Contour Spa at the Hard Rock, Inc. v. Seminole Tribe of Fla.

• Court: U.S. Court of Appeals — Eleventh Circuit
• Writing for the Court: MARCUS
• Citation: Contour Spa at the Hard Rock, Inc. v. Seminole Tribe of Fla., 692 F.3d 1200, 23 Fla. L. Weekly Fed. C 1492 (11th Cir. 2012)
• Decision Date: 30 August 2012
• Docket Number: No. 11–11997.,11–11997.
• Parties: CONTOUR SPA AT THE HARD ROCK, INC., a Florida corporation, Plaintiff–Appellant, v. SEMINOLE TRIBE OF FLORIDA, a federally recognized Indian tribe, Mitchell Cypress, et al., Defendants–Appellees.

692 F.3d 1200

23 Fla. L. Weekly Fed. C 1492

CONTOUR SPA AT THE HARD ROCK, INC., a Florida corporation, Plaintiff–Appellant,

v.SEMINOLE TRIBE OF FLORIDA, a federally recognized Indian tribe, Mitchell Cypress, et al., Defendants–Appellees.

No. 11–11997.

United States Court of Appeals, Eleventh Circuit.

Aug. 30, 2012.

Bruce Stephen Rogow, Bruce S. Rogow, PA, Fort Lauderdale, FL, for Plaintiff–Appellant.

Donald Albert Orlovsky, Kamen & Orlovsky, PA, West Palm Beach, FL, for Defendant–Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before MARCUS and BLACK, Circuit Judges, and EVANS,^* District Judge.

MARCUS, Circuit Judge:

This case arises out of a leasing agreement between Contour Spa (“Contour”) and the Seminole Tribe of Florida (“the Tribe”) that turned sour. Contour appeals from a district court order dismissing its Amended Complaint for lack of subject matter jurisdiction on account of the Tribe's sovereign immunity. Contour offers three reasons to avoid immunity: first, and most basic, Contour claims that the Tribe's removal of this case to federal court constitutes a voluntary waiver of the Tribe's immunity, relying on the Supreme Court's Eleventh Amendment case of Lapides v. Bd. of Regents of the Univ. Sys. of Ga., 535 U.S. 613, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002); Contour also says that Congress has authorized its suit by creating an implied cause of action under the Indian Civil Rights Act; and finally, Contour argues that principles of equitable estoppel prevent the Tribe from asserting immunity.

The district court rejected all three arguments, and we now affirm. Because the problems of inconsistency and unfairness that were inherent in the procedural posture of Lapides are absent here, and because an Indian tribe's sovereign immunity is of a far different character than a state's Eleventh Amendment immunity, we decline to extend Lapides. As for Contour's Indian Civil Rights Act claim, it must fail because the Supreme Court has already held that Indian tribes are immune from suit under the statute. Finally, the equitable estoppel claim is unavailable because it is grounded on a waiver provision contained within a lease agreement that is wholly invalid as a matter of federal law.

I.

Because we are reviewing the district court's order granting the tribal defendants' motions to dismiss, we take as true the facts as alleged in Contour's complaint and attached exhibits. See Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir.2000) (per curiam). The Seminole Tribe of Florida is a federally recognized Indian tribe that owns and operates the Seminole Hard Rock Hotel and Casino in Hollywood, Florida. Contour operated a spa facility located in the Hard Rock from May 2004 through March 2010 pursuant to a long-term lease that provided for an initial period of ten years followed by four renewal terms of five years each.

In the lease the Tribe expressly waived its sovereign immunity concerning any lawsuits Contour might bring based on the Tribe's default or breach of the lease agreement.¹ Most pertinently, however, the entire lease's validity was explicitly conditioned upon approval by the Secretary of the Interior: “The [agreement] is all conditioned upon approval of this Lease by the Secretary of the Interior, or her authorized representative (‘the Secretary’).” The lease also incorporated by reference the regulations prescribed by the Secretary pursuant to 25 C.F.R. Part 162.

It is undisputed that these regulations, as well as 25 U.S.C. § 81, apply to the putative lease, even if they had not been expressly incorporated into the lease's terms. Both the regulations and the statute explicitly condition the validity of the lease on the approval of the Secretary of the Interior. 25 U.S.C. § 81(b) (“No agreement or contract with an Indian tribe that encumbers Indian lands for a period of 7 or more years shall be valid unless that agreement or contract bears the approval of the Secretary of the Interior or a designee of the Secretary.”); 25 C.F.R. § 162.604(a) (“All leases made pursuant to the regulations in this part shall be in the form approved by the Secretary and subject to his written approval.”).²

Although the chairman of the Seminole Tribal Council, Mitchell Cypress, submitted the lease to the Secretary of the Interior for approval, it was never approved. Contour alleges, however, that the Tribe knowingly made false oral and written assertions that the lease was valid. The complaint highlights a letter dated November 26, 2003, from the Seminole Tribe's authorized representative referring to the lease as having been “fully executed.” Contour also included in the complaint a reference to a conversation its owner had with the tribal representative whereby Contour was assured “that all paperwork needed for the Lease had been submitted and approved,” and that the spa had to be open for business by May 17, 2004. The tribal representative also allegedly said: “Girl, you are good to go. Mazal tov. Congratulations.” Contour then spent more than $1.5 million to design and build the spa, which opened at the Tribe's hotel on May 17, 2004.

The deal between the parties began to sour in 2005 when Contour wanted to begin charging Hard Rock Hotel guests to use the fitness center at the spa. But what really set the stage for this lawsuit was a comment made by a tribal representative in June 2007 that the “Lease Agreementwas no good, and could be terminated at any time, since approval ... had never been obtained from the Bureau of Indian Affairs.” Contour wrote to the Bureau of Indian Affairs (“BIA”), an agency housed within the Department of the Interior, and discovered that although the Seminole Tribe had submitted the lease, it had never been approved. Instead, Contour learned, the BIA had sent a reply letter to the Seminole Tribe dated May 27, 2004 (ten days after the spa opened), noting a series of deficiencies in the lease and requesting that the Seminole Tribe correct them and resubmit the lease application for the Secretary's approval. Allegedly, the Tribe never shared any of this with Contour. Once it learned of the BIA's letter, however, Contour promptly advised the Tribe that Contour agreed to the changes requested by the BIA, but the Tribe still failed to respond or to resubmit the lease for approval.

Notwithstanding having learned that the lease had never been approved, Contour continued to operate its spa at the hotel. But Contour's operations at the Hard Rock ended on March 17, 2010, when the Tribe's counsel e-mailed a letter to Contour informing Contour that the Tribe had decided to retake the premises and to permanently close the spa. By the next day, the Seminole Tribe had padlocked the doors on Contour's business and would only allow Contour access when escorted by tribal security and for the limited purpose of removing personal property.

Contour wasted no time in going to court. On March 19, 2010, Contour filed suit against the Seminole Tribe in Florida Circuit Court for Broward County, seeking emergency declaratory and injunctive relief. Shortly thereafter, the Tribe removed the case to the United States District Court for the Southern District of Florida.

Contour then took the opportunity to amend its complaint. In addition to the Tribe itself, Contour added as defendants the Tribe's Chairman, Mitchell Cypress, unnamed tribal member(s) John Doe, and unnamed non-tribal defendant(s) Richard Roe. The Amended Complaint alleged two federal claims and five state-law counts. Counts I and II sought declaratory and injunctive relief against all tribal defendants under the Indian Civil Rights Act, 25 U.S.C. §§ 1301–02, and the Indian Long Term Leasing Act and its accompanying regulations, 25 U.S.C. § 415 and 25 C.F.R. pt. 2, 162. The remaining counts all sought damages under state-law causes of action for wrongful eviction, unlawful entry and detention, fraud, promissory estoppel, and unjust enrichment. The federal charges were limited to the tribal defendants.

Both the Seminole Tribe and, separately, Chairman Cypress, moved to dismiss for lack of subject matter jurisdiction, asserting tribal sovereign immunity. After full briefing, the district court dismissed the federal claims, and remanded the state-law claims back to state court, finding no basis for retaining supplemental jurisdiction under 28 U.S.C. § 1367. This timely appeal followed.

II.

“We review de novo the district court's dismissal of a complaint for sovereign immunity.” Sanderlin v. Seminole Tribe of Fla., 243 F.3d 1282, 1285 (11th Cir.2001); accord Florida v. Seminole Tribe of Fla., 181 F.3d 1237, 1240–41 (11th Cir.1999); Fla. Paraplegic, Ass'n v. Miccosukee Tribe of Indians of Fla., 166 F.3d 1126, 1128 (11th Cir.1999).

Although the Supreme Court has expressed some doubt about the continued wisdom of the tribal immunity doctrine, it is nonetheless clear that “[a]s a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity.” Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 754, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998); accord Okla. Tax Comm'n v. Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S. 505, 509, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991) (“Indian tribes are domestic dependent nations that exercise inherent sovereign authority over their members and territories. Suits against Indian tribes are thus barred by sovereign immunity absent a clear waiver by the tribe or congressional abrogation.” (internal quotation marks and citation omitted)); Furry v. Miccosukee Tribe of Indians of Fla., 685 F.3d 1224, 1227 (11th Cir.2012); Sanderlin, 243 F.3d at 1285;Seminole Tribe, 181 F.3d at 1241;Fla. Paraplegic, 166 F.3d at 1130–31.

Contour offers three reasons for why tribal immunity should not bar this lawsuit: first, Contour claims that removal of the case to federal court amounted to a waiver of...