United States District Court, W.D. Washington, Tacoma
ORDER DENYING DEFENDANT'S MOTION TO DISMISS,
DENYING PLAINTIFF'S MOTION TO COMPEL, AND GRANTING
PLAINTIFF'S LEAVE TO CONDUCT LIMITED DISCOVERY.
BENJAMIN H. SETTLE, United States District Judge.
matter comes before the Court on Defendant the Confederated
Tribes of the Chehalis Reservation's
(“Tribe”) motion to dismiss (Dkt. 67), Plaintiff
the Estate of Jolene Lovelett's (“Lovelett”)
motion to compel (Dkt. 68), the Court's request for
additional briefing (Dtk. 78), and the following supplemental
briefs: 1) Lovelett's opening brief (Dkt. 79); 2) the
Tribe's opening brief (Dkt. 80); 3) the Tribe's
response (Dkt. 81); and 4) Lovelett's response (Dkt. 83).
The Court has considered the pleadings filed in support of
and in opposition to the motions and the remainder of the
file and hereby rules as follows:
filed a complaint on November 1, 2016, against numerous
defendants asserting numerous causes of action. Dkt. 1.
Decedent Lovelett was a member of the Tribe and was born with
physical and developmental disabilities requiring substantial
medical care and supervision. Id. From approximately
2003 to Lovelett's death on November 4, 2013, the named
defendants, including the Tribe, provided medical care and
assumed guardianship over Lovelett. Id.
Lovelett's complaint alleges numerous claims based on
negligent medical care and treatment. Id.
October 13, 2017, the Tribe filed the motion to dismiss
arguing that sovereign immunity bars Lovelett's claims.
Dkt. 67. On November 2, 2017, Lovelett filed a motion to
compel overdue discovery responses. Dkt. 68. On November 13,
2017, the parties responded to the respective motions. Dkts.
71, 72. Lovelett argued that the Tribe may have waived
sovereign immunity in certain contracts relevant to the
instant matter, but the Tribe has refused to produce the
contracts. Dkt. 71. The Tribe objected to responding to
discovery until after the Court issued a ruling on the
immunity issue. Dkt. 72. On November 17, 2017, the parties
replied. Dkts. 74, 75. The Tribe remained steadfast in its
position that immunity must be decided at this early stage of
litigation. Dkt. 74.
December 20, 2017, the Court renoted the motions and
requested supplemental briefs on the issue of limited
jurisdictional discovery. Dkt. 78. On January 5, 2018, the
parties filed their opening briefs (Dkts. 79, 80) and
responded to the respective briefs on January 12, 2018.
(Dkts. 81, 83).
Tribe argues that the Court should dismiss Lovelett's
claims against it without granting leave to conduct
jurisdictional discovery because “once tribal sovereign
immunity is raised as a defense, ‘it must be addressed
and decided, ' and it is error to deny immunity
to a protected tribe.” Dkt. 80 at 5-6 (citing
Pistor v. Garcia, 791 F.3d 1104, 1115 (9th Cir.
the common-law doctrine of tribal sovereign immunity, Indian
tribes are protected from suits for monetary damages and from
declaratory or injunctive relief. Quinault Indian Nation
v. Pearson for Estate of Comenout, 868 F.3d 1093, 1096
(9th Cir. 2017) (citations omitted). This immunity derives
from a tribe's status as “domestic dependent
nations that exercise inherent sovereign authority.”
Id. However, tribal immunity can be relinquished by
a tribe through a clear and unequivocal waiver. Oklahoma
Tax Comm'n v. Citizen Band Potawatomi Tribe of
Okla., 498 U.S. 505, 509 (1991). For instance, a tribe
may waive its immunity by contract. See, e.g., American
Vantage Companies, Inc. v. Table Mountain Rancheria, 292
F.3d 1091 (9th Cir. 2002); C & L Enterprises, Inc. v.
Citizen Band Potawatomi Indian Tribe of Oklahoma, 532
U.S. 411 (2001) (arbitration provisions within a construction
contract constituted a clear waiver of a tribe's
Tribe insists that Lovelett's claims must be dismissed
because it is an error for the Court to deny or defer ruling
on immunity to allow limited jurisdictional discovery. Dkt.
80 at 5-6. In making its argument, the Tribe primarily relies
on Pistor, which holds that “Tribal sovereign
immunity is a quasi-jurisdictional issue that, if
invoked at the Rule 12(b)(1) stage, must be addressed and
decided.” Pistor, 791 F.3d at 1115. In
Pistor, the district court denied the tribe
defendant's Rule 12(b)(1) motion to dismiss concluding
that even if the tribe was protected under sovereign
immunity, the court still had the power to hear the claim.
Id. at 1110. The Ninth Circuit reversed, holding
that if a tribe defendant is entitled to sovereign immunity
and has properly invoked it, the court must dismiss the
claims for lack of subject matter jurisdiction:
To the contrary, as the tribal defendants invoked sovereign
immunity in an appropriate manner and at an appropriate
stage, i.e. in a Rule 12(b)(1) motion to dismiss, if they
were entitled to tribal immunity from suit, the
district court would lack jurisdiction over the claims
against them and would be required to dismiss them from the
Id. at 1111. The Ninth Circuit italicized the word
“were” conveying the proposition that granting a
dismissal under Rule 12(b)(1) is necessary and proper when a
tribe firmly establishes that it is entitled to sovereign
to the district court in Pistor, the Court is not
denying immunity or considering Lovelett's claims despite
the Tribe's entitlement to immunity. Rather, Lovelett has
advanced a plausible theory that the Tribe waived its
sovereign immunity. Dkt. 78. Lovelett specifically points to
the Tribe's contractual and business relationships with
private party medical care providers in which the Tribe may
have waived its immunity. Dkt. 71. Accordingly, in order to
address all plausible aspects of the jurisdictional question,
Lovelett should have an opportunity to obtain and review the
contracts in question.
are afforded broad discretion in allowing discovery when
“pertinent facts bearing on the question of
jurisdiction are in dispute . . . .”America West
Airlines, Inc. v. GPA Group, Ltd., 877 F.2d 793, 801
(9th Cir. 1989) (citations omitted). “[I]t is clear
that a court may allow discovery to aid in determining
whether it has in personam or subject matter
jurisdiction.” Laub v. United States Dept. of the
Interior, 342 F.3d 1080, 1093 (9th Cir. 2003); See
also United States ex rel. Cain v. Salish Kootenai College,
Inc.862 F.3d 939 (9th Cir. 2017) (the district court
shall allow ‘appropriate discovery' if
jurisdictional questions exist). However, the court may deny
jurisdictional discovery if “it is clear that further
discovery would not demonstrate facts sufficient to
constitute a basis for jurisdiction, ” Wells Fargo
& Co. v. Wells Fargo Express Co., 556 F.2d 406, 430 n.24
(9th Cir. 1977), or when the discovery request is
“based on little more than a hunch that it might yield
jurisdictionally relevant facts.” Boschetto v.
Hansing, 539 F.3d 1011, ...