Newman v. Tribal Casino Gaming EnterpriseRESPONSE in Opposition re Objection to Memorandum and RecommendationsW.D.N.C.October 2, 2017IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA ASHEVILLE DIVISION Case No. 1:17-cv-00077-MR-DLH BARBARA NEWMAN, Plaintiff, vs. TRIBAL CASINO GAMING ENTERPRISE, Defendant. DEFENDANT’S RESPONSE IN OPPOSITION TO PLAINTIFF’S RESPONSE TO COURT’S MEMORANDUM AND RECOMMENDATION Defendant Tribal Casino Gaming Enterprise (“Defendant”), through counsel and pursuant to 28 U.S.C. § 636(b)(1)(C), Rule 72(b)(2) of the Federal Rules of Civil Procedure, and Local Rules 7.1 and 72.1(C), hereby responds in opposition to the Plaintiff’s Response to Court’s Memorandum and Recommendation (the “Plaintiff’s Objection”). Doc. 24. The Court should accept and adopt in whole the findings and recommendations made by Magistrate Judge Howell in the Memorandum and Recommendation, Doc. 23, because they are correct as a matter of law and nothing in the Plaintiff’s Objection suggests or shows anything to the contrary. The Memorandum and Recommendation concludes that Defendant’s Motion to Dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure should be granted for the following reasons: Case 1:17-cv-00077-MR-DLH Document 25 Filed 10/02/17 Page 1 of 5 2 1. Indian tribes such as the Eastern Band of Cherokee Indians (the “EBCI”) are immune from suit based on the doctrine of tribal sovereign immunity and are only subject to suit if suit against them has been specifically authorized by Congress or the tribe has waived its immunity, see, e.g., Kiowa Tribe of Oklahoma v. Mfg. Techs., Inc., 523 U.S. 751, 754-755 (1998); 2. The doctrine of tribal sovereign immunity applies to both governmental and commercial activities and extends to arms and corporations of the tribe, such as the Defendant in this case, which is an arm of the EBCI, see, e.g., id.; Madewell v. Harrah’s Cherokee Smokey Mountains Casino, No. 2:10cv8, 2010 WL 2574079 *3 (W.D.N.C. May 3, 2010) (unreported) (holding that this Defendant is an arm of the EBCI and, thus, subject to tribal sovereign immunity); also Cook v. AVI Casino Enterprises, Inc., 548 F.3d 718, 726 (9th Cir. 2008) (“as a tribal corporation and arm of the Fort Mojave Tribe, ACE [AVI Casino Enterprises, Inc.] enjoys sovereign immunity from Cook’s suit”); 3. Congress has not specifically authorized federal age discrimination claims such as the claims brought by Plaintiff in this matter against Indian tribes and such claims are subject to tribal sovereign immunity, see, e.g., Williams v. Poarch Bank of Creek Indians, 839 F.3d 1312, 1324-1325 (11th Cir. 2016) (collecting cases and holding that “the weight of authority in federal courts supports upholding the right of the Poarch Band to tribal sovereign immunity from a claim based upon the Case 1:17-cv-00077-MR-DLH Document 25 Filed 10/02/17 Page 2 of 5 3 ADEA”); Tremblay v. Mohegan Sun Casino, 599 F. App’x 25, 25-26 (2nd Cir. 2015) (unpublished) (holding that tribal sovereign immunity barred the plaintiff’s Title VII and ADEA claims); and 4. Plaintiff has failed to carry her burden of showing that the EBCI or Defendant has waived tribal sovereign immunity with regard to federal age discrimination claims, see, e.g., Madewell, 2010 WL 2574079 *2 (citing Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982) for the principle that “[w]hen a court considers its subject-matter jurisdiction, the burden of proof is on the plaintiff”). Plaintiff’s Objection does not challenge the correctness of this reasoning or cite to any contrary authority holding that Defendant is not entitled to tribal sovereign immunity with regard to her claims. Nor does Plaintiff’s Objection point to any allegation or evidence that Defendant has waived its tribal sovereign immunity with regard to her claims. See, e.g., Sanderlin v. Seminole Tribe of Fla., 243 F.3d 1282, 1286 (11th Cir. 2001) (a waiver of tribal sovereign immunity “cannot be implied on the basis of a tribe’s actions, but must be unequivocally expressed”). There is no evidence whatsoever that Defendant has unequivocally expressed an intent to waive its right to sovereign immunity from the Plaintiff’s claims in this case. Consequently, the Plaintiff’s Objection should be overruled and denied, and the Court should accept and adopt in whole the findings and recommendations of Case 1:17-cv-00077-MR-DLH Document 25 Filed 10/02/17 Page 3 of 5 4 the Memorandum and Recommendation, Doc. 23, which correctly conclude that the Plaintiff’s Amended Complaint and claims against Defendant are barred by the doctrine of tribal sovereign immunity. WHEREFORE, Defendant respectfully requests that the Court adopt the Memorandum and Recommendation, Doc. 23, in full, grant Defendant’s Motion to Dismiss, Doc. 15, and enter a judgment order dismissing the Plaintiff’s Amended Complaint and claims against Defendant with prejudice as barred by the doctrine of tribal sovereign immunity. This the 2nd day of October, 2017. COZEN O’CONNOR By: /s/Patrick M. Aul Patrick M. Aul, NC Bar # 39506 301 S. College Street, Suite 2100 Charlotte, North Carolina 28202 Telephone: 704.376.3400 Facsimile: 704.334.3351 Email: paul@cozen.com Counsel for Defendant Tribal Casino Gaming Enterprise Case 1:17-cv-00077-MR-DLH Document 25 Filed 10/02/17 Page 4 of 5 5 CERTIFICATE OF SERVICE The undersigned attorney hereby certifies that he electronically filed the foregoing document with the Clerk of Court using the CM/ECF system which served the foregoing document upon the party shown below by transmittal of a Notice of Electronic Filing, and he served the foregoing document upon the party shown below by U.S. Mail, postage prepaid, addressed as follows: Barbara Newman P.O. Box 2307 Blue Ridge, G.A. 30513 hnba351@yahoo.com Pro Se Plaintiff This the 2nd day of October, 2017. /s/Patrick M. Aul Patrick M. Aul LEGAL\32650071\1 Case 1:17-cv-00077-MR-DLH Document 25 Filed 10/02/17 Page 5 of 5