Ingrassia v. Chicken Ranch Bingo and Casino

• Decision Date: 16 December 2009
• Docket Number: No. CIV-F-09-1266 AWI SMS.,CIV-F-09-1266 AWI SMS.
• Citation: 676 F. Supp.2d 953
• Parties: Bruce Alan INGRASSIA and Millimac Enterprises, Plaintiffs, v. CHICKEN RANCH BINGO AND CASINO, and Chicken Ranch Rancheria, Defendants.
• Court: U.S. District Court — Eastern District of California

676 F.Supp.2d 953

Bruce Alan INGRASSIA and Millimac Enterprises, Plaintiffs, v. CHICKEN RANCH BINGO AND CASINO, and Chicken Ranch Rancheria, Defendants.

No. CIV-F-09-1266 AWI SMS.

United States District Court, E.D. California.

December 16, 2009.

David L. Axelrod, Sierra Law Office of David L. Axelrod, Sonora, CA, for Plaintiffs.

Lester John Marston, Rapport and Marston, Ukiah, CA, for Defendants.

ORDER RE: MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION

ANTHONY W. ISHII, Chief Judge.

I. History¹

In 1986, Plaintiffs Bruce Alan Ingrassia and Millimac Enterprises produced a number of original visual images among them, "MiWuk Indian Riding on a Chicken." Plaintiffs printed this image on hats, shirts, and other souvenirs. Defendants Chicken Ranch Rancheria Tribe and Chicken Ranch Bingo and Casino purchased these items for resale. Plaintiffs retained the copyright under the arrangement. It is unclear whether there was a written contract between Plaintiffs and Defendants. The business relationship lasted for a number of years and ended at an unspecified time. In 2007, Plaintiffs discovered that Defendants were selling items with the image of "MiWuk Indian riding on a Chicken" produced without Plaintiffs' permission.

Plaintiff sued Defendants in the Superior Court of California, County of Tuolumne on June 9, 2009, alleging breach of contract, common counts, and copyright infringement. Defendants removed the case to federal court on July 20, 2009 under 28 U.S.C. § 1441(b). Defendants then filed a motion to dismiss for lack of subject matter jurisdiction under Fed. R. Civ. Proc. 12(b)(1) due to tribal sovereign immunity. Plaintiffs opposed the motion. The court requested additional briefing and evidence which the parties provided. The matter was taken under submission without oral argument.

II. Legal Standards

"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." Alvarado v. Table Mt. Rancheria, 509 F.3d 1008, 1015-16 (9th Cir.2007). "Suits against Indian tribes are... barred by sovereign immunity absent a clear waiver by the tribe or congressional abrogation." Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 509, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991); Stock West Corp. v. Lujan, 982 F.2d 1389, 1398 (9th Cir.1993). "There is a strong presumption against waiver of tribal sovereign immunity." Demontiney v. United States, 255 F.3d 801, 811 (9th Cir.2001). Waiver of sovereign immunity by a tribe may not be implied and must be expressed unequivocally. Kescoli v. Babbitt, 101 F.3d 1304, 1310 (9th Cir.1996). Similarly, congressional abrogation of sovereign immunity may not be implied and must be "unequivocally expressed" in "explicit legislation." Krystal Energy Co. v. Navajo Nation, 357 F.3d 1055, 1056 (9th Cir.2004). The plaintiff bears the burden of showing a waiver of tribal sovereign immunity. See Breakthrough Mgmt. Group, Inc. v. Chukchansi Gold Casino & Resort, 2007 WL 2701995, *2, 2007 U.S. Dist. LEXIS 67422, *7 (D.Colo.2007); Dontigney v. Conn. BIAC, 2006 WL 2331079, *3, 2006 U.S. Dist. LEXIS 55625, *10 (D.Conn.2006); Morgan v. Coushatta Tribe of Indians of La., 214 F.R.D. 202, 205 (E.D.Tex.2001).

Tribal sovereign immunity applies in both federal and state courts. Snow v. Quinault Indian Nation, 709 F.2d 1319, 1321 (9th Cir.1983), citing Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978). "The immunity ... extends to suits for declaratory and injunctive relief," and "is not defeated by an allegation that the tribe acted beyond its powers." Imperial Granite Co. v. Pala Band of Mission Indians, 940 F.2d 1269, 1271 (9th Cir.1991). Tribal sovereign immunity is not dependent on a distinction between on-reservation and off-reservation conduct nor is it dependent upon a distinction between the governmental and commercial activities. Kiowa Tribe v. Manufacturing Techs., 523 U.S. 751, 754-55, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998). A tribe's sovereign immunity extends both to tribal governing bodies and to tribal agencies which act as an arm of the tribe. Allen v. Gold Country Casino, 464 F.3d 1044, 1046 (9th Cir. 2006). Tribal sovereign immunity extends to tribal officials when acting in their official capacity and within the scope of their authority but not to individual tribe members generally. United States v. Oregon, 657 F.2d 1009, 1013 n. 8 (9th Cir.1981).

III. Discussion

A. Tribal Sovereign Immunity

Defendants claim tribal sovereign immunity. Plaintiffs deny that either of the Defendants have immunity from suit.

Plaintiffs provide no reason for their position with regards to the Chicken Ranch Rancheria tribe. "The Supreme Court has consistently treated tribal recognition decisions by Congress or the executive as entitled to a large degree of deference." Artichoke Joe's Cal. Grand Casino v. Norton, 278 F.Supp.2d 1174, 1179 (E.D.Cal.2003). The Chicken Ranch Rancheria of Me-Wuk Indians of California are included on a list of federally acknowledged tribes promulgated by the Bureau of Indian Affairs, Department of the Interior. 72 Fed.Reg. 13648 (March 22, 2007). "The inclusion of a group of Indians on the Federal Register list of recognized tribes would ordinarily suffice to establish that the group is a sovereign power entitled to immunity from suit." Cherokee Nation v. Babbitt, 117 F.3d 1489, 1499 (D.C.Cir.1997).

Plaintiffs assert that "no record has been presented to establish that the Casino operates as an arm of the Tribe" sufficient to warrant immunity. Doc. 13, Plaintiffs' Opposition, at 5:17-18, quotations and citations omitted. Plaintiffs state "Chicken Ranch Bingo and Casino was and is a business entity or association, the form of which is unknown at this time" and that Chicken Ranch Rancheria tribe owned a business entity that "conducted business activities open to the general public, including but not limited to gaming and retail sales of clothing and other paraphernalia, primarily based at the commercial facility commonly known as Chicken Ranch Bingo and Casino." Doc. 1, Ex. 4, Complaint at 4:10-22. Defendants provide the declaration of the Tribal Administrator, which states "The Tribe conducts gaming on its tribal trust lands under the fictitious business name `Chicken Ranch Bingo and Casino' pursuant a Tribal-State class III gaming compact with the State of California and the requirements of the Indian Gaming Regulatory Act. The Tribe, dba, the Chicken Ranch Bingo and Casino is not a corporation under either tribal, state or federal law." Doc. 17, Amended Costa Declaration, at 2:4-9. Defendants have established their entitlement to tribal sovereign immunity.

B. Abrogation and Waiver

The burden is thus on Plaintiffs to show waiver of immunity from suit. Plaintiffs, explicitly or implicitly, make four arguments: the U.S. Congress abrogated immunity in the Copyright Act, the tribal-state compact waives immunity, the contract with Plaintiffs waives immunity, and removal to federal court waives immunity.

Plaintiffs state, "It may well be found that Congress indeed intended the Copyright Act, 17 U.S.C. 101, et seq., as amended, to apply to all persons, foreign and domestic, Indian and otherwise." Doc. 13, Plaintiffs' Opposition, at 6:11-14. As a general matter, "Congress may not abrogate state sovereign immunity pursuant to its Article I powers." Fla. Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 527 U.S. 627, 636, 119 S.Ct. 2199, 144 L.Ed.2d 575 (1999). Federal copyright law is enacted pursuant to Article 1, Section 8, Clause 8 of the U.S. Constitution, commonly termed the copyright and patent clause. Plaintiffs provide no compelling argument that tribal immunity should not apply in copyright suits.

Plaintiffs state, "Defendants have waived their purported defense of `sovereign immunity' specifically or implicitly, by accepting and agreeing to a tribal-state compact, as contemplated in accordance with the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. § 2701 et seq." Doc. 19, Plaintiffs' Additional Memorandum, at 3:16-20. Plaintiffs argument fails for a number of reasons. Among them, "The IGRA waives tribal sovereign immunity in the narrow category of cases where compliance with the IGRA is at issue." Lewis v. Norton, 424 F.3d 959, 962 (9th Cir.2005), citing Mescalero Apache Tribe v. New Mexico, 131 F.3d 1379, 1385 (10th Cir.1997). IGRA "prescribes the conditions under which Indian tribes may engage in commercial gaming on their reservations." City of Roseville v. Norton, 348 F.3d 1020, 1022 (D.C.Cir.2003). This suit does not have to do with IGRA compliance so the waiver does not apply.

Plaintiffs argue that the original contract through which the artwork was produced constitutes waiver. They do not provide the actual written documents, instead producing a declaration of Plaintiff Ingrassia in which he states,

Defendant CHICKEN RANCH paid me cash back in 1986, said `NO' to the work for hire, did not pay for any artwork, and received a computer receipt. Also on or about June 19, 1995, I delivered an invoice to SANDRA FELICE on behalf of CHICKEN RANCH. The invoice clearly states that the transaction was not a work for hire (with the check mark in the NO box). The tribe never paid me for the artwork, nor were they billed for the artwork or any of the setups. It was thus clearly understood and accepted by the CHICKEN RANCH Defendants, without any protestations of immunity, that a lawful copyright was asserted and invoked, and that ownership of the artwork and of the copyright was retained by me and my company.

Doc. 22, Ingrassia Declaration, at 2:19-3:2. Even assuming Plaintiff Ingrassia has accurately described the contents of the contract, it is plain that there is no waiver. Plaintiffs argue that since Defendants did not affirmatively...