united states district court central … · san rafael, ca 94903 telephone: 415/491-2310 facsimile:...
TRANSCRIPT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
George Forman (SBN 047822)Kimberly A. Cluff (SBN 196139)Jay B. Shapiro (SBN 224100)Jeffrey R. Keohane (SBN 190201)FORMAN & ASSOCIATES4340 Redwood Highway, Suite E352San Rafael, CA 94903Telephone: 415/491-2310Facsimile: 415/491-2313
Attorneys for Defendant
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CRYSTAL MULLER,
Plaintiff,
vs.
MORONGO CASINO RESORT & SPA,et. al.,
Defendants.
)))))))))))))))
CASE NO.: EDCV 14-02308 VAP(KKx)
MEMORANDUM OF POINTSAND AUTHORITIES INSUPPORT OF DEFENDANTS'MOTION TO DISMISSWITHOUT LEAVE TO AMEND
Action Filed: 11/10/14Date: June 1, 2015Time: 2:00 p.m.Judge: Hon. Virginia A. Phillips
DEFENDANT'S MEMORANDUM OF POINTS AND
AUTHORITIES ISO MOTION TO DISMISS Case No. EDCV 14-02308VAP(KKx)
Case 5:14-cv-02308-VAP-KK Document 14-1 Filed 04/08/15 Page 1 of 21 Page ID #:60
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
TABLE OF CONTENTS
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
FACTS RELEVANT TO THE MOTION TO DISMISS UNDER F.R.CIV.P. 12(B)(1)AND (B)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
I. STANDARD FOR DETERMINING A MOTION TO DISMISS. . . . . . 3
II. STATUTORY BASIS FOR SUBJECT MATTER JURISDICTION. . . 4
A. The Court Lacks Jurisdiction Over Claims Against the MorongoTribal Council Because the Tribe's Immunity Has Not BeenUnequivocally Abrogated By an Act of Congress or Expressly andUnequivocally Waived by the Tribe. . . . . . . . . . . . . . . . . . . . . . . 5
1. The FMLA Does Not Abrogate Tribal Sovereign Immunity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2. Morongo Has Not Waived Its Sovereign Immunity to aPrivate Suit Under the FMLA. . . . . . . . . . . . . . . . . . . . . . . 6
B. Muller's Claims Against MCRS.. . . . . . . . . . . . . . . . . . . . . . . . . 12
C. The Tribe's Immunity Also Cloaks Defendants Kelley and Briton. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
III. THE FAC SHOULD BE DISMISSED FOR FAILURE TO STATE ACLAIM UPON WHICH RELIEF CAN BE GRANTED (FRCP 12(b)(5)).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
A. The FMLA Does Not Apply to the Tribe.. . . . . . . . . . . . . . . . . . 13
IV. PROCESS HAS NOT BEEN SUFFICIENTLY SERVED. . . . . . . . . . 15
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
DEFENDANT'S MEMORANDUM OF POINTS AND
AUTHORITIES ISO MOTION TO DISMISS Case No. EDCV 14-02308VAP(KKx)i
Case 5:14-cv-02308-VAP-KK Document 14-1 Filed 04/08/15 Page 2 of 21 Page ID #:61
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
TABLE OF AUTHORITIES
CASESAlvarado v. Table Mtn. Rancheria,509 F.3d 1008 (9th Cir. 2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5
Am. Vantage Cos. v. Table Mtn. Rancheria,292 F.3d 1091. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Bassett v. Mashentucket Indian Tribe,204 F.3d 343 (2d Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Carsten v. Inter-Tribal Council of Nevada,--- Fed.Appx. ---, 2015 WL 1345535 (9th Cir. 2015).. . . . . . . . . . . . . . . . . . . . . . . . . 6
Chayoon v. Chao,355 F.3d 141 (2d Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Cook v. AVI Casino Enters., Inc.,548 F.3d 718 (9th Cir. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Daly-Murphy v. Winston,837 F.2d 348 (9th Cir. 1987).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Exxon Mobil Corp. v. Allapattah Servs.,545 U.S. 546 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Florida Paraplegic Ass'n. v. Miccosukee Indian Tribe,166 F.3d 1126 (11th Cir. 1999).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 15
Garcia v. Akwesasne Housing Authority,268 F.3d 76 (2nd Cir.2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
In re Dynamic Random Access Memory Antitrust Litig. v. Micron Technology, Inc.,546 F.3d 981 (9th Cir. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Kiowa Tribe of Oklahoma v. Mfg. Technologies, Inc.,523 U.S. 751 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 6
Kokkonen v. Guardian Life Ins. Co.,511 U.S. 375 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Merrell Dow Pharm. Inc. v. Thompson,478 U.S. 804 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Miller v. Wright,705 F.3d 919 (9th Cir. 2012).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 12
Morrison v. Viejas Enterprises.,2011 WL 3203107 (S.D. Calif. 2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Pearson v. Chugach Government Services Inc.,669 F.Supp.2d 467 (D.Del.2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
DEFENDANT'S MEMORANDUM OF POINTS AND
AUTHORITIES ISO MOTION TO DISMISS Case No. EDCV 14-02308VAP(KKx)ii
Case 5:14-cv-02308-VAP-KK Document 14-1 Filed 04/08/15 Page 3 of 21 Page ID #:62
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Safe Air for Everyone v. Meyer,373 F.3d 1035 (9th Cir.2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Santa Clara Pueblo v. Martinez,436 U.S. 49 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 6
State of Michigan v. Bay Mills Indian Community,___ U.S. ___, 134 S.Ct. 2024 (2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 6
Tenneco Oil v. Sac & Fox Tribe of Indians of Okl.,725 F.2d 572 (10th Cir. 1984).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
United States v. Testan,426 U.S. 392 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
United States v. U.S. Fidelity & Guaranty Corp.,309 U.S. 506 (1940). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
UNITE-HERE Intern. Union v. Pala Band of Mission Indians,583 F.Supp.2d 1190 (S.D. Cal. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
White v. Univ. of Calif.,765 F.3d 1010 (9th Cir. 2014).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
RULES & REGULATIONS2 U.S.C. § 12111(5)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
20 U.S.C. § 1706. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
25 U.S.C. § 2710(b)(2)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
28 U.S.C. § 1337. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
28 U.S.C. § 1343. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
28 U.S.C. § 1391. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
28 U.S.C. § 451. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
29 CFR § 500.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
29 U.S.C. § 201. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
29 U.S.C. § 2601. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 13
42 U.S.C § 12101. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
44 U.S.C. § 1507. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
California Government Code § 12945.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Federal Rule of Civil Procedure 11(b)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Federal Rule of Civil Procedure 12(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4
DEFENDANT'S MEMORANDUM OF POINTS AND
AUTHORITIES ISO MOTION TO DISMISS Case No. EDCV 14-02308VAP(KKx)iii
Case 5:14-cv-02308-VAP-KK Document 14-1 Filed 04/08/15 Page 4 of 21 Page ID #:63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Federal Rule of Civil Procedure 12(b)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Federal Rule of Civil Procedure 12(b)(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Federal Rule of Civil Procedure 4(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Federal Rule of Civil Procedure 4(h). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Federal Rule of Evidence 201. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
OTHER AUTHORITIESFMLA Regulations, Final Rule,78 Fed. Reg. No. 25, pp. 8834-8947 (February 6, 2013). . . . . . . . . . . . . . . . . . . . . . 14
DEFENDANT'S MEMORANDUM OF POINTS AND
AUTHORITIES ISO MOTION TO DISMISS Case No. EDCV 14-02308VAP(KKx)iv
Case 5:14-cv-02308-VAP-KK Document 14-1 Filed 04/08/15 Page 5 of 21 Page ID #:64
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
INTRODUCTION
By her First Amended Complaint ("FAC") in this action, plaintiff, Crystal
Muller ("Muller"), seeks injunctive and declaratory relief, attorneys' fees and costs
and unspecified other relief arising from termination of her employment as a slot
machine attendant at the Morongo Casino Resort & Spa. The FAC names as
defendants the Morongo Casino Resort & Spa ("MCRS") (the casino/hotel owned and
operated by the federally-recognized Morongo Band of Mission Indians ("Tribe") on
the Morongo Indian Reservation in Riverside County, California; the "Tribal Council
for the Morongo Band of Mission Indians" ("Council") (the Tribe's elected governing
body); Kandie Kelley ("Kelley") and Briton Cook ("Cook"), both of whom are
described in the FAC as "officials" of the Tribe, and "agency officers in their official
capacities", but who the FAC does not allege were involved in Muller's termination;
and fictitiously named Doe defendants.
Muller asserts three purported claims for relief:
1. A "Federal Claim" that, in the words of the FAC,
19. Muller was discriminated and retaliated against because she sought
arbitration and she sought the protection of the FMLA and under the
Americans with Disabilities Act.[1]
20. But-for the fact that she sought arbitration in order to follow the
policies and procedures of Morongo and because she had a non-work-
related disability, she would not have been fired.
2. A "State Claim" that, in the words of the FAC,
22. Muller was discriminated and retaliated against her [sic] because she
sought arbitration and a hearing before the tribal court and the protection
1 Muller impliedly also alleges a violation of the Americans with Disabilities Act,42 U.S.C § 12101, et seq. ("ADA"). However, 42 U.S.C. § 12111(5)(B) expresslyexcludes Indian Tribes from the definition of "employer", so the ADA doesn't apply tothe Tribe or MCRS, and in any event does not give this Court jurisdiction over a privateaction against the Tribe. See Florida Paraplegic Ass'n. v. Miccosukee Indian Tribe, 166F.3d 1126 (11th Cir. 1999).
DEFENDANT'S MEMORANDUM OF POINTS AND
AUTHORITIES ISO MOTION TO DISMISS Case No. EDCV 14-02308VAP(KKx)1
Case 5:14-cv-02308-VAP-KK Document 14-1 Filed 04/08/15 Page 6 of 21 Page ID #:65
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
of the FMLA, under the Americans With Disabilities Act which would
include California's CFRA.[2]
23.But-for the fact she sought arbitration and a hearing before the tribal
court and had a disability and received the protection, she would not
have been fired.
3. A "Federal Claim" that, in the words of the FAC,
26. Plaintiff sought to appear before the tribal court following the
expressed policies and procedures of Morongo and sought arbitration but
was denied.
27. Plaintiff not [sic] requests this Court compels arbitration so that the
issue of her non-work-related issue of her requests for arbitration may be
determined.
In addition to the demands set forth in each of Muller's first two purported
claims (no separate demands are included in her third purported claim), Muller prays
for a permanent injunction requiring the Tribe to arbitrate her claims, a declaration
that defendants' alleged "retaliatory conduct as alleged in this complaint violates
Morongo's expressed compact to arbitrate", costs and attorneys' fees, and unspecified
other relief.
The Court should dismiss Muller's claims for lack of jurisdiction over either the
subject matter of her action or the persons of the named defendants, and in any event
because the FAC fails to state any claim upon which relief can be granted.
FACTS RELEVANT TO THE MOTION TO DISMISSUNDER F.R.CIV.P. 12(B)(1) AND (B)(2)
Only three of the FAC's actual or necessarily implied factual allegations are
relevant to this motion to dismiss for lack of subject-matter jurisdiction (F.R.Civ.P.
12(b)(1)) and personal jurisdiction (F.R.Civ.P. 12(b)(2)):
(i) the Tribal Council for the Morongo Band of Mission Indians is the
2 Cal. Gov. Code, § 12945.2.
DEFENDANT'S MEMORANDUM OF POINTS AND
AUTHORITIES ISO MOTION TO DISMISS Case No. EDCV 14-02308VAP(KKx)2
Case 5:14-cv-02308-VAP-KK Document 14-1 Filed 04/08/15 Page 7 of 21 Page ID #:66
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
governing body of the federally-recognized Indian Tribe that owns and operates
MCRS (FAC ¶2b);3
(ii) all of the named defendants are agents of each other (FAC ¶4); and
(iii) Muller was employed by the Tribe/MCRS as a slot attendant and
then discharged from that employment (FAC ¶5).4
ARGUMENT
I. STANDARD FOR DETERMINING A MOTION TO DISMISS
Federal district courts are courts of limited jurisdiction and the law presumes
that "a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins.
Co., 511 U.S. 375, 377 (1994). As the master of the complaint, the plaintiff has the
burden of affirmatively showing that jurisdiction exists. Thus, in response to a motion
to dismiss for lack of subject-matter jurisdiction, the party seeking to invoke the
district court's jurisdiction bears the burden of establishing subject matter jurisdiction,
and dismissal for lack of jurisdiction is appropriate if the complaint, considered in its
entirety, fails on its face to allege facts sufficient to establish subject matter
jurisdiction. In re Dynamic Random Access Memory Antitrust Litig. v. Micron
Technology, Inc., 546 F.3d 981, 985 (9th Cir. 2008); Safe Air for Everyone v. Meyer,
373 F.3d 1035, 1039 (9th Cir.2004); UNITE-HERE Intern. Union v. Pala Band of
Mission Indians, 583 F.Supp.2d 1190, 1194 (S.D. Cal. 2008) ("Although the
3 Morongo's status as a federally-recognized Indian Tribe is established beyonddispute not only by the admission in Muller's FAC, ¶ 2(b), but also by its listing in theFederal Register, Vol. 80, No. 9, 80, pp. 1942-1948, a true copy of which is attached asDocument No. 1 to the Request for Judicial Notice lodged herewith. Morongo's right tooperate MCRS is recognized in the original and amended Class III Gaming Compactbetween Morongo and the State of California; a true copy of that Compact is attachedas Document No. 2 to the Request for Judicial Notice lodged herewith.
4 The facts relevant to defendants' motion to dismiss pursuant to F.R.Civ.P.12(b)(5) are set forth in the Declaration of Faith Cartagena lodged herewith. ThatDeclaration shows that the Proofs of Service filed in this action are false, and thus thatservice has been insufficient at least as to the Council, Kelley or Cook, if not alldefendants, given that Ms. Cartagena has not been authorized to accept service on behalfof anyone, is not herself a defendant and is not the chief executive officer or otherwisein charge of MCRS.
DEFENDANT'S MEMORANDUM OF POINTS AND
AUTHORITIES ISO MOTION TO DISMISS Case No. EDCV 14-02308VAP(KKx)3
Case 5:14-cv-02308-VAP-KK Document 14-1 Filed 04/08/15 Page 8 of 21 Page ID #:67
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
defendant is the moving party in a motion to dismiss, the plaintiff is the party
invoking the court's jurisdiction. Therefore, the plaintiff bears the burden of proof on
the necessary jurisdictional facts.") "'Jurisdiction may not be sustained on a theory
that the plaintiff has not advanced.'" Am. Vantage Cos. v. Table Mtn. Rancheria, 292
F.3d 1091, at 1101 (quoting Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804,
809, n. 6 (1986).
A long and well-established principle of federal law recognizes that American
Indian Tribes possess inherent sovereign immunity to unconsented suit. State of
Michigan v. Bay Mills Indian Community, ___ U.S. ___, 134 S.Ct. 2024, 2030
(2014); Miller v. Wright, 705 F.3d 919, 923-24 (9th Cir. 2012); Cook v. AVI Casino
Enters., Inc., 548 F.3d 718, 725 (9th Cir. 2008); Kiowa Tribe of Oklahoma v. Mfg.
Technologies, Inc., 523 U.S. 751, 754 (1998); Santa Clara Pueblo v. Martinez, 436
U.S. 49, 58 (1978); United States v. U.S. Fidelity & Guaranty Corp., 309 U.S. 506,
513 (1940); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978). Sovereign
immunity has two components: consent to the creation of a claim for relief, and
consent to the adjudication of that claim in a particular court or court system. United
States v. Testan, 426 U.S. 392, 399 (1976).
When invoked, tribal sovereign immunity deprives a federal court of
jurisdiction and requires dismissal under F.R.Civ.P. 12(b)(1). Alvarado v. Table Mtn.
Rancheria, 509 F.3d 1008, 1015-16 (9th Cir. 2007) ("Sovereign immunity limits a
federal court's subject matter jurisdiction over actions brought against a sovereign.
Similarly, tribal immunity precludes subject matter jurisdiction in an action against an
Indian tribe.")
II. STATUTORY BASIS FOR SUBJECT MATTER JURISDICTION
"[T]he cornerstone of federal subject matter jurisdiction is statutory
authorization." Alvarado, 509 F.3d at 1015-16 (citing Exxon Mobil Corp. v.
Allapattah Servs., 545 U.S. 546, 553 (2005) ("[F]ederal courts have no jurisdiction
without statutory authorization.")).
DEFENDANT'S MEMORANDUM OF POINTS AND
AUTHORITIES ISO MOTION TO DISMISS Case No. EDCV 14-02308VAP(KKx)4
Case 5:14-cv-02308-VAP-KK Document 14-1 Filed 04/08/15 Page 9 of 21 Page ID #:68
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
By her FAC, Muller purports to invoke this Court's jurisdiction pursuant to
numerous sections of the U.S. Code, some of which do not purport to confer
jurisdiction at all,5 while others have no conceivable relationship to any purported
claims alleged in Muller's FAC.6
The only federal statute invoked by Muller that has any relationship to her
purported claims is the federal Family Medical Leave Act, 29 U.S.C. § 2601, et seq.
("FMLA"). Thus, assuming – without conceding – that Muller properly has pleaded a
claim arising under the FMLA, this Court may exercise jurisdiction over that claim
and the named defendants, but only if the exercise of that jurisdiction is not barred by
the unwaived sovereign immunity of the Tribe, its Council, MCRS and its agents.
Alvarado, 509 F.3d at 1015-16 (district court's jurisdiction over tribal defendant
requires statutory basis and waiver of tribal sovereign immunity.) As explained
below, Muller has not made – and cannot make – the requisite jurisdictional showing.
A. The Court Lacks Jurisdiction Over Claims Against the MorongoTribal Council Because the Tribe's Immunity Has Not BeenUnequivocally Abrogated By an Act of Congress or Expressly andUnequivocally Waived by the Tribe
To invoke this Court's jurisdiction, Muller must establish as a matter of law
that the Tribe's immunity either has been abrogated by an Act of Congress or
expressly waived by the Tribe itself. See Alvarado, 509 F.3d at 1015-16. Muller can
demonstrate neither, so her claims against the Tribal Council must be dismissed.
Muller names as a defendant the Morongo Tribal Council, which is the Tribe's
elected governing body. To sue the Council is to sue the Tribe itself. As a federally
recognized Indian Tribe, Morongo possesses sovereign immunity from suit, which
5 28 U.S.C. § 451 defines certain terms used in Title 28; 28 U.S.C. § 1391 pertainsto venue, not jurisdiction.
6 28 U.S.C. § 1337 confers original jurisdiction over claims "arising under any Actof Congress regulating commerce or protecting trade and commerce against restraintsand monopolies." 20 U.S.C. § 1706 pertains to suits for denial of equal educationalopportunity. 28 U.S.C. § 1343 confers jurisdiction to redress deprivations of civil rights.
DEFENDANT'S MEMORANDUM OF POINTS AND
AUTHORITIES ISO MOTION TO DISMISS Case No. EDCV 14-02308VAP(KKx)5
Case 5:14-cv-02308-VAP-KK Document 14-1 Filed 04/08/15 Page 10 of 21 Page ID #:69
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
remains intact unless Congress has unequivocally abrogated it or the Tribe has
expressly waived it. Bay Mills, 134 S.Ct. at 2031-32; Kiowa Tribe, 523 U.S. at 754;
Martinez, 436 U.S. at 58.
1. The FMLA Does Not Abrogate Tribal Sovereign Immunity
The only federal Courts of Appeals to have considered the question whether
the FMLA abrogated tribal sovereign immunity have held that the FMLA did not
abrogate tribal sovereign immunity. Carsten v. Inter-Tribal Council of Nevada, ---
Fed.Appx. ---, 2015 WL 1345535 (9th Cir. 2015); Chayoon v. Chao, 355 F.3d 141,
142-43 (2d Cir. 2004) (per curiam). These decisions are well-reasoned, and Muller
offers no reason not to follow them. Therefore, the Court should hold that Congress
did not abrogate Morongo's sovereign immunity to a private cause of action under the
FMLA.
2. Morongo Has Not Waived Its Sovereign Immunity to a PrivateSuit Under the FMLA
Unable to credibly contend that the FMLA abrogated Morongo's sovereign
immunity to her action, Muller is left to contend that Morongo's Amended Class III
Gaming Compact with the State of California7 somehow contains a sufficiently
express and unequivocal consent to the creation of the private claims for relief alleged
in the FAC. However, an examination of the relevant Amended Compact language
reveals that the Amended Compact did no such thing.
Section 10.2(1) provides, in its entirety, that the Tribe must, "Adopt and
comply with standards no less stringent than the standards of the Fair Labor
Standards Act, 29 U.S.C. § 201, et seq., and the United States Department of Labor
regulations implementing the Fair Labor Standards Act (29 CFR § 500, et seq.)."
Apart from the fact that Muller's FAC does not attempt to assert a claim under the
FLSA, the plain language of § 10.2(1) negates Muller's interpretation of that
provision of the Amended Compact: § 10.2(1) simply requires the Tribe to adopt for
7 Attached as Document No. 2 to the Request for Judicial Notice lodged herewith.
DEFENDANT'S MEMORANDUM OF POINTS AND
AUTHORITIES ISO MOTION TO DISMISS Case No. EDCV 14-02308VAP(KKx)6
Case 5:14-cv-02308-VAP-KK Document 14-1 Filed 04/08/15 Page 11 of 21 Page ID #:70
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
itself standards at least as strict as the FLSA and its implementing regulations.
Simply put, adoption of tribal standards is not the same as expressly and
unequivocally consenting to creation of a private claim for relief cognizable in this
Court for violating the Tribe's own standards. Rather, the Amended Compact makes
clear that if the Tribe fails to comply with an obligation under the Amended Compact,
the State of California – and only the State – has the right to seek relief against the
Tribe pursuant to §§ 9 and 15.1 of the Tribe's original Compact, which were not
changed by the Amended Compact.
Section 10.2(d) of Morongo's Amended Compact requires Morongo to obtain
and maintain a commercial general liability insurance policy of at least $10 Million to
cover claims for "bodily injury, property damage, and personal injury arising out of,
connected with, or relating to the operation of the Gaming Facility or Gaming
Activities." In order to effectuate that coverage,the Amended Compact provides that
theTribe shall waive its right to assert sovereign immunity up to the limits of the
Policy "in accordance with the tribal ordinance referenced in subdivision (d)(ii)
below in connection with any claim for bodily injury, property damage or personal
injury arising out of, connected with, or relating to the operation of the Gaming
Facility ..." [Emphasis added].
Compact § 10.2(d)(ii) requires the Tribe to "maintain in continuous force its
Tort Liability Ordinance," which must provide at least that California tort law shall
govern "all claims for bodily injury, property damage or personal injury arising out
of, connected with, or relating to the operation of the Gaming Facility, ... provided
that any and all laws governing punitive damages need not be a part of the
Ordinance[;]" that the Tribe waives its right to assert sovereign immunity to
arbitration and court review "of such claims" up to policy limits; that, "the Tribe
consents to binding arbitration before a single arbitrator, . . . in accordance with the
comprehensive arbitration rules and procedures of JAMS . . . to the extent of the
limits of the Policy; and that "To effectuate its consent to the foregoing arbitration
DEFENDANT'S MEMORANDUM OF POINTS AND
AUTHORITIES ISO MOTION TO DISMISS Case No. EDCV 14-02308VAP(KKx)7
Case 5:14-cv-02308-VAP-KK Document 14-1 Filed 04/08/15 Page 12 of 21 Page ID #:71
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
procedure, the Tribe shall, in the exercise of its sovereignty, waive its right to assert
its sovereign immunity in connection with the arbitrator's jurisdiction and in any
action brought in federal court, or, if the federal court declines to hear the action, in
any action brought in the courts of the State of California that are located in Riverside
County, including courts of appeal, to (1) enforce the parties' obligation to arbitrate,
(2) confirm, correct, modify, or vacate the arbitral award rendered in the arbitration,
or (3) enforce or execute a judgment based upon the award."
Section 10.2(d)(ii)(D) of the Amended Compact allows Morongo to require
exhaustion of the Tribe's administrative remedies, if any, for resolving claims for
bodily injury, property damage or personal injury arising out of, connected with, or
relating to the operation of the Gaming Facility. Section 10.2(d)(iii) of the Amended
Compact requires the Tribe to notify claimants about any exhaustion requirement, and
the availability of de novo arbitration if dissatisfied with the outcome of the tribal
process.
Morongo's obligation to provide a remedy for claims by patrons and other
visitors for bodily injury, property damage and personal injury is owed to the State,
not to patrons and visitors. Thus, the Amended Compact provides, in § 10.2(d)(iv),
that, "Failure to comply with this Section 10.2, subdivision (d) shall be deemed a
material breach of the Compact." That also is why§ 15.1 of the Compact (unchanged
by the Amendment) provides that,
Third Party Beneficiaries. Except to the extent expressly
provided under this Gaming Compact, this Gaming
Compact is not intended to, and shall not be construed to,
create any right on the part of a third party to bring an action
to enforce any of its terms.8
If the preceding provisions of the Amended Compact already constituted a self-
8 Section 9.4 of Morongo's original Compact has a similar effect.
DEFENDANT'S MEMORANDUM OF POINTS AND
AUTHORITIES ISO MOTION TO DISMISS Case No. EDCV 14-02308VAP(KKx)8
Case 5:14-cv-02308-VAP-KK Document 14-1 Filed 04/08/15 Page 13 of 21 Page ID #:72
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
executing express and unequivocal consent by the Tribe to the creation of private
claims for relief that could be asserted in direct actions in this or any other court,
there would have been no need to provide that the Tribe's failure to comply with the
Amended Compact's provisions regarding the FLSA and tort liability would
constitute compact violations entitling the State to invoke the dispute-resolution
provisions of §§ 9 and 15.1 – provisions that expressly preclude third-party
beneficiaries (such as Muller).
Morongo fulfilled its obligations under § 10.2(d) of the Amended Compact by
enacting an amended Tort Liability Ordinance9 that creates the requisite remedies and
contains the requisite waivers. However, as permitted by the Amended Compact, §
2.4 of Tribe's Tort Liability Ordinance specifically excludes from its definition of
"Compensable Injury" "any injury allegedly sustained by a Tribal official, agent or
employee in connection with his/her employment or performance of official duties,
..."
The Amended Compact does not ignore the Tribe's Class III gaming
employees. The Amendment contains a separate section (VIII) that amends § 10.3 of
the original Compact so as to state in greater detail the Tribe's obligation to provide
"a system that provides redress for Gaming Facility employees' work-related injuries
through requiring insurance or self-insurance" that is comparable to the substantive
rights "mandated for comparable employees under state law." If the plain text of
Tribe's Tort Liability Ordinance exclusion of employees from its scope were not
sufficient, the inclusion of this section effectively negates any suggestion that the
Tribe's gaming employees, such as Muller, may seek redress under Tribe's Tort
Liability Ordinance. Moreover, nothing in the Amended Compact required Morongo
to consent to the creation of employees' right to judicially compel arbitration of
9 A copy of the Ordinance is attached as Document No. 4 to the Request forJudicial Notice lodged herewith.
DEFENDANT'S MEMORANDUM OF POINTS AND
AUTHORITIES ISO MOTION TO DISMISS Case No. EDCV 14-02308VAP(KKx)9
Case 5:14-cv-02308-VAP-KK Document 14-1 Filed 04/08/15 Page 14 of 21 Page ID #:73
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
claims for wrongful termination.10
That the Tribe's Amended Compact does not consent to the creation of Muller's
purported claims is even more conclusively demonstrated by provisions included in
later compacts between California tribes and the state, but that were not included in
the Tribe's Amended Compact. Specifically, several of the State's more recent new or
amended compacts with other California Tribes have included provisions that require
those Tribes to carry at least $3 Million in employment practices liability insurance,
expressly waive sovereign immunity to claims based on employment discrimination,
harassment or retaliation, and enact ordinances that not only impose an explicit
prohibition against gaming facility workplace discrimination, harassment and
retaliation in accordance with California law, but also explicitly require enactment of
ordinances and policies implementing those prohibitions by giving gaming operation
employees the right to seek relief for violations of those policies through binding
arbitration and subsequent judicial enforcement of arbitration awards in California
courts.
One example of such a compact is the 2011 Class III gaming compact between
the State of California and the Habematolel Pomo of Upper Lake ("Upper Lake
Compact"), § 12.5 of which contains tort liability provisions almost identical to §
10.2(d) of Tribe's Amended Compact. A true copy of the Upper Lake Compact may
be viewed on the website of the California Gambling Control Commission,
www.cgcc.ca.gov, Tribal Gaming, List of Tribal Compacts; notice that the Upper
Lake Compact was deemed approved by the Department of the Interior was published
in Vol. 76, No. 154, p. 49505 of the Federal Register. A true copy of pp. 80-86 of the
10 The only other waivers of Tribe's immunity that can be found in either theoriginal Compact or the Amendment pertain to actions by the State of California itself(or its agencies) to enforce various specific provisions of the Compact/Amendment inthe event of a breach, and by Riverside County to compel The Tribe to arbitrateunresolved disputes over the terms of an intergovernmental agreement that may berequired in connection with certain projects involving the modification or expansion ofa gaming facility. None of those provisions effect or require a waiver of Tribe'simmunity to a private action such as that brought by Muller.
DEFENDANT'S MEMORANDUM OF POINTS AND
AUTHORITIES ISO MOTION TO DISMISS Case No. EDCV 14-02308VAP(KKx)10
Case 5:14-cv-02308-VAP-KK Document 14-1 Filed 04/08/15 Page 15 of 21 Page ID #:74
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Upper Lake Compact is attached as Document 5 to the Request for Judicial Notice
lodged herewith.11
There are many similarities between the Upper Lake Compact and the Tribe's
Amended Compact, but in at least one critical respect most relevant to this action, the
two compacts are very different. Specifically, the Tribe's Amended Compact has no
counterpart to § 12.3(f) of the Upper Lake compact, found at pp. 80-86.12 . That
section contains detailed provisions that require that tribe to purchase employment
practices liability insurance and enact and implement an ordinance that expressly
prohibits workplace discrimination, harassment and retaliation; makes California law
applicable to claims of workplace discrimination, harassment and retaliation; creates
enforceable remedies against the Tribe for violations; and expressly grants the Tribe's
consent and waives the Tribe's sovereign immunity to JAMS arbitration of employees'
claims for discrimination, harassment or retaliation – including enforcement of
arbitration awards in California courts.
Hence, if § 12.5 of the Upper Lake Compact – which is basically identical to §
10.2(d) of the Tribe's Amended Compact – sufficed to waive that tribe's sovereign
immunity to employee claims for discrimination, harassment or retaliation, the
detailed anti-discrimination provisions of § 12.3 of the Upper Lake Compact would
be superfluous.
In sum, Morongo has not expressly and unequivocally consented to be sued by
a private party in this Court for an order compelling arbitration of a claim for
wrongful termination. Given that Congress has not abrogated the Tribe's immunity
under the FMLA, the Court lacks jurisdiction over Muller's claims against the Tribe
11 The entire Upper Lake Compact is 109 pages long. In the interest of brevity,only the relevant pages are attached to the Request for Judicial Notice.
12 Essentially the same provisions are contained in the State's compact with thePinoleville Pomo Nation, and the most recent Amended Compact with the ShingleSprings Band of Miwok Indians; those compacts also can be viewed on the CGCC'swebsite. Pursuant to F.R.Evid. 201, the Court also is requested to take judicial notice ofthese other compacts.
DEFENDANT'S MEMORANDUM OF POINTS AND
AUTHORITIES ISO MOTION TO DISMISS Case No. EDCV 14-02308VAP(KKx)11
Case 5:14-cv-02308-VAP-KK Document 14-1 Filed 04/08/15 Page 16 of 21 Page ID #:75
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
and should dismiss the action with prejudice under FRCP 12(b)(1) and 12(b)2).
B. Muller's Claims Against MCRS
Muller's claims against the MCRS suffer from the same fatal jurisdictional
deficiency as do her claims against the Tribe itself, because the Tribe's sovereign
immunity extends to its subordinate entities (usually referred to as a Tribe's "arms").
White v. Univ. of Calif., 765 F.3d 1010, 1025 (9th Cir. 2014). In this case, Muller
has failed to – and cannot in good faith – allege that the MCRS is anything other than
an integral arm of the Tribe, a fact of which her counsel undoubtedly would be aware
from the reasonable inquiry required by F.R.Civ.P. 11(b)(2). See Class III Gaming
Compact between the Tribe and the State of California, attached as Document No. 2
to the Request for Judicial Notice lodged herewith; see also, 25 U.S.C. §
2710(b)(2)(A) [a tribal gaming ordinance must provide, with limited exceptions
inapplicable in this case, that the Tribe must be the sole owner of a gaming
enterprise.] The FAC is devoid of any allegation that The MCRS has waived its
immunity to suit or that Congress expressly has abrogated MCRS's immunity to
Muller's claims in this Court, nor is there any chance that Muller could make any such
allegation in good faith. Therefore, Muller's claims against MCRS also must be
dismissed with prejudice.
C. The Tribe's Immunity Also Cloaks Defendants Kelley and Briton
Although Muller's FAC names Kelley and Cook in the caption of her FAC and
alleges that both are tribal officials and "agency officers in their official capacities,"
(FAC § II, ¶2b), the FAC does not allege that either of them committed any act
related to the termination of Muller's employment at MCRS.
Tribal sovereign immunity extends not only to a tribe's arms, but also to its
officials, agents and employees acting within the scope of the authority that the Tribe
may confer, even if the acts or omissions might be tortious or mistaken, as long as the
individuals are sued in their official capacities and the relief sought against them
would, in reality, expend itself against the Tribe. See Miller, 705 F.3d at 923-24;
DEFENDANT'S MEMORANDUM OF POINTS AND
AUTHORITIES ISO MOTION TO DISMISS Case No. EDCV 14-02308VAP(KKx)12
Case 5:14-cv-02308-VAP-KK Document 14-1 Filed 04/08/15 Page 17 of 21 Page ID #:76
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Cook, 548 F.3d at 727; Tenneco Oil v. Sac & Fox Tribe of Indians of Okl., 725 F.2d
572, 574 (10th Cir. 1984).
Morongo, acting through the MCRS as an arm of the Tribe, necessarily has the
authority on behalf of the Tribe, to hire and fire its employees, including Muller.
Morongo/MCRS can only exercise its authority to hire and fire employees through
individual officials – Indian or non-Indian – acting on its behalf in their respective
official capacities; otherwise, no individual would have any authority to hire or fire
anyone in connection with the operation of the MCRS.
To the extent that Muller may contend that Kelley and/or Cook had some
involvement in the decision to discharge her (the FAC does not make such an
allegation), they could only have acted in the course and scope of their employment
as officials/agents of the Tribe/MCRS, and it is against Morongo, not Kelley or Cook,
against which the relief that Muller seeks (arbitration) would expend itself.
Therefore, Kelley and Cook necessarily are cloaked with the Tribe's unwaived
sovereign immunity, and Muller's claims against them (to the extent that any claims
are asserted against either of them) must be dismissed with prejudice.
III. THE FAC SHOULD BE DISMISSED FOR FAILURE TO STATE ACLAIM UPON WHICH RELIEF CAN BE GRANTED (FRCP 12(b)(5))
A. The FMLA Does Not Apply to the Tribe
No decision of a federal Court of Appeals has yet squarely decided whether the
FMLA applies to Indian tribes. However, in Morrison v. Viejas Enterprises., 2011
WL 3203107 (S.D. Calif. 2011), the district court for the Southern District of
California held that the FMLA not only did not abrogate tribal sovereign immunity,
but also that it does not apply to tribal employers at all:
The Family Medical Leave Act is a law of general
application that is silent with respect to Indian tribes. See 29
U.S.C. § 2601 et seq.; see also Chayoon v. Chao, 355 F.3d
141, 143 (2nd Cir.2004) ("The FMLA makes no reference
DEFENDANT'S MEMORANDUM OF POINTS AND
AUTHORITIES ISO MOTION TO DISMISS Case No. EDCV 14-02308VAP(KKx)13
Case 5:14-cv-02308-VAP-KK Document 14-1 Filed 04/08/15 Page 18 of 21 Page ID #:77
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
to the amenity of Indian tribes to suit.") (citing Garcia v.
Akwesasne Housing Authority, 268 F.3d 76, 86 (2nd
Cir.2001)). In Chayoon, the Second Circuit found that
federally recognized Indian tribes are immune from suit
under the FMLA. See Chayoon v. Chao, 355 F.3d at 143
("[Plaintiff's] remedy, if there is to be one, lies with
Congress."); see also Pearson v. Chugach Government
Services Inc., 669 F.Supp.2d 467, 477 (D.Del.2009) ("The
only courts to examine whether tribal organizations are
subject to the FMLA's employer obligations held, based on
the doctrine of tribal immunity, the there is not private cause
of action under the FMLA against tribal organizations.").
2011 WL 3203107 at *3-4.
The U.S. Department of Labor apparently agrees that the FMLA does not apply
to Tribes, because its FMLA regulations, Final Rule published on February 6, 2013,
78 Fed. Reg. No. 25, pp. 8834-8947, at 8902, of which judicial notice hereby is
requested pursuant to F.R.Evid. 201 and 44 U.S.C. § 1507, contains the following
statement:
XII. Executive Order 13175, Indian Tribal Governments
This rule was reviewed under the terms of E.O. 13175 and
determined not to have tribal implications. The rule does not
have ''substantial direct effects on one or more Indian tribes,
on the relationship between the Federal government and
Indian tribes, or on the distribution of power and
responsibilities between the Federal government and Indian
tribes.'' As a result, no tribal summary impact statement has
been prepared.
In other contexts, Courts of Appeals have held that statutes of general
DEFENDANT'S MEMORANDUM OF POINTS AND
AUTHORITIES ISO MOTION TO DISMISS Case No. EDCV 14-02308VAP(KKx)14
Case 5:14-cv-02308-VAP-KK Document 14-1 Filed 04/08/15 Page 19 of 21 Page ID #:78
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
application do not apply to Tribes without a clear expression of Congressional intent.
See Florida Paraplegic Ass'n. v. Miccosukee Indian Tribe, 166 F.3d 1126 (11th Cir.
1999) (Americans with Disabilities Act applies to tribe as provider of public
accommodations, but does not abrogate tribe's immunity to private action to enforce
the Act); Bassett v. Mashentucket Indian Tribe, 204 F.3d 343, 357-58 (2d Cir. 2004)
(Copyright Act did not abrogate tribal immunity to suit for infringement).
If the FMLA does not apply to Morongo as Muller's employer, it logically
follows that it does not apply to those who act on Morongo's behalf in administering
Morongo's authority to supervise, hire and fire Morongo's employees. Thus, the
FMLA would not apply to MCRS, Kelley or Cook, either, and Muller cannot state a
claim under the FMLA upon which relief can be granted against any of the
defendants.
IV. PROCESS HAS NOT BEEN SUFFICIENTLY SERVED
A defendant's awareness that a lawsuit has been filed is not an adequate
substitute for proper service of process. Daly-Murphy v. Winston, 837 F.2d 348, 355
(9th Cir. 1987). Even if delivery of a single copy of the Summons and FAC to a
receptionist in the MCRS Executive Offices could constitute sufficient service on
MCRS (under F.R.Civ.P. 4(e) and (h), that, alone, would not suffice), it could not
possibly have constituted sufficient service on the Council, which is headquartered
elsewhere on the Morongo Indian Reservation, or on Kelley or Cook, who never have
been personally served.
The Declaration of Faith Cartagena lodged herewith demonstrates that none of
the named defendants ever have been served with this action, notwithstanding the
false proofs of service filed with the Court, and the Court should impose appropriate
sanctions to deter future attempts to circumvent the requirements of F.R.Civ.P. 4(e)
and (h).
CONCLUSION
For all of the reasons set forth above, Muller's FAC should be dismissed, and
DEFENDANT'S MEMORANDUM OF POINTS AND
AUTHORITIES ISO MOTION TO DISMISS Case No. EDCV 14-02308VAP(KKx)15
Case 5:14-cv-02308-VAP-KK Document 14-1 Filed 04/08/15 Page 20 of 21 Page ID #:79
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
because there is no way that Muller can in good faith amend her FAC so as to
overcome the named defendants' unabrogated and unwaived sovereign immunity or
state claims against them upon which relief can be granted, Muller's entire action
should be dismissed without leave to amend.
Dated: April 8, 2015 Respectfully submitted,
By: /s/ George Forman George FormanFORMAN & ASSOCIATESAttorneys for Defendants
DEFENDANT'S MEMORANDUM OF POINTS AND
AUTHORITIES ISO MOTION TO DISMISS Case No. EDCV 14-02308VAP(KKx)16
Case 5:14-cv-02308-VAP-KK Document 14-1 Filed 04/08/15 Page 21 of 21 Page ID #:80