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Rosales v. Dutschke

United States District Court, E.D. California

August 29, 2017

WALTER ROSALES, et al., Plaintiffs,
AMY DUTSCHKE, et al., Defendants.


         Several 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.

         Following hearing on the motions to dismiss, plaintiffs filed a motion to substitute a personal representative for a deceased plaintiff.[1] The court has submitted that motion on the briefs and DENIES it as explained below.


         The 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:

         Plaintiffs 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).[2] 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.

         Plaintiffs 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.

         The 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.[3] 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.

         Plaintiffs 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.

         As 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.


         A. Parties' Arguments

         Non-federal 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 GRANTED.

         Federal 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.

         B. Non-federal tribal defendants Meza, Chamberlain and Pinto Protected by Immunity?

         As 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 governing standing.

         1. Standing Legal Standards

         A 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).

         To 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 . ...

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