA and tort liability would

constitute compact violations entitling the State to invoke the dispute-resolution

provisions of §§ 9 and 15.1 – provisions that expressly preclude third-party

beneficiaries (such as Muller).

Morongo fulfilled its obligations under § 10.2(d) of the Amended Compact by

enacting an amended Tort Liability Ordinance9 that creates the requisite remedies and

contains the requisite waivers. However, as permitted by the Amended Compact, §

2.4 of Tribe's Tort Liability Ordinance specifically excludes from its definition of

"Compensable Injury" "any injury allegedly sustained by a Tribal official, agent or

employee in connection with his/her employment or performance of official duties,

..."

The Amended Compact does not ignore the Tribe's Class III gaming

employees. The Amendment contains a separate section (VIII) that amends § 10.3 of

the original Compact so as to state in greater detail the Tribe's obligation to provide

"a system that provides redress for Gaming Facility employees' work-related injuries

through requiring insurance or self-insurance" that is comparable to the substantive

rights "mandated for comparable employees under state law." If the plain text of

Tribe's Tort Liability Ordinance exclusion of employees from its scope were not

sufficient, the inclusion of this section effectively negates any suggestion that the

Tribe's gaming employees, such as Muller, may seek redress under Tribe's Tort

Liability Ordinance. Moreover, nothing in the Amended Compact required Morongo

to consent to the creation of employees' right to judicially compel arbitration of

9 A copy of the Ordinance is attached as Document No. 4 to the Request forJudicial Notice lodged herewith.




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claims for wrongful termination.10

That the Tribe's Amended Compact does not consent to the creation of Muller's

purported claims is even more conclusively demonstrated by provisions included in

later compacts between California tribes and the state, but that were not included in

the Tribe's Amended Compact. Specifically, several of the State's more recent new or

amended compacts with other California Tribes have included provisions that require

those Tribes to carry at least $3 Million in employment practices liability insurance,

expressly waive sovereign immunity to claims based on employment discrimination,

harassment or retaliation, and enact ordinances that not only impose an explicit

prohibition against gaming facility workplace discrimination, harassment and

retaliation in accordance with California law, but also explicitly require enactment of

ordinances and policies implementing those prohibitions by giving gaming operation

employees the right to seek relief for violations of those policies through binding

arbitration and subsequent judicial enforcement of arbitration awards in California

courts.

One example of such a compact is the 2011 Class III gaming compact between

the State of California and the Habematolel Pomo of Upper Lake ("Upper Lake

Compact"), § 12.5 of which contains tort liability provisions almost identical to §

10.2(d) of Tribe's Amended Compact. A true copy of the Upper Lake Compact may

be viewed on the website of the California Gambling Control Commission,

www.cgcc.ca.gov, Tribal Gaming, List of Tribal Compacts; notice that the Upper

Lake Compact was deemed approved by the Department of the Interior was published

in Vol. 76, No. 154, p. 49505 of the Federal Register. A true copy of pp. 80-86 of the

10 The only other waivers of Tribe's immunity that can be found in either theoriginal Compact or the Amendment pertain to actions by the State of California itself(or its agencies) to enforce various specific provisions of the Compact/Amendment inthe event of a breach, and by Riverside County to compel The Tribe to arbitrateunresolved disputes over the terms of an intergovernmental agreement that may berequired in connection with certain projects involving the modification or expansion ofa gaming facility. None of those provisions effect or require a waiver of Tribe'simmunity to a private action such as that brought by Muller.




http://www.cgcc.ca.gov,

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Upper Lake Compact is attached as Document 5 to the Request for Judicial Notice

lodged herewith.11

There are many similarities between the Upper Lake Compact and the Tribe's

Amended Compact, but in at least one critical respect most relevant to this action, the

two compacts are very different. Specifically, the Tribe's Amended Compact has no

counterpart to § 12.3(f) of the Upper Lake compact, found at pp. 80-86.12 . That

section contains detailed provisions that require that tribe to purchase employment

practices liability insurance and enact and implement an ordinance that expressly

prohibits workplace discrimination, harassment and retaliation; makes California law

applicable to claims of workplace discrimination, harassment and retaliation; creates

enforceable remedies against the Tribe for violations; and expressly grants the Tribe's

consent and waives the Tribe's sovereign immunity to JAMS arbitration of employees'

claims for discrimination, harassment or retaliation – including enforcement of

arbitration awards in California courts.

Hence, if § 12.5 of the Upper Lake Compact – which is basically identical to §

10.2(d) of the Tribe's Amended Compact – sufficed to waive that tribe's sovereign

immunity to employee claims for discrimination, harassment or retaliation, the

detailed anti-discrimination provisions of § 12.3 of the Upper Lake Compact would

be superfluous.

In sum, Morongo has not expressly and unequivocally consented to be sued by

a private party in this Court for an order compelling arbitration of a claim for

wrongful termination. Given that Congress has not abrogated the Tribe's immunity

under the FMLA, the Court lacks jurisdiction over Muller's claims against the Tribe

11 The entire Upper Lake Compact is 109 pages long. In the interest of brevity,only the relevant pages are attached to the Request for Judicial Notice.

12 Essentially the same provisions are contained in the State's compact with thePinoleville Pomo Nation, and the most recent Amended Compact with the ShingleSprings Band of Miwok Indians; those compacts also can be viewed on the CGCC'swebsite. Pursuant to F.R.Evid. 201, the Court also is requested to take judicial notice ofthese other compacts.




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and should dismiss the action with prejudice under FRCP 12(b)(1) and 12(b)2).

B. Muller's Claims Against MCRS

Muller's claims against the MCRS suffer from the same fatal jurisdictional

deficiency as do her claims against the Tribe itself, because the Tribe's sovereign

immunity extends to its subordinate entities (usually referred to as a Tribe's "arms").

White v. Univ. of Calif., 765 F.3d 1010, 1025 (9th Cir. 2014). In this case, Muller

has failed to – and cannot in good faith – allege that the MCRS is anything other than

an integral arm of the Tribe, a fact of which her counsel undoubtedly would be aware

from the reasonable inquiry required by F.R.Civ.P. 11(b)(2). See Class III Gaming

Compact between the Tribe and the State of California, attached as Document No. 2

to the Request for Judicial Notice lodged herewith; see also, 25 U.S.C. §

2710(b)(2)(A) [a tribal gaming ordinance must provide, with limited exceptions

inapplicable in this case, that the Tribe must be the sole owner of a gaming

enterprise.] The FAC is devoid of any allegation that The MCRS has waived its

immunity to suit or that Congress expressly has abrogated MCRS's immunity to

Muller's claims in this Court, nor is there any chance that Muller could make any such

allegation in good faith. Therefore, Muller's claims against MCRS also must be

dismissed with prejudice.

C. The Tribe's Immunity Also Cloaks Defendants Kelley and Briton

Although Muller's FAC names Kelley and Cook in the caption of her FAC and

alleges that both are tribal officials and "agency officers in their official capacities,"

(FAC § II, ¶2b), the FAC does not allege that either of them committed any act

related to the termination of Muller's employment at MCRS.

Tribal sovereign immunity extends not only to a tribe's arms, but also to its

officials, agents and employees acting within the scope of the authority that the Tribe

may confer, even if the acts or omissions might be tortious or mistaken, as long as the

individuals are sued in their official capacities and the relief sought against them

would, in reality, expend itself against the Tribe. See Miller, 705 F.3d at 923-24;




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Cook, 548 F.3d at 727; Tenneco Oil v. Sac & Fox Tribe of Indians of Okl., 725 F.2d

572, 574 (10th Cir. 1984).

Morongo, acting through the MCRS as an arm of the Tribe, necessarily has the

authority on behalf of the Tribe, to hire and fire its employees, including Muller.

Morongo/MCRS can only exercise its authority to hire and fire employees through

individual officials – Indian or non-Indian – acting on its behalf in their respective

official capacities; otherwise, no individual would have any authority to hire or fire

anyone in connection with the operation of the MCRS.

To the extent that Muller may contend that Kelley and/or Cook had some

involvement in the decision to discharge her (the FAC does not make such an

allegation), they could only have acted in the course and scope of their employment

as officials/agents of the Tribe/MCRS, and it is against Morongo, not Kelley or Cook,

against which the relief that Muller seeks (arbitration) would expend itself.

Therefore, Kelley and Cook necessarily are cloaked with the Tribe's unwaived

sovereign immunity, and Muller's claims against them (to the extent that any claims

are asserted against either of them) must be dismissed with prejudice.

III. THE FAC SHOULD BE DISMISSED FOR FAILURE TO STATE ACLAIM UPON WHICH RELIEF CAN BE GRANTED (FRCP 12(b)(5))

A. The FMLA Does Not Apply to the Tribe

No decision of a federal Court of Appeals has yet squarely decided whether the

FMLA applies to Indian tribes. However, in Morrison v. Viejas Enterprises., 2011

WL 3203107 (S.D. Calif. 2011), the district court for the Southern District of

California held that the FMLA not only did not abrogate tribal sovereign immunity,

but also that it does not apply to tribal employers at all:

The Family Medical Leave Act is a law of general

application that is silent with respect to Indian tribes. See 29

U.S.C. § 2601 et seq.; see also Chayoon v. Chao, 355 F.3d

141, 143 (2nd Cir.2004) ("The FMLA makes no reference




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to the amenity of Indian tribes to suit.") (citing Garcia v.

Akwesasne Housing Authority, 268 F.3d 76, 86 (2nd

Cir.2001)). In Chayoon, the Second Circuit found that

federally recognized Indian tribes are immune from suit

under the FMLA. See Chayoon v. Chao, 355 F.3d at 143

("[Plaintiff's] remedy, if there is to be one, lies with

Congress."); see also Pearson v. Chugach Government

Services Inc., 669 F.Supp.2d 467, 477 (D.Del.2009) ("The

only courts to examine whether tribal organizations are

subject to the FMLA's employer obligations held, based on

the doctrine of tribal immunity, the there is not private cause

of action under the FMLA against tribal organizations.").

2011 WL 3203107 at *3-4.

The U.S. Department of Labor apparently agrees that the FMLA does not apply

to Tribes, because its FMLA regulations, Final Rule published on February 6, 2013,

78 Fed. Reg. No. 25, pp. 8834-8947, at 8902, of which judicial notice hereby is

requested pursuant to F.R.Evid. 201 and 44 U.S.C. § 1507, contains the following

statement:

XII. Executive Order 13175, Indian Tribal Governments

This rule was reviewed under the terms of E.O. 13175 and

determined not to have tribal implications. The rule does not

have ''substantial direct effects on one or more Indian tribes,

on the relationship between the Federal government and

Indian tribes, or on the distribution of power and

responsibilities between the Federal government and Indian

tribes.'' As a result, no tribal summary impact statement has

been prepared.

In other contexts, Courts of Appeals have held that statutes of general




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application do not apply to Tribes without a clear expression of Congressional intent.

See Florida Paraplegic Ass'n. v. Miccosukee Indian Tribe, 166 F.3d 1126 (11th Cir.

1999) (Americans with Disabilities Act applies to tribe as provider of public

accommodations, but does not abrogate tribe's immunity to private action to enforce

the Act); Bassett v. Mashentucket Indian Tribe, 204 F.3d 343, 357-58 (2d Cir. 2004)

(Copyright Act did not abrogate tribal immunity to suit for infringement).

If the FMLA does not apply to Morongo as Muller's employer, it logically

follows that it does not apply to those who act on Morongo's behalf in administering

Morongo's authority to supervise, hire and fire Morongo's employees. Thus, the

FMLA would not apply to MCRS, Kelley or Cook, either, and Muller cannot state a

claim under the FMLA upon which relief can be granted against any of the

defendants.

IV. PROCESS HAS NOT BEEN SUFFICIENTLY SERVED

A defendant's awareness that a lawsuit has been filed is not an adequate

substitute for proper service of process. Daly-Murphy v. Winston, 837 F.2d 348, 355

(9th Cir. 1987). Even if delivery of a single copy of the Summons and FAC to a

receptionist in the MCRS Executive Offices could constitute sufficient service on

MCRS (under F.R.Civ.P. 4(e) and (h), that, alone, would not suffice), it could not

possibly have constituted sufficient service on the Council, which is headquartered

elsewhere on the Morongo Indian Reservation, or on Kelley or Cook, who never have

been personally served.

The Declaration of Faith Cartagena lodged herewith demonstrates that none of

the named defendants ever have been served with this action, notwithstanding the

false proofs of service filed with the Court, and the Court should impose appropriate

sanctions to deter future attempts to circumvent the requirements of F.R.Civ.P. 4(e)

and (h).

CONCLUSION

For all of the reasons set forth above, Muller's FAC should be dismissed, and




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because there is no way that Muller can in good faith amend her FAC so as to

overcome the named defendants' unabrogated and unwaived sovereign immunity or

state claims against them upon which relief can be granted, Muller's entire action

should be dismissed without leave to amend.

Dated: April 8, 2015 Respectfully submitted,

By: /s/ George Forman George FormanFORMAN & ASSOCIATESAttorneys for Defendants




Documents

UNITED STATES DISTRICT COURT CENTRAL … · San Rafael, CA 94903 Telephone: 415/491-2310 Facsimile: 415/491-2313 Attorneys for Defendant UNITED STATES DISTRICT COURT CENTRAL DISTRICT