No. 97-0914-CV-W-6

Sept. 29, 1997


This matter comes before the court on a number of pending motions. Defendants have moved the court to amend their notice of removal, to dismiss the above-captioned case for lack of jurisdiction, and to dismiss this case for failure to state a claim upon which relief can be granted. Plaintiff has moved the court to remand the present action to state court and to stay plaintiff's obligation to respond to defendants' motions to dismiss until the motion to remand is ruled.

Plaintiff has not objected to defendants' request to amend its notice of removal. Accordingly, defendants' motion will be granted.

Plaintiff, which initially brought this case in Missouri state court, maintains that this court lacks subject matter jurisdiction over the present case and that, consequently, the case should be remanded to state court. Plaintiff first contends that no diversity jurisdiction exists and that there is no federal question presented on the face of its Complaint. Accordingly, plaintiff argues, the well-pleaded complaint rule precludes removal of this claim to federal court. Defendants, who have attempted to remove this case, contend that the case presents an exception to the well-pleaded complaint rule because plaintiff's claims are completely preempted by the Indian Gaming Regulatory Act, 25 U.S.C. §2701, et seq. (the Act). The Act, enacted in 1988, is the statutory basis for the operation and regulation of gaming by Indian tribes.

Under the well-pleaded complaint rule, a plaintiff can generally avoid removal to federal court by alleging solely state law claims in its Complaint. Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). A federal defense, including the defense that plaintiff's claims are preempted by federal law, cannot provide a basis for removal. Id. at 393. An exception to this rule is the doctrine of "complete preemption." Under this doctrine, a federal court has jurisdiction over a complaint that alleges only state causes of action if Congress clearly intended that a federal statute completely preempt the field of law at issue. Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58, 65 (1987). Even when complete preemption applies, not all state law claims are necessarily covered and only those claims that fall within the preemptive scope of the particular statute are considered to serve as federal questions. Gaming Corp. of America v. Dorsey & Whitney, 88 F.3d 536, 543 (8th Cir. 1996). Accordingly because plaintiff's Complaint alleges only violations of state consumer protection law, this court will lack jurisdiction unless plaintiff's claims are completely preempted.

Defendants, as the parties seeking removal, bear the burden of establishing that this court has jurisdiction over the present action. In re Business Men's Assurance Co. of America, 992 F.2d 181, 183 (8th Cir. 1993). The court must resolve all doubts about federal jurisdiction in favor of remand. Id.

In Dorsey & Whitney, the Eighth Circuit examined the text and legislative history of the Indian Gaming Regulatory Act and concluded that the Act completely preempts the field in the regulation of gaming activities on Indian lands. Id. at 544-547. In so deciding, the Court looked to traditional notions of Indian sovereignty and the long history of Supreme Court cases affirming that Indian commerce is under the exclusive control of the federal government. Id. at 547-8. In determining the preemptive scope of the Act, the Circuit stated that "[t]he key question is whether a particular claim will interfere with tribal governance of gaming." Id. at 549. The Court also noted that, due to unique federal and tribal interests, a less stringent test is applied when preemption is asserted as a defense in cases involving Indian affairs. Id. at 548.

The parties have not cited, and the court is not aware of, any cases in which an Indian tribe broadcast its gaming activities beyond the traditional geographical scope of Indian land. Plaintiff argues that the Act is clearly inapplicable to this case, and that its cause of action is consequently not preempted, because the gambling at issue does not take place "on Indian lands." It is true that the gamblers in Missouri place their bets from locations not on Indian land; it is also the case that the Tribe's web site for the Internet lottery is maintained on and operated from a computer located on tribal lands. The defendants accordingly contend that the lottery does take place on Indian lands and is thus covered by the Act. Defendants also contend that the Tribe's authority to engage in the Internet gaming in the first instance arises from the Act. See Oneida Indian Nation of New York State v. County of Oneida, 414 U.S. 661 (1974) (where tribe's right to possession of land was claimed to arise under federal law in the first instance, construction of federal law was necessary and thus claim concerning land rights presented federal question). Contrary to plaintiff's contentions, the question of whether the Tribe's lottery takes place on Indian lands is a question of law-federal law-to be determined by the court. Because the court cannot grant or deny plaintiff the requested relief without reference to the Act, and even assuming defendants are arguing a strained construction of the federal legislation-which may very well not contemplate broadcasting beyond Indian Territory-there is clearly a federal question present warranting federal jurisdiction.

The preemptive scope of the Act, as determined by the Circuit, also indicates that a federal question is present here. Plaintiff seeks a permanent injunction preventing the tribe from continuing to allow Missouri residents access to its lottery web site. Any determination in this case will arguably "interfere with tribal governance of gaming."

The facts of Dorsey & Whitney additionally indicate that this case is completely preempted by the Act. In Dorsey & Whitney, two casino management corporations brought an action against an Indian tribe's law firm alleging that the firm had violated state law while representing the tribe during a tribal casino management licensing process. The facts of the case only indirectly implicated the gaming licensing process authorized by the Act. Even though the tribe was not a party to the litigation, the court concluded that the tribe had a recognized interest in connection with parties with whom it deals in relation to gaming and that this indirect connection to the Act was sufficient to completely preempt the claims. It was enough that "[i]nquiry into [the law firm's] performance of its duty to the nation could threaten the tribe's legitimate interests, question to correctness of its licensing decisions, and risk influencing how counsel could serve tribes in the future." Id. at 550.

Plaintiff also contends that this case should be remanded because removal violates the Eleventh Amendment. Plaintiff argues that the Eleventh Amendment prohibits removal to federal court of cases where the state is a party without the state's consent. Plaintiff's argument is against the weight of established Supreme Court precedent and the language of the Eleventh Amendment itself. See Illinois v. City of Milwaukee, 406 U.S. 91, 100-101 (1972); Ames v. Kansas, 111 U.S. 449, 470 (1884). Where a federal question is presented, as is the case here, the Eleventh Amendment does not bar removal of an action in which a state is the plaintiff.

Plaintiff has additionally moved the court to stay its obligation to respond to defendants' motions to dismiss until the issue of remand had been ruled. Because plaintiff's briefs are, at this point, well overdue and because plaintiff should not be penalized for the court's failure to rule on its motion earlier, plaintiff's motion to stay will be granted. The court will withhold ruling on defendants' motions to dismiss until plaintiff has filed its opposition.

For the foregoing reasons, it is hereby

ORDERED that defendants' Motion to Amend Notice of Removal (Doc. 8) is GRANTED. It is further

ORDERED that plaintiff's Motion to Remand Action to State Court (Doc. 14) is DENIED. It is further

ORDERED that plaintiff's Motion to Stay Plaintiff's Obligation to Respond to Defendants' Motions to Dismiss Until Plaintiff's Motion to Remand is Ruled (Doc. 16) is GRANTED. Plaintiff should respond to defendants' motions to dismiss within twelve (12) days from the date of this order.


Dated: September 29, 1997.

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