The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge
ORDER SETTING BRIEFING AND HEARING SCHEDULE
Defendants have filed a motion to dismiss under Fed. R. Civ. Proc. 12(b)(1) and 12(b)(6).
The supporting documents include a declaration by Dorothy Janet Costa. Plaintiffs have filed an opposition and an objection to the declaration on the basis that Ms. Costa does not attest to it on penalty of perjury. Defendants have filed no reply. A hearing on the matter is scheduled for October 19, 2009.
A hearing at this time would not be useful. Defendants challenge the subject matter jurisdiction of this court based on tribal immunity from suit. A Fed. R. Civ. Proc. 12(b)(1) motion may be either facial, where the inquiry is confined to the allegations in the complaint, or factual, where the court is permitted to look beyond the complaint to extrinsic evidence. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). Examination of evidence is necessary to resolve this motion. In particular, the court needs to have 1) Defendants specify the exact relationship between Chicken Ranch Bingo and Casino and the Chicken Ranch Rancheria tribe and 2) Plaintiffs show how Defendants waived their alleged immunity. Plaintiffs are also reminded that under 28 U.S.C. §1746:
Wherever, under any law of the United States or under any rule, regulation, order, or requirement made pursuant to law, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form:
(1) If executed without the United States: 'I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date).
(2) If executed within the United States, its territories, possessions, or commonwealths: 'I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)'.
Both parties are invited to submit additional briefing and evidence by 4:00 PM, October 26, 2009. Both parties are then invited to submit a reply to the other side's submission by 4:00 PM, November 2, 2009. The hearing set for October 19, 2009 is continued to 1:30 PM, November 9, 2009.
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