matters relating to Indian gaming enterprises and Indian
sovereign immunity, and cannot now rely upon naivete to expand
the reading of the Management Agreement to encompass authority to
waive sovereign immunity.
World Touch argues alternatively that the Management Company
had apparent authority to bind the Casino and the Tribe to all
the terms of the contract, including the waiver of sovereign
immunity (or a question of fact exists regarding such authority).
World Touch cites authority from the law of agency in support of
this argument. However, regardless of any apparent or implicit,
or even express, authority of the Management Company to bind the
Casino and the Tribe to contract terms and other commercial
undertakings, such authority is insufficient to waive the Tribe's
sovereign immunity. See Merrion v. Jicarilla Apache Tribe,
455 U.S. 130, 148, 102 S.Ct. 894, 71 L.Ed.2d 21 (1982) (sovereign
power "remain[s] intact unless surrendered in unmistakable
terms"); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58-59, 98
S.Ct. 1670, 56 L.Ed.2d 106 (1978) ("a waiver of sovereign
immunity cannot be implied but must be unequivocally
expressed") (internal quotation omitted). Similarly, any argument
that subsequent acts, or acquiescence in carrying out the
contract entered into with apparent authority, estop the Tribe
from claiming sovereign immunity must fail. See Merrion,
455 U.S. at 148, 102 S.Ct. 894; Santa Clara Pueblo, 436 U.S.
at 58-59, 98 S.Ct. 1670.
In sum, the Tribe and the Casino enjoy sovereign immunity. The
Tribe has not waived its sovereign immunity. Accordingly, the
action must be dismissed as against the Tribe and the Casino.
C. Indispensable Parties under Fed. R.Civ.P. 19
Defendants argue that the Tribe and the Casino are
indispensable parties under Fed.R.Civ.P. 19(b). Therefore, they
argue, the suit should also be dismissed as against the
Management Company. Plaintiff makes no argument in opposition.
Rule 19(b) provides that in the absence of an indispensable
party the court must determine "whether in equity and good
conscience the action should proceed among the parties before
it." Fed. R.Civ.P. 19(b). The court should consider "to what
extent a judgment rendered in the person's absence might be
prejudicial to the person or those already parties; second, the
extent to which, by protective
provision in the judgment, by the shaping of relief, or other
measures, the prejudice can be lessened or avoided; third,
whether a judgment rendered in the person's absence will be
adequate; [and] fourth, whether the plaintiff will have an
adequate remedy if the action is dismissed" under this rule.
The basis for this action is the Lease and Sales Agreements
between World Touch and the Casino. The Management Company was
not a party to the agreements, as Walter Horn signed merely as
the agent of the Casino. Moreover, it was the Casino, not the
Management Company, that allegedly breached the agreements and
defaulted on the required payments and purchases. Accordingly,
based upon a review of the record in this matter, a consideration
of the requirements set forth in Fed.R.Civ.P. 19(b), and
plaintiff's failure to oppose dismissal under Rule 19(b), it is
determined that the Tribe and the Casino are indispensable
parties and in equity and good conscience the action should not
proceed with the Management Company as the sole remaining
defendant. Thus, the action is dismissed as against the
The Tribe and the Casino are entitled to sovereign immunity,
which they have not waived. The action must be dismissed as
against these defendants pursuant to Fed. R.Civ.P. 12(b)(1). As
the Tribe and the Casino are indispensable parties, the action
must be dismissed as against the remaining defendant, the
Management Company, pursuant to Fed.R.Civ.P. 19(b). All other
motions, arguments, contentions, or defenses asserted by the
parties are moot in light of the dismissal pursuant to Fed.
R.Civ.P. 12(b)(1). See Rhulen Agency, Inc., 896 F.2d at 678.
Accordingly, it is
ORDERED that defendants' motion to dismiss pursuant to
Fed.R.Civ.P. 12(b)(1) and 19(b) is GRANTED and the complaint is
DISMISSED in its entirety.
The Clerk of the Court is directed to enter judgment
IT IS SO ORDERED.