United States District Court, S.D. California
ORDER DENYING DEFENDANTS' RULE 12(b)(1) MOTION TO DISMISS
(Doc. No. 15)
ANTHONY J. BATTAGLIA, District Judge.
The Court is presented with a motion to dismiss for lack of subject matter jurisdiction, brought by Defendants, including Iipay Nation of Santa Ysabel ("the Tribe"). The matter was fully briefed by the parties and the matter was submitted. Having fully and carefully considered the arguments presented, the Court DENIES the motion.
The Court fully discussed the background of this action in the temporary restraining order, and thus presents an abbreviated version here. ( See TRO, Doc. No. 11.) In relevant part, Plaintiff ("the State") initiated this action against the Tribe and other defendants who are agencies or officials of the Tribe. (Compl. ¶ 5, Doc. No. 1.) The complaint alleges (1) breach of compact, and (2) unlawful internet gambling under the Unlawful Internet Gambling Enforcement Act ("UIGEA") ( id. ¶¶ 40-51), and seeks injunctive and declaratory relief ( id. at 13-14). The breach of compact claim relates to the Tribal-State Compact entered into by the parties in 2003. ( See Compact, Doc. No. 1-2.) At the heart of the dispute is an electronic bingo-type game being offered by the Tribe. In July 2014, the State wrote the Tribe about a recent article on the Tribe's intent to offer "real money online poker, " asked about the Tribe's plans to provide internet bingo and poker, and requested to meet and confer. (Chelette Decl. Ex.1, Doc. No. 6.) The Tribe responded that it "does not offer bingo through Santa Ysabel Interactive, or have any plans to do so in the near future." ( Id. ) The Tribe also noted that even if it did, bingo in an interactive environment would be a Class II game,  and thus would not violate the Compact. ( Id. ) Finally, the Tribe asserted that it had "no intention of discussing any federal statutes, including the Indian Gaming Regulatory Act or the Unlawful Internet Gaming Enforcement Act with any State of California government officials" and that it felt that the State was "exceeding [its] scope and authority by requesting a discussion with [the Tribe] concerning the application and relevance of federal law." ( Id. ) As for the state gambling laws, the Tribe said that without citation to specific California statutes, it "would be unable to provide the State with meaningful dialogue with which to resolve potential issues." ( Id. )
On November 3, 2014, the Tribe began to offer its electronic bingo-type game. The game was offered for real money play and the Tribe contended the play was limited to adult residents of California while they are located within California. (Chelette Decl. ¶ 3, Doc. No. 6.) Soon thereafter, the State filed the present action and moved for a temporary restraining order. The Court heard argument regarding the temporary restraining order and granted the motion. ( See TRO.) Defendants now move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), citing tribal sovereign immunity and failure to comply with procedural requirements. (Defs.' Mot. 2, Doc. No. 15.)
II. LEGAL STANDARD
Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a party may raise the defense by motion that the court lacks jurisdiction over the subject matter of a claim. Fed.R.Civ.P. 12(b)(1). "A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears." Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989). "Once challenged, the party asserting subject matter jurisdiction has the burden of proving its existence." Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009).
III. COMPACT PROVISIONS
A number of Compact provisions are important to the resolution of this motion. Section 9 of the Compact contains the limited waiver of sovereign immunity and dispute resolution provisions. ( See Compact § 9.0.) That portion of the Compact provides in part:
Sec. 9.4 Limited Waiver of Sovereign Immunity.
(a) In the event that a dispute is to be resolved in federal court or a state court of competent jurisdiction as provided in this Section 9.0, the State and the Santa Ysabel Tribe expressly consent to be sued therein and waive any immunity therefrom that they may have provided that:
(1) The dispute is limited solely to issues arising under this Gaming Compact;
(2) Neither side makes any claim for monetary damages (that is, only injunctive, specific performance, including enforce-ment of a provision of this Compact requiring payment of money to one or another of the parties, or declaratory relief is sought); and
(3) No person or entity other than the Santa Ysabel Tribe and the State is party to the action, unless failure to join a third party would deprive the court of jurisdiction; provided that nothing herein shall be construed to constitute a waiver of the sovereign immunity of ...