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Liska v. Macarro

August 5, 2009

JOSEPH LISKA, PETITIONER,
v.
MARK MACARRO; MARK CALAC; MAR LUKER; JOHN MAGEE; ANDREW MASIIEL; DONNA BARON; BUTCH THE PETITION MURPHY; AND DOES 1 TO 50, RESPONDENTS.



The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

ORDER: (1) DENYING PETITIONER'S MOTION FOR DEFAULT JUDGMENT (Doc. No 19); and (2) GRANTING IN PART AND DENYING IN PART RESPONDENT'S MOTION TO DISMISS (Doc. No. 26)

Presently before the Court are Petitioner Joseph Liska's motion for default judgment (Doc. No. 19,) and Respondent Donna Baron's*fn1 motion to dismiss Petitioner's petition for writ of habeas corpus pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), and 12(b)(6). (Doc. No. 26.) For the reasons stated herein, the Court denies Petitioner's motion, denies Respondent's Rule 12(b)(1) motion, and grants Respondent's Rule 12(b)(2) and 12(b)(6) motions.

BACKGROUND

I. The Parties

Petitioner Joseph Liska ("Petitioner"), proceeding pro se, alleges he is a descendant of the Pechanga Band of Mission Luiseño Mission Indians ("Pechanga Band" or "Tribe").

Respondents Mark Macarro, Mark Calac, Mar Luker, John Magee, Andrew Masiiel, Donna Baron, and Butch Murphy are allegedly "enrolled members of the Pechanga Band." Respondent Baron ("Respondent") is the only Respondent whom Petitioner has served with the complaint.

II. Factual and Procedural Background

On February 26, 2005 Petitioner attempted to enter to the Pechanga Indian Reservation ("The Reservation") without prior permission from the Tribe. (Attachment 1 to Petition, "Exclusion Letter.") Mr. Liska allegedly made false statements to the ranger on duty at the reservation entrance, claiming he was lost and sought to promptly turn around his vehicle and leave. After passing the ranger post, Petitioner continued into the reservation and did not turn his vehicle around until a ranger stopped him. The Tribal Council of the Pechanga Band ("Tribal Council") found that these actions constituted trespass and public nuisance and excluded Petitioner from the reservation pursuant to the Tribe's "Non-Member Reservation Access and Rental Ordinance." The Tribal Council informed Petitioner of his exclusion in a letter dated May 19, 2005. (Id.) Petitioner additionally alleges he attempted to enter the reservation on August 1, 2006 to pray at his father's gravesite, but tribal rangers refused to let him enter the reservation. (Petition at 7.) The rangers contacted the Riverside County Sheriff's Department, who dispatched a deputy to the scene. The deputy threatened to arrest Petitioner if he did not leave the reservation. (Id.)

On October 14, 2008 Petitioner filed a "Complaint [for] Writ of Habeas Corpus." (Doc. No. 1.) The Complaint alleges Respondents illegally banished Petitioner from the Pechanga Band, in violation of the United States Constitution and the American Indian Civil Rights Act of 1968 ("ICRA"), 25 U.S.C. §§ 1301, 1302, and 1303. Petitioner also filed an affidavit in support of his complaint attaching: (1) the exclusion letter; and (2) a letter from the Pechanga Indian Reservation verifying Petitioner's application for enrollment to the Pechanga Band, dated March 15, 2001. (Doc. No. 2.) The latter document explains that his membership application had not been processed due to a "moratorium" enacted by the Pechanga Band. Petitioner prays that the Court issue an order vacating his alleged "conviction for unspecified criminal charges"*fn2 and his banishment from the Tribe. Additionally, Petitioner requests the Court order respondents to provide him with "back pay he should have been receiving" during the membership moratorium period. This "back pay" allegedly consists of "per capita payments" and revenue from"trust land," both of which are "paid to all other members of the Pechanga Band." (Petition at 5.)

On June 15, 2009 Petitioner filed a motion for default judgment against all respondents. (Doc. No. 19.) Respondent Baron filed an opposition. The Court finds Petitioner's motion suitable for disposition without oral argument pursuant to Local Civil Rule 7.1(d)(1).

On June 25, 2009, Respondent Baron ("Respondent") filed the instant motion to dismiss the petition. Petitioner has filed an opposition and Respondent has filed a reply. The Court heard oral argument on Respondent's motion on Monday, July 27, 2009.

DISCUSSION

I. Petitioner's Motion for Default Judgment

On October 14, 2008 Petitioner filed his petition for writ of habeas corpus. On March 18, 2009, Petitioner moved for default judgment against Donna Baron (Doc. No. 5,) along with a proof of service indicating Ms. Baron had been served with the petition on February 12, 2009. Petitioner has not submitted proof that he has served any other respondent with the petition, aside from Ms. Baron. On April 2, 2009, the Court issued an order construing Petitioner's request as a motion for entry of default pursuant to Fed. R. Civ. P. 55(a), and granted the motion. The Clerk of Court entered default against Ms. Baron that same day. On May 12, 2009, Ms. Baron filed a motion to set aside the entry of default. (Doc. No. 13.) The Court granted the motion on June 22, 2009. (Doc. No 25.)

On June 15, 2009, before the Court granted Ms. Baron's motion to set aside default, Petitioner filed the instant motion default judgment against all respondents, including Ms. Baron. His motion contends all respondents were properly served with the complaint on February 13, 2009.

A. Legal Standard

Federal Rule of Civil Procedure 55 describes a two-step process by which a default judgment may be entered where the defendant is not an infant, incompetent person, or the United States government. See Fed. R. Civ. P. 55(a), (b) (2009); Bach v. Mason, 190 F.R.D. 567, 574 (D. Idaho 1999); see also Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986). First, under Rule 55(a), a plaintiff may request the clerk to enter a default against a party upon a showing that the party "has failed to plead or otherwise defend as provided by these rules. . . ." Fed. R. Civ. P. 55(a). After entry of default, and ...


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