Pauma Band of Luiseno Mission Indians of the Pauma & Yuima Reservation v. Unite Here International Union et al, No. 3:2016cv02660 - Document 43 (S.D. Cal. 2018)
Court Description: ORDER granting Defendants State of California and Edmund G. Brown, Jr.'s 34 Motion to Dismiss Second Amended and terminating as moot 34 Motion to Strike Allegations; granting Defendant Unite Here International Union's 36 Motion to Dismiss Seconds Complaint and terminating as moot 36 Motion to Strike Second Amended Complaint. In opposing the motions to dismiss, Plaintiff requests leave to file a Third Amended Complaint in the event Court grants the motions. In light of conce rns over jurisdiction and the futility of a proposed amendment, Court defers determining whether granting leave to amend is appropriate until Court's may review a proposed amended pleading. If Plaintiff seeks to file a Third Amended Complaint, i t must file a noticed motion for leave to amend with the proposed pleading attached. Any such motion must be filed by 10/19/2018. Court dismisses Plaintiff's Second Amended Complaint without prejudice. Signed by Judge Cynthia Bashant on 9/28/2018. (jah)
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Pauma Band of Luiseno Mission Indians of the Pauma & Yuima Reservation v...International Union et al Doc. 43 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 PAUMA BAND OF LUISENO MISSION INDIANS OF THE PAUMA AND YUIMA RESERVATION, 13 14 15 16 17 Case No. 16-cv-2660-BAS-AGS ORDER GRANTING: Plaintiff, v. UNITE HERE INTERNATIONAL UNION; STATE OF CALIFORNIA; EDMUND G. BROWN, JR., Defendants. (1) DEFENDANTS STATE OF CALIFORNIA AND EDMUND G. BROWN, JR.’S MOTION TO DISMISS; AND (2) DEFENDANT UNITE HERE INTERNATIONAL UNION’S MOTION TO DISMISS [ECF Nos. 34, 36] 18 19 20 OVERVIEW 21 This action is an offshoot from a bitter labor dispute between a union and a 22 casino operator. Plaintiff Pauma Band of Luiseno Mission Indians of the Pauma & 23 Yuima Reservation (“Pauma” or “Tribe”) is a federally-recognized tribe that operates 24 Casino Pauma on its reservation in Northern San Diego County. “About 2,900 25 customers visit Casino Pauma each day,” and the Casino “employs 462 employees.” 26 Pauma v. N.L.R.B., 888 F.3d 1066, 1070 (9th Cir. 2018). 27 In 2013, Defendant UNITE HERE International Union (“Union”), which 28 represents service and manufacturing employees, began an organizing drive at –1– 16cv2660 Dockets.Justia.com 1 Casino Pauma. The Tribe claims this organizing effort involved a series of “antics,” 2 including the Union inviting The San Diego Union Tribune to a “staged rally.” 3 (Second Am. Compl. (“SAC”) ¶¶ 151–54, 45:26, ECF No. 33.) There, the Tribe 4 highlights that a casino employee allegedly spoke “exclusively through a translator” 5 and “explained that she was ‘a cook in the casino’s pizza restaurant’ who had a ‘$16 6 hourly salary,’ but nevertheless struggled to pay ‘$260 a month for health insurance 7 for her family’ of undisclosed size.” (Id. ¶ 154.) 8 As another tactic, Pauma alleges the Union “went berserk,” filing a flurry of 9 unfair labor practice charges against Casino Pauma with the National Labor Relations 10 Board (“NLRB”). (SAC ¶ 5.) Pauma claims that “the one thing that all of these 11 charges have in common is that they seek to turn Casino Pauma into a soapbox for 12 the Union, whereby sympathetic employees can communicate the Union’s message 13 directly to customers in any ‘guest area’ of the gaming facility or associated 14 property—whether that is within a shuttle bus, across a restaurant table, inside a 15 family changing room, or underneath a bathroom stall.” (Id. (emphasis in original).) 16 Ultimately, however, the Union’s charges led to the General Counsel of the 17 NLRB filing several administrative complaints against Casino Pauma for unfair labor 18 practices. Pauma v. N.L.R.B., 888 F.3d at 1071. The General Counsel’s allegations 19 included that Casino Pauma had “interfere[ed] with the distribution of union 20 literature by employees near the public entrance to [the] casino,” “threaten[ed] 21 employees with discipline for distributing union literature at that location,” and 22 “interrogat[ed] an employee about her union activity.” Id. at 1071 n.1. After a three- 23 day trial, an administrative law judge determined “Casino Pauma violated the 24 National Labor Relations Act, 29 U.S.C. § 151 et seq., in most of the ways the 25 General Counsel alleged,” and the NLRB affirmed. Id. at 1071; see also Casino 26 Pauma (Casino Pauma II), 363 N.L.R.B. No. 60 (Dec. 3, 2015). 27 Then, during the pendency of this action, the Tribe and the Union continued 28 their dispute in the Court of Appeals. The NLRB filed a petition for enforcement of –2– 16cv2660 1 its order against Casino Pauma in the Ninth Circuit, the Tribe filed a separate petition 2 for review, and the Union intervened in opposition to Pauma. See Pauma v. N.L.R.B., 3 888 F.3d at 1072. The Ninth Circuit rejected the Tribe’s challenges and granted the 4 NLRB’s petition for enforcement. Id. at 1085. In doing so, the Ninth Circuit upheld 5 the NLRB’s “determination that tribe-owned casinos can be NLRA-covered 6 employers,” and the court concluded “the NLRA governs the relationship between 7 Casino Pauma and its employees.” See id. at 1079. 8 In the offshoot before this Court, Pauma alleges that by filing the series of 9 unfair labor practice charges directly with the NLRB, the Union has skirted a binding 10 dispute resolution process. (SAC ¶¶ 5, 150–64.) This dispute resolution process is 11 found in a tribal labor ordinance that the State required Pauma to enact to engage in 12 casino-style gaming. (Id. ¶ 2 & n.1.) The Tribe requests that this Court rein in the 13 Union by ordering it to comply with the dispute resolution process and pay Pauma 14 “the costs involved in litigating” the labor charges filed with the NLRB. (Id. Prayer 15 ¶¶ 2–4.) The Union, on the other hand, argues this ancillary labor dispute is an 16 “improper collateral attack on NLRB proceedings,” an effort “to circumvent Ninth 17 Circuit review” of the NLRB’s order discussed above, and the product of “procedural 18 gamesmanship.” (ECF No. 34-1.) 19 It appears the reason the Tribe and the Union’s dispute has spilled over into 20 this Court, however, is because the Tribe is also suing two other defendants—the 21 State of California and Governor Edmund G. Brown, Jr. (collectively, “State”). 22 Pauma tries to pull the State into the fray by alleging the State has failed to take 23 “reasonable efforts to ensure” the Union would comply with the dispute resolution 24 process, including by failing to “direct[] [the Union] to first file any such unfair labor 25 practice claims through” that process, as opposed to proceeding directly before the 26 NLRB. (SAC ¶ 285.) The State moves to dismiss for lack of subject matter 27 jurisdiction, arguing Pauma fails to demonstrate a justiciable controversy between 28 these two parties. (State’s Mot., ECF No. 36-1.) The Union similarly moves to –3– 16cv2660 1 dismiss for lack of jurisdiction. (Union’s Mot., ECF No. 34-1.) Pauma opposes.1 2 (Opp’n to State’s Mot., ECF No. 38; Opp’n to Union’s Mot., ECF No. 37.) 3 Pauma’s detailed pleading interweaves a retelling of the history of tribal-state 4 compacting in California, exposition on the NLRB’s jurisdictional jurisprudence, and 5 colorful criticisms of the Union’s efforts to organize workers at Casino Pauma. But 6 the Court is unconvinced by Pauma’s attempt to construct a justiciable controversy 7 against the State to invoke federal jurisdiction. At most, Pauma’s factual allegations 8 demonstrate the State has declined to participate in the Tribe’s labor dispute, has 9 taken “no official position on the matter,” and has rejected Pauma’s request to 10 voluntarily agree “to be bound by a judgment issued by the Court in this case.” (SAC 11 ¶¶ 168, 171.) These allegations do not reveal an actual controversy between Pauma 12 and the State. And the Court discerns no independent basis to exercise jurisdiction 13 over the Tribe’s remaining declaratory relief and breach of contract claims against 14 the Union. Consequently, for the following reasons, the Court GRANTS the State’s 15 and the Union’s motions to dismiss. BACKGROUND 2 16 17 As will be seen, Pauma claims this case turns on a model tribal ordinance that 18 is an addendum to a tribal-state gaming compact. Pauma and the State of California 19 entered into this gaming compact under the Indian Gaming Regulatory Act 20 (“IGRA”), 25 U.S.C. §§ 2701–21. Hence, the Court first provides a brief overview 21 of IGRA before expanding upon the Tribe’s allegations. 22 I. Indian Gaming Regulatory Act 23 “In 1988, Congress attempted to strike a delicate balance between the 24 sovereignty of states and federally recognized Native American tribes by passing 25 26 27 28 1 The Court finds the State’s and the Union’s motions suitable for determination on the papers submitted and without oral argument. See Fed. R. Civ. P. 78(b); Civ. L.R. 7.1(d)(1). 2 Pauma’s Second Amended Complaint presents a fifty-one page account of the events underlying this action. (SAC ¶¶ 1–186.) The Court provides only a synopsis of the Tribe’s allegations here. –4– 16cv2660 1 IGRA.” Pauma Band of Luiseno Mission Indians of Pauma & Yuima Reservation v. 2 California, 813 F.3d 1155, 1160 (9th Cir. 2015). IGRA’s general purpose is “to 3 provide a statutory basis for the operation of gaming by Indian tribes as a means of 4 promoting tribal economic development, self-sufficiency, and strong tribal 5 governments.” 25 U.S.C. § 2702(1). 6 To accomplish this purpose, IGRA “creates a framework for regulating 7 gaming activity on Indian lands.” Michigan v. Bay Mills Indian Cmty., 134 S. Ct. 8 2024, 2028 (2014) (citing 25 U.S.C. § 2702(3)). “The Act divides gaming on Indian 9 lands into three classes—I, II, and III.” Seminole Tribe of Fla. v. Florida, 517 U.S. 10 44, 48 (1996). IGRA then “assigns authority to regulate gaming to tribal and state 11 governments depending on the class of gaming involved.” Big Lagoon Rancheria v. 12 California, 789 F.3d 947, 949 (9th Cir. 2015) (en banc). The final category—Class III gaming—“includes the types of high-stakes 13 14 games usually associated with Nevada-style gambling.” In re Indian Gaming 15 Related Cases, 331 F.3d 1094, 1097 (9th Cir. 2003) (“Coyote Valley”). “As a result, 16 Class III gaming is subjected to the greatest degree of control under IGRA’s 17 regulations.” Pauma v. California, 813 F.3d at 1060. A tribe may conduct Class III 18 gaming “only if such activities are conducted pursuant to a Tribal-State Compact 19 entered into by the tribe and a state that permits such gaming, and the Compact is 20 approved by the Secretary of the Interior.” Id. (citing Coyote Valley, 331 F.3d at 21 1097); see also 25 U.S.C. § 2710(d)(1), (3)(B). Thus, IGRA contemplates that a tribe 22 and the relevant state shall negotiate to enter into a compact that (i) permits Class III 23 gaming and (ii) may address various regulatory issues related to this type of gaming. 24 See 25 U.S.C. § 2710(d)(3)(A), (C) (identifying the permissible gaming compact 25 topics to include standards for “maintenance of the gaming facility” and “licensing”). 26 II. Pauma’s Compact with the State 27 Historically, Pauma’s members “relied upon subsistence farming and federal 28 funding to stave off destitution.” (SAC ¶ 111.) In 2000, Pauma sought to improve –5– 16cv2660 1 its members’ circumstances by opening a tribal gaming facility. (See id. ¶¶ 111–16.) 2 To do so, the Tribe entered into a tribal-state gaming compact with the State of 3 California under IGRA. (Tribal-State Compact Between the State of California and 4 the Pauma Band of Mission Indians (“Pauma Compact”), SAC Ex. 1, ECF No. 33- 5 1.) 6 The terms of the Pauma Compact are not unique. In 1999, the State of 7 California and numerous tribes negotiated a form compact—the “1999 Compact.” 8 See Coyote Valley, 331 F.3d at 1101–07 (detailing the course of negotiations). 9 Pauma’s agreement is an executed version of the 1999 Compact. (See SAC ¶¶ 68– 10 85, 114.) When the State and various tribes were negotiating the 1999 Compact, a 11 point of contention was the collective bargaining rights of employees at tribal gaming 12 facilities. (Id. ¶¶ 69–76.) The Union opposed the approval of any gaming compacts 13 that did not include desired protections for workers. (Id. ¶ 69.) The State’s negotiator 14 believed the issue of collective bargaining rights could be “work[ed] out directly with 15 the Union.” (Id. ¶ 72.) However, the initial discussions between the negotiating 16 tribes and the Union “were unfruitful” because of the Union’s efforts to invalidate a 17 voter initiative concerning tribal gaming. (Id.) 18 As the negotiation deadline for the 1999 Compact neared, the State presented 19 the tribes with its “final compact offer.” (SAC ¶ 74.) “Since the tribes had been 20 unable to agree upon labor relations provisions with the Union,” the State’s offer 21 included a provision requiring the tribes to provide an “agreement or other procedure 22 acceptable to the State for addressing organizational and representational rights of 23 Class III Gaming Employees and other employees associated with the Tribe’s Class 24 III gaming enterprise.” (SAC ¶ 75; see also Pauma Compact § 10.4.) If the tribes 25 failed to do so by a set deadline, the 1999 Compact provided the agreement would be 26 rendered null and void. (See Pauma Compact § 10.4.) 27 “Fifty-seven tribes participating in the negotiations signed letters of intent to 28 execute the compacts . . . in accordance with the State’s request.” (SAC ¶ 76.) “With –6– 16cv2660 1 that, the signatory tribes continued to negotiate collective bargaining rights for casino 2 employees with the Union,” with the aim of reaching an agreement by the 1999 3 Compact’s deadline. (Id.) 4 III. Model Tribal Labor Relations Ordinance 5 The result of the tribes and union representatives’ efforts is the Model Tribal 6 Labor Relations Ordinance dated September 14, 1999 (“Tribal Labor Ordinance” or 7 “Ordinance”). (SAC ¶ 78; see also Tribal Labor Ordinance, Attachment to Pauma 8 Compact Add. B, SAC Ex. 1 at 1-50.) The Tribal Labor Ordinance provides that: 9 Eligible Employees shall have the right to self-organization, to form, to join, or assist employee organizations, to bargain collectively through representatives of their own choosing, to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities. 10 11 12 13 14 (Tribal Labor Ordinance § 4.) Further, the Ordinance defines unfair labor practices 15 for the tribe and labor organizations. (Id. §§ 5–6.) It also provides for alternative 16 dispute resolution. (Id. § 13.) Specifically, the Ordinance states: 19 All issues shall be resolved exclusively through the binding dispute resolution mechanisms herein, with the exception of a collective bargaining negotiation impasse, which shall only go through the first level of binding dispute resolution. 20 (Id. § 13(a).) If the informal portion of the dispute resolution process is unsuccessful, 21 the tribe and the labor organization are to submit their dispute to arbitration before a 22 mutually agreed upon arbitrator or several arbitrators from a ten-member “Tribal 23 Labor Panel” created under the Tribal Labor Ordinance. (Id. § 13(c)(1).) Other 24 topics addressed by the Ordinance include procedures for union elections, access to 25 eligible employees, and decertification of certified unions. (Id. §§ 8, 10, 12.) 26 IV. 17 18 Pauma’s Adoption of the Tribal Labor Ordinance 27 Pauma was not one of the tribes that participated in the negotiation of the 1999 28 Compact and the Tribal Labor Ordinance. (SAC ¶ 115.) Consequently, when Pauma –7– 16cv2660 1 entered into the Pauma Compact in 2000, the Tribe did so via executing a form 2 version of the 1999 Compact “through a simple exchange of letters with the Office 3 of the Governor.” (Id. ¶ 114.) Addendum B to the Pauma Compact states: 4 In compliance with Section 10.7 of the Compact, the Tribe agrees to adopt an ordinance identical to the Model Tribal Labor Relations Ordinance attached hereto, and to notify the State of that adoption no later than May 5, 2000. If such notice has not been received by the State by May 5, 2000, this Compact shall be null and void. Failure of the Tribe to maintain the Ordinance in effect during the term of this Compact shall constitute a material breach entitling the State to terminate this Compact. No amendment of the Ordinance shall be effective unless approved by the State. 5 6 7 8 9 10 11 (SAC Ex. 1 at 1-49.) Both the State and Pauma executed Addendum B to the Pauma 12 Compact. (Id.) Further, Pauma provided notice to the State that on April 27, 2000, 13 the Tribe “adopted the Tribal Labor Relations Ordinance pursuant to Section 10.7 of 14 the” Pauma Compact—satisfying the condition mentioned in Addendum B above. 15 (Id. at 1-51.) Although the Union allegedly negotiated the content of the Tribal Labor 16 Ordinance with other tribes, the Union is not a signatory to the Pauma Compact or 17 its Addendum B containing the Model Tribal Labor Relations Ordinance to be 18 enacted as tribal law. (Id. at 1-41, 1-49.) Rather, the tribal-state gaming compact 19 was “entered into on a government-to-government basis by and between” Pauma and 20 the State. (Id. at 1-5.) 21 Accordingly, having entered into the Pauma Compact to satisfy IGRA’s 22 requirements to conduct Class III gaming activities, Pauma opened a gaming facility 23 on its reservation in Pauma Valley the following year. (SAC ¶¶ 14, 116.) 24 V. Labor Dispute at Casino Pauma 25 Over a decade later, the Union engaged in the aforementioned effort to 26 unionize workers at Casino Pauma. (See SAC ¶¶ 144–56.) As part of its efforts, the 27 Union allegedly sought to allow Casino Pauma workers to use “card check election 28 procedures” to decide whether to make the Union their representative. (See id. ¶¶ 5, –8– 16cv2660 1 134, 145, 150–51.) Pauma, however, informed the Union “that any representational 2 effort would have to take place” according to “secret ballot election” procedures 3 contained in the Tribal Labor Ordinance. (Id. ¶ 5.) Then, on May 25, 2012, a Union 4 director invoked the dispute resolution process under the Tribal Labor Ordinance, 5 and the Union later proceeded to seek appointment of an arbitrator, but the Union 6 subsequently withdrew its request for arbitration under Pauma’s Ordinance. (Id. ¶¶ 7 145–48.) 8 The Tribe claims the Union then “went berserk, filing nine unfair labor practice 9 charges against Pauma directly with the NLRB.” (SAC ¶ 5.) In doing so, Pauma 10 alleges the Union “abandoned the ‘binding dispute resolution mechanism’” contained 11 in the Tribal Labor Ordinance. (Id. ¶ 156.) And, because the Union has opted to 12 pursue its unfair labor charges against Pauma with the NLRB instead of the dispute 13 resolution process, Pauma claims it has incurred “at least $400,000” in legal fees and 14 expenses.” (Id. ¶ 162.) 15 VI. Pauma’s Attempt to Involve the State 16 In September 2016, Pauma’s counsel sent a letter to the State of California 17 regarding “the Union’s non-compliance with” the Tribal Labor Ordinance. (SAC ¶ 18 167.) In a subsequent meeting at the State Capitol, Pauma’s counsel “requested the 19 State’s assistance in holding the Union to the terms of the [Tribal Labor Ordinance] 20 or otherwise devising a fix for the solution.” (Id. ¶ 168.) “In response, the Office of 21 the Governor’s Senior Advisor for Tribal Negotiations Joginder Dhillon explained 22 that the State did not have an official position on the matter and thus would not get 23 involved at the time, though he would communicate possible solutions should he 24 think of any.” (Id.) 25 VII. Pauma’s Lawsuit 26 Pauma filed this action on October 27, 2016, against the State and the Union. 27 In its initial Complaint, the only claim Pauma pled against the State was for 28 declaratory relief. (Compl. ¶¶ 148–54, ECF No. 1.) The Tribe alleged an actual –9– 16cv2660 1 controversy exists regarding the Tribal Labor Ordinance because Pauma is “arguing 2 for the dispute resolution procedure in the” Ordinance, the Union is arguing for “the 3 NLRA,” and the State is purportedly “feigning indifference despite demanding that 4 the signatory tribes agree to the [Tribal Labor Ordinance] in the first place.” (Id. ¶ 5 154.) 6 In Pauma’s Second Amended Complaint,3 Pauma supplements its pleading 7 with allegations arising from a meet-and-confer meeting required by this Court’s 8 Standing Order for Civil Cases. (SAC ¶¶ 170–73.) Under this Court’s Standing 9 Order, “[a]ny party contemplating the filing of any noticed motion before this Court 10 must first contact opposing counsel to discuss thoroughly—preferably in person— 11 the substance of the contemplated motion and any potential resolution.” During such 12 a conference, Pauma alleges “counsel for the State questioned the Court’s 13 jurisdiction,” including by explaining the State’s “perception that Pauma’s suit was 14 really one against the Union, which meant that the State should not be a party to the 15 suit especially since Pauma had not alleged a breach of compact claim against the 16 State.” (Id. ¶ 171.) “Nevertheless, in an attempt to eliminate the need for the State’s 17 motion to dismiss, counsel for Pauma agreed to dismiss the State [] from the suit if 18 [it] stipulated to be bound by the order issued by the Court on the declaratory relief 19 claim.” (Id.) The State declined to “enter into such an agreement in order to secure 20 [its] dismissal from the case.” (Id.) Based on this conduct, Pauma alleges the State 21 breached the implied covenant of good faith and fair dealing in the Pauma Compact. 22 (Id. ¶¶ 280–86.) 23 In addition, Pauma joins the Union in its declaratory relief claim. (SAC ¶¶ 24 187–94.) Pauma also pleads a series of claims alleging the Union has purportedly 25 26 27 28 3 Pauma previously filed a First Amended Complaint, which the State and the Union moved to dismiss while Pauma moved for leave to amend to file a Second Amended Complaint. (ECF Nos. 13–15.) “In light of the liberal policy favoring amendment,” the Court granted Pauma’s request to amend and deferred consideration of Defendants’ challenges to Pauma’s action. (ECF No. 32.) – 10 – 16cv2660 1 breached the Pauma Compact by not adhering to the dispute resolution process in the 2 Tribal Labor Ordinance that was enacted by Pauma and appended to the Pauma 3 Compact. (Id. ¶¶ 195–279.) 4 The State now moves under Federal Rule of Civil Procedure 12(b)(1) to 5 dismiss Pauma’s claims against it for lack of subject matter jurisdiction. (State’s 6 Mot. 1:2–25, 5:21–11:6, ECF No. 36.) The Union similarly moves to dismiss 7 Pauma’s claims involving the Union. (Union’s Mot. 4:13–12:16, ECF No. 34.)4 LEGAL STANDARD 8 9 A motion to dismiss under Rule 12(b)(1) challenges the jurisdiction of a 10 federal court over the subject matter of the complaint. Fed. R. Civ. P. 12(b)(1). 11 “It is axiomatic that ‘[f]ederal courts are courts of limited jurisdiction. They possess 12 only that power authorized by Constitution and statute, which is not to be expanded 13 by judicial decree.’” Vacek v. U.S. Postal Serv., 447 F.3d 1248, 1250 (9th Cir. 2006) 14 (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). “It 15 is to be presumed that a cause lies outside this limited jurisdiction, and the burden of 16 establishing the contrary rests upon the party asserting jurisdiction.” Id.; see also 17 Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir. 1996). ANALYSIS 18 19 I. State’s Motion to Dismiss 20 The State argues this Court lacks subject matter jurisdiction because Pauma 21 does not identify a suitable basis for jurisdiction and fails to plead a live, justiciable 22 controversy between the Tribe and the State. (State’s Mot. 1:2–25, 5:21–11:6.) 23 Although there is a colorable ground for federal jurisdiction for Pauma’s claims 24 against the State, the Court agrees that Pauma does not plead a requisite controversy 25 between these two parties. 26 27 28 4 Both the State and the Union alternatively move under Rule 12(b)(6) to dismiss Pauma’s claims for lack of plausibility and under Rule 12(f) to strike certain allegations in the Second Amended Complaint. Because the Court ultimately grants their motions based on a lack of subject matter jurisdiction, the Court does not reach these alternative requests. – 11 – 16cv2660 1 A. 2 Pauma’s Second Amended Complaint identifies the following bases for this 3 4 5 6 Basis for Jurisdiction Court’s subject matter jurisdiction: • The Indian Commerce Clause of the U.S. Constitution, U.S. Const. art I., § 8, cl. 3; • The Federal Arbitration Act (“FAA”), 25 U.S.C. § 2701 et seq.; 7 • IGRA, 25 U.S.C. § 2701, and “interpretive case law such as Cabazon Band 8 of Mission Indians v. Wilson, 124 F.3d 1050, 1055–56 (9th Cir. 1997)”; 9 10 11 12 • Federal question jurisdiction, 28 U.S.C. § 1331; • Indian tribes jurisdiction, 28 U.S.C. § 1362; • The Declaratory Judgment Act, 28 U.S.C. § 2201; and • Section 9.1 of the Pauma Compact. 13 (SAC ¶ 10.) Many of these items do not provide an independent basis for 14 jurisdiction.5 The Court focuses on the two interchangeable possibilities that may 15 provide jurisdiction: the federal question statute, 28 U.S.C. § 1331, and the Indian 16 tribes statute, 28 U.S.C. § 1362. 17 18 19 20 21 22 23 24 25 26 27 28 5 These are: (1) the Indian Commerce Clause, (2) the Federal Arbitration Act, (3) the Declaratory Judgment Act, and (4) Section 9.1(d) of the Pauma Compact. First, the Indian Commerce Clause, which grants Congress the authority “[t]o regulate Commerce . . . with the Indian Tribes,” does not vest this Court with jurisdiction. See U.S. Const. art. I, § 8, cl. 3. The “Indian Commerce Clause makes ‘Indian relations . . . the exclusive province of federal law.’” Seminole Tribe of Fla., 517 U.S. at 60 (quoting County of Oneida v. Oneida Indian Nation of N.Y., 470 U.S. 226, 234 (1985)). But it alone does not provide jurisdiction here. Second, although “the Federal Arbitration Act creates federal substantive law requiring the parties to honor arbitration agreements, it does not create any independent federal-question jurisdiction.” Southland Corp. v. Keating, 465 U.S. 1, 16 (1984). Third, the Declaratory Judgment Act is not an independent basis for jurisdiction because it is “procedural only.” Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 240 (1937). This Act “enlarged the range of remedies available in the federal courts but did not extend their jurisdiction.” Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950). Fourth, Section 9.1 of the Pauma Compact does not create jurisdiction. Section 9.1 provides that the parties may resolve a dispute “in the United States District Court where the Tribe’s Gaming Facility is located.” (Pauma Compact § 9.1.) The parties, however, have “no power to confer jurisdiction on the district court by agreement.” See Morongo Band of Mission Indians v. Cal. State Bd. of Equalization, 858 F.2d 1376, 1380 (9th Cir. 1988). – 12 – 16cv2660 1 Under the federal question statute, a district court has “original jurisdiction of 2 all civil actions arising under the Constitution, laws, or treaties of the United States.” 3 28 U.S.C. § 1331. Similarly, under the Indian tribes statute, the court has “original 4 jurisdiction of all civil actions, brought by any Indian tribe . . . , wherein the matter 5 in controversy arises under the Constitution, laws, or treaties of the United States.” 6 Id. § 1362. Thus, where a tribe is bringing suit, these provisions are duplicative— 7 the existence of jurisdiction under both provisions depends on whether the action 8 arises under federal law. See id. §§ 1331, 1362; see also Gila River Indian Cmty. v. 9 Henningson, Durham & Richardson, 626 F.2d 708, 714 (9th Cir. 1980) (declining to 10 interpret the “arises under” language in the Indian tribes provision more broadly than 11 the corresponding language in the federal question statute).6 12 “For a case to ‘arise under’ federal law, a plaintiff’s well-pleaded complaint 13 must establish either (1) that federal law creates the cause of action or (2) that the 14 plaintiff’s asserted right to relief depends on the resolution of a substantial question 15 of federal law.” K2 Am. Corp. v. Roland Oil & Gas, LLC, 653 F.3d 1024, 1029 (9th 16 Cir. 2011) (quoting Peabody Coal Co. v. Navajo Nation, 373 F.3d 945, 948 (9th Cir. 17 2004)). That a federally-recognized tribe is involved in the action “is not, by itself, 18 sufficient to raise a federal question.” Peabody Coal, 373 F.3d at 949 (citing Gila 19 River, 626 F.2d at 714). Consequently, “federal courts do not have jurisdiction over 20 run-of-the-mill contract claims brought by Indian tribes.” Cabazon Band of Mission 21 Indians v. Wilson, 124 F.3d 1050, 1055 (9th Cir. 1997). 22 23 24 25 26 27 28 6 Although these two statutes now “appear[] largely duplicative,” when the Indian tribes provision was enacted, the federal question statute “still contained an amount in controversy requirement.” 13D Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3579 Indian Tribes (3d ed. supp. 2018). “The purpose of § 1362 was to permit Indian tribes or bands of the sort described in the statute to bring a suit arising under federal law regardless of the amount in controversy.” Id. Now that the federal question statute does not require an amount in controversy, the Indian tribes statute “is generally superfluous.” Id.; see also Winstead v. J.C. Penney Co., 933 F.2d 576, 580 (7th Cir. 1991) (Posner, J.) (“The elimination of the minimum amount in controversy from section 1331 made of the numerous special federal jurisdictional statutes that required no minimum amount in controversy . . . so many beached whales, yet no one thought to repeal those now-redundant statutes.”). – 13 – 16cv2660 1 Pauma’s allegations seek to plead claims arising under IGRA, which the Court 2 introduced above. IGRA explicitly confers federal question jurisdiction for several 3 causes of action specified in the statute. See 25 U.S.C. § 2710(d)(7)(A)(i)–(iii). 4 These are: (1) an action based on a state’s failure to enter into negotiations to form a 5 tribal-state compact or to conduct those negotiations in good faith; (2) an action to 6 enjoin casino-like gaming conducted on Indian lands that is conducted in violation 7 of a compact; and (3) an action by the Secretary of the Interior to enforce mediation 8 procedures in the event a compact cannot be reached. See id.7 The Tribe’s claims 9 do not fit into any of these categories. 10 In addition to these express causes of action, the Ninth Circuit has interpreted 11 IGRA to allow a tribe to sue a state to enforce obligations in a tribal-state gaming 12 compact. Cabazon, 124 F.3d at 1055–56. In Cabazon, four tribes entered into 13 gaming compacts with California and “agreed to submit the question of whether the 14 license fees collected pursuant to California Horse–Racing Law are permissible 15 under IGRA” to the district court. Id. at 1053, 1062. Ultimately, the Ninth Circuit 16 held these fees were not permissible, but once the case was remanded to the district 17 court, the State “refused to pay the fees [back] to the [tribes], declared the Compacts 18 invalid,” and argued “the district court lacked subject matter jurisdiction to enforce 19 the Compacts.” Id. at 1054. 20 Back up on appeal, the Ninth Circuit concluded the tribes’ “action seeking to 21 enforce the Tribal-State Compacts clearly and necessarily arises under IGRA,” which 22 resulted in federal jurisdiction under 28 U.S.C. §§ 1331 and 1362. Cabazon, 124 23 24 25 26 27 28 7 The Supreme Court held in Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996), that Congress lacked authority under the Indian Commerce Clause to abrogate states’ sovereign immunity. Consequently, 28 U.S.C. § 2710(d)(7) does not allow a suit against a state unless the state waives its sovereign immunity. “The practical effect of this holding is to take away from tribes the ability to force states to comply with IGRA’s compacting scheme.” Hein v. Capitan Grande Band of Diegueno Mission Indians, 201 F.3d 1256, 1261 (9th Cir. 2000). Pauma alleges the State waived its immunity in the Pauma Compact and California Government Code § 98005. (SAC ¶ 11.) Because the Court ultimately concludes it lacks jurisdiction over Pauma’s claims against the State, the Court need not reach the issue of state sovereign immunity. – 14 – 16cv2660 1 F.3d at 1050. The Court of Appeals reasoned that the federal interest at stake was 2 substantial enough to confer federal question jurisdiction because “Congress, in 3 passing IGRA, did not create a mechanism whereby states can make empty promises 4 to Indian tribes during good-faith negotiations of Tribal–State compacts, knowing 5 that they may repudiate them with immunity whenever it serves their purpose.” Id. 6 at 1056. The Ninth Circuit also agreed with the characterization of the federal interest 7 by the district court, which had noted: 12 It would be extraordinary were [IGRA] to provide jurisdiction to entertain a suit to force the State to negotiate a compact yet provide no avenue of relief were the State to defy or repudiate that very compact. Such a gap in jurisdiction would reduce the elaborate structure of IGRA to a virtual nullity since a state could agree to anything knowing that it was free to ignore the compact once entered into. IGRA is not so vacuous. 13 Id. at 1056 (quoting the district court’s order); but see id. at 1062–65 (Wiggins, J, 14 dissenting on the ground that there is “no reason for the federal courts to become the 15 arbiter of any and all disputes that may arise out of” tribal-state compacts). Thus, the 16 Ninth Circuit rejected the State’s jurisdictional argument and proceeded to address 17 the State’s sovereign immunity and the merits of the dispute. Id. 1056–62. 8 9 10 11 18 Here, Pauma brings claims against the State for declaratory relief and breach 19 of the implied covenant of good faith and fair dealing based on the Pauma Compact. 20 (SAC ¶¶ 280–86.) Provided that Pauma’s declaratory relief claim raises a federal 21 interest that is as substantial as the interest implicated by a breach of compact claim 22 against the State, the Court concludes IGRA, as interpreted in Cabazon, provides a 23 colorable basis for jurisdiction over these claims. They must still be justiciable, 24 however. 25 B. 26 Beyond arguing there is no jurisdictional basis for Pauma’s claims, the State 27 contends Pauma fails to allege a justiciable controversy between the Tribe and the 28 State. (State’s Mot. 5:23–7:24, 9:12–10:5.) The Court first considers Pauma’s Justiciable Controversy – 15 – 16cv2660 1 request for declaratory relief, which was the sole claim against the State in the Tribe’s 2 initial Complaint. The Declaratory Judgment Act states that “[i]n a case of actual 3 controversy within its jurisdiction . . . any court of the United States, upon the filing 4 of an appropriate pleading, may declare the rights and other legal relations of any 5 interested party seeking such declaration, whether or not further relief is or could be 6 sought.” 28 U.S.C. § 2201(a). “[T]he phrase ‘case of actual controversy’ in the Act 7 refers to the type of ‘Cases’ and ‘Controversies’ that are justiciable under Article 8 III.” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 126 (2007) (quoting Aetna 9 Life Ins. Co. v. Haworth, 300 U.S. 227, 240 (1937)); accord Am. States Ins. Co. v. 10 Kearns, 15 F.3d 142, 143 (9th Cir. 1994). 11 Accordingly, when a party pursues declaratory relief, the court must determine 12 whether Article III’s case or controversy requirement is satisfied. See, e.g., Principal 13 Life Ins. Co. v. Robinson, 394 F.3d 665, 669 (9th Cir. 2005); Wickland Oil Terminals 14 v. Asarco, Inc., 792 F.2d 887, 893 (9th Cir. 1986). The inquiry “is whether the facts 15 alleged, under all the circumstances, show that there is a substantial controversy, 16 between parties having adverse legal interests, of sufficient immediacy and reality to 17 warrant the issuance of a declaratory judgment.” See MedImmune, 549 U.S. at 127; 18 accord United States v. Braren, 338 F.3d 971, 975 (9th Cir. 2003) (noting this 19 standard determines the “constitutional ripeness of a declaratory judgment action”). 20 If this standard is not met, there “is no case or controversy” because the “case is not 21 ripe for review,” and the “court lacks subject-matter jurisdiction.” Principal Life Ins. 22 Co., 394 F.3d at 669 (citing Kearns, 15 F.3d at 143). 23 The facts alleged in Pauma’s Second Amended Complaint do not demonstrate 24 an actual controversy with the State. The crux of the Tribe’s action is that the Union 25 is not abiding by the Tribal Labor Ordinance’s alternative dispute mechanism. (SAC 26 ¶¶ 4–8.) The Union has instead allegedly circumvented the Ordinance by repeatedly 27 filing unfair labor practice charges “directly with the NLRB.” (Id. ¶¶ 4, 185, 192, 28 199, 206, 213, 220, 227, 234, 241, 248, 255, 263.) Accepting the Tribe’s allegations – 16 – 16cv2660 1 as true, it is clear that there is a dispute between the Tribe and the Union over the 2 enforceability of the Ordinance’s alternative dispute mechanism. 3 4 5 6 7 8 9 10 11 The same cannot be said with respect to the State. At the threshold, the State is absent from Pauma’s description of the actual controversy in its pleading: This action presents an actual and live controversy as to whether the [Ordinance] obligates the Union to resolve any work related disputes – including unfair labor practice charges – through the binding dispute resolution process set forth within the ordinance rather than the administrative courts of the NLRB, and whether Pauma has and will continue to sustain damages as a result of the Union’s refusal to abide by the terms of an agreement that it negotiated and accepted. The district court has the power to remedy this dispute in accordance with the Prayer for Relief, infra. 12 (SAC ¶ 13.) Further, in considering the remainder of the Tribe’s pleading, Pauma 13 does not allege facts demonstrating the State has taken an adverse position against 14 the Tribe with respect to the Tribal Labor Ordinance. Rather, Pauma alleges that 15 after the Tribe sent a letter to the State and met with it in the State Capitol, the State 16 informed the Tribe that “the State did not have an official position on the matter and 17 thus would not get involved at the time.” (SAC ¶ 168; see also id. ¶ 269.) That is 18 the only concrete factual allegation regarding the State’s conduct prior to the filing 19 of this action. There is no allegation that the State controls the Union or has aided 20 the Union in filing unfair labor practice charges with the NLRB. There is similarly 21 no allegation that the State has taken any action whatsoever against Pauma regarding 22 the Ordinance during the Tribe’s ongoing dispute with the Union. 23 The Court recognizes that a model of the Tribal Labor Ordinance is 24 incorporated into Pauma’s Compact with the State. 25 Addendum B of the Pauma Compact, the Tribe was required to adopt the Tribal 26 Labor Ordinance. It did. If Pauma fails to “maintain the Ordinance in effect during 27 the term of [the] Compact,” the State has the power to terminate the Compact on 28 account of the Tribe’s “material breach.” But, again, there is no claim or evidence – 17 – Under Section 10.4 and 16cv2660 1 that the State has threatened to terminate the Compact or otherwise taken an adverse 2 action against the Tribe. The gravamen of Pauma’s pleading is that the Union—not 3 Pauma—has failed to adhere to the Ordinance. 4 Pauma attempts to demonstrate an actual controversy in its opposition, but the 5 Court is unconvinced. The Tribe leans on the Supreme Court’s decision in 6 MedImmune, arguing that Pauma “is in the same position as the petitioner in 7 MedImmune, as both are ‘coerced’ contracting parties who file suit to determine their 8 rights after being faced with the pre-suit predicament of abandoning said rights or 9 risking prosecution.” (Opp’n to State’s Mot. 6:11–14.) Yet, an examination of the 10 Supreme Court’s decision in MedImmune bolsters this Court’s conclusion—not 11 Pauma’s. 12 In MedImmune, the petitioner and respondent entered into a patent license 13 agreement. 549 U.S. at 121. The agreement provided the petitioner with the right to 14 make and sell licensed products, so long as the company paid royalties to the 15 respondent. Id. Several years later, the respondent sent the petitioner a letter 16 expressing its belief that one of the petitioner’s products was covered by a patent 17 addressed in the license agreement. 18 expectation that the petitioner would pay the respondent royalties. Id. Id. Thus, the respondent conveyed its 19 The petitioner, however, “did not think royalties were owing, believing that 20 the [relevant] patent was invalid and unenforceable.” MedImmune, 549 U.S. at 121– 21 22. Nonetheless, the petitioner viewed the respondent’s letter “to be a clear threat to 22 enforce the [relevant] patent,” terminate the parties’ agreement, “and sue for patent 23 infringement if petitioner did not make royalty payments as demanded.” Id. at 122. 24 Consequently, “[u]nwilling to risk such serious consequences, petitioner paid the 25 demanded royalties ‘under protest and with reservation of all of [its] rights.’” Id. 26 (alteration in original). The company then filed a declaratory judgment action against 27 the respondent seeking a determination that the underlying patent was invalid, 28 unenforceable, or not infringed. Id. at 121–22. – 18 – In light of the foregoing 16cv2660 1 circumstances, the Supreme Court held there was a justiciable controversy. 2 Id. at 137. 3 Like the companies in MedImmune, the State and Pauma are parties to an 4 agreement—the Pauma Compact. But the similarities end there. Pauma does not 5 allege the State has taken action to enforce the Compact against the Tribe or 6 committed conduct that the Tribe views “to be a clear threat to” do so. See 7 Medimmune, 549 U.S. at 122. Pauma’s theory is that MedImmune is analogous 8 because the Tribe claims it risked prosecution if it did not “comply with the NLRB’s 9 procedures and orders” after the Union chose to allegedly abandon the Tribal 10 Ordinance’s dispute resolution mechanism. 11 “Given the contempt powers of the NLRB,” Pauma contends it—like the petitioner 12 in Medimmune—“had to bring suit to ameliorate a big and quickly devolving 13 quandary created by the Union’s coercive actions.” (Id. 7:5–7.) 14 (Opp’n to State’s Mot. 6:25–28.) The Tribe’s comparison does not survive scrutiny. Pauma claims it is 15 threatened by the contempt powers of the NLRB, but Pauma is not suing the NLRB. 16 It is suing the State of California. These arguments do not support that “there is a 17 substantial controversy . . . of sufficient immediacy and reality” between Pauma and 18 the State. See MedImmune, 549 U.S. at 127. Consequently, the Court is unpersuaded 19 by Pauma’s attempt to analogize this case to MedImmune’s circumstances. 20 The Tribe also attempts to use the State’s opinion that there is no actual 21 controversy to create one. Pauma argues the State’s “impassioned defense of this 22 suit shows” the State “is heavily invested in the outcome of this case and acting in 23 concert with the Union.” (Opp’n to State’s Mot. 4:15–18.) The Court disagrees. The 24 State has filed a motion to dismiss arguing first and foremost that there is no case or 25 controversy between it and the Tribe. The State’s belief that there is no controversy 26 does not create one. In sum, Pauma’s factual allegations fail to show a justiciable 27 controversy to support the Tribe’s declaratory relief claim against the State. 28 – 19 – 16cv2660 *** 1 2 Given that there are insufficient factual allegations to demonstrate a justiciable 3 declaratory relief claim, the Court inevitably reaches the same conclusion for 4 Pauma’s nebulous claim for breach of the implied covenant of good faith and fair 5 dealing. In support of this claim, Pauma seeks to use a court-mandated meet-and- 6 confer session to inject an actual controversy into this lawsuit. As mentioned, Pauma 7 alleges that after it filed its initial Complaint, the parties participated in a meet-and- 8 confer session required by this Court’s Standing Order for Civil Cases to discuss an 9 anticipated motion to dismiss by the State. (SAC ¶¶ 170–73.) There, “counsel for 10 the State questioned the Court’s jurisdiction” and “explained its perception that 11 Pauma’s suit was really one against the Union, which meant the State should not be 12 a party to the suit especially since Pauma had not alleged a breach of compact claim 13 against the State.” (Id. ¶ 171.) Pauma’s counsel then “agreed to dismiss the State [] 14 from the suit if [it] stipulated to be bound by the order issued by the Court on the 15 declaratory relief claim,” but the State declined “to enter into such an agreement.” 16 (Id.) 17 Pauma uses this meet-and-confer meeting in its Second Amended Complaint 18 to try to stitch together a justiciable controversy by adding a claim for breach of the 19 implied covenant of good faith and fair dealing in the Pauma Compact. (SAC ¶¶ 20 280–86.) Pauma claims the State’s (i) lack of an official position on the Tribe’s 21 dispute with the Union, (ii) unwillingness to voluntarily participate in this lawsuit, 22 and (iii) decision to decline Pauma’s dismissal offer demonstrates the State has 23 breached Pauma’s “reasonable expectations” under the Pauma Compact. (Id. ¶ 284.) 24 Pauma also claims the State has failed “to take reasonable efforts to ensure that its 25 privy in interest the Union would comply with the [Tribal Labor Ordinance], even if 26 that simply meant directing it to first file any such unfair labor practice claims 27 through the procedure in the [Tribal Labor Ordinance] while the declaratory relief 28 claim in this matter was being adjudicated.” (Id. ¶ 285.) Yet, again, there is no – 20 – 16cv2660 1 allegation that the State has aided the Union or that the State has the power to 2 “direct[]” the Union to do anything. This effort to use a court-mandated meet-and- 3 confer session to transmute an inchoate declaratory relief claim into a justiciable 4 breach of contract claim is not convincing. 5 Regardless of the legal theory employed, when the Court examines the factual 6 allegations in Pauma’s pleading regarding Pauma and the State, the Court does not 7 discern an actual case or controversy between these parties. Pauma has the burden 8 of demonstrating subject matter jurisdiction, which includes a justiciable 9 controversy, but it does not meet this burden. Consequently, the Court GRANTS 10 the State’s motion to dismiss Pauma’s action against it for lack of subject matter 11 jurisdiction. 12 II. Union’s Motion to Dismiss 13 Having dismissed Pauma’s claims against the State for lack of jurisdiction, the 14 Court considers whether it has jurisdiction over Pauma’s remaining claims against 15 the Union. Aside from seeking comparable declaratory relief, Pauma is suing the 16 Union for breach of the Tribal Labor Ordinance, with the Tribe characterizing its 17 claims as being for breach of the Pauma Compact. (SAC ¶¶ 195–279.) In its own 18 motion to dismiss, the Union argues that there is no independent basis to exercise 19 jurisdiction over Pauma’s claims against the Union. (Union’s Mot. 6:14–9:5.) 20 Relatedly, the Union argues that if the Court dismisses the Tribe’s claims against the 21 State for lack of jurisdiction, there is no basis to invoke supplemental jurisdiction 22 over the Tribe’s remaining claims. (Id. 12:3–11.) 23 The Court agrees that there is no independent basis for jurisdiction over 24 Pauma’s claims against the Union. In making this determination, the Court 25 recognizes the potential obstacles to Pauma bringing “breach of compact” claims 26 against the Union. For example, the Union is not a signatory to the Pauma Compact 27 or the agreement’s Addendum B that attaches the Tribal Labor Ordinance to be 28 adopted by Pauma. (Pauma Compact, ECF No. 33-1 at Ex. 1-41, 49.) In the same – 21 – 16cv2660 1 vein, the Union is not identified as a party to the Pauma Compact. (Id. at 1-1 2 (providing “[t]his Tribal-State Gaming Compact is entered into on a government-to- 3 government basis by and between [Pauma] and the [State] pursuant to [] [IGRA]”).) 4 In addition, Pauma does not allege it negotiated the Pauma Compact or the content 5 of the Tribal Labor Ordinance with the Union—the Tribe alleges it executed the 6 Compact “through a simple exchange of letters with the Office of the Governor.” 7 (See SAC ¶¶ 114–15.) Finally, the plain language of the Pauma Compact requires 8 the Tribe to adopt and maintain the Tribal Labor Ordinance as tribal law to address 9 “organizational and representational rights of Class III gaming Employees.” (Pauma 10 Compact § 10.7, Add. B.) This compact requirement plainly places an enforceable 11 obligation on Pauma, not the State—or any other party. (See id.) Cf. Unite Here 12 Int’l Union v. Pala Band of Mission Indians, 583 F. Supp. 2d 1190, 1198 (S.D. Cal. 13 2008) (Whelan, J.) (finding the Tribal Labor Relations Ordinance is “incorporated by 14 reference” into the 1999 Compact “only in the most technical sense”). 15 Those potential obstacles aside, in assessing jurisdiction, the Court will adopt 16 as true Pauma’s allegation that the Union “accepted” the Tribal Labor Ordinance. 17 (SAC ¶ 13.) The Court will also assume, for the sake of argument, that because the 18 Union accepted the benefits of an ordinance enacted by Pauma as tribal law, and 19 because a copy of the tribal ordinance is incorporated into the Pauma Compact as 20 part of Pauma’s agreement with the State, that means the Tribe can sue the Union for 21 “breach of compact.” (See Pauma Compact § 10.7, Add. B.) 22 Having adopted Pauma’s framing of the compact and the tribal ordinance, the 23 Court repeats that as a starting point it does “not have jurisdiction over run-of-the- 24 mill contract claims brought by Indian tribes.” See Cabazon, 124 F.3d at 1055. In 25 its opposition to the Union’s motion, the Tribe argues that its claims do not fall under 26 this category because they are instead analogous to the four tribes’ breach of compact 27 claims against California in Cabazon. Id. at 1050. As summarized above, in 28 Cabazon, the Ninth Circuit concluded the tribes’ action against the state for breach – 22 – 16cv2660 1 of their tribal-state compacts presented a substantial enough federal interest to be 2 “arising under” IGRA. See id. at 1055–56 (citing Merrell Dow Pharm. Inc. v. 3 Thompson, 478 U.S. 804, 814 n.12 (1986)). The Tribe argues that the “similarities 4 between Cabazon and the instant matter could not be any more apparent.” (Opp’n to 5 Union’s Mot. 12:4–6.) The “only wrinkle between the present case and Cabazon,” 6 in Pauma’s view, is the addition of the Union “in the compact dispute.” (Id. 14:12– 7 13.) 8 This distinction is more than a wrinkle. Again, the default rule is that a federal 9 court does not have jurisdiction over a tribe’s general contract claims. Cabazon, 124 10 F.3d at 1055. In deviating from that rule in Cabazon, the Ninth Circuit reasoned 11 there is an important federal interest in enforcing “Tribal-State compacts in the 12 federal courts” because “Congress, in passing IGRA, did not create a mechanism 13 whereby states can make empty promises to Indian tribes during good-faith 14 negotiations of Tribal–State compacts, knowing that they may repudiate them with 15 immunity whenever it serves their purpose.” Id. at 1056. As the district court had 16 also recognized: “It would be extraordinary were [IGRA] to provide jurisdiction to 17 entertain a suit to force the State to negotiate a compact yet provide no avenue 18 of relief were the State to defy or repudiate that very compact.” Id. 19 The same concerns do not arise here for Pauma’s claims against the Union. 20 The Union, as a private party, cannot evade its alleged contractual promises with 21 assertions of state sovereign immunity. See Cabazon, 124 F.3d at 1056; cf. Unite 22 Here, 583 F. Supp. 2d at 1198 (noting in the context of an action between the Union 23 and a different tribe, the necessity to provide a federal forum in Cabazon was missing 24 because “neither litigant is significantly disadvantaged by proceeding in a state or 25 tribal forum”). And there is no comparable danger that a federal court’s failure to 26 entertain the Tribe’s breach of compact claims against the Union “would reduce the 27 elaborate structure of IGRA to a virtual nullity.” See Cabazon, 124 F.3d at 1056. 28 – 23 – 16cv2660 1 Consequently, at a minimum, the importance of any federal interest raised by 2 Pauma’s alleged breach of compact claims against the Union is diminished in these 3 circumstances. See Cabazon, 124 F.3d at 1055–56. Given the foregoing, this Court 4 is wary of “[becoming] the arbiter of any and all disputes that may arise out of 5 [gaming compacts].” See Unite Here, 583 F. Supp. 2d at 1197 (alterations in original) 6 (quoting Cabazon, 124 F.3d at 1064 (Wiggins, J., dissenting), and expressing this 7 caution where “neither [] IGRA nor Cabazon expressly confer federal jurisdiction for 8 this type of action”). Indeed, Pauma does not identify any decisions in this circuit 9 that have extended Cabazon’s reasoning to a situation involving a party that is neither 10 the “state” nor the “tribe” in a tribal-state gaming compact under IGRA. (See Opp’n 11 to Union’s Mot. 10:6–16:12; see also Union’s Reply 4:16–17 (arguing that “[n]o 12 court has adopted Pauma’s expansive theory of Cabazon jurisdiction”).) Ultimately, 13 none of the Tribe’s arguments convince this Court that Pauma’s claims against the 14 Union present a substantial enough federal interest to allow these claims to arise 15 under IGRA. See 28 U.S.C. § 1331, 1362. 16 In sum, this is a Court “of limited jurisdiction,” and “[i]t is to be presumed 17 that” Pauma’s claims against the Union “lie[] outside this limited jurisdiction.” See 18 Kokkonen, 511 U.S. at 377. Pauma does not meets its “burden of establishing the 19 contrary.” See id. The Court consequently GRANTS the Union’s motion to dismiss 20 for lack of jurisdiction. CONCLUSION 21 22 In light of the foregoing, the Court GRANTS the State’s motion to dismiss for 23 lack of subject matter jurisdiction and TERMINATES AS MOOT the State’s 24 accompanying motion to strike allegations in Pauma’s pleading (ECF No. 36). The 25 Court similarly GRANTS the Union’s motion to dismiss for lack of subject matter 26 jurisdiction and TERMINATES AS MOOT the Union’s accompanying motion to 27 strike (ECF No. 34). 28 – 24 – 16cv2660 1 In opposing the motions to dismiss, Pauma requests leave to file a Third 2 Amended Complaint in the event that this Court grants the State’s and Union’s 3 motions. (Opp’n to Union’s Mot. 15:19–16:12; Opp’n to State’s Mot. 26:3.) In light 4 of concerns over jurisdiction and the futility of a proposed amendment, the Court 5 defers determining whether granting leave is appropriate until the Court may review 6 a proposed amended pleading. If Pauma seeks to file a Third Amended Complaint, 7 it must first file a noticed motion for leave to amend with the proposed pleading 8 attached and in compliance with Civil Local Rule 15.1. Any such motion must be 9 filed no later than October 19, 2018. 10 11 Accordingly, the Court DISMISSES WITHOUT PREJUDICE Pauma’s Second Amended Complaint (ECF No 33). IT IS SO ORDERED. 12 13 DATED: September 28, 2018 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 – 25 – 16cv2660
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