The opinion of the court was delivered by: Hon. John A. Houston United States District Judge
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT
Now before this Court is Defendant Rincon Band of Luiseno Mission Indians' ("Defendant") motion to dismiss Plaintiff Paula Hill's ("Plaintiff") first amended complaint under Fed. R. Civ. P. 12(b)(1) and (b)(6).
Plaintiff filed her complaint against Defendants Rincon Band of Luiseno Indians ("Rincon"), Tuukut Sass and Rob Shafer (collectively "Defendants") on November 17, 2006. Rincon's first motion to dismiss was granted on March 16, 2007. Doc. No. 5. This Court's order provided that if the amended complaint fails to establish subject matter jurisdiction, it will be dismissed with prejudice.
Plaintiff filed her first amended complaint against Defendants on May 9, 2007 seeking damages for intentional infliction of emotional distress, negligent infliction of emotional distress, and human rights violation under international law. Doc. No. 15. Plaintiff alleges that Rincon hired her as a water technician in August 2003, and that during the course of her employment, she "was the target of offensive, threatening and dangerous conduct by male co-workers." Amended Complaint. at ¶ 14. The harassing conduct allegedly included making sexual gestures and advances, urinating on her car tire, spitting and touching Plaintiff, directing derogatory and lewd comments to Plaintiff, aiming and firing a shotgun at Plaintiff, and harassing and threatening Plaintiff with phone messages. Id. Plaintiff contends that the harassing conduct spanned over a period of eighteen months, and included acts on Rincon's property, as well as in the county of San Diego. Id. at ¶15.
Plaintiff further alleges that Rincon created and forced Plaintiff to work in a dangerous environment by requiring her to transport concentrated chlorine in her personal vehicle. Amended Complaint at ¶ 20. Plaintiff claims that this behavior and environment caused her to suffer an emotional breakdown, where she could no longer work with Rincon and was forced to stop working in July 2005, and eventually resigned in October 2005. Id. at ¶ 19. Plaintiff further asserts that complaints made to her supervisors were ignored, and that Defendant Shafer, Rincon's Tribal Administrator, never brought her complaints to the attention of the tribal council. Id. at ¶ 18.
The relevant new and revised allegations in the first amended complaint are as follows:
9. This action is based upon violations of basic human rights under international law committed by Rincon and/or its agents, including each defendant, and directed toward MS. HILL.
10. This Court has jurisdiction pursuant to 28 U.S.C. § 1331, which provides federal question jurisdiction in cases arising under the Constitution and laws of the United States. International human rights law constitutes the law of the United States, under the established doctrine that customary international law is a part of the federal common law.
12. RINCON expressly waived its tribal sovereign immunity with respect to claims resulting from gaming-related activities. MS. HILL'S claims arise from gaming-related activities. RINCON also has no immunity from claims for violation of basic human rights under international law.
Further, Plaintiff deleted Count I for "civil rights violation" under the unconstitutional provision of the Violence Against Women Act, 42 U.S.C. § 13981. Plaintiff added Count III for "Violation of Human Rights Under International Law." The relevant paragraph states:
35. The conduct of Defendants toward MS. HILL as alleged above violated MS. HILL'S basic human rights pursuant to fundamental norms of international law, as established in the United Nations Charter, the Universal Declaration of Human Rights, and other international human rights law sources, and which also arise under Federal common law.
On May 29, 2007, Rincon filed a motion to dismiss the first amended complaint. Doc. No. 17. Plaintiff filed a response on July 23, 2007. Doc. No. 18. Rincon ...