Abba Bail Bonds, Inc. v. Jeff Grubbe

FILED
NOT FOR PUBLICATION MAR 22 2016

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ABBA BAIL BONDS, INC., a California No. 13-56701
Corporation,
D.C. No. 2:12-cv-06593-TJH-DTB
Plaintiff - Appellant,

v. MEMORANDUM*

JEFF L. GRUBBE, Acting Tribal Council
Chairman, Agua Caliente Band of Chauilla
Indians; et al.,

Defendants - Appellees.

RICHARD S HELD RETIREMENT No. 14-56760
TRUST,
D.C. No. 5:14-cv-00257-TJH-DTB
Plaintiff - Appellant,

v.

JEFF L. GRUBBE, Tribal Council
Chairman, Agua Caliente Band of Cahuilla
Indians; et al.,

Defendants - Appellees,

And

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
CLIFFORD WILSON MATHEWS, AKA
Clifford Wilson Matthews,

Defendant.

Appeal from the United States District Court
for the Central District of California
Terry J. Hatter, Senior District Judge, Presiding

Submitted March 8, 2016**
Pasadena, California

Before: REINHARDT, MURGUIA, and OWENS, Circuit Judges.

ABBA Bail Bonds, Inc. and Richard S. Held Retirement Trust appeal from

the district court’s dismissal of their suits against named officials of the Agua

Caliente Band of Cahuilla Indians, a federally recognized Indian tribe. The district

court determined it did not have subject matter jurisdiction over either action. We

affirm the dismissal for lack of jurisdiction.

Both appellants obtained money judgments against a member of the Tribe in

California Superior Court. The state court also issued corresponding assignment

orders requiring the Tribe to make payments to appellants from the individual

member’s “regular periodic monthly payments” from the Tribe to satisfy the

**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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respective judgments. Though the tribal officials had the power to authorize such

payments, they refused to do so on the basis that sovereign immunity barred

enforcement of the assignment orders. Appellants brought the instant actions in

federal district court, effectively to enforce those same state court assignment

orders.

Appellants have failed to establish that the district court has subject matter

jurisdiction under 28 U.S.C. § 1331, which provides that federal courts “shall have

original jurisdiction of all civil actions arising under the Constitution, laws, or

treaties of the United States.” See Alvarado v. Table Mountain Rancheria, 509

F.3d 1008, 1016 (9th Cir. 2007) (“To confer subject matter jurisdiction in an action

against a sovereign, in addition to a waiver of sovereign immunity, there must be

statutory authority vesting a district court with subject matter jurisdiction.”). “For

a case to ‘arise under’ federal law, a plaintiff’s well-pleaded complaint must

establish either (1) that federal law creates the cause of action or (2) that the

plaintiff’s asserted right to relief depends on the resolution of a substantial question

of federal law.” Peabody Coal Co. v. Navajo Nation, 373 F.3d 945, 949 (9th Cir.

2004) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Tr., 463 U.S. 1, 27-

28 (1983)). “The fact that the defendant is a Native sovereign is not, by itself,

sufficient to raise a federal question.” Id. (citing Gila River Indian Cmty. v.

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Henningson, Durham & Richardson, 626 F.2d 708, 714 (9th Cir.1980)).

Appellants have not established federal question jurisdiction under either prong of

the Franchise Tax Board test.

First, appellants did not bring suit under a federal cause of action. Their

asserted basis for federal jurisdiction, 28 U.S.C. § 1360, neither confers

jurisdiction on federal courts nor provides a private right of action. To the

contrary, § 1360 grants California state courts jurisdiction over “civil causes of

action between Indians or to which Indians are parties” which arise in Indian

country within California, “to the same extent that [California] has jurisdiction

over other civil causes of action.” § 1360(a). While § 1360(b) limits this

jurisdiction, in that it provides that a state court may not “authorize the

alienation . . . of any . . . property . . . belonging to any Indian or any Indian

tribe . . . that is held in trust by the United States,” this section does not confer

jurisdiction on federal courts. See K2 Am. Corp. v. Roland Oil & Gas, LLC, 653

F.3d 1024, 1028 (9th Cir. 2011) (“The district court correctly concluded that

§ 1360(b) limits the exercise of state jurisdiction; it does not confer jurisdiction on

federal courts.”); see also Nisqually Indian Tribe v. Gregoire, 623 F.3d 923, 929

(9th Cir. 2010) (“A plaintiff may only bring a cause of action to enforce a federal

law if the law provides a private right of action.”). Nor have appellants

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demonstrated that Congress intended § 1360 to imply a federal cause of action.

See Nisqually Indian Tribe, 623 F.3d at 929 (“[A]n implied right of action is only

authorized when there is clear evidence Congress intended such a right to be part

of the statute.”).

Second, appellants do not assert a right to relief under a non-federal claim

that “necessarily depends on resolution of a substantial question of federal law.”

Franchise Tax Bd., 463 U.S. at 28. Federal law is relevant to appellants’ state-law

claims only to the extent that appellees assert sovereign immunity as a defense to

enforcement of the state-court judgment. This does not provide a basis for federal

jurisdiction under the well-pleaded complaint rule, as “[f]ederal jurisdiction cannot

hinge upon defenses or counterclaims, whether actual or anticipated.” K2 Am.

Corp., 653 F.3d at 1029; see also Morongo Band of Mission Indians v. Cal. State

Bd. of Equalization, 858 F.2d 1376, 1386 (9th Cir. 1988) (finding no subject matter

jurisdiction because “[f]ederal questions, e.g., whether the Band is immune from a

state tax levy under the federal common law doctrine of tribal sovereign immunity,

would be injected into the Board’s state-law action only by way of defense”).

AFFIRMED.

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