Case 2:12-cv-03152-LRS
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Document 108
Gabriel S. Galanda, WSBA #30331
Anthony S. Broadman, WSBA #39508
Ryan D. Dreveskracht, WSBA #42593
Galanda Broadman PLLC
8606 35th Ave. NE, Suite L1
P.O. Box 15146
Seattle, WA 98115
(206) 691-3631
Filed 04/04/13
Hon. Lonny R. Suko
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Attorneys for Defendant Yakama
Nation
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
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STATE OF WASHINGTON,
WASHINGTON DEPARTMENT OF
LICENSING, CHRISTINE GREGOIRE,
Governor, and ALAN HAIGHT,
Director of Washington State
Department of Licensing;
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NO. CV-12-3152-LRS
MOTION TO DISMISS FOR
INEFFECTIVE SERVICE
May 24, 2013
Without Oral Argument
Plaintiffs,
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v.
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THE TRIBAL COURT FOR THE
CONFEDERATED TRIBES AND
BANDS OF THE YAKAMA NATION,
and its CHIEF TRIBAL COURT JUDGE
TED STRONG, and the
CONFEDERATED TRIBES AND
BANDS OF THE YAKAMA NATION,
a Federally Recognized Indian Tribe,
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Defendants.
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MOTION TO DISMISS FOR INEFFECTIVE SERVICE – 1
Galanda Broadman PLLC
8606 35th Ave. NE, Suite L1
P.O. Box 15146
Seattle, WA 98115
(206) 691-3631
Case 2:12-cv-03152-LRS
Document 108
Filed 04/04/13
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Defendant Confederated Tribes and Bands of the Yakama Nation
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respectfully requests that the Court dismiss Plaintiffs’ Compliant pursuant to FED.
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R. CIV. PROC. 12(b)(5).1
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I.
On December 17, 2012, Plaintiffs filed a Complaint against the Tribal Court
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STATEMENT OF FACTS
for the Confederated Tribes and Bands of the Yakama Nation (“Yakama Tribal
Court”), Yakama Nation Chief Tribal Court Judge Ted Strong, and the
Confederated Tribes and Bands of the Yakama Nation (“Yakama Nation” –
collectively “Defendants”). ECF No. 1. On January 17, 2012, a process server
delivered three Summonses and Complaints, one set for each defendant, to Zoretta
Westfield, an administrative clerk for the Yakama Tribal Court.2 ECF Nos. 2-4.
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This Motion is made without waiver of any objections to the jurisdiction of the
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Court. The Yakama Nation does not waive, alter or otherwise diminish any rights,
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privileges, remedies or services guaranteed by the Treaty With The Yakama of
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1855, 12 Stat. 951 (1859). Nor does the Yakama Nation waive its sovereign
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immunity, in any form, or otherwise consent any Yakama agent or instrumentality
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to the jurisdiction of this Court or any tribunal.
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The Proofs of Service filed with the Court incorrectly identifies Ms. Westfield as
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the “Yakama Nation Court Clerk.” ECF Nos. ECF Nos. 2-4. Ms. Westfield is not
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a Court Clerk for the Yakama Tribal Court; she is merely an administrative clerk.
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MOTION TO DISMISS FOR INEFFECTIVE SERVICE – 2
Galanda Broadman PLLC
8606 35th Ave. NE, Suite L1
P.O. Box 15146
Seattle, WA 98115
(206) 691-3631
Case 2:12-cv-03152-LRS
Document 108
Filed 04/04/13
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Although the summonses were addressed to 401 Fort Road, Toppenish, WA
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98948, the Yakama Tribal Court is located at 11 Wishpoosh Road, Toppenish, WA
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98948. Id. Ms. Westfield subsequently delivered the Summonses and Complaint
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to the undersigned counsel. Undersigned counsel has appeared on behalf of only
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the Yakama Nation only, and not the Yakama Tribal Court or Judge Strong.3 ECF
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Nos. 18-20.
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The Yakama Tribal Court is a separate and distinct branch of Yakama
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governance that is not authorized to accept service of process for the Nation. It is
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generally accepted federal law that, unless otherwise stated in tribal law, tribal
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courts are separate and distinct from other branches of tribal government. See
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Grand Canyon Skywalk Dev. v. ‘SA’ NYU WA, No. 12-8030, 2012 WL 1207149, at
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*2 (D. Ariz. Mar. 26, 2012) (finding that “conduct of the Hualapai Tribal Council
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and its attorneys” and “the actions of litigants or other branches of tribal
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government” cannot be attributed “to actions of the Tribal Court”); Basil Cook
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Enter. v. St. Regis Mohawk Tribe, 26 F.Supp.2d 446, 449 (N.D.N.Y. 1998)
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Notably, even in their Notices of Appearance, attorneys for the Yakama Nation
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made “a continuing objection to the sufficiency of Plaintiffs’ alleged service of
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process under FED. R. CIV. PROC. 12(b)(5).” ECF No. 18, at 2. Further, during
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oral argument on January 7, 2013, the Nation’s counsel advised the Court and
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Plaintiffs’ counsel that Plaintiffs had failed to properly serve Defendants.
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MOTION TO DISMISS FOR INEFFECTIVE SERVICE – 3
Galanda Broadman PLLC
8606 35th Ave. NE, Suite L1
P.O. Box 15146
Seattle, WA 98115
(206) 691-3631
Case 2:12-cv-03152-LRS
Document 108
Filed 04/04/13
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(“[T]ribal courts are an independent branch of the [tribal] government, whatever
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that government is or may become.”) (quotation omitted). The same holds true for
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the Yakama Nation.
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The Yakama Nation Tribal Council, the executive and legislative branch of
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the Yakama Nation, did not authorize the Yakama Tribal Court and/or Ms.
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Westfield to accept service of process on its behalf. The Yakama Nation identifies
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its governmental structure in a clearly accessible manner that is made available to
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the public on the Internet.
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http://www.yakamanation-nsn.gov/programs.php (last visited Apr. 3, 2013) (“The
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Tribal Court system continues to maintain the independence of its judiciary to
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secure its role in the Yakama Nation governmental system of checks and
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balances.”).; see also generally YAKAMA NATION ORGANIZATIONAL STRUCTURE,
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http://www.yakamanation-nsn.gov/docs/Organizational%20Chart%202009.pdf
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(last visited Apr. 3, 2013).
See YAKAMA NATION PROGRAM LISTING,
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Counsel for Plaintiffs failed to obtain a waiver of service as required by Rule
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4(d). See generally FED. R. CIV. PROC. 4(d). Plaintiffs failed to serve Defendants
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with the Summons and Complaint by any other method. The Yakama Nation has
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“acted as promptly as practicable and raised the defense of failure to timely serve
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in the first motion” and in all subsequent filings, and otherwise put Plaintiffs on
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notice that service of process was not properly effected on any Defendant. Mata v.
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MOTION TO DISMISS FOR INEFFECTIVE SERVICE – 4
Galanda Broadman PLLC
8606 35th Ave. NE, Suite L1
P.O. Box 15146
Seattle, WA 98115
(206) 691-3631
Case 2:12-cv-03152-LRS
Document 108
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Anderson, 760 F.Supp.2d 1068, 1097 (D.N.M. 2009).
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II.
Filed 04/04/13
LAW AND ARGUMENT
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Rule 12(b)(5) allows a defendant to move to dismiss an action where the
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service of process of a summons and complaint is improper. FED. R. CIV. PROC.
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12(b)(5).
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Tribal governments must be served pursuant to Rule 4(j), which applies to
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“foreign, state, and local governments.” FED. R. CIV. PROC. 4(j); see e.g. E.E.O.C.
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v. Peabody W. Coal, No. 01-1050, 2012 WL 748301, at *2 (D. Ariz. Mar. 7, 2012).
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Usually, courts will look to Rule 4(j)(2) to determine whether process was
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correctly served4 pursuant to tribal law.5 Id. Under this rule, states, municipal
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corporations, and any “other state-created governmental organization that is
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subject to suit” may be served by either “delivering a copy of the summons and of
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the complaint to its chief executive officer” or “serving a copy of each in the
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manner prescribed by that state’s law for serving a summons or like process on
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Rule 4(j)(1) requires that “[a] foreign state or its political subdivision, agency, or
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instrumentality must be served in accordance with 28 U.S.C. § 1608.” FED. R. CIV.
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PROC. 4(j)(1). Section 1608, however, is largely inapplicable to tribal governments.
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This comports with the general rule that “service within [a] tribal court’s
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territorial jurisdiction” be executed in accordance with tribal process. Water Wheel
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Camp Recreational Area v. LaRance, 642 F.3d 802, 819 (9th Cir. 2011).
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MOTION TO DISMISS FOR INEFFECTIVE SERVICE – 5
Galanda Broadman PLLC
8606 35th Ave. NE, Suite L1
P.O. Box 15146
Seattle, WA 98115
(206) 691-3631
Case 2:12-cv-03152-LRS
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Document 108
Filed 04/04/13
such a defendant.” FED. R. CIV. PROC. 4(j)(2)(A)-(B).
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The other rule that might be applicable to tribal governments – were “the
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Nation were properly considered an association” instead of a foreign, state, or local
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government – is Rule 4(h). Peabody W. Coal, 2012 WL 748301, at *3. Rule 4(h)
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requires that a defendant must be served:
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(A) in the manner prescribed by Rule 4(e)(1) for serving an
individual; or
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(B) by delivering a copy of the summons and of the complaint to an
officer, a managing or general agent, or any other agent authorized by
appointment or by law to receive service of process and – if the agent
is one authorized by statute and the statute so requires – by also
mailing a copy of each to the defendant . . . .
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FED. R. CIV. PROC. 4(h)(A)-(B). Rule 4(e)(1), in turn, provides that service may be
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made “following state law for serving a summons in an action brought in courts of
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general jurisdiction in the state where the district court is located or where service
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is made.” FED. R. CIV. PROC. 4(e)(1).
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Rule 4(m) requires that service of process be properly effected on the
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defendant within 120 days after the filing of the complaint. FED. R. CIV. PROC.
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4(m). “If proper service is not accomplished within 120 days after the complaint
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is filed, and the party on whose behalf service was required cannot show good
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cause why such service was not made, the action must be dismissed.” Ortiz v.
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Gates, 232 F.3d 895, 895 (9th Cir. 2000) (emphasis added).
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Even where a defendant has actual knowledge of the lawsuit, “actual
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MOTION TO DISMISS FOR INEFFECTIVE SERVICE – 6
Galanda Broadman PLLC
8606 35th Ave. NE, Suite L1
P.O. Box 15146
Seattle, WA 98115
(206) 691-3631
Case 2:12-cv-03152-LRS
Document 108
Filed 04/04/13
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knowledge does not substitute for proper service of process.” Tavake v. Allied Ins.,
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No. 11-3259, 2012 WL 1143787, at *4 (E.D. Cal. Apr. 4, 2012); see also Omni
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Capital Int’l v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987) (“[B]efore a court
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may exercise personal jurisdiction over a defendant, there must be more than
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notice to the defendant and a constitutionally sufficient relationship between the
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defendant and the forum.”); Prewitt Enter. v. Org. of Petroleum Exp. Countries,
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353 F.3d 916, 924 n.14 (11th Cir. 2003) (“[A]ctual notice alone [i]s not enough to
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allow the court personal jurisdiction over the defendant.”) (Grand Entm’t Group v.
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Star Media Sales, 988 F.2d 476, 492 (3d Cir. 1993) (“Notice to a defendant that he
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has been sued does not cure defective service, and an appearance for the limited
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purpose of objecting to service does not waive the technicalities of the rule”).
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Here, 120 days have lapsed since Plaintiffs filed the Complaint against
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Defendants on December 17, 2012. ECF No. 1. Plaintiffs have yet to properly
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effect service of process on any Defendant. The Complaint must be dismissed.
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Russell v. Rook, 893 F.Supp. 949, 951 (E.D. Wash. 1995).
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A.
Plaintiffs Failed To Effectively Serve The Yakama Nation.
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Rules 4(j)(2), 4(e)(1), and 4(h)(A) all look to tribal law. Section 7.01.05 of
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the Revised Yakama Law and Order Code (“R.Y.C”) requires that a summons and
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complaint be “served on the respondent by personal service or by mail.” R.Y.C.
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§ 7.01.05 (emphasis added).
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MOTION TO DISMISS FOR INEFFECTIVE SERVICE – 7
Galanda Broadman PLLC
8606 35th Ave. NE, Suite L1
P.O. Box 15146
Seattle, WA 98115
(206) 691-3631
Case 2:12-cv-03152-LRS
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Document 108
Here, Plaintiffs did not serve the respondent.
Filed 04/04/13
Plaintiffs served Zoretta
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Westfield, a court administrator for the Yakama Tribal Court. As noted above, the
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Yakama Tribal Court is not the Yakama Nation. The Yakama Nation has separate
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offices, in separate buildings, with separate addresses and separate secretaries.
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Although the summons to the Yakama Nation was addressed to “MR HARRY
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SMISKIN, IN HIS OFFICIAL CAPACITY AS CHAIRMAN OF THE YAKAMA
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NATION TRIBAL COUNCIL,” and addressed to “401 FORT ROAD,” Chairman
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Smiskin was never served. ECF No. 4, at 1. Nor were copies of the Summons and
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Complaint left at the offices of the Yakama Nation at the listed address. Thus,
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service was not effected pursuant to Rules 4(j)(2)(A)-(B), 4(e)(1), and 4(h)(A).
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Rule 4(h)(B) treats the Yakama Nation like a corporation. Ms. Westfield,
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however, is not an officer, a managing or general agent, or any other agent
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“authorized by appointment or by law to receive service of process.” FED. R. CIV.
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PROC. 4(h)(B). The Yakama Nation has not authorized Ms. Westfield, or anyone
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else for that matter, to receive service of process. Further, even if the summons
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and complaint reached the correct office – it did not – service on an administrative
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clerk or secretary is insufficient. See Larry M. Rosen & Assoc. v. Hurwitz, 465
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A.2d 1114, 1117 (D.C. Ct. App. 1982) (“A receptionist in one’s office, even if
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authorized to sign for and open all of the mail, is not necessarily authorized to
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accept service of process.”).
The State’s attempted service of Chairman Smiskin
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MOTION TO DISMISS FOR INEFFECTIVE SERVICE – 8
Galanda Broadman PLLC
8606 35th Ave. NE, Suite L1
P.O. Box 15146
Seattle, WA 98115
(206) 691-3631
Case 2:12-cv-03152-LRS
Document 108
Filed 04/04/13
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by giving its lawsuit to a Yakama Tribal Court employee is akin to Governor
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Inslee being served with a U.S. District Court lawsuit through a court administrator
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at the Thurston County Superior Courthouse. Service was not effected upon the
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Yakama Nation pursuant to Rule 4(h)(B).
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B.
Plaintiffs Failed to Effectively Serve The Yakama Tribal Court And
Yakama Nation Chief Tribal Court Judge Ted Strong.
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First, the Summons issued to the Yakama Tribal Court and Judge Strong is
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invalid for the reasons discussed above. See generally Mousseaux v. U.S., 28 F.3d
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786 (8th Cir. 1994). In the case that Rule 4(h)(1) applies, that Rule requires that
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the summons be directed to “an officer, a managing or general agent or to any
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other agent authorized by appointment or law to receive service of process” for the
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defendant. FED. R. CIV. PROC. 4(h)(1). Neither the Yakama Tribal Court nor
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Judge Strong has authorized Ms. Westfield to receive service of process. Id. Ms.
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Westfield is a general employee of the Yakama Tribal Court – she is not an officer
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or a managing/general agent of the Yakama Tribal Court and/or Judge Strong. Id.
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In the case that Rules 4(j)(2), 4(e)(1), or 4(h)(A) applies, the Summons and
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Complaint was not “served on the respondent by personal service or by mail,” as
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required by R.Y.C. § 7.01.05 (emphasis added). Again, they were served upon Ms.
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Westfield, a general employee of the Yakama Tribal Court. Proper service upon
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these Defendants was not accomplished.
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Second, tribal sovereign immunity extends to tribal officials, such as Judge
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MOTION TO DISMISS FOR INEFFECTIVE SERVICE – 9
Galanda Broadman PLLC
8606 35th Ave. NE, Suite L1
P.O. Box 15146
Seattle, WA 98115
(206) 691-3631
Case 2:12-cv-03152-LRS
Document 108
Filed 04/04/13
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Strong, acting within the scope of their authority, and renders them immune from
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service of summons. Fletcher v. U.S., 116 F.3d 1315, 1324 (10th Cir. 1997). This
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immunity serves to protect tribal officers “from legal process,” and applies to suits
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“seeking declaratory or injunctive relief.” U.S. v. Menominee Tribal Enter., No.
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07-0316, 2008 WL 2273285, at *10 (E.D. Wis. June 2, 2008) (citing U.S. v. James,
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980 F.2d 1314 (9th Cir. 1992)); see also Catskill Dev. v. Park Place Entm’t, 206
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F.R.D. 78, 86 (S.D.N.Y. 2002) (same) (citing Davis v. Littell, 398 F.2d 83, 84-85
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(9th Cir. 1968)). Although this immunity can be waived, such waiver must be
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unequivocally expressed. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 59 (1978).
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Although the Nation disagrees that it “has waived its sovereign immunity
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under the terms of the Consent Decree and because it has twice previously (1993
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and 2004) invoked this court’s jurisdiction over its dispute with the Plaintiffs
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regarding motor vehicle fuel taxation,” neither Judge Strong nor the Yakama
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Tribal Court were parties to those actions. ECF No. 98, at 3-4. Neither Judge
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Strong nor the Yakama Tribal Court has waived immunity from service of
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summons. Neither Judge Strong nor the Yakama Tribal Court has been properly
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served.
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III.
CONCLUSION
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“Though dismissal is a harsh penalty that should only be imposed in
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extreme circumstances,” when a Plaintiff repeatedly fails to correctly serve a
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MOTION TO DISMISS FOR INEFFECTIVE SERVICE – 10
Galanda Broadman PLLC
8606 35th Ave. NE, Suite L1
P.O. Box 15146
Seattle, WA 98115
(206) 691-3631
Case 2:12-cv-03152-LRS
Document 108
Filed 04/04/13
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defendant, “despite ample notice and opportunity to do,” dismissal is warranted.
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Guthrie v. JD Enter. & Fin. Serv., No. 11-0911, 2012 WL 2502700, at *2 (S.D.
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Cal. June 28, 2012) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 629-30 (1962)).
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The Nation has objected to Plaintiffs’ method of service in every pleading
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filed in this Court, and further notified Plaintiffs, in the presence of the Court, that
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service of process was not properly effected on any Defendant. Plaintiffs have
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acknowledged their failure to address the deficiency, ECF No. 76, at 6 n.1, but
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have refused to address the problem. Plaintiffs’ disregard of the Federal Rules
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warrants dismissal.6 See e.g. Russell, 893 F.Supp. at 951; Holmes v. Gonzalez, No.
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Indeed, throughout this litigation Plaintiffs have flouted the Federal and Local
Rules. To name but a few examples:
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• ECF No. 6 still includes a fabricated version of the most critical portion of
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the most critical contract in dispute. It is not the best evidence to prove its content,
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see FED. R. EVID. 1002, and would be inappropriately prejudicial since it is
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fabricated. See FED. R. EVID. 403.
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• Despite admitting in a February 16, 2013, email to the Nation’s counsel that,
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“[y]ou are correct that the caption in the federal court case need [sic] to be
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changed, per Fed. R. Civ. P. 25(d), to reflect the fact that Jay Inslee has succeeded
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Christine Gregoire as the Governor of the State of Washington,” now – over a
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MOTION TO DISMISS FOR INEFFECTIVE SERVICE – 11
Galanda Broadman PLLC
8606 35th Ave. NE, Suite L1
P.O. Box 15146
Seattle, WA 98115
(206) 691-3631
Case 2:12-cv-03152-LRS
Document 108
Filed 04/04/13
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09-0259, 2010 WL 1408436, at *6 (E.D. Tenn. Apr. 2, 2010) (dismissal where, as
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here, “the defendants put Plaintiff on notice of the problem in their initial motion”).
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“Without rules, there is no civility. Without enforcement, the rules are
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worthless.” Allen v. Interstate Brands Corp., 186 F.R .D. 512, 515 (S.D. Ind.
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1999). “[T]he power to sanction through dismissal is essential to the district
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courts’ ability to manage efficiently their heavy case loads and thus protect the
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interests of all litigants.” Roland v. Salem Contract Carriers, 811 F.2d 1175,
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1177-78 (7th Cir. 1987). This power “serves not only to protect defendants but
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also to aid courts in keeping administrative control over their own dockets.”
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Ladien v. Astrachan, 128 F.3d 1051, 1056-57 (7th Cir. 1997). Here, the use of this
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power is appropriate.
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The Yakama Nation respectfully requests that the Court dismiss Plaintiffs’
Complaint, without prejudice, pursuant to FED. R. CIV. PROC. 12(b)(5).
DATED this 4th day of April, 2013.
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month later and three months into the Governor’s tenure – the State has not yet
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made that change.
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• ECF No. 8 is still not sequentially paginated in its entirety. See LR 10.1.
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The Federal Rules of Civil Procedure are intended to “govern the procedure in all
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civil actions and proceedings in the United States district courts . . .” FED. R. CIV.
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PROC. 1. The Court should not further sanction Plaintiffs’ disregard for the rules.
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MOTION TO DISMISS FOR INEFFECTIVE SERVICE – 12
Galanda Broadman PLLC
8606 35th Ave. NE, Suite L1
P.O. Box 15146
Seattle, WA 98115
(206) 691-3631
Case 2:12-cv-03152-LRS
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Document 108
Filed 04/04/13
s/Gabriel S. Galanda
Gabriel S. Galanda, WSBA# 30331
Anthony S. Broadman, WSBA #39508
Ryan D. Dreveskracht, WSBA #42593
Attorneys for Confederated Tribes and Bands
of the Yakama Nation
GALANDA BROADMAN, PLLC
8606 35th Ave. NE, Suite L1
P.O. Box 15146
Seattle, WA 98115
(206) 691-3631 Fax: (206) 299-7690
Email: [email protected]
Email: [email protected]
Email: [email protected]
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MOTION TO DISMISS FOR INEFFECTIVE SERVICE – 13
Galanda Broadman PLLC
8606 35th Ave. NE, Suite L1
P.O. Box 15146
Seattle, WA 98115
(206) 691-3631
Case 2:12-cv-03152-LRS
1
Document 108
Filed 04/04/13
CERTIFICATE OF SERVICE
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I, Gabriel S. Galanda, declare as follows:
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1.
I am now and at all times herein mentioned a legal and permanent
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resident of the United States and the State of Washington, over the age of eighteen
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years, not a party to the above-entitled action, and competent to testify as a witness.
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2.
I am employed with the law firm of Galanda Broadman PLLC, 8606
35th Ave. NE, Suite L1, Seattle, WA 98115.
3.
On April 4, 2013, I filed the foregoing document, which will provide
service to the following via ECF:
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Fronda Woods
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Rob Costello
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Bill Clark
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The foregoing statement is made under penalty of perjury and under the laws
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of the State of Washington and is true and correct.
Signed at Seattle, Washington, this 4th day of April, 2013.
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s/Gabriel S. Galanda
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MOTION TO DISMISS FOR INEFFECTIVE SERVICE – 14
Galanda Broadman PLLC
8606 35th Ave. NE, Suite L1
P.O. Box 15146
Seattle, WA 98115
(206) 691-3631