The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court
Plaintiff Daniel Warren commenced this action by filing a Complaint, on April 6, 2006, against the United States of America, United States Department of the Interior, National Indian Gaming Commission ("NIGC"), and various individual federal officials (together, the "Federal Defendants"), and George E. Pataki as Governor of the State of New York, and Cheryl Ritchko-Buley as Chair of the New York State Racing and Wagering Board (together, the "State Defendants"). Plaintiff filed an Amended Complaint on August 16, 2006, in which he claims that: (1) the Indian Gaming Regulatory Act ("IGRA") is unconstitutional, (2) the Gaming Compact between the State of New York and the Seneca Nation of Indians is invalid, (3) Part B of Chapter 383 of the Laws of 2001 is unconstitutional, and (4) the federal defendants have violated the United States' trust obligation toward Indian nations and tribes. (Docket No. 17.)
The State Defendants moved to dismiss the Amended Complaint on August 20, 2006 (Docket No. 20), and the Federal Defendants followed suit on August 25, 2006 (Docket No. 23). Thereafter, on October 2, 2006, Plaintiff moved for leave to file a second amended complaint. (Docket No. 28). That motion was rendered moot by Plaintiff's subsequent motion for leave to amend the amended complaint, filed on October 5, 2007. (Docket No. 43.) That motion, in turn, was rendered moot by Plaintiff's further motion to amend and supplement the complaint, filed on March 16, 2009. (Docket No. 72.)
Thus, the three motions currently pending are: (1) the State Defendants' motion to dismiss the Amended Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure (Docket No. 20); (2) the Federal Defendants' motion to dismiss the Amended Complaint pursuant to Rule 12(b)(1) (Docket No. 23); and (3) Plaintiff's motion to amend and supplement the amended complaint to add new defendants and a new claim pursuant to Rules 15(a)(2) and (d) (Docket No. 72). For the reasons stated below, Plaintiff's motion is denied, the Defendants' motions are granted, and this case is dismissed.
Plaintiff's Amended Complaint challenges certain decisions and actions by federal and New York State officials that permit the Seneca Nation of Indians ("SNI") to operate Class III gambling casinos in the cities of Niagara Falls and Buffalo, New York.
Plaintiff identifies himself as a resident of the Town of West Seneca, and a Town, Erie County, and New York State taxpayer. (Docket No. 72-2 "Am. Compl." ¶¶ 5-6.) He works within 1.5 miles of the Buffalo casino site and points to a number of detrimental effects he believes a casino will have on him and his environment, including: blight, an increased risk of crime emanating from a casino, lack of parking and an increase in traffic, and other unspecified environmental, esthetic, health, and social consequences. (Id. ¶ 7.)
Based on his concerns, Plaintiff asserts four causes of action, two against the Federal Defendants and two against the State Defendants. First, Plaintiff claims that Congress, in enacting IGRA, exceeded its authority and violated the Tenth Amendment because IGRA compels state officers and the state legislature to enter into tribal-state gaming compacts that are prohibited by state law. (Id. ¶¶ 55-57.) In the Fourth cause of action, Plaintiff claims that the United States, by failing to adhere to existing regulations and to promulgate and implement new regulations under IGRA, violated its trust obligation toward Indian nations and tribes. (Id. ¶¶ 84-107.) As to the State Defendants, Plaintiff claims in his Second cause of action that the Gaming Compact between the State of New York and the SNI is invalid because it provides for commercial gambling in a state that does not permit such gambling for any purpose by any person, organization, or entity. (Id. ¶¶ 58-60.) The Third claim alleges that a New York statute authorizing the governor to enter into a gaming compact with the SNI-Part B of Chapter 383 of the Laws of 2001-is void because it violates the New York Constitution and, therefore, state officials exceeded their authority by entering into that agreement. (Id. ¶¶ 61-83.)
The proposed second amended complaint includes the following revisions: (1) it expands the first cause of action to allege that the State Defendants violated the New York Constitution in entering into a Gaming Compact with the Seneca Nation, and adds as defendants Maurice A. John,*fn1 as President of the Seneca Nation of Indians, E. Brian Hansberry,*fn2 as President and Chief Executive officer of Seneca Gaming Corp., and the Seneca Gaming Corporation (together, the "Proposed SNI Defendants"), (2) asserts the second and third claims against the Proposed SNI Defendants, (3) adds a new fourth cause of action against the NIGC and its former Chairman, Philip N. Hogen, alleging that Hogen acted contrary to law in failing to made an appropriate Indian lands determination and in approving a gaming ordinance for the SNI in a state where commercialized gambling is unlawful, and (4) renumbers the Amended Complaint's fourth cause of action as the new fifth cause of action.
In moving to dismiss the Amended Complaint's Second and Third causes of action, the State Defendants urged that: (1) the court lacks jurisdiction over the claims pursuant to the Eleventh Amendment, (2) the claims are barred by res judicata, (3) the claims are time-barred, and (4) they do not state a cognizable claim for relief. The State Defendants now ask the Court to resolve their motion prior to considering the viability of Plaintiff's proposed amendments because matters of jurisdiction, res judicata, and timeliness cannot be cured by amending the pleadings, and a ruling on their motion may compel the conclusion that some or all of the proposed amendments are futile, at least as to them. (Docket No. 80.)
The Federal Defendants moved to dismiss the Amended Complaint's First and Fourth claims on the ground that Plaintiff lacks standing to bring either a Tenth Amendment or an IGRA claim. The Federal Defendants (Docket No. 81) and the Proposed SNI Defendants (Docket No. 85, in an amicus brief) also oppose the motion to amend on the basis of futility, arguing that the Seneca Nation and its governmental entitites and officials enjoy sovereign immunity from suit.
The Court will consider all arguments in the context of Plaintiff's existing and proposed claims for relief.
1. Rule 12(b)(1) Motion to Dismiss A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). The plaintiff bears the burden of establishing the existence of federal jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992).
Where, as here, the jurisdictional challenges are raised at the pleading stage, the court accepts as true all factual allegations in the complaint and draws all reasonable inferences in the plaintiff's favor. Sharkey v. Quarantillo, 541 F.3d 75, 83 (2d Cir. 2008). It is "presume[d] that general [fact] allegations embrace those specific facts that are necessary to support the claim." Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 889, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990) (alterations added). The court also may consider affidavits and other evidence outside the pleadings to resolve the jurisdictional issue, but it may not rely on conclusory or hearsay statements contained in affidavits. J.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir. 2004), cert. denied, 544 U.S. 968, 125 S. Ct. 1727, 161 L. Ed. 2d 616 (2005). Indeed, courts "must" consult factual submissions "if resolution of a proffered factual issue may result in the dismissal of the complaint for want of jurisdiction." Robinson v. Gov't of Malaysia, 269 F.3d 133, 140 n.6 (2d Cir. 2001).
"In assessing whether a plaintiff has sufficiently alleged or proffered evidence to support jurisdiction . . . , a district court must review the allegations in the complaint, the undisputed facts, if any, placed before it by the parties, and-if the plaintiff comes forward with sufficient evidence to carry its burden of production on this issue-resolve disputed issues of fact . . . ." Id. at 140.
2. Rule 12(b)(6) Motion to Dismiss In reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must accept the factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006). "In order to survive a motion to dismiss under Rule 12(b)(6), a complaint must allege a plausible set of facts sufficient 'to raise a right to relief above the speculative level.'" Operating Local 649 Annuity Trust Fund v. Smith Barney Fund Mgmt. LLC, 595 F.3d 86, 91 (2d Cir. 2010) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). This standard does not require "heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570.
The Supreme Court recently clarified the appropriate pleading standard in Ashcroft v. Iqbal, setting forth a two-pronged approach for courts deciding a motion to dismiss. 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). The decision instructs district courts to first "identify[ ] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." 129 S. Ct. at 1950. Though "legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. Second, if a complaint contains "well-pleaded factual allegations[,] a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. at 1949 (quoting and citing Twombly, 550 U.S. at 556-57 (internal citations omitted)).
3. Motion to Amend Pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend a pleading shall be freely given when justice so requires. See Livingston v. Piskor, 215 F.R.D. 84, 85 (W.D.N.Y. 2003). "Absent evidence of undue delay, bad faith or dilatory motive on the part of the movant, undue prejudice to the opposing party, or futility, Rule 15's mandate must be obeyed." Monahan v. New York City Department of Corrections, 214 F.3d 275, 283 (2d Cir. 2000) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962)), cert. denied, 531 U.S. 1035 (2000)).
The standard for evaluating opposition to a proposed amendment on the ground it would be futile is whether the opposing party has established that the claim could not survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6). Fei v. WestLB AG, No. 07 Civ. 8785, 2008 U.S. Dist. LEXIS 16338, *5 (S.D.N.Y. Mar. 5, 2008). In making this determination, a district court merely assesses the legal feasibility of the complaint, not "the weight of the evidence which might be offered in support thereof." Connell v. City of New York, No. 00 Civ. 6306, 2002 U.S. Dist. LEXIS 215, *6 (S.D.N.Y. Jan. 8, 2002) (quotation omitted). A district court may not deny a motion to amend where a colorable ground for relief exists. Hines v. City of Albany, 542 F. Supp. 2d 218, 224 (N.D.N.Y. 2008).
B. The Federal Defendants
The Federal Defendants seek dismissal of the claims against them, under Rule 12(b)(1) of the Federal Rules of Civil Procedure, on the ground that Plaintiff lacks standing to bring a claim under either the Tenth Amendment or the IGRA.
Standing is an essential component of the case or controversy requirement of Article III, section 2 of the United States Constitution. The Supreme Court has articulated the following "irreducible constitutional minimum" for standing: 1) the plaintiff must have suffered an "injury in fact;" 2) the injury must be fairly traceable to the defendant; and 3) it must be "likely," rather than "speculative," that the injury will be redressable by the court. Defenders of Wildlife, 504 U.S. at 560-61; see also, Hein v. Freedom from Religion Found., Inc., 551 U.S.587, 598, 127 S. Ct. 2553, 168 L. Ed. 2d 424 (2007) (confirming well-established requisite elements of Article III standing). An "injury in fact" is "an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical." Defenders of Wildlife, 504 U.S. at 560 (internal citations, footnote and quotation marks omitted). These requirements "tend[ ] to assure that the legal questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action." Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 472, 102 S. Ct. 752, 70 L. Ed. 2d 700 (1981) (alteration added). The party invoking federal jurisdiction bears the burden of establishing its existence. Defenders of Wildlife, 504 at 561 (citing FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231, 110 S. Ct. 596, 107 L. Ed. 2d 603 (1990)).
In addition to the constitutional limitations on federal court jurisdiction, the prudential doctrine of standing encompasses judicially-imposed limits on its exercise. United Food & Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 551, 116 S. Ct. 1529, 134 L. Ed. 2d 758 (1996). The Supreme Court has held that "prudential standing encompasses the general prohibition on a litigant's raising another person's legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches, and the requirement that a plaintiff's complaint fall within the zone of interests protected by the law invoked. Without such limitations-closely related to Art. III concerns but essentially matters of judicial self-governance-the courts would be called upon to decide abstract questions of wide public significance even though other governmental institutions may be more competent to address the questions and even though judicial intervention may be unnecessary to protect individual rights." Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12, 124 S. Ct. 2301, 159 L. Ed. 2d 98 (2004) (internal quotation marks and citations omitted).
1. The Tenth Amendment Claim In his First cause of action, Plaintiff alleges that, in enacting IGRA, Congress exceeded its authority under the Indian Commerce Clause as limited by the Tenth Amendment.The Tenth Amendment provides that "powers not delegated to the United States by the Constitution . . . are reserved to the States[.]" U.S. Const. amend. X.
The Federal Defendants, relying on Tennessee Electric Power Co. v. Tennessee Valley Authority, 306 U.S. 118, 144, 59 S. Ct. 366, 83 L. Ed. 543 (1939), urge that Plaintiff lacks standing to allege any violation of the Tenth Amendment because a purported violation of a state's rights must be brought by a representative of the state or its instrumentality.
But Tennessee Electric's holding notwithstanding, at the time these parties briefed this issue, courts of appeals were split on whether private parties have standing to challenge a federal act on Tenth Amendment grounds. See, e.g., Gillespie v. City of Indianapolis, 185 F.3d 693, 703-04 (7th Cir. 1999), cert. denied, 528 U.S. 1116 (2000) (allowing private party to bring Tenth Amendment challenge); Medeiros v. Vincent, 431 F.3d 25, 33-36 (1st Cir. 2005), cert. denied, 548 U.S. 904 (2006) (holding that private party has no standing to bring Tenth Amendment claim). The Supreme Court recently revisited this issue and resolved the circuit split. In Bond v. United States, the Court held that a litigant who is a party to an otherwise justiciable case or controversy is not forbidden to object that the claimed "injury results from disregard of the federal structure of our Government." ___ U.S. ___, 131 S. Ct. 2355, 2366-67, 180 L. Ed. 2d 269 (2011). Based on this authority, the nature of Plaintiff's claim, alone, does not compel the conclusion that Plaintiff lacks standing.
Nevertheless, a plaintiff asserting a Tenth Amendment claim must also have an otherwise justiciable case or controversy. Here, the Amended Complaint does not identify any injury resulting from the alleged violation of states' rights. Plaintiff seeks to correct this deficiency in his proposed second amended complaint by alleging that he was deprived of his right to a public debate and vote on the issue of whether "to alter New York's public policy against commercialized gambling in the manner and as required by the New York State Constitution and his ability to hold his elected officials accountable for their respective acts and omissions." (Docket No. 72-2 ¶ 109.) This injury is alleged to arise from IGRA's requirement that states enter into compacts and regulate gambling on Indian lands, even where state law otherwise limits the circumstances under which gambling can occur.
The Federal Defendants did not respond to this particular proposed amendment, but in moving to dismiss, they did urge that Plaintiff cannot meet his burden of showing he has a legally protected constitutional interest that would give rise to an injury. (Docket No. 23-2 at 12-13.) Plaintiff responded to their argument by detailing the injuries now alleged in his proposed pleading.
As previously noted, the Tenth Amendment reserves to States powers not delegated to the United States by the Constitution. Article I, § 8, cl. 3 of the Constitution delegates broad power to the United States to regulate Indian affairs by empowering Congress to "regulate Commerce . . . with the Indian Tribes." It is well-settled that this power "singles Indians out as a proper subject for separate legislation" and affords plenary legislative authority in Indian affairs. Morton v. Mancari, 417 U.S. 535, 551-52, 94 S. Ct. 2474, 41 L. Ed. 2d 290 (1974) (suit challenging constitutionality of hiring preference in favor of Native Americans); see also, United States v. Lara, 541 U.S. 193, 200, 124 S. Ct. 1628, 158 L. Ed. 2d 420 (2004) (Congress's powers to legislate in respect to Indian matters is "plenary and exclusive"); South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 343, 118 S. Ct. 789, 139 L. Ed. 2d 773 (1998) ("Congress possesses plenary power over Indian affairs, including the power to modify or eliminate tribal rights."); Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192, 109 S. Ct. 1698, 104 L. Ed. 2d 209 (1989) ("[T]he central function of ...