The opinion of the court was delivered by: Hayes, Judge
The matter before the Court is the Motion to Dismiss the Second Amended Complaint, filed by Defendant Sycuan Band of Diegueno Mission Indians ("Sycuan"). (Doc. # 25).
On November 17, 2008, Plaintiff Sara Harris initiated this action by filing a Complaint. (Doc. # 1). The Complaint sought to enforce an arbitration award totaling $160,000 for physical injuries allegedly suffered by Harris as a result of the conduct of one of Sycuan's employees. The Complaint alleged that the Court had subject matter jurisdiction pursuant to the Federal Arbitration Act ("FAA"), 9 U.S.C. § 1, et seq. On March 2, 2009, this Court issued an order granting Sycuan's motion to dismiss, and dismissing the Complaint for lack of subject matter jurisdiction. (Doc. # 10). The Court held that Harris failed to satisfy her burden of establishing subject matter jurisdiction.
On April 1, 2009, Harris filed the First Amended Complaint ("FAC"). (Doc. # 11). The FAC again alleged that the Court had jurisdiction over the case pursuant to the FAA. The FAC alleged that "all claims for damages for physical injuries against defendant  were governed by a 'Tort Claims Ordinance'" ("Ordinance") duly enacted by Sycuan. (FAC ¶ 6). The FAC alleged that Harris pursued her claim pursuant to the Ordinance, and that Harris ultimately received an arbitration decision awarding Harris the sum of $160,000. The FAC alleged that the Ordinance was enacted to comply with the class three gaming compact ("Compact") between Sycuan and the State of California, which in turn derives from the Indian Gaming and Regulation Act ("IGRA"), 25 U.S.C. § 2710. (FAC ¶ 10). The FAC alleged: "By failing to honor plaintiff's finally adjudicated claim for damages, pursuant to the [Ordinance], [Sycuan] stands in violation of that ordinance, the underlying [Compact], and the provisions of 25 U.S.C. section 2710." (FAC ¶ 12).
On April 13, 2009, Sycuan filed a motion to dismiss the FAC for lack of jurisdiction. (Doc. # 12). After receiving briefing from the parties, the Court conducted oral argument on the motion to dismiss. (Doc. # 22). On June 30, 2009, the Court issued an order granting the motion to dismiss and dismissing the FAC for lack of subject matter jurisdiction. (Doc. # 23).
On July 29, 2009, Harris filed a Second Amended Complaint ("SAC"), which is the operative complaint in this action. (Doc. # 24). The SAC alleges that "[t]he Court has jurisdiction over the instant case pursuant to 28 U.S.C § 1331, 25 U.S.C § 2710 and the Federal Arbitration Act, 9 U.S.C § 1 et seq." (SAC at 1).
A. Allegations of the SAC
Sycuan "is an Indian Tribe having a governing body duly recognized by the Secretary of the Interior." (SAC ¶ 2). At all relevant times, Harris and Sycuan were residents of San Diego County.
On November 26, 2004, Harris was a patron of the Sycuan Casino, a gaming establishment owned and operated by Defendant Sycuan. "At that place and time, plaintiff suffered serious physical injury occasioned by the assaultive conduct of an employee of defendant...." (SAC ¶ 5). "[A]ll claims for damages for physical injuries against defendant... were governed by a 'Tort Claims Ordinance' duly enacted by defendant... in June 2004." (SAC ¶ 6). On March 9, 2005, Harris filed a claim under the Ordinance, and on December 5, 2005, "the Sycuan Gaming Commission certified plaintiff's claim for processing on the merits, pursuant to Section XI of the Ordinance." (SAC ¶ 7). After Harris's claim was denied by the Sycuan Gaming Commission, "Plaintiff duly appealed the substantive denial of her claim pursuant to Section XII(G) of the ordinance, which provides that an appeal from a substantive denial is to be heard by an arbitrator selected by the Sycuan Gaming Commission. The Gaming Commission selected Hon. Gerald Lewis, retired appellate justice, as the arbitrator for plaintiff's claim.... On September 30, 2008, Judge Lewis issued his decision and award of arbitrator, awarding plaintiff the sum of $160,000." (SAC ¶ 8).
"Section IX(B) of the Tribal Ordinance states that any award, compromise, settlement or determination of a claim under this ordinance shall be final and conclusive on the Tribe. Section IX(B) further states that 'the decision of an arbitrator on an appeal may be enforced in the United States District Court for the Southern District of California under the Federal Arbitration Act, 9 U.S.C. § 1 et seq.'... Plaintiff has complied with all conditions required by her under the Tribal ordinance. Plaintiff has made demand for payment pursuant to the arbitrator's award, and defendant... has failed and refused to comply with the arbitrator's award." (SAC ¶ 9).
"Defendant... operates its gaming facility under the terms of the Federal Indian Gaming Regulatory Act ('IGRA') at 25 U.S.C. 2701 et seq. Section 2710(d) states that 'Class III' gaming activities, conducted by defendant..., shall be lawful only if conducted in conformance with a Tribal state compact entered into between the Tribe and the State where tribal lands are located. Section 2710(a)(3)(c) states that such compacts may include provisions relating to the application and enforcement of civil laws and jurisdiction necessary for the licensing and regulation of such gaming activity...." (SAC ¶ 10).
"[T]he Sycuan Tribal Compact contains provisions that the tribe shall provide reasonable assurance that patron tort claims will be promptly and fairly adjudicated, and that the Tribe shall adopt a tort claim ordinance setting forth the terms and conditions under which the Tribe waives immunity from suit for injuries to persons at the gaming facility.... [T]he Gaming Compact incorporates by reference the provisions of IGRA pertaining to the regulation of Indian gaming by the Tribe." (SAC ¶ 11).
"Implicit in the Federal pre-emptive regulation of Indian Gaming and the linked provisions of IGRA, the California Tribal Gaming Compact, and the Tribal Tort ordinance at issue here, is a duty of good faith in the implementation of these enactments. In doing the things herein above alleged, and in repudiating its own Federally-based tort ordinance, the [Defendant] herein has violated its duty of good faith, all to the prejudice and damage to plaintiff." (SAC ¶ 13).
Harris seeks judgment "[i]n the amount of $160,000 awarded by the arbitrator." (SAC at 4).
B. Contentions of the Parties
On August 11, 2009, Sycuan filed the Motion to Dismiss the SAC. (Doc. # 25). Sycuan moves to dismiss the SAC for lack of subject matter jurisdiction. Sycuan contends that the IGRA cannot supply a basis for federal subject matter jurisdiction "where, as here, enforcement [of the IGRA] is sought by a private third party." (Doc. # 25-1 at 2). Sycuan alternatively moves to dismiss the SAC for failure to state a claim on the basis of sovereign immunity: "[T]o the extent that Harris's complaint could be read to base jurisdiction on violations of the Tribe's gaming Compact with the State of California or the Tribe's own Tort Claims Ordinance, those actions would be barred by the Tribe's sovereign immunity from suit." Id.
On September 9, 2009, Harris filed an opposition to the Motion to Dismiss. (Doc. # 26). Harris contends that federal jurisdiction is supported by Sycuan's alleged "bad faith in implementing provisions of IGRA, the California Tribal Compact derived from IGRA, and the tribe's own tort ordinance." (Doc. # 26 at 1, citing Tamiami Partners, Ltd. v. Miccosukee Tribe of Indians, 63 F.3d 1030, 1047 (11th Cir. 1995)). "It must be emphasized that plaintiff's present complaint does not rest on a claim of direct violation of IGRA or its subsidiary, constituent enactments, but upon a claim of bad faith in the implementation of these enactments." (Doc. # 26 at 2). "The alleged bad faith relates to the tribe's continuing attempt to evade the jurisdictional requirement of IGRA, the State Compact, and the Tribe's own tort ordinance." (Doc. # 26 at 3). Harris contends that Sycuan waived sovereign immunity in its Tort Claims Ordinance, and Sycuan's Motion to Dismiss constitutes an effort to "repudiate ...