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Wilmington Savings Fund Society v. Fryberg

United States District Court, W.D. Washington

December 12, 2017

WILMINGTON SAVINGS FUND SOCIETY, Plaintiff,
v.
COREY FRYBERG, et al., Defendants.

          ORDER GRANTING TULALIP TRIBES' MOTION TO DISMISS

          Robert S. Lasnik United States District Judge

         This matter comes before the Court on “Defendant Tulalip Tribes' Motion to Dismiss for Lack of Subject Matter Jurisdiction.” Dkt. # 15. Having reviewed the memoranda submitted by the parties and the remainder of the record, the Court finds as follows:

         BACKGROUND

         Plaintiff Wilmington Savings Fund Society brings this foreclosure action against defendant Corey Fryberg. Corey Fryberg is a member of the Tulalip Tribes, a federally recognized Indian tribe, and the property at issue is trust land within the Tulalip Indian Reservation. Dkt. # 8 ¶¶ 2.1, 3.2. The Tulalip Tribes is also a named defendant for having a possible interest in the property.

         Plaintiffs initial complaint was filed on August 8, 2017. Dkt. # 1. On August 17, 2017, the Court sua sponte issued an Order to Show Cause for plaintiffs failure to provide the citizenship of the parties to establish diversity jurisdiction. Dkt. # 6. On August 25, 2017, plaintiff filed an amended complaint (Dkt. # 8), and on September 28, 2017, the Court vacated the Order to Show Cause. Dkt. # 14. Now, defendant Tulalip Tribes moves to dismiss the case pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction.

         DISCUSSION

         “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). “Unless the jurisdictional issue is inextricable from the merits of a case, the court may determine jurisdiction on a motion to dismiss for lack of jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure. . . . Once challenged, the party asserting subject matter jurisdiction has the burden of proving its existence.” Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009) (internal citations and quotations omitted). Here, the Tulalip Tribes argues that dismissal is appropriate because diversity jurisdiction is lacking, the Tulalip Tribes is immune from suit, and plaintiff failed to exhaust tribal remedies. The Court addresses each of these arguments below.

         A. Diversity Jurisdiction

         Plaintiff asserts that this Court has jurisdiction pursuant to 28 U.S.C. § 1332. The diversity statute applies when the amount in controversy exceeds $75, 000 and when the action is between “citizens of different States” or “citizens of a State and citizens or subjects of a foreign state[.]” 28 U.S.C. § 1332(a)(1), (2). As a threshold matter, the Tulalip Tribes is not a foreign state. See Stock West Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1226 (9th Cir. 1989) (citing Cherokee Nation v. Georgia, 30 U.S. 1 (1831)). Therefore, diversity jurisdiction only exists if the Tulalip Tribes is a “citizen” of Washington state within the meaning of § 1332.[1]

         The Ninth Circuit recognizes that “unincorporated Indian tribes cannot sue or be sued in diversity because they are not citizens of any state.” Am. Vantage Cos. v. Table Mountain Rancheria, 292 F.3d 1091, 1095 (9th Cir. 2002); see also Cohen's Handbook of Federal Indian Law § 7.04 (2012 ed.). Because the Tulalip Tribes is not a citizen of Washington or any other state, complete diversity is lacking, and this Court has no subject matter jurisdiction.[2] To hold otherwise would not accord with the Tulalip Tribes' status as a “domestic dependent nation” exercising inherent sovereign authority over members and territories. See Okla. Tax Comm'n v. Citizen Band of Potawatomi Indian Tribe, 498 U.S. 505, 509 (1991).

         B. Sovereign Immunity

         The Tulalip Tribes also argues that plaintiff's lawsuit is barred by tribal sovereign immunity. The Tulalip Tribes possesses “inherent powers of a limited sovereignty which has never been extinguished.” United States v. Wheeler, 435 U.S. 313, 322 (1978) (internal citations and quotations omitted) (superseded by statute as recognized in United States v. Lara, 541 U.S. 193 (2004)). “The common law sovereign immunity possessed by the Tribe is a necessary corollary to Indian sovereignty and self-governance.” Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Eng'g, 476 U.S. 877, 890 (1986). “As 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 (1998). “[A] waiver of sovereign immunity cannot be implied but must be unequivocally expressed.” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978) (internal citations and quotations omitted). “In the context of a Rule 12(b)(1) motion to dismiss on the basis of tribal sovereign immunity, the party asserting subject matter jurisdiction has the burden of proving its existence, i.e. that immunity does not bar the suit.” Pistor v. Garcia, 791 F.3d 1104, 1111 (9th Cir. 2015) (internal citations and quotations omitted).

         Plaintiff concedes that the Tulalip Tribes has not waived immunity. Dkt. # 21 at 2. Further, plaintiff does not point to any source indicating that Congress has authorized this lawsuit against the Tulalip Tribes. Therefore, the Court lacks jurisdiction because the Tulalip Tribes is entitled to sovereign immunity.

         C. ...


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