Miccosukee Tribe of Indians v. Cypress

975 F. Supp. 2d 1298, 2013 U.S. Dist. LEXIS 144375
CourtDistrict Court, S.D. Florida
DecidedSeptember 30, 2013
DocketCase No. 12-Civ-22439
StatusPublished
Cited by6 cases

This text of 975 F. Supp. 2d 1298 (Miccosukee Tribe of Indians v. Cypress) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Miccosukee Tribe of Indians v. Cypress, 975 F. Supp. 2d 1298, 2013 U.S. Dist. LEXIS 144375 (S.D. Fla. 2013).

Opinion

OMNIBUS ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS PLAINTIFF’S SECOND AMENDED COMPLAINT

MARCIA G. COOKE, District Judge.

THIS MATTER is before me upon all named Defendants’ motions to dismiss: Defendant Dexter Lehtinen’s Motion to Dismiss Second Amended Complaint (ECF No. 92); Defendants, Guy Lewis, Esquire, Michael Tein, Esquire, and Lewis Tein, PL’s Motion to Dismiss Plaintiffs Second Amended Complaint (ECF No. 94); Defendant, Miguel Hernandez’s, Amended Motion to Dismiss Second Amended Complaint and to Join all Other Defendants’ Motion to Dismiss Second Amended Complaint to the Extent Applicable (ECF No. 103); Motion of Defendant, Billy Cypress, to Dismiss Second Amended Complaint for Lack of Subject Matter Jurisdiction and for Failure to State a Claim (ECF No. 104); and Defendant Julio Martinez’s Motion to Dismiss Second Amended Complaint for Lack of Subject Matter Jurisdiction and for Failure to State a Cause of Action and Joinder in Motions to Dismiss by Other Defendants (ECF No. 105). The Miccosukee Tribe of Indians of Florida filed its Response in Opposition to all Defendants’ Motions to Dismiss Plaintiffs Second Amended Complaint. See ECF Nos. 129, 118, 119, 125, and 120. All Defendants, in turn, submitted their Reply in Further Support of Motion to Dismiss Second Amended Complaint. See ECF Nos. 143, 140, 144, 146, and 147. Therefore, all Defendants’ Motions to Dismiss Second Amended Complaint are fully briefed and ripe for adjudication.

I have reviewed the Defendants’ Motions to Dismiss Second Amended Complaint, the Responses and Replies thereto, the record (excluding the exhibits improperly attached to the Miccosukee Tribe of Indians of Florida’s Responses), and the relevant legal authorizes. For the reasons detailed herein, the Defendants’ Motions to Dismiss Second Amended Complaint are granted.

[1300]*1300I.BACKGROUND1

“No one fights dirtier or more brutally than blood; only family knows its own weaknesses, the exact placement of the heart.” Whitney Otto, How to Make an American Quilt (1991). Whitney Otto’s quote seems a particularly apt description of the emotionally and politically charged litigation, occurring in multiple judicial venues, between the named parties, whom include the following.

A. The Parties

1. The Miccosukee Tribe of Indians of Florida

The Miccosukee Tribe of Indians of Florida (“Plaintiff,” or the “Miccosukee Tribe”), is a sovereign nation and federally recognized Indian tribe exercising powers of self-governance under a Tribal Constitution approved by the Secretary of the Interior, pursuant to the Indian Reorganization Act of 1934, 25 U.S.C. § 461 et seq. Second Am. Compl. 5, ECF No. 1. It is governed by the Miccosukee General Council and the Miccosukee Business Council. The authority of the Miccosukee Tribe is vested in the Miccosukee General Council, while the Miccosukee Business Council is responsible for the daily administrative operation of the Miccosukee Tribe and carrying out the laws, policies and directives of the Miccosukee General Council. The Miccosukee Business Council is composed of the Chairman, Vice-Chairman, Secretary, Treasurer, and Lawmaker. Id. ¶¶ 5(a) & (b).

2.Billy Cypress

Defendant Billy Cypress (“Defendant Cypress”), an enrolled member of the Miccosukee Tribe, was its elected Chairman of the Miccosukee Tribe for a 22-year period, including the relevant period of time, which is 2005 through and including January 2010, at which time Defendant Cypress’ term as Chairman concluded. As Chairman, Defendant Cypress “oversaw, controlled, supervised and had unrestricted access and control over all the financial funds and records of the Miccosukee Tribe----” Id. 6. Thus, Defendant Cypress contends that, at all times, he was acting in his “official capacity” pursuant to the authority granted him by the Miccosukee Tribe. See Def. Cypress’ Mot. Dismiss at 3.

3. Miguel Hernandez

Defendant Miguel Hernandez (“Defendant Hernandez”) was the Miccosukee Tribe’s Director of the Finance Department for the relevant period of time. As the Director of the Finance Department, Defendant Hernandez oversaw and was responsible for the daily operation and supervision of the Miccosukee Tribe’s Finance Department. Therefore, he had unrestricted access to and was in possession of all financial information of the Miccosukee Tribe, including, but not limited to, the Miccosukee Tribe’s Morgan Stanley Smith Barney Investment Account and all credit card statements for the officers of the Miccosukee Business Council. Second Am. Compl. ¶ 9. According to Defendant Hernandez, he served at the direction of Defendant Cypress, who was his direct supervisor. Def. Hernandez’s Mot. Dismiss at 3.

4.Julio Martinez

Defendant Julio Martinez (“Defendant Martinez”) served as the Miccosukee Tribe’s Chief Financial Officer. In this capacity, Defendant Martinez performed [1301]*1301his duties under the supervision and authority of Defendant Cypress and Defendant Hernandez. From 2005 through and including 2010, Defendant Martinez’s responsibilities included, amongst others, receiving the monthly financial statements from, reviewing, and supervising the Miccosukee Tribe’s Morgan Stanley Smith Barney Investment Account that is the subject of this lawsuit. Id. ¶¶ 7-8.

5.Dexter Wayne Lehtinen, Esquire

Defendant Dexter Wayne Lehtinen, Esquire (“Defendant Lehtinen”) is a professional attorney, who served as the acting General Counsel and main attorney for the Miccosukee Tribe. In this capacity, Defendant Lehtinen represented the Miccosukee Tribe, all tribal entities, businesses, enterprises, and agencies, including, but not limited to, the Miccosukee Police Department, Miccosukee Indian Gaming, Miccosukee Resort and Convention Center, Miccosukee Real Estate, Miccosukee Fish and Wildlife, Miccosukee Athletic and Boxing Commission, Miccosukee Water Resources, Miccosukee Business Council, Miccosukee Intergovernmental Affairs, Legislative and Lobbying Office, and Miccosukee Golf Course, and Defendant Cypress, in his personal capacity. Defendant Lehtinen also represented the Miccosukee Tribe in all legal, administrative, and regulatory matters at the state and federal levels. During a few years of his tenure as General Counsel and primary counsel for the Miccosukee Tribe, Defendant Lehtinen also managed the daily operations of the Miccosukee Indian Gaming. From 2005 until 2010, Defendant Lehtinen also reported on the revenues generated by gaming machines at Miccosukee Indian Gaming as well as other financial matters related to the Miccosukee Tribe. Id. ¶¶ 13.

6.Guy Lems, Esquire; Michael Tein, Esquire; and Lewis Tein, P.L.

Defendants Guy Lewis, Esquire (“Defendant Lewis”) and Michael Tein, Esquire (“Defendant Tein”) are profession al attorneys, who represented both Defendant Cypress in his individual capacity and the Miccosukee Tribe, along with their professional association, Defendant Lewis Tein, P.L. (“Defendant Lewis Tein”). Id. ¶¶ 10-12.

7.Defendant Morgan Stanley Smith Barney2

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Bluebook (online)
975 F. Supp. 2d 1298, 2013 U.S. Dist. LEXIS 144375, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miccosukee-tribe-of-indians-v-cypress-flsd-2013.