Howshar v. Caesars Entertainment Corporation ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DANNY C. HOWSHAR, Case No.: 20cv1729 JM (AHG) 12 Plaintiff, 13 v. 14 CAESARS ENTERTAINMENT ORDER GRANTING DEFENDANTS’ 15 CORPORATION; CAESARS LICENSE MOTION TO DISMISS COMPANY, LLC; and HARRAH’S 16 RESORT SOUTHERN CALIFORNIA, 17 Defendants. 18 19 20 Specially appearing Defendants, the Rincon Band of Luiseno Indians (“the Rincon 21 Band”), and Defendants Caesars Entertainment Corporation and Caesars License 22 Company, LLC, move to dismiss Plaintiff’s Complaint pursuant to Federal Rules of Civil 23 Procedure 12(b)(1) for lack of subject matter jurisdiction, 12(b)(2) for lack of personal 24 jurisdiction, 12(b)(3) for improper venue, and 12(b)(7) for failure to include a necessary 25 and indispensable party. (Doc. No. 3.) The Rincon Band states they were erroneously 26 sued as Harrah’s Resort Southern California, which is not a legal entity. The motion is 27 unopposed and the court finds it suitable for submission without oral argument in 28 accordance with Civil Local Rule 7.1(d)(1). 1 I. BACKGROUND 2 The Rincon Band is a federally recognized sovereign Indian Tribe that is situated on 3 a permanent Indian Reservation located within the State of California. (Doc. No. 3-1 at 7.) 4 Harrah’s Resort Southern California is located on the reservation and is owned, operated, 5 and controlled by the Rincon Band. (Id.) On May 26, 2020, Plaintiff filed claims in the 6 Superior Court of California, County of San Diego, for general negligence and premises 7 liability. (Doc. No. 1-2 at 2-6.) Plaintiff alleges that on or about April 25, 2018, Plaintiff 8 was walking on the floor of Harrah’s Resort past the slot machines with his leashed dog 9 when another patron’s Rottweiler on a thin leash charged and bit Plaintiff on the hand and 10 knocked him to the ground. (Id. at 5.) The Rincon Band subsequently removed the case 11 to federal court based on federal question jurisdiction, then moved to dismiss the case. 12 (Doc. No. 3.) 13 II. DISCUSSION 14 In the notice of removal, the specially appearing1 Rincon Band states that a federal 15 question exists as to whether the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. §§ 16 2701-21, completely preempts Plaintiff’s state law claims. (Doc. No. 1 at 2.) However, 17 district courts have consistently found in highly analogous cases that the IGRA did not 18 present a federal question because, as required by the IGRA’s preemption provision, the 19 state law tort claims did not potentially infringe on the Rincon Band’s governance of 20 gaming. See Seely v. Harrah’s Rincon Casino, No. 11 CV 0594 MMA (MDD), 2011 WL 21 2601019, at *1 (S.D. Cal. June 30, 2011); Kersten v. Harrah’s Casino-Valley Ctr., Case 22 23 24 1 “Special appearances to challenge jurisdiction are no longer required in federal courts.” 25 Republic Int’l Corp. v. Amco Eng’rs, Inc., 516 F.2d 161, 165 (9th Cir. 1975). “An attorney may make a special appearance for a limited proceeding only with the permission of the 26 court.” S.D. Cal. Civ. R. 83.3(g)(4). To the extent that counsel for the Rincon Band are 27 specially appearing for a limited hearing, permission to do so is granted. See Tavares v. Harrah’s Operating Co., No. 13-CV-325-H-KSC, 2013 WL 1809888, at *1 n.1 (S.D. Cal. 28 1 || No. 07cv0103 BTM (JMA), 2007 WL 951342, at *2-3 (S.D. Cal. Feb. 27, 2007); see also 2 || Osceola Blackwood Ivory Gaming Grp., LLC vy. Picayune Rancheria of Chukchansi 3 || Indians, 272 F. Supp. 3d 1205, 1214 (E.D. Cal. 2017) (listing cases involving other tribes). 4 In Seely and Kersten, both of which involved motions to dismiss by the Rincon Band 5 || that are nearly identical to the instant motion, the court declined to rule on the motion and 6 ||instead remanded the case for lack of federal question jurisdiction. See Seely, 2011 WL 7 |{2601019, at *2-3 (noting that remand orders are not appealable); Kersten, 2007 WL 8 |}951342, at *3. Here, however, the motion is unopposed. Under Civil Local Rule 9 ||7.1(H(3)(c), if an opposing party fails to timely file an opposition “that failure may 10 || constitute a consent to the granting of a motion.” In these situations, courts have dismissed 11 || the case rather than remand it. See Order Granting Motion to Dismiss, Micheau v. Harrah’s 12 || Resort, 3:19-cv-0980-AJB-MDD (Aug. 8, 2019); Tavares, 2013 WL 1809888, at *2. 13 || Accordingly, the Defendants’ Motion to Dismiss (Doc. No. 3) is GRANTED, irrespective 14 the Defendants’ substantive arguments in the motion, because the Plaintiff’s failure to 15 |}oppose the motion is deemed to be consent to granting the motion. The case is 16 || DISMISSED without prejudice. The Clerk of the Court is directed to close the case. 17 IT IS SO ORDERED. 18 || DATED: November 24, 2020 Hitt i Yhicoly, _ 19 JOFFREY T. LER ted States District Judge 20 21 22 23 24 25 26 27 28