United States District Court, D. Kansas
MEMORANDUM AND ORDER
DANIEL D. CRABTREE, District Judge.
Plaintiff brings this personal injury action against the Wyandotte Nation for injuries she sustained when she fell down a flight of stairs at the 7th Street Casino, which is located on land held in trust by the United States for the benefit of the Wyandotte Nation. This matter comes before the Court on defendant's Motion to Dismiss (Doc. 6). Defendant argues that the Court must dismiss plaintiff's lawsuit because defendant, a federally recognized Indian tribe, is immune from unconsented suit and, therefore, the Court lacks subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1). After considering the arguments made by both parties, the Court grants defendant's Motion to Dismiss.
The following facts are taken from plaintiff's Petition filed in the District Court of Wyandotte County, Kansas, and viewed in the light most favorable to her. S.E.C. v. Shields, 744 F.3d 633, 640 (10th Cir. 2014) ("We accept as true all well-pleaded factual allegations in the complaint and view them in the light most favorable to the [plaintiff].") (citation and internal quotation marks omitted). The 7th Street Casino is located on land in Wyandotte County, Kansas, and held in trust by the United States for the benefit of the Wyandotte Nation. On February 26, 2012, plaintiff visited the 7th Street Casino to play electronic gaming machines. As plaintiff was leaving the casino, her heel became lodged in a strip of carpet causing her to fall headlong down a flight of stairs. As a result of the fall, plaintiff sustained injuries to her head and foot and experienced an onset of pain. Thereafter, plaintiff filed a lawsuit against the Wyandotte Tribe of Oklahoma, a/k/a Wyandotte Nation, d/b/a 7th Street Casino in the District Court of Wyandotte County, Kansas, asserting a single claim of negligence under Kansas law. On March 13, 2014, defendant timely filed a Notice of Removal asserting federal question jurisdiction under 28 U.S.C. § 1331, thereby removing the case from state court to this Court.
II. Legal Standard
"Federal courts are courts of limited jurisdiction and, as such, must have a statutory basis to exercise jurisdiction." Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002) (citation omitted). Federal district courts have original jurisdiction of all civil actions arising under the constitution, laws, or treaties of the United States or where there is diversity of citizenship. 28 U.S.C. § 1331; 28 U.S.C. § 1332. "A court lacking jurisdiction cannot render judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking." Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974) (citation omitted). Since federal courts are courts of limited jurisdiction, there is a presumption against jurisdiction, and the party invoking federal jurisdiction bears the burden to prove it exists. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
Generally, a motion to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) takes one of two forms: a facial attack or a factual attack. Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995). "First, a facial attack on the complaint's allegations [of] subject matter jurisdiction questions the sufficiency of the complaint. In reviewing a facial attack on the complaint, a district court must accept the allegations in the complaint as true." Id. at 1002 (citing Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990)) (internal citations omitted).
"Second, a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends. When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations. A court has wide discretion to allow affidavits, other documents, and [to conduct] a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1)." Id. at 1003 (internal citations omitted); Los Alamos Study Group v. United States Dep't of Energy, 692 F.3d 1057, 1063-64 (10th Cir. 2012). See also Sizova v. Nat'l Inst. of Standards & Tech., 282 F.3d 1320, 1324-25 (10th Cir. 2002) (holding that a court must convert a motion to dismiss to a motion for summary judgment under Fed.R.Civ.P. 56 only when the jurisdictional question intertwines with the merits of case, but where the jurisdictional issue is not an aspect of the substantive claim, it does not require conversion to the summary judgment procedure).
In this case, the Court construes defendant's Rule 12(b)(1) motion as one raising a facial challenge to the factual allegations asserted in plaintiff's Petition. See Def.'s Mem. in Supp. of Def.'s Mot. to Dismiss (Doc. 7 at 2) ("A Rule 12(b)(1) motion is determined from the allegations of fact in the complaint, without regard to mere [conclusory] allegations of jurisdiction.") (citation and internal quotation marks omitted). Accordingly, for the purposes of deciding the motion, the Court presumes the allegations in plaintiff's Petition are true.
The motion seeks dismissal of this lawsuit under Fed.R.Civ.P. 12(b)(1) because defendant is a federally recognized Indian tribe and therefore, it asserts, immune from unconsented lawsuits. Defendant further argues that it has not waived its sovereign immunity and Congress has not abrogated its sovereign immunity for this tort claim. Therefore, defendant asserts, the Court lacks subject matter jurisdiction over the lawsuit.
"Tribal sovereign immunity is a matter of subject matter jurisdiction, which may be challenged by a motion to dismiss under Fed.R.Civ.P. 12(b)(1).'" Miner Elec., Inc. v. Muscogee (Creek) Nation, 505 F.3d 1007, 1009 (10th Cir. 2007) (quoting E.F.W. v. St. Stephen's Indian High Sch., 264 F.3d 1297, 1302-03 (10th Cir. 2001)). "Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers." Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978) (citations omitted). As a consequence, suits against tribes are barred unless: (1) the tribe unequivocally expresses a waiver; or (2) Congress abrogates the tribe's immunity. See id. (explaining that "without congressional authorization, the Indian Nations are exempt from suit" and "a waiver of sovereign immunity cannot be implied but must be unequivocally expressed" (citations and internal quotation marks omitted)); see also E.F.W., 264 F.3d at 1304 (citing Fletcher v. United States, 116 F.3d 1315, 1324 (10th Cir. 1997)).
"Tribal sovereign immunity may extend to subdivisions of a tribe, including those engaged in economic activities, provided that the relationship between the tribe and the entity is sufficiently close to properly permit the entity to share in the tribe's immunity." Breakthrough Mgmt. Group, Inc. v. Chukchansi Gold Casino & Resort, 629 F.3d 1173, 1183 (10th Cir. 2010), cert. dismissed, __ U.S. __ , 132 S.Ct. 64 (2011) (citations omitted); see also Native American Distrib. v. Seneca-Cayuga Tobacco Co., 546 F.3d 1288, 1292 (10th Cir. 2008) ("Tribes enjoy immunity from suits on contracts, whether those contracts involve governmental or commercial activities and whether they were made on or off a reservation.'" (quoting Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 759 (1998) (further citation omitted))).
Here, plaintiff alleges she sustained injuries at the 7th Street Casino, which is located on land held in trust by the United States for the benefit of the Wyandotte Nation. Pl.'s Pet. (Doc 1-1 at ¶ 8); see also Governor of Kan. v. Kempthorne, 516 F.3d 833, 835-36, 838-40 (10th Cir. 2008) (explaining that the Secretary of the Interior had taken a tract of land located in Kansas City, Kansas (the "Shriner Tract") into trust for the benefit of the Wyandotte Tribe of Oklahoma and ordering dismissal of the lawsuit challenging the Secretary's decision for lack of jurisdiction). Plaintiff filed this lawsuit against a single defendant: "The Wyandotte Tribe of ...