Opinion
CASE NO: CV00-374-N-EJL
March 5, 2001
ORDER
Defendant Catherine Matheson, pro se and allegedly acting on behalf of Defendants Paul Matheson, Catherine Matheson, Reservation Gaming Supply, Inc. and Indian Country Enterprises, Inc.(collectively referred to as "Defendants"), moves to dismiss the Complaint for lack of subject matter jurisdiction, personal jurisdiction, and failure to effectuate proper service of process (Docket No. 2). In the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, this matter shall be decided on the record before this Court without oral argument.
Status of Litigants
The Court's review of the motion to dismiss is undertaken with an eye on Ninth Circuit standards regarding pro se litigants. Tucker v. Carlson, 925 F.2d 330 (9th Cir. 1991). However, the Court reminds the Defendants that pro se litigants are held to same procedural rules as counseled litigants. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
Subject to the rules of the Court, individual litigants have a statutory right to self-representation in civil matters. 28 U.S.C. § 1654. However, one pro se litigant may not represent another individual defendant without being a licensed attorney authorized to practice before this Court. Every pleading, written motion and other paper shall be signed by the party (if the party is not represented counsel). Fed.R.Civ.P. 11(a). The motion to dismiss is signed by Ms. Matheson, but it is not signed by Mr. Matheson. The signature line indicates that Ms. Matheson signed for Mr. Matheson. It does not appear from the record that Ms. Matheson is an attorney licensed to practice before this Court. Therefore, the motion to dismiss as to Mr. Matheson is not properly before the Court should be denied without prejudice. Additionally, Fed.R.Civ.P. 11(a) requires each paper filed to state the signer's address and telephone number, if any. The pleading filed by Ms. Matheson did not have an address or telephone number.
Corporate litigants do not have a statutory right to self-representation. The Local Rules of the Court determine whether entities may proceed pro se. The Local Rules of this Court require corporations to be represented by licensed counsel admitted to practice in federal court in the District of Idaho. Therefore, neither Ms. Matheson or Mr. Matheson may represent the corporate entities. As to the corporate defendants, the motion is not properly before the Court and should be denied without prejudice.
D. Id. L. Civ. R.83.4(d) provides:
Whenever an entity other than an individual desires or is required to make an appearance in this court, the appearance shall be made only by an attorney of the bar of this court or an attorney permitted to practice under these rules.
Factual Background
Plaintiff Costco Wholesale Corporation ("Costco") is incorporated in Washington and Washington is its principal place of business. Costco has a store in Clarkston, Washington. Defendants Catherine and Paul Matheson reside in Worley, Idaho within the exterior boundaries of the Coeur d'Alene Indian Reservation. Paul Matheson appears to be a member of the Coeur d'Alene Tribe, as a tribal enrollment number of 502 is listed below the line for his signature on the motion to dismiss. The motion to dismiss also indicates Mr. And Mrs. Matheson are a resident American Indian married couple. The Complaint avers that Defendants Reservation Gaming Supply, Inc. and Indian Country Enterprises, Inc. are incorporated in the state of Idaho, with their principal place of business being in Idaho; that Paul and Catherine Matheson are both officers and directors in both corporations; and that Defendant corporations do business as "Smoke Shop and Gaming Supply."
On various occasions, Paul and Catherine Matheson, and other add-on members, allegedly made purchases from Costco for Smoke Shop and Gaming Supply using checks from the Defendant corporations for payment. These checks were not immediately negotiated by Costco pending substitute payment by cash, money order or cashier's check at the time of the next delivery. On November 28, 1998, Catherine Matheson signed an Indian Country Enterprise check for S590,933.30 for a number of purchases made by Defendants during the previous week. On December 4, 1998, Catherine Matheson signed an Indian Country Enterprise check for $346,000.00. The Defendant corporations allegedly defaulted in their payments, and are indebted to Plaintiff in the amount of $569,813.32. Catherine Matheson, on behalf of Indian Country, then executed a promissory note to Costco on August 25, 1999, for $577,866.37, which Costco is seeking to collect in this action.
Standard of Review for Motion to Dismiss
A motion to dismiss should not be granted "unless it appears beyond doubt that Plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Clegg v. Cult Awareness Network, 18 F.3d 752, 754 (9th Cir. 1994). All allegations of material fact in the complaint are taken as true and construed in the light most favorable to the non-moving party. See, Buckey v. County of Los Angeles, 968 F.2d 791, 794 (9th Cir.), cert. denied, 506 U.S. 909 (1992). The Ninth Circuit has held that "in dismissals for failure to state a claim, a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Cook, Perkiss and Liehe. Inc. v. Northern California Collection Service, Inc., 911 F.2d 242, 247 (9th Cir. 1990). While amendments are liberally permitted under Rule 15(a), the district court may deny leave to amend when there has been an undue delay in bringing the motion, and the opposing party would be unfairly prejudiced by the amendments. See, United States v. Pend Oreille Public Utility Dist. No. 1, 28 F.3d 1544, 1552-53 (9th Cir. 1994), cert. denied, 115 S.Ct. 1356 (1995).
Generally, the Court may not consider any material beyond the pleadings in ruling on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See, Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir.), cert. denied, 114 S.Ct. 2704 (1994). If materials outside the pleadings are considered, the motion is converted to a motion for summary judgment governed by Rule 56. See, Jacobsen v. AEG Capital Corp., 50 F.3d 1493, 1496 (9th Cir. 1995).
But as Branch, makes clear, there are times when documents other than the pleadings can be considered without converting a motion to dismiss into a motion for summary judgment. "[D]ocuments whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss." Branch, 14 F.3d at 453.
Subject Matter Jurisdiction
Ms. Matheson contends this Court lacks subject matter jurisdiction over the Defendants because only the tribal court can hear this matter. The Plaintiff responded that subject matter jurisdiction is appropriate because this Court has concurrent jurisdiction with the tribal court. The Court finds Ms. Matheson's argument is in error and that the facts of this case do not support a finding of concurrent jurisdiction. The Ninth Circuit has held that concurrent jurisdiction is appropriate in a civil dispute involving Indians and non-Indians involving events occurring on the reservation or reservation affairs. See A A Concrete, Inc. v. White Mountain Apache Tribe, 781 F.2d 1411, 1415-16 (9th Cir. 1986) (citingR.J.Williams Co. v. Fort Belknap Housing Authority, 719 F.2d 979, 985 (9th Cir. 1983) (holding that the disputed issue should be resolved in the tribal court because the locus of the disputed contract was on the reservation)). Here, because the transaction took place off the reservation, Defendants were acting as officers of their corporations, and not representatives of the tribe, and the products purchased were assumedly to be sold by their corporations and were not going to be directly used for the benefit of the tribe, the Court finds that concurrent jurisdiction with the tribal court is not appropriate, and subject matter jurisdiction is appropriate in this Court based on diversity pursuant to 28 U.S.C. § 1332.
Although not raised by Ms. Matheson, the Court finds venue is also proper in the federal court in Idaho pursuant to 28 U.S.C. § 1391 as all defendants reside within the judicial district of Idaho.
Personal Jurisdiction and Service of Process
Since the Court has subject matter jurisdiction over the claims, the next question is whether the Court has personal jurisdiction over the Defendants. Once the district court has assumed jurisdiction over the subject matter and process has been properly served, the defendant cannot throw up a shield around herself by claiming that the state process server cannot pierce the exterior boundaries of an Indian reservation and serve civil process therein. LeClair v. Powers, 632 P.2d 370, 1981 OK 11 (Okla. Feb 03, 1981) (No. 55,456).
Plaintiffs bear the burden of alleging facts that support personal jurisdiction in the complaint, thus to avoid a motion to dismiss Plaintiff must present evidence that supports a prima facie finding of jurisdiction, with all factual disputes being resolved in Plaintiffs' favor. See Data Disc. Inc. v. Systems Tech. Assoc., 557 F.2d 1280, 1285 (9th Cir. 1977); Ponderosa Paint Manufacturing, Inc. v. Yack, 870 P.2d 663, 671 (Idaho Ct.App. 1994) (citing Schneider v. Sverdsten Logging, Co., 657 P.2d 1078, 1082, n. 2 (Idaho 1983); (Donaldson, 729 P.2d at 432).
When sitting in diversity the district court can assert jurisdiction over a defendant to the extent that it is proper under the laws of the state in which the district court sits. See Snowbird Const. Co., Inc. v. U.S., 666 F. Supp. 1437, 1442 (D. Idaho 1987). State courts have personal jurisdiction over persons residing on reservations located within the state provided valid service is made. See Bradley v. Deloria, 587 N.W.2d 591, 1998 SD 129 (S.D. Dec 30, 1998) (No. 20372). Idaho's statutes provide an avenue for service of process that does not infringe upon the rights of Indians to maintain their tribal self-government and still provides the requisite level of due process for a litigant. Pursuant to Idaho Code § 5-514, personal jurisdiction is proper over Defendants if proper service of process has been effectuated.
Defendants reside and conduct business in the state of Idaho, as demonstrated by the checks and promissory note which both bear an Idaho address (Complaint, Exhibits B, C, and D) and the statement in the motion to dismiss that Defendants reside of the Coeur d' Alene Indian Reservation. The Court takes judicial notice of the fact that the Coeur d' Alene Indian Reservation is located entirely within the boundaries of the State of Idaho.
Proper service of process was effectuated in accordance with the Rule 4 of the Federal Rules of Civil Procedure, which requires that service be completed in accordance with state law in the state where the district court is located. The Idaho Rule of Civil Procedure 4 requires that service be effected upon an individual by delivering a copy of the summons and complaint to the individual personally or by leaving copies at the individual's dwelling with someone else who is at least eighteen years of age and also resides there. I.R.C.P. 4(d)(2). Here, the Summons and Complaint were served upon Defendant Catherine Matheson in person, and upon Paul Matheson when the Summons and Complaint were left with Catherine Matheson, who is over eighteen years of age, at their home on July 19, 2000. See, Docket No. 5.
Service was effected against Reservation Gaming Supply, Inc. and Indian Country Enterprises, Inc. in accordance with Idaho Rule of Civil Procedure 4(d)(4), which requires that "a copy of the summons and complaint [be delivered] to an officer, managing or general agent, or to any other agent authorized by appointment or by statute of this state to receive service of process." Here, Catherine Matheson, was personally served for her husband who is the registered agent of the corporations and Ms. Matheson is a officer and representative of the corporations See Docket Nos. 6 and 7.
As concurrent jurisdiction is not appropriate in this case, the Court finds Defendants' reliance on a tribal statute requiring service of process by a tribal officer is misplaced. See, Felix S. Cohen, Handbook on Federal Indian Law at 361 (1982) ("If a state court has subject matter jurisdiction over a claim against an Indian, service in Indian country by either tribal police or a private server should be valid."). Regardless, Plaintiff did effectuate service to Defendants in accordance with the tribal statute. See. Docket Nos. 13-15.
Conclusion
For the reasons stated above, the Court finds it has subject matter jurisdiction over the nontribal claims based on the diversity of the parties, venue is proper in federal court in the District of Idaho, service of process was valid and based upon the valid service of process and Idaho's lang arm statute, the Court has personal jurisdiction over the Defendants. Accordingly, the motion to dismiss is denied.
ORDER
It is thus ORDERED that Defendants' Motion to Dismiss (Docket No. 2) is DENIED, as to Defendant Catherine Matheson and is DENIED WITHOUT PREJUDICE as to Defendant Paul Matheson, Defendant Reservation Gaming Supply, Inc. and Defendant Indian Country Enterprises, Inc.