United States District Court, E.D. California
Native American lineal descendants allege defendants
excavated, removed and disinterred the human remains of the
descendants' family members in violation of state and
federal law. All defendants have moved to dismiss, as
reviewed below. Defendants' motions are GRANTED for the
reasons provided here.
hearing on the motions to dismiss, plaintiffs filed a motion
to substitute a personal representative for a deceased
plaintiff. The court has submitted that motion on the
briefs and DENIES it as explained below.
FACTUAL ALLEGATIONS AND PROCEDURAL HISTORY
operative complaint, spanning seventeen pages, remains flawed
in ways prior complaints were as well. See generally
Third Am. Compl. (“TAC”), ECF No. 64. In
resolving defendants' last motion to dismiss, the court
admonished plaintiffs to comply with Rule 8(a)'s
directive to articulate a “short and plain”
statement showing why they believe they are entitled to
relief. ECF No. 49 at 1. This complaint fares hardly better.
In construing plaintiffs' allegations as best it can, the
court has reviewed the operative third amended complaint and
judicially noticeable documents, and considered the arguments
made in the moving papers. This much is clear:
allege they are Native American lineal descendants and former
leaders of the half-blood Indian tribe called the Jamul
Indian Village (“JIV”). TAC ¶¶ 2-7. On
July 1, 2013, the National Indian Gaming Commission
(“NIGC”) approved the JIV's request for a
Gaming Ordinance to construct a casino. Id. ¶
22; JIV Gaming Or. (2013). Plaintiffs allege in constructing the
casino, several defendants disinterred and removed
plaintiffs' families' human remains and funerary
objects from the Jamul Indian Cemetery. TAC ¶¶ 11,
27. Plaintiffs further allege several defendants also failed
to stop the disinterment and removal of these human remains.
Id. ¶ 9.
filed their original complaint on May 27, 2015, ECF No. 1, a
first amended complaint on May 20, 2016, ECF No. 50, a second
amended complaint on May 23, 2016, ECF No. 52, and the
operative third amended complaint on July 5, 2016, TAC. On
June 30, 2016, shortly after plaintiffs filed their second
amended complaint, non-federal defendants moved to dismiss.
Non-Federal Defs.' Mot. (“NFD Mot.”), ECF No.
62. On July 1, 2016, federal defendants moved to dismiss
plaintiffs' suit as well. Federal Defs.' Mot.
(“FD Mot.”), ECF No. 63. After plaintiffs filed
the operative third amended complaint on July 5, the court
construed the pending motions as responding to the third
amended complaint, which was identical in all material
respects to the second amended complaint. ECF No. 66.
third amended complaint asserts three claims: (1)
unconstitutional and illegal disinterment and removal of
plaintiffs' families' remains; (2) conversion; and
(3) declaratory and injunctive relief. See generally
TAC. Plaintiffs bring suit against the following federal
defendants: Amy Dutschke, a regional director for the Pacific
Region of the Bureau of Indian Affairs (“BIA”),
and John Rydzik, Chief of the BIA's Environmental
Division. Id. Plaintiffs also bring suit against the
following non-federal defendants: Kenneth Meza, Carlene
Chamberlain and Erica Pinto, all employees of the JIV
(“tribal defendants”); Penn National Gaming,
Inc., a corporation doing business in California; San Diego
Gaming Ventures, a subsidiary of Penn National Gaming, Inc.;
and C.W. Driver, a corporation doing business in California.
TAC ¶¶ 7- 14. Plaintiffs initially also sued San
Diego County but later dismissed it without prejudice. ECF
No. 77. Plaintiffs have elected not to sue the JIV directly.
For relief, plaintiffs ask defendants be enjoined from
desecrating and removing the human remains from the
“government's portion of the Indian cemetery,
” that defendants transfer the excavated human remains
to plaintiffs, that defendants “prevent further
disturbance of [p]laintiffs' human remains, ” and
that plaintiffs be awarded $4 million in damages. TAC ¶
40 & pp. 16-17. Plaintiffs' allegations do not make
clear whether the alleged desecration and removal has
occurred in the past or is ongoing.
have opposed both motions to dismiss. NFD Opp'n, ECF No.
75; FD Opp'n, ECF No. 74. Defendants separately replied.
FD Reply, ECF No. 80; NFD Reply, ECF No. 84. The court held a
hearing on October 7, 2016, at which Patrick Webb appeared
for plaintiffs, Gregory Broderick and Barbara Marvin appeared
for the federal defendants, and Frank Lawrence appeared for
the non-federal defendants. ECF No. 90.
noted above, plaintiffs have also filed a motion for
substitution, relying on Federal Rule of Civil Procedure 25
and seeking to substitute Louis Ayhule Gomez as the
representative of the estate of his mother plaintiff Karen
Toggery, who apparently has died. The motion also seeks to
substitute Mr. Gomez as the personal representative of the
estate of Matthew Tinejo Toggery, Mr. Gomez's brother.
ECF No. 92 at 1-2. Defendants have opposed this motion and
plaintiffs have replied. ECF Nos. 93, 94, 95.
MOTION TO DISMISS
defendants' argument for dismissal proceeds in two steps
that the court addresses here. First, non-federal defendants
argue because tribal defendants Kenneth Meza, Carlene
Chamberlain and Erica Pinto are JIV employees, they are
immune from suit. NFD Mot. at 9, 14-16 (moving to dismiss
based on Fed.R.Civ.P. 12(b)(1)). Second, non-federal
defendants contend plaintiffs' case cannot proceed
because the JIV, a necessary and indispensable party, cannot
be joined. Id. (relying on Fed.R.Civ.P. 19). In
response to the first argument, plaintiffs contend because
Meza, Chamberlain and Pinto “violated state and federal
law in excess of their official authority, ” they have
no immunity. NFD Opp'n at 26. Plaintiffs' opposition
does not address the second argument. See generally
NFD Opp'n. As articulated below, the court concludes the
JIV employees are immune from suit. The court also concludes
plaintiffs' case cannot proceed because JIV is a
necessary and indispensable party that cannot be joined. The
court need not reach defendants' additional arguments.
Non-federal defendants' motion to dismiss will be
defendants Dutschke and Rydzik contend plaintiffs'
federal constitutional claims must be dismissed because the
claims are not recognized under Bivens v. Six Unknown
Fed. Narcotics Agents, 403 U.S. 388 (1999) and its
progeny. FD Mot. at 4. Federal defendants further contend the
conversion claim must be dismissed because plaintiffs have
not complied with the Federal Tort Claims Act. Id.
at 2. Lastly, federal defendants contend plaintiffs'
claims for declaratory and injunctive relief must be
dismissed because the “actions” giving rise to
these relief requests are not “final agency
action[s]” under the Administrative Procedure Act.
Id. The court resolves the federal defendants'
motion on other grounds, however, because even when not
specifically asserted, “[t]he absence of
‘necessary' parties may be raised by reviewing
courts sua sponte.” CP Nat. Corp. v.
Bonneville Power Admin., 928 F.2d 905, 911 (9th Cir.
1991) (quoting inter alia McCowen v. Jamieson, 724
F.2d 1421, 1424 (9th Cir. 1984)). While in some cases the
court may join a party to achieve full and fair resolution,
id., that route is not a possibility here. Because
JIV is a necessary and indispensable party to this suit, but
cannot be joined, plaintiffs' case cannot proceed against
the federal defendants. The court will DISMISS the case
against the federal defendants as well.
Non-federal tribal defendants Meza, Chamberlain and Pinto
Protected by Immunity?
briefly recounted above, non-federal defendants contend
plaintiffs lack standing because tribal defendants Meza,
Chamberlain, and Pinto, as JIV employees are immune from
suit. NFD Mot. at 9, 14-16. In contending as much,
non-federal defendants rely on Rule 12(b)(1). Id.
Before moving to the merits of non-federal defendants'
immunity argument, the court reviews legal standards
Standing Legal Standards
motion to dismiss under Federal Rule of Civil Procedure
12(b)(1) contests the court's subject matter
jurisdiction. See, e.g., Savage v. Glendale Union High
Sch., 343 F.3d 1036, 1039-40 (9th Cir. 2003). When a
party moves to dismiss for lack of subject matter
jurisdiction, “the plaintiff bears the burden of
demonstrating that the court has jurisdiction.”
Boardman v. Shulman, No. 12-00639, 2012 WL 6088309,
at *2 (E.D. Cal. Dec. 6, 2012), aff'd sub nom.
Boardman v. C.I.R., 597 F. App'x 413 (9th Cir.
2015). Where, as here, defendants move to dismiss on the
basis of tribal sovereign immunity, “the party
asserting subject matter jurisdiction has the burden of
proving its existence, i.e., that immunity does not bar the
suit.” Pistor v. Garcia, 791 F.3d 1104, 1111
(9th Cir. 2015) (internal citations omitted).
establish standing, (1) the plaintiff must have suffered an
“injury-in-fact, ” (2) there must be a
“causal connection between the injury and the conduct
complained of, ” and (3) it must be likely that the
injury will be redressed by a favorable decision. Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
To find an “injury in fact, ” the plaintiff must
demonstrate “an invasion of a legally protected
interest which is (a) concrete and particularized . ...