Pueblo Ana v. Nash

• Decision Date: 25 September 2013
• Docket Number: Civ No. 11–957 LH/LFG.
• Citation: 972 F.Supp.2d 1254
• Parties: PUEBLO OF SANTA ANA and Tamaya Enterprises, Inc., Plaintiffs, v. Honorable Nan G. NASH, District Judge, New Mexico Second Judicial, Division XVII, in her Individual and Official Capacities; Gina Mendoza, as Personal Representative under the Wrongful Death Act of Michael Mendoza, Deceased; F. Michael Hart, as Personal Representative under the Wrongful Death Act of Desiree Mendoza, Deceased; and Dominic Montoya, Defendants.
• Court: U.S. District Court — District of New Mexico

972 F.Supp.2d 1254

PUEBLO OF SANTA ANA and Tamaya Enterprises, Inc., Plaintiffs,

v.Honorable Nan G. NASH, District Judge, New Mexico Second Judicial, Division XVII, in her Individual and Official Capacities; Gina Mendoza, as Personal Representative under the Wrongful Death Act of Michael Mendoza, Deceased; F. Michael Hart, as Personal Representative under the Wrongful Death Act of Desiree Mendoza, Deceased; and Dominic Montoya, Defendants.

Civ No. 11–957 LH/LFG.

United States District Court, D. New Mexico.

Sept. 25, 2013.

Richard W. Hughes, Donna M. Connolly, The Rothstein Law Firm, Santa Fe, NM, for Plaintiffs.

Nicholas M. Sydow, New Mexico Attorney General, Santa Fe, NM, Charlotte Mary Toulouse, Toulouse & Associates, PA, David L. Plotsky, Plotsky & Dougherty, P.C., Arlyn G. Crow, Albuquerque, NM, for Defendants.

MEMORANDUM OPINION AND ORDER

C. LEROY HANSEN, Senior United States District Judge.

THIS MATTER comes before the Court for consideration of Plaintiffs' Motion for Summary Judgment (ECF No. 52) and Defendant Mendozas' Second Motion for Summary Judgment (ECF No. 73). The Court, having considered the motions, all related briefs and exhibits, and being otherwise fully advised, concludes that Plaintiffs' Motion for Summary Judgment is granted in part and denied in part, and that Defendant Mendozas' Second Motion for Summary Judgment is denied. Specifically, the Court hereby enters a declaration that the Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq. (“IGRA”) does not authorize an allocation of jurisdiction from tribal court to state court over a personal injury claim arising from the allegedly negligent serving of alcohol on Indian land, and further that the New Mexico State District Court does not have jurisdiction in the case of Gina Mendoza, Michael Hart and Dominic Montoya v. Tamaya Enterprises, Inc., d/b/a Santa Ana Star Casino, CIV 2007–005711 (“underlying state court litigation”).

I. Allegations of the Complaint Filed in Federal Court

The Complaint in this matter (ECF No. 1) asserts federal jurisdiction pursuant to 28 U.S.C. §§ 1331, 1362 and 1343. It seeks injunctive and declaratory relief, pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 2201. Specifically, Plaintiffs Pueblo of Santa Ana and Tamaya Enterprises, Inc. (collectively referred to as “Pueblo Plaintiffs” or “the Pueblo”) seek: (1) an order prohibiting New Mexico District Court Judge Nan Nash (“Defendant Nash”) from exercising jurisdiction over the case now pending before her, in violation of the Pueblo Plaintiffs' rights under the Fourteenth Amendment of the United States Constitution (Compl., Count I); and, (2) a declaration that the Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq. “does not permit the shifting of jurisdiction from tribal courts to state courts over personal injury lawsuits brought against tribes or tribal gaming enterprises, for alleged wrongs arising or occurring within Indian country, and that thus the New Mexico state courts do not have jurisdiction over [the underlying state court litigation].” (Compl., Count II).

II. Undisputed Facts and Applicable Gaming Compact Language

The following facts are undisputed and germane to the strictly legal issues raised by the motions for summary judgment. Tamaya Enterprises, Inc. (“TEI”) owns and operates the Santa Ana Star Casino (“Star Casino” or “casino”). TEI is wholly owned by the Pueblo of Santa Ana. The Pueblo of Santa Ana is a federally recognized Indian tribe. The Star Casino is located on Santa Ana Pueblo lands, within the exterior boundaries of the Pueblo.

As explained in this Court's November 9, 2012 Memorandum Opinion (ECF No. 82 at 2), pursuant to the Indian Gaming Regulatory Act, on October 2, 2001, the State of New Mexico and the Pueblo of Santa Ana entered into a Tribal–State Class III Gaming Compact (“the Compact”) ¹(ECF No. 51, Ex. A). It permits TEI to operate the Star Casino on behalf of the Pueblo. The negotiation process led to various provisions in the Compact.

As indicated in its title, the IGRA establishes a regulatory framework for Indian gaming. In 25 U.S.C. § 2710(d)(3)(C), the IGRA states the following, insofar as negotiation of compacts is concerned:

(C) Any Tribal–State compact negotiated under subparagraph (A) ² may include provisions relating to—

(i) the application of the criminal and civil laws and regulations of the Indian tribe or the State that are directly related to, and necessary for, the licensing and regulation of such activity;

(ii) the allocation of criminal and civil jurisdiction between the State and the Indian tribe necessary for the enforcement of such laws and regulations;

(iii) the assessment by the State of such activities in such amounts as are necessary to defray the costs of regulating such activity;

(iv) taxation by the Indian tribe of such activity in amounts comparable to amounts assessed by the State for comparable activities;

(v) remedies for breach of contract;

(vi) standards for the operation of such activity and maintenance of the gaming facility, including licensing; and

(vii) any other subjects that are directly related to the operation of gaming activities.

Section 8 of the Compact, entitled “Protection of Visitors,” reads, in pertinent part, as follows:

A. Policy Concerning Protection of Visitors. The safety and protection of visitors to a Gaming Facility is a priority of the Tribe, and it is the purpose of this Section to assure that any such persons who suffer bodily injury or property damage proximately caused by the conduct of the Gaming Enterprise have an effective remedy for obtaining fair and just compensation. To that end, in this Section, and subject to its terms, the Tribe agrees to carry insurance that covers such injury or loss, agrees to a limited waiver of its immunity from suit, and agrees to proceed either in binding arbitration proceedings or in a court of competent jurisdiction, at the visitor's election, with respect to claims for bodily injury or property damage proximately caused by the conduct of the Gaming Enterprise. For purposes of this Section, any such claim may be brought in state district court, including claims arising on tribal land, unless it is finally determined by a state or federal court that IGRA does not permit the shifting of jurisdiction over visitors' personal injury suits to state court. (emphasis added)

.....

D. Specific Waiver of Immunity and Choice of Law. The Tribe, by entering into this Compact and agreeing to the provisions of this Section, waives its defense of sovereign immunity in connection with any claims for compensatory damages for bodily injury or property damage up to the amount of fifty million ($50,000,000) per occurrence asserted as provided in this Section. This is a limited waiver and does not waive the Tribe's immunity from suit for any other purpose. The Tribe shall ensure that a policy of insurance that it acquires to fulfill the requirements of this Section shall include a provision under which the insurer agrees not to assert the defense of sovereign immunity on behalf of the insured, up to the limits of liability set forth in this Paragraph. The Tribe agrees that in any claim brought under the provisions of this Section, New Mexico law shall govern the substantive rights of the claimant, and shall be applied, as applicable, by the forum in which the claim is heard, except that the tribal court may but shall not be required to apply New Mexico law to a claim brought by a member of the Tribe.

E. Election by Visitor. A visitor having a claim described in this Section may pursue that claim in any court of competent jurisdiction, or in binding arbitration. The visitor shall make a written election that is final and binding upon the visitor.

....

III. Underlying State Court Litigation

Although the procedural history of this case has been set forth in two prior opinions of this Court ( see ECF Nos. 43 and 82), for ease of reference, the Court will now briefly summarize the most relevant aspects of this history. On July 9, 2006, Desiree Mendoza, Michael Mendoza, and Dominic Montoya attended a wedding reception at the Star Casino. According to the state court complaint subsequently filed, Desiree and Michael Montoya were over-served alcoholic beverages by TEI, resulting in a one-car accident in which Desiree and Michael were killed, and their cousin, Dominic, was injured.

The Personal Representatives for Michael Mendoza and Desiree Mendoza, and Dominic Montoya (“State Court Plaintiffs”) filed the underlying state court action against TEI only, in Bernalillo County District Court. That wrongful death suit sought imposition of liability on the Star Casino for selling or serving alcoholic beverages to intoxicated persons. It alleged that the casino's delivery of alcohol to Michael and Desiree, while they were obviously intoxicated, was in violation of Section 184 of the Pueblo Liquor Ordinance ³, and proximately caused their deaths. The casino filed a motion to dismiss for failure to state a claim upon which relief could be granted, arguing that the plaintiffs could only bring their claims in tribal court and that the state district court lacked jurisdiction. The Honorable Nan Nash granted the motion, dismissing the case.

On appeal, the New Mexico Court of Appeals disagreed, holding that Judge Nash had jurisdiction over the action based on the plain terms of Section 8(A) of the Compact. Mendoza v. Tamaya Enterprises, Inc., 148 N.M. 534, 238 P.3d 903 (Ct.App.2010). While acknowledging that Section 191 of the Pueblo Liquor Ordinance provided that all actions pertaining to its violation shall be brought in tribal court, the court of appeals characterized the underlying state court litigation as being a case for “damages based on wrongful death through negligence,” as opposed to a claim under the Ordinance for breach of a duty not to sell alcohol to intoxicated individuals. Id. at 542, 238 P.3d 903. The court of appeals found that...