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United States District Court,
D. Arizona.

EQUAL OPPORTUNITY EMPLOYMENT COMMISSION, Plaintiff,
v.
PEABODY WESTERN COAL COMPANY, et al., Defendants.

No. 2:01–cv–01050 JWS.
March 7, 2012.
Andrea Gail Baran, Christopher Robert Houk, James P. Driscoll–Maceachron, Mary Joleen O'Neill, Equal Employment Opportunity Commission, Phoenix, AZ, for Plaintiff.

John F. Lomax, Jr., Kathryn H. King, Snell & Wilmer LLP, Phoenix, AZ, Lisa M. Enfield, Paul E. Frye, Frye Law Firm PC, Albuquerque, NM, Louis Denetsosie, Navajo Nation Department of Justice, Window Rock, AZ, for Defendants.

ORDER AND OPINION

JOHN W. SEDWICK, District Judge.

I. MOTION PRESENTED

*1At docket 196, defendant Navajo Nation (“the Nation”) renews its motion to dismiss for lack of subject matter jurisdiction, lack of personal jurisdiction, insufficiency of process, failure to state a claim, and failure to exhaust tribal remedies. The motion was originally filed at docket 89. Plaintiff Equal Opportunity Employment Commission (“the EEOC”) opposes the motion at docket 213. Defendant Peabody Western Coal Company (“Peabody”) filed a response in support of the Nation's motion, at docket 214. Supplemental responses were filed by Peabody and the EEOC at dockets 224 and 225. The Nation's reply is at docket 231. Oral argument was requested, but would not assist the court.

II. BACKGROUND

This lawsuit was filed in 2001 and arises out of lease provisions requiring that Peabody, a coal mining company which leases land from the Nation, provide employment preference to Navajo job applicants over other applicants. Comprehensive background is provided in EEOC v. Peabody Coal Co. ( “Peabody I” ),FN1 EEOC v. Peabody Western Coal Co. ( “Peabody II” ),FN2 and Peabody v. Western Coal Co. ( “Peabody III” ).FN3

FN1. 214 F.R.D. 549 (D.Ariz.2002) .

FN2. 400 F.3d 774 (9th Cir.2005) .

FN3. 610 F.3d 1070 (9th Cir.2010) .

III. STANDARD OF REVIEW

A. Subject Matter Jurisdiction

Under Federal Rule of Civil Procedure 12(b)(1) , a party may seek dismissal of an action for lack of subject matter jurisdiction. In order to survive a defendant's motion to dismiss, the plaintiff has the burden of proving jurisdiction.FN4 Where the defendant brings a facial attack on the subject matter of the district court, the court assumes the factual allegations in the plaintiff's complaint are true and draws all reasonable inferences in the plaintiff's favor.FN5 The court does not, however, accept the truth of legal conclusions cast in the form of factual allegations.FN6

FN4. Tosco v. Cmtys. for a Better Env't, 236 F.3d 495, 499 (9th Cir.2000) .

FN5. Doe v. Holy See, 557 F.3d 1066, 1073 (9th Cir.2009) .

FN6. Id.

B. Personal Jurisdiction

“Where a defendant moves to dismiss a complaint [pursuant to Federal Rule of Civil Procedure 12(b)(2) ,] for lack of personal jurisdiction, the plaintiff bears the burden of establishing that a court has personal jurisdiction over a defendant.” FN7 Where the motion is based only upon written materials, rather than an evidentiary hearing, the plaintiff is required only to make a prima facie showing of personal jurisdiction.FN8 Uncontroverted allegations in the complaint are taken as true, and conflicts between parties over statements contained in affidavits are resolved in favor of the plaintiff. FN9

FN7. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir.2004) .

FN8. Dole Food Co., Inc. v. Watts, 303 F.3d 1104, 1108 (9th Cir.2002) .

FN9. Brayton Purcell LLP v. Recordon & Recordon, 575 F.3d 981, 985 (9th Cir.2009) .

C. Failure to State a Claim

A motion to dismiss for failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6), tests the legal sufficiency of a plaintiff's claims. In reviewing such a motion, “[a]ll allegations of material fact in the complaint are taken as true and construed in the light most favorable to the nonmoving party.” FN10 Dismissal for failure to state a claim can be based on either “the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” FN11 “Conclusory allegations of law ... are insufficient to defeat a motion to dismiss.” FN12 To avoid dismissal, a plaintiff must plead facts sufficient to “state a claim to relief that is plausible on its face.” FN13 “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.” FN14 “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.” FN15 “Where a complaint pleads facts that are ‘merely consistent’ with a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’ “ FN16 “In sum, for a complaint to survive a motion to dismiss, the nonconclusory ‘factual content,’ and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” FN17

FN10. Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir.1997).

FN11. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1990).

FN12. Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th Cir.2001).

FN13. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).

FN14. Id.

FN15. Id. (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

FN16. Id. (quoting Twombly, 550 U.S. at 557).

FN17. Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir.2009).

IV. DISCUSSION

*2Although the Nation re-filed the entirety of its motion to dismiss, it recognized that Peabody III rejected several of the motion's bases. FN18 The court will not revisit the Nation's arguments that its sovereign immunity precludes its joinder under Rule 19 or that claims against it must be dismissed for inability to join the Secretary of the Interior. Those arguments have been rejected by the Court of Appeals.FN19

FN18. Doc. 196 at 2.

FN19. See Peabody III, 610 F.3d at 1080, 1087 .

A. Title VII and the Rehabilitation Act

The Nation argues that it is exempt from application of Title VII. Section 2000e(b) of Title 42 excludes “Indian tribe[s]” from the definition of “employer.” FN20 However, the EEOC is seeking injunctive relief against Peabody, not the Nation.FN21 The Nation was joined to ensure “that both Peabody and the Nation are bound to any judgment upholding or striking down the challenged lease provision.” FN22 Consequently, whether the Nation is exempt from Title VII does not bear on the present motion.

FN20. 42 U.S.C. § 2000e(b) (1).

FN21. Peabody III, 610 F.3d at 1080 .

FN22. Peabody II, 400 F.3d at 783 .

The Nation renews its contention that the Navajo–Hopi Rehabilitation Act of 1950 authorizes tribe-specific preferences.FN23 However, the Ninth Circuit was clear, when vacating the court's previous holding on that issue, that reconsideration should not occur until the Secretary of the Interior has presented arguments “on the legality of the [contested] preferences”.FN24 The Secretary has not yet presented any arguments on the legality of tribe-specific preferences, and the court therefore declines to consider the issue at this juncture.FN25

FN23. 25 U.S.C. §§ 631 –638 .

FN24. Peabody III, 610 F.3d at 1087 .

FN25. See doc. 227.

B. Personal Jurisdiction and Service of Process

The Nation argues that the court lacks personal jurisdiction because it was not served in conformity with Federal Rule of Civil Procedure 4 . The Nation relies on Prewitt Enter., Inc. v. Organization of Petroleum Exporting Countries,FN26 in which the Eleventh Circuit held that the Organization of Petroleum Exporting Countries (“OPEC”) could not be served in accordance with Federal Rule of Civil Procedure 4(h)(2) and 4(f) , primarily because “Austrian law clearly provide[d] protection to OPEC as an international organization from all methods of service of process without its consent” and because OPEC did not consent. Prewitt does not apply here because the Nation is not an unincorporated association in a foreign country.

FN26. 353 F.3d 916, 928 (11th Cir.2003) .

The EEOC maintains that it properly served the Nation under Federal Rule of Civil Procedure 4(j), which applies to foreign, state, and local governments. Rule 4(j)(2) provided, at the time that service was attempted, that “[s]ervice upon a state, municipal organization, or other governmental organization subject to suit shall be effected by delivering a copy of the summons and of the complaint to its chief executive officer or by serving the summons and complaint in the manner prescribed by the law of that state.” FN27 The EEOC mailed the summons and complaint to the Nation's President and Attorney General twice, in accordance with Navajo Nation Code, Title I, § 555(A) and (C). By doing so, the EEOC effected service under Federal Rule of Civil Procedure 4(j)(2)(A) and (B).

FN27. Fed.R.Civ.P. 4(j)(2). The rule was amended in 2007 to reduce the “risk that th[e] rule might be read to govern service on a federal agency, or other entities not created by state law.” Id. advisory committee's note.

*3Even if Rule 4(j) did not apply-and the Nation were properly considered an association-the court concludes that service would have been effective under Rule 4(h) .

C. Failure to State a Claim and Lack of Capacity

The Nation argues that the complaint must be dismissed because it fails to state a claim against the Nation. This argument is foreclosed by Peabody II and Peabody III. In Peabody II, the Ninth Circuit stated that “where the EEOC asserts a cause of action against Peabody and seeks no affirmative relief against the Nation, joinder of the Nation under Rule 19 is not prevented by the fact that the EEOC cannot state a cause of action against it.” FN28 In Peabody III, the Ninth Circuit concluded that “EEOC is not seeking any injunctive relief against the Nation. The Nation is ‘bound’ by the injunction only in the sense that it is res judicata as to the Nation, not in the sense that the injunction affirmatively requires the Nation to do something.” FN29 Although framed in the context of joinder, the Ninth Circuit's conclusions would not make any sense if the EEOC's failure to seek relief from the Nation compelled dismissal of the complaint.

FN28. 400 F.3d at 778 .

FN29. 610 F.3d at 1080 .

Contrary to its assertions that it is not a government or governmental agency for purposes of service of process, the Nation argues that the EEOC was required to refer this case to the Attorney General of the United States. FN30 Similarly, the Nation maintains that the EEOC has not complied with the statutory conditions on a suit under Title VII-specifically, that the EEOC “made no attempt at conciliation with the Navajo Nation.” FN31 The problem with the Nation's arguments is that the EEOC is not alleging that the Nation has violated Title VII.FN32 The Nation was joined to insure complete and binding relief with respect to Peabody, so there is no basis for conciliation between it and the EEOC.

FN30. See 42 U.S.C. § 2000e–5(f)(1) (“In the case of a respondent which is a government, governmental agency, or political subdivision, if the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission shall take no further action and shall refer the case to the Attorney General.”).

FN31. Doc. 89 at 42.

FN32. See 42 U.S.C. § 2000e–5(b) .

D. Failure to Exhaust Tribal Remedies

The Nation also argues that the court should decline to exercise its jurisdiction in this case because the EEOC did not first file suit in a tribal court and exhaust tribal remedies available to it there. Tribal exhaustion is prudential, not jurisdictional.FN33 It is a matter of comity that arises primarily in context of tribal court jurisdiction.FN34 Tribal court jurisdiction is not at issue in this case-even assuming that the appropriate tribal court has jurisdiction to hear suits alleging violations of Title VII, disposition of this suit in a federal forum in the absence of a tribal court determination will not undermine Congress' policy of supporting tribal self-government.

FN33. El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 483–84, 119 S.Ct. 1430, 143 L.Ed.2d 635 (1999) ; Sharber v. Spirit Mountain Gaming, Inc., 343 F.3d 974, 975–76 (9th Cir.2003) (per curiam).

FN34. See Sharber, 343 F.3d at 975 .

V. CONCLUSION

For the reasons above, the Nation's motion at docket 196 is DENIED without prejudice to renewal of its arguments on the merits of the tribal preferences at issue in connection with the Secretary's explication of the preferences.

D.Ariz.,2012.
E.E.O.C. v. Peabody Western Coal Co.
Slip Copy, 2012 WL 748301 (D.Ariz.)

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