The opinion of the court was delivered by: Hayes, Judge:
The matters before the Court is the Motion to Dismiss For Lack of Subject Matter Jurisdiction (ECF No. 6) filed by Defendants Viejas Enterprises and Viejas Band of Kumeyaay Indians.
On January 18, 2011, Plaintiff Gloria Morrison initiated this action by filing the Complaint. (ECF No. 1). On March 14, 2011, Defendants filed a Motion to Dismiss For Lack of Subject Matter Jurisdiction. (ECF No. 6). On April 4, 2011, Plaintiff filed an Opposition. (ECF No. 8). On April 11, 2011, Defendants filed a Reply. (ECF No. 9).
II. Allegations of the Complaint
Plaintiff was initially hired by Defendants to work in as a senior executive assistant and Plaintiff was promoted to the slot operations department. (ECF No. 1 at ¶¶ 12, 13). Plaintiff's work in the slot operations department was "mostly sedentary." Id. ¶ 14. "Due to her knee disability" Plaintiff underwent surgery in May 2009. Id. ¶ 15. When Plaintiff returned to work she was informed that her job duties had changed to slot operations machine maintenance files.
Id. ¶ 17. The new position was "more physically demanding" than her previous position. Id. at ¶ 18. Plaintiff was unable to perform the physical demands of the new position and her "physician put her back out on protected medical leave." Id. at ¶ 19. Plaintiff returned to work and requested an accommodation for her disability. Defendants refused to accommodate her and told her that she would have thirty-days to find anther position within Viejas or she would be deemed to have voluntarily resigned. Id. at ¶ 22. Plaintiff received no assistance in locating another position and was terminated. Id. at ¶ 24.
Plaintiff has asserted a claim for violation of the Family Medical Leave Act, 29 U.S.C. § 2601 et seq., and a California tort claim for wrongful adverse action and termination in violation of the public policies of the California Fair Employment and Housing Act, the Americans with Disabilities Act, the California Family Rights Act, and the Federal Family Medical Leave Act. Plaintiff seeks monetary damages, an injunction that Defendants refrain from "unlawful practices, policies, usages and customs," and reinstatement to the "position from which [Plaintiff] was wrongfully terminated or a comparable position ...." Id. at 11.
"A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears." Stock West, Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989). Rule 12(h)(3) of the Federal Rules of Civil Procedure provides: "If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." Fed. R. Civ. P. 12(h)(3). In determining the presence or absence of federal jurisdiction, the court applies the "'well-pleaded complaint rule,' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." State of California v. Dynegy, Inc., 375 F.3d 831, 838 (9th Cir. 2003) (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987)). When assessing subject matter jurisdiction, the court assumes the truth of all allegations in the complaint. See Castaneda v. United States, 546 F.3d 682, 684 n.1 (9th Cir. 2008) (overruled on other grounds by Hui v. Castaneda, __ U.S. __, 130 S.Ct. 1845 (2010)). "If jurisdiction is lacking at the outset, the district court has 'no power to do anything with the case except dismiss.'" Morongo Band of Mission Indians v. California State Board of Equalization, 858 F.2d 1376, 1380 (9th Cir. 1988) (quoting 15 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3844, at 332 (1986)).
A Rule 12(b)(1) motion asserting lack of subject matter jurisdiction may be either a facial attack on the sufficiency of the pleadings or a factual attack on the basis for a court's jurisdiction. See White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). "In resolving a factual attack on jurisdiction, the district court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment." Safe Air v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). "The court need not presume the truthfulness of the plaintiff's allegations." Id. (citing White, 227 F.3d at 1242). However, "[j]urisdictional finding of genuinely disputed facts is inappropriate when the jurisdictional issue and substantive issues are so intertwined that the question of jurisdiction is dependent on the resolution of factual issues going to the merits of an action." Sun Valley Gasoline, Inc. v. Ernst Enters., Inc., 711 F.2d 138, 139 (9th Cir. 1983).
Defendants' Motion to Dismiss is brought pursuant to Federal Rules of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. (ECF No. 6). Defendant has submitted the Declaration of Tribal Chairman of the Tribal Counsel for the Viejas Band of Kumeyaay Indians, Anthony R. Pico, who states that "the Viejas Band of Kumeyaay Indians [is] a federally recognized Indian tribe ...." (ECF No. 6-2 at 1). Defendant Viejas Band of Kumeyaay Indians contends it are entitled to tribal sovereign immunity from Plaintiff's claims. Defendants contend that Viejas Enterprises and Viejas Casino operate as an arm of the tribe; therefore, they are entitled to tribal sovereign immunity as well.
Plaintiff contends that there is a question of fact regarding whether Defendants are entitled to tribal immunity. Plaintiff contends that Defendants are not immune to suit under the Family Medical Leave Act on the grounds that it is a law of general applicability which does not specifically exclude the application to tribes. Plaintiff contends that the Court has supplemental ...