Warren v. United States ., 06-CV-226S

CourtUnited States District Courts. 2nd Circuit. United States District Court of Western District of New York
Writing for the CourtWILLIAM M. SKRETNY
PartiesDANIEL T. WARREN, Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants.
Docket Number06-CV-226S
Decision Date12 March 2012

DANIEL T. WARREN, Plaintiff,
UNITED STATES OF AMERICA, et al., Defendants.



DATED: March 12, 2012



Plaintiff Daniel Warren commenced this action by filing a Complaint, on April 6, 2006, against the United States of America, United States Department of the Interior, National Indian Gaming Commission ("NIGC"), and various individual federal officials (together, the "Federal Defendants"), and George E. Pataki as Governor of the State of New York, and Cheryl Ritchko-Buley as Chair of the New York State Racing and Wagering Board (together, the "State Defendants"). Plaintiff filed an Amended Complaint on August 16, 2006, in which he claims that: (1) the Indian Gaming Regulatory Act ("IGRA") is unconstitutional, (2) the Gaming Compact between the State of New York and the Seneca Nation of Indians is invalid, (3) Part B of Chapter 383 of the Laws of 2001 is unconstitutional, and (4) the federal defendants have violated the United States' trust obligation toward Indian nations and tribes. (Docket No. 17.)

The State Defendants moved to dismiss the Amended Complaint on August 20, 2006 (Docket No. 20), and the Federal Defendants followed suit on August 25, 2006

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(Docket No. 23). Thereafter, on October 2, 2006, Plaintiff moved for leave to file a second amended complaint. (Docket No. 28). That motion was rendered moot by Plaintiff's subsequent motion for leave to amend the amended complaint, filed on October 5, 2007. (Docket No. 43.) That motion, in turn, was rendered moot by Plaintiff's further motion to amend and supplement the complaint, filed on March 16, 2009. (Docket No. 72.)

Thus, the three motions currently pending are: (1) the State Defendants' motion to dismiss the Amended Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure (Docket No. 20); (2) the Federal Defendants' motion to dismiss the Amended Complaint pursuant to Rule 12(b)(1) (Docket No. 23); and (3) Plaintiff's motion to amend and supplement the amended complaint to add new defendants and a new claim pursuant to Rules 15(a)(2) and (d) (Docket No. 72). For the reasons stated below, Plaintiff's motion is denied, the Defendants' motions are granted, and this case is dismissed.


Plaintiff's Amended Complaint challenges certain decisions and actions by federal and New York State officials that permit the Seneca Nation of Indians ("SNI") to operate Class III gambling casinos in the cities of Niagara Falls and Buffalo, New York.

Plaintiff identifies himself as a resident of the Town of West Seneca, and a Town, Erie County, and New York State taxpayer. (Docket No. 72-2 "Am. Compl." ¶¶ 5-6.) He works within 1.5 miles of the Buffalo casino site and points to a number of detrimental effects he believes a casino will have on him and his environment, including: blight, an increased risk of crime emanating from a casino, lack of parking and an increase in traffic,

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and other unspecified environmental, esthetic, health, and social consequences. (Id. ¶ 7.)

Based on his concerns, Plaintiff asserts four causes of action, two against the Federal Defendants and two against the State Defendants. First, Plaintiff claims that Congress, in enacting IGRA, exceeded its authority and violated the Tenth Amendment because IGRA compels state officers and the state legislature to enter into tribal-state gaming compacts that are prohibited by state law. (Id. ¶¶ 55-57.) In the Fourth cause of action, Plaintiff claims that the United States, by failing to adhere to existing regulations and to promulgate and implement new regulations under IGRA, violated its trust obligation toward Indian nations and tribes. (Id. ¶¶ 84-107.) As to the State Defendants, Plaintiff claims in his Second cause of action that the Gaming Compact between the State of New York and the SNI is invalid because it provides for commercial gambling in a state that does not permit such gambling for any purpose by any person, organization, or entity. (Id. ¶¶ 58-60.) The Third claim alleges that a New York statute authorizing the governor to enter into a gaming compact with the SNI—Part B of Chapter 383 of the Laws of 2001—is void because it violates the New York Constitution and, therefore, state officials exceeded their authority by entering into that agreement. (Id. ¶¶ 61-83.)

The proposed second amended complaint includes the following revisions: (1) it expands the first cause of action to allege that the State Defendants violated the New York Constitution in entering into a Gaming Compact with the Seneca Nation, and adds as defendants Maurice A. John,1 as President of the Seneca Nation of Indians, E. Brian

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Hansberry,2 as President and Chief Executive officer of Seneca Gaming Corp., and the Seneca Gaming Corporation (together, the "Proposed SNI Defendants"), (2) asserts the second and third claims against the Proposed SNI Defendants, (3) adds a new fourth cause of action against the NIGC and its former Chairman, Philip N. Hogen, alleging that Hogen acted contrary to law in failing to made an appropriate Indian lands determination and in approving a gaming ordinance for the SNI in a state where commercialized gambling is unlawful, and (4) renumbers the Amended Complaint's fourth cause of action as the new fifth cause of action.

In moving to dismiss the Amended Complaint's Second and Third causes of action, the State Defendants urged that: (1) the court lacks jurisdiction over the claims pursuant to the Eleventh Amendment, (2) the claims are barred by res judicata, (3) the claims are time-barred, and (4) they do not state a cognizable claim for relief. The State Defendants now ask the Court to resolve their motion prior to considering the viability of Plaintiff's proposed amendments because matters of jurisdiction, res judicata, and timeliness cannot be cured by amending the pleadings, and a ruling on their motion may compel the conclusion that some or all of the proposed amendments are futile, at least as to them. (Docket No. 80.)

The Federal Defendants moved to dismiss the Amended Complaint's First and Fourth claims on the ground that Plaintiff lacks standing to bring either a Tenth Amendment or an IGRA claim. The Federal Defendants (Docket No. 81) and the Proposed SNI Defendants (Docket No. 85, in an amicus brief) also oppose the motion to amend on the

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basis of futility, arguing that the Seneca Nation and its governmental entitites and officials enjoy sovereign immunity from suit.

The Court will consider all arguments in the context of Plaintiff's existing and proposed claims for relief.


A. Standards of Review

1. Rule 12(b)(1) Motion to Dismiss

A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). The plaintiff bears the burden of establishing the existence of federal jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992).

Where, as here, the jurisdictional challenges are raised at the pleading stage, the court accepts as true all factual allegations in the complaint and draws all reasonable inferences in the plaintiff's favor. Sharkey v. Quarantillo, 541 F.3d 75, 83 (2d Cir. 2008). It is "presume[d] that general [fact] allegations embrace those specific facts that are necessary to support the claim." Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 889, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990) (alterations added). The court also may consider affidavits and other evidence outside the pleadings to resolve the jurisdictional issue, but it may not rely on conclusory or hearsay statements contained in affidavits. J.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir. 2004), cert. denied, 544 U.S. 968, 125 S. Ct. 1727, 161 L. Ed. 2d 616 (2005). Indeed, courts "must" consult factual submissions "if resolution

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of a proffered factual issue may result in the dismissal of the complaint for want of jurisdiction." Robinson v. Gov't of Malaysia, 269 F.3d 133, 140 n.6 (2d Cir. 2001).

"In assessing whether a plaintiff has sufficiently alleged or proffered evidence to support jurisdiction . . . , a district court must review the allegations in the complaint, the undisputed facts, if any, placed before it by the parties, and—if the plaintiff comes forward with sufficient evidence to carry its burden of production on this issue—resolve disputed issues of fact . . . ." Id. at 140.

2. Rule 12(b)(6) Motion to Dismiss

In reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must accept the factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006). "In order to survive a motion to dismiss under Rule 12(b)(6), a complaint must allege a plausible set of facts sufficient 'to raise a right to relief above the speculative level.'" Operating Local 649 Annuity Trust Fund v. Smith Barney Fund Mgmt. LLC, 595 F.3d 86, 91 (2d Cir. 2010) (quoting ...

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