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Steven J. Colmar v. Jackson Band of Miwuk Indians

June 13, 2011

STEVEN J. COLMAR, PLAINTIFF,
v.
JACKSON BAND OF MIWUK INDIANS,
DBA JACKSON RANCHERIA CASINO, HOTEL & CONFERENCE CENTER, DEFENDANT.



ORDER

This matter came before the court on June 3, 2011, for hearing of defendant's motion for reconsideration pursuant to Federal Rule of Civil Procedure 60(b)(1) (Doc. No. 22) and defendant's second motion to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) (Doc. No. 23). The parties have previously consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c). (Doc. Nos. 9 and 10.) Attorney John Bridges appeared on behalf of plaintiff Steven Colmar and attorney Jill Peterson appeared on behalf of defendant the Jackson Rancheria Band of Miwuk Indians. Oral argument was heard and defendant's motions were taken under submission. For the reasons set forth below, defendant's motion for reconsideration will be granted in part, and defendant's second motion to dismiss will be granted.

DEFENDANT'S MOTION FOR RECONSIDERATION

On March 17, 2009, plaintiff filed a complaint alleging that the defendant unlawfully discriminated against him based on his age in violation of 29 U.S.C. §§ 621-634. (Complaint (Doc. No. 1) at 2-5.) On May 22, 2009, defendant filed its first motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Doc. No. 8). On March 31, 2011, the court issued an order denying defendant's first motion to dismiss. (Doc. No. 21.)

Defendant, the Jackson Rancheria Band of Miwuk Indians ("Tribe"), now moves pursuant to Federal Rule of Civil Procedure 60(b)(1) for reconsideration of this court's March 31, 2011 order denying defendant's May 22, 2009 first motion to dismiss. (Def.'s MTR (Doc. No.22) at 1-2.) In that order the court stated: Instead, the filing of plaintiff's complaint in this action was subject to 29 U.S.C. § 626 (d)(1)(B), which provides that a civil action may be commenced within 300 days after the occurrence of the alleged unlawful practice. Plaintiff timely filed his complaint in this case just prior to the expiration of that 300-day limitation period. (Order (Doc. No. 21) at 13.)

In moving for reconsideration, counsel for defendant observes that 29 U.S.C. § 626 (d)(1)(B) actually provides that the plaintiff in an Age Discrimination in Employment Act ("ADEA") case has 300 days after the alleged unlawful practice to file a charge with the Equal Employment Opportunity Commission ("EEOC"), not a complaint in a civil action.*fn1 (Def.'s MTR at 3.) Based on this error in the court's order, defendant seeks reconsideration and for the court upon reconsideration to grant defendant's motion to dismiss filed May 22, 2009. (Id. at 5.)

Counsel for plaintiff concedes that 29 U.S.C. § 626 (d)(1)(B) actually provides that the plaintiff in an ADEA case has 300 days after the alleged unlawful practice occurred to file a charge with the EEOC, and not a complaint in a civil case. Nonetheless, plaintiff argues that defendant's motion to dismiss filed May 22, 2009, should still be denied because the misstatement in the court's March 31, 2011 order is "trivial and does not supersede the equitable doctrines behind both the ADEA and this Court's Order." (Pl.'s Opp.'n. to MTR (Doc. No. 24) at 1-3.)

Federal Rule of Civil Procedure 60(b) permits relief from a final judgment or order for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial; (3) fraud, misrepresentation, or other misconduct by an adverse party; (4) void judgment; (5) satisfaction, release, or discharge of the judgment; or (6) "any other reason justifying relief from the operation of the judgment." A court may correct an error of law under Rule 60(b)(1). Liberty Mut. Ins. Co. v. Equal Emp't Opportunity Comm'n, 691 F.2d 438, 441 (9th Cir. 1982. See also Kingvision Pay-Per-View Ltd. v. Lake Alice Bar, 168 F.3d 347, 350 (9th Cir. 1999) (acknowledging that "a district court can correct its own mistake" under Rule 60(b)).

Here, it is apparent to the court and to the parties that the court did indeed misstate the statute of limitations found in 29 U.S.C. § 626 (d)(1)(B) in the court's March 31, 2011 order denying defendant's first motion to dismiss. Plaintiff's motion for reconsideration of the court's March 31, 2011 order will therefore be granted and that order will be vacated.

However, the court has now reviewed defendant's second motion to dismiss filed April 29, 2011. Because defendant's second motion to dismiss is both persuasive and dispositive, the court need not reach the merits of the first motion to dismiss filed on May 22, 2009.

DEFENDANT'S SECOND MOTION TO DISMISS

Defendant now seeks dismissal of plaintiff's complaint in this action pursuant to Federal Rule of Civil Procedure 12(b)(1) on the grounds that this court lacks jurisdiction over the subject matter of this suit. Specifically, defendant argues that subject matter jurisdiction is lacking over plaintiff's ADEA claim because defendant is a federally recognized Indian Tribe that is immune from suit pursuant to tribal sovereign immunity.*fn2 (Def.'s MTD (Doc. No. 23) at 3-8.)

In opposing defendant's motion, plaintiff argues that the Tribe has waived its immunity. In this regard, plaintiff asserts that the Tribe waived its immunity through an official act of the tribal government by stating in Article X of its Tribal Constitution that:

Neither the Tribal Council nor the General Council shall exercise any powers in such a manner as to deprive any person of rights secured by this Constitution or applicable laws of the United States, including the provisions of the Indian Civil Rights Act, 25 U.S.C. § 1302. (Pl.'s Opp.'n. to MTD (Doc. No. 25) at 2-3.)

In reply, defendant argues that Article X of the Tribal Constitution does not mention the Tribe's sovereign immunity nor does it waive that immunity but instead merely sets forth limits on the Tribal Council with ...


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