The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
DEFENDANTS' MOTION TO DISMISS MEMORANDUM DECISION RE: THE COMPLAINT (Doc. 12)
Defendant Picayune Rancheria of the Chukchansi Indians ("Chukchansi" or "Defendant"*fn1 ) moves to dismiss the complaint of Plaintiff Rebecca Merrill pursuant to Fed. R. Civ. P. 12(b)(1). According to Defendant, the Court lacks subject matter jurisdiction to hear Plaintiff's negligence-based claims because the Tribe has not waived its sovereign immunity.
Plaintiff has filed an opposition, to which Defendant has replied.
II. FACTUAL AND PROCEDURAL BACKGROUND.
This action arises from an accident at Defendant's Resort & Casino. Plaintiff alleges that, on August 4, 2009, she was a guest of the Resort and returned to her car, which was located in the handicapped section of Defendant's parking lot. (Doc. 1 at ¶ 6.) Plaintiff retrieved a used coffee cup from her car and discarded it in a nearby trash receptacle, which was located off the main walkway on an area of dirt covered by tree bark. (Id. at ¶ 7.) Returning to her vehicle, Plaintiff alleges that she "trip[ped] [on] a significantly raised area of sidewalk [located between the receptacle and her automobile]." (Id. at ¶ 7.) According to Plaintiff, the damaged section of the sidewalk contained "multiple discrete and severe levels" and was "in a state of disrepair [...] the uneven nature of that section of the sidewalk was inconsistent with the surrounding area." (Id. at ¶ 10.)
As a result of the fall, Plaintiff alleges she "felt significant pain all over her body, specifically across her knees, her right hip, her back, her right hand and her right wrist." (Id. at ¶ 11.) Plaintiff was taken by ambulance to St. Agnes Medical Center in Fresno, California, and, after a medical examination, she was released. (Id.) Plaintiff subsequently received treatment from a physical therapist for her injuries. (Id. at ¶ 12.)
On June 24, 2010, Plaintiff filed this action to recover compensatory damages for the injuries allegedly suffered as a result of the August 4, 2009 fall. The federal complaint advances two claims for relief: (1) failure to exercise reasonable care for the safety of an invitee while on commercial premises; and (2) failure to provide reasonable notice to an invitee of defective premises. (Id. at ¶¶ 14-18.)
On November 15, 2010, Defendant moved to dismiss this action on the basis of sovereign immunity. (Doc. 13.) Plaintiff opposed the motion on December 6, 2010. (Doc. 16.)
Defendant argues that it is a federally recognized Indian Tribe, entitled to sovereign immunity, and that the district court lacks subject matter jurisdiction over the present action. The motion to dismiss the complaint for lack of subject matter jurisdiction is analyzed under Fed. R. Civ. P. 12(b)(1).*fn2
A. Fed. R. Civ. P. 12(b)(1)
Dismissal of a claim is appropriate under Federal Rule of Civil Procedure Rule 12(b)(1) when the court lacks subject-matter jurisdiction over the claim. Federal subject-matter jurisdiction must exist at the time the action is commenced. Morongo Band of Mission Indians v. California Bd. of Equalization, 858 F.2d 1376, 1380 (9th Cir. 1988).
A Rule 12(b)(1) motion may either attack the sufficiency of the complaint to establish federal jurisdiction (a facial challenge) or allege a lack of jurisdiction that exists despite the formal sufficiency of the complaint (a factual challenge). See White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). A facial attack asserts lack of federal jurisdiction based on the complaint alone, and the court must "accept all allegations of fact in the complaint as true and construe them in the light most favorable to the plaintiffs." See Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). By contrast, with a factual challenge, a court need not assume the truth of factual allegations but may hear additional evidence about jurisdiction and resolve factual disputes when necessary. See Roberts, 812 F.2d at 1177 (quotation omitted). If a defendant challenges jurisdiction by presenting evidence, then ...