UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
March 29, 2009
MARCUS W. SMITH, PLAINTIFF,
ONEIDA EMPLOYMENT SERVICES; ONEIDA NATION ENTERPRISES, LLC; RAY HALBRITTER, AS CEO OF ONEIDA EMPLOYMENT SERVICES AND AS MEMBER/MANAGING MEMBER OF ONEIDA NATION ENTERPRISES, LLC; ROBERT C. LARSON, AS AN AIDER AND ABETTOR; AND MARK MANCINI, AS AN AIDER AND ABETTOR, DEFENDANTS.
The opinion of the court was delivered by: Scullin, Senior Judge
Currently before the Court is Defendants' motion to dismiss Plaintiff's complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure and for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Plaintiff began his employment with the Oneida Indian Nation of New York (the "Nation") or its subsidiaries on or about May 1, 1990. See Complaint at ¶ 21. Plaintiff continued to work "for the new companies and or LLC until his termination in December of 2006." See id. at ¶ 22.
On or about August 10, 2007, Plaintiff filed a charge of racial and ethnic discrimination and retaliation against the Nation with the Equal Employment Opportunity Commission ("EEOC") and the New York State Division of Human Rights. See Complaint at ¶ 5. On August 31, 2007, the EEOC declined to investigate this claim because the employer of record was an Indian Tribe. See id. at ¶ 6. The EEOC's right-to-sue letter advised Plaintiff that he needed to file a suit within ninety days of August 31, 2007, or lose his right to sue. See id.
Rather than file suit, Plaintiff filed another charge of racial and ethnic discrimination and retaliation with the EEOC and the New York State Division of Human Rights on September 9, 2007; this time he brought the charge against Oneida Nation Enterprises, LLC. See id. at ¶ 7. On November 14, 2007, the EEOC declined to investigate further, and Plaintiff received a right-tosue letter advising him that he needed to file a suit within ninety days of the receipt of that letter or lose his right to sue. See id. at ¶ 8.
Plaintiff commenced this action on February 8, 2008. See Dkt. No. 1. In his complaint, he asserted the following six causes of action: (1) a Title VII claim against Defendants Oneida Employment Services ("OES"), Oneida Nation Enterprises, LLC, and Ray Halbritter for discrimination based on his race and ethnicity; (2) a New York Human Rights Law claim against Defendants for discrimination based on his race and ethnicity; (3) a New York Human Rights Law claim against Defendants Larsen and Mancini, as aiders and abettors, for discrimination based on his race and ethnicity; (4) a Title VII claim against Defendants OES, Oneida Nation Enterprises, LLC, and Ray Halbritter for retaliation; (5) a New York Human Rights Law claim against Defendants OES, Oneida Nation Enterprises, LLC, and Ray Halbritter for retaliation; and (6) a New York Human Rights Law claim against Defendants Larsen and Mancini, as aiders and abettors, for retaliation. See, generally, Complaint.
On March 2, 2008, Defendants filed the motion to dismiss which is currently before the Court. See Dkt. No. 10. Plaintiff filed his response in opposition to that motion on March 23, 2008. See Dkt. No. 11. Defendants filed their reply in further support of their motion on March 29, 2008. See Dkt. No. 12. The following is the Court's written disposition of the pending motion.
A court must consider a motion for lack of subject matter jurisdiction before it considers any other motion and must dismiss an action when it concludes that such jurisdiction is lacking. See World Touch Gaming, Inc. v. Massena Mgmt., LLC, 117 F. Supp. 2d 271, 274 (N.D.N.Y. 2000) (noting that "a finding of lack of jurisdiction . . . render[s] other objections and defenses moot") (citations omitted). The burden is on the party asserting subject matter jurisdiction to prove that jurisdiction exists. See id. (citations omitted).
Furthermore, "'"[p]arties cannot confer subject matter jurisdiction where the Constitution and Congress have not. The absence of such jurisdiction is not waivable[.]"'" Frazier v. Turning Stone Casino, 254 F. Supp. 2d 295, 302 (N.D.N.Y. 2003) (quotation omitted). For purposes of federal-question jurisdiction, "'a "suit arises under the law that creates the cause of action."'" Id. (quotation omitted).
Finally, when opposing a motion to dismiss for lack of subject matter jurisdiction, "the party cannot 'rest on [the] mere assertion that factual issues exist.'" World Touch Gaming, Inc., 117 F. Supp. 2d at 274 (quotation omitted). Furthermore, "[t]he proof of jurisdictional facts must be competent . . . and guidance regarding the proof can be taken from Fed. R. Civ. P. 56 . . . ."
Id. (internal citations omitted).
In this case, Defendants base their motion to dismiss on their tribal sovereign immunity. See Defendants' Memorandum of Law at 5 (citation omitted). It is well-established that "'Indian tribes possess sovereign immunity from suit in state and Federal courts[.]'" Zeth v. Johnson, 309 A.D.2d 1247, 1247 (4th Dep't 2003) (quotation and other citation omitted). Moreover, "'[t]he doctrine of tribal immunity "extends to individual tribal officials acting in their representative capacity and within the scope of their authority[,]"'" id. (quotation omitted), and to tribal agencies, see Hagen v. Sisseton-Wahpeton Cmty. Coll., 205 F.3d 1040, 1043 (8th Cir. 2000) (citation omitted); Frazier, 254 F. Supp. 2d at 305 (noting that "the doctrine of tribal sovereign immunity bars suits for damages against a tribe . . . including suits arising from its off-reservation commercial activities . . . and the activities of a tribal entity such as the [Turning Stone] Casino" (citations omitted)).
Plaintiff has attempted to circumvent the well-established doctrine of tribal sovereign immunity by claiming that either Defendant OES or Defendant Oneida Nation Enterprises, LLC -- rather than the Nation -- was his employer and that, because neither of those entities is an Indian tribe, tribal sovereign immunity does not bar his claims against them. Plaintiff's arguments find no support either in law or in fact. First, Defendants have come forward with documentary evidence -- taken directly from Plaintiff's employment file -- that Plaintiff's employer was, in fact, the Nation.*fn1 Plaintiff has come forward with no proof -- let alone any competent proof -- to rebut Defendants' evidence with regard to this issue. Therefore, the Court concludes that, based on the uncontroverted record evidence, the Nation, who is not a Defendant in this action, was Plaintiff's employer.*fn2
Furthermore, Plaintiff's claim that Defendant Oneida Nation Enterprises, LLC was his employer is frivolous because, as Defendants' uncontroverted evidence establishes, that entity was not created until June 2007, six months after Plaintiff's employment was terminated. See Declaration of Peter D. Carmen dated March 2, 2008, at ¶ 4 & Exhibit "C." Finally, Plaintiff has not come forward with any proof to rebut Defendants' evidence that Defendant OES was never Plaintiff's employer and, in fact, was nothing more than a payroll processing company that administered payroll and benefits as an agent for the Nation. See Mancini Decl. at ¶ 8; Carmen Decl. at ¶ 5.*fn3
Alternatively, even if Plaintiff had come forward with some proof to demonstrate that either Defendant OES or Defendant Oneida Nation Enterprises, LLC was his employer, this Court would still lack subject matter jurisdiction over his claims because Defendants have demonstrated -- and Plaintiff has not come forward with any competent proof to the contrary -- that these entities are agents and instrumentalities of the Nation and, therefore, are cloaked with the Nation's tribal sovereign immunity.
Furthermore, with respect to his claims against Defendant Halbritter, Plaintiff asserts that, at the very least, there is a factual dispute regarding whether Defendant Halbritter is the legally recognized Representative of the Nation. See Plaintiff's Response at (unnumbered page) 4 at ¶ I.12. Plaintiff's argument in this regard is not only specious, it comes very close to being sanctionable. As Defendants correctly point out, the Department of the Interior has determined that "the United States unconditionally recognizes [Ray Halbritter] as the current Nation representative" and the Second Circuit has adopted this determination. See Reply Declaration of Peter D Carmen dated March 29, 2008, at ¶ 3 & Exhibits "B" and "C"; Shanandoah v. Halbritter, 366 F.3d 89, 90 (2d Cir. 2004) (noting that "the Federal Government recognize[s] Halbritter as the official representative of the Nation"). As the Representative of the Nation, Defendant Halbritter is cloaked with the Nation's tribal sovereign immunity.
Finally, Plaintiff does not allege that any of the individual Defendants were acting outside the scope of their employment with the Nation and its agents and instrumentalities when they took the actions about which Plaintiff complains. Thus, the Court finds that the individual Defendants are entitled to rely on the Nation's tribal sovereign immunity to defeat Plaintiff's claims against them.*fn4
After carefully reviewing the entire file in this matter, the parties' submissions, and the applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Defendants' motion to dismiss Plaintiff's complaint for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, is GRANTED;*fn5 and the Court further
ORDERS that the Clerk of the Court shall enter judgment and close this case.*fn6
IT IS SO ORDERED.