Nguyen v. Spirit Mountain Gaming, Inc.

5 Am. Tribal Law 126
CourtGrand Ronde Tribal Court
DecidedNovember 1, 2004
DocketNo. C-04-06-002
StatusPublished
Cited by1 cases

This text of 5 Am. Tribal Law 126 (Nguyen v. Spirit Mountain Gaming, Inc.) is published on Counsel Stack Legal Research, covering Grand Ronde Tribal Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nguyen v. Spirit Mountain Gaming, Inc., 5 Am. Tribal Law 126 (grrondect 2004).

Opinion

[127]*127ORDER GRANTING MOTION TO DISMISS

KATHARINE ENGLISH, Chief Judge.

A. BACKGROUND; INTRODUCTION

On June 4, 2004, Plaintiff Nguyen filed a complaint against four Defendants—Spirit Mountain Casino (Casino), Spirit Mountain Gaming, Inc (SMGII)., the Grand Ronde Gaming Commission (Commission), and the Confederated Tribes of the Grand Ronde Community of Oregon (Tribe). The complaint, seeking damages for personal injury based on theories of common law negligence, alleged that Plaintiff slipped, fell, and was injured in a women’s bathroom at the Casino on October 18, 2003. The complaint averred that the Defendants were negligent in not regularly monitoring, inspecting and cleaning the women’s bathroom, and in failing to warn Plaintiff about the alleged hazard and danger. The complaint sought both economic and non-economic damages.

Plaintiff sought to serve the summons and complaint on the Casino and SMGII by serving the Secretary of the Tribal Council and the Tribal Attorney. Plaintiff also served the Council Secretary and the Tribal Attorney as representatives of the Commission, but Plaintiff also served the “Chief Executive Officer” of the Commission. The Tribe was served by again serving the Secretary of the Tribal Council and the Tribal Attorney.

In a motion filed on behalf of all four of the Defendants, Defendants moved for the dismissal of Plaintiffs complaint, “upon the grounds that the Tribal Court lacks jurisdiction over the subject matter, that there has been insufficiency of process, insufficiency of service of process, and that Plaintiff has failed to state ultimate facts sufficient to state a claim for relief.” More specifically, Defendants contend that Plaintiff has not stated a claim for relief against the Commission because it “is a regulatory body which regulates the games offered inside the Casino.” The Commission “has no involvement in the day-to-day operations of the Casino and makes no decisions regarding the maintenance of the Casino.” With regard to the [128]*128Tribe, Plaintiff has not stated a claim for relief against it because, although the Tribe is the “sole shareholder of Spirit Mountain Gaming, Inc.,” it is that entity which “operates the Casino,” and is “a corporation chartered under tribal law to operate separately, autonomously and independently from the Tribe.” As for SMGII, Defendants assert that the Court lacks jurisdiction over the subject matter, and that process and service of process were insufficient, because Plaintiff did not give timely notice of the injury to the Chief Executive Officer (CEO) of SMGII, as is required by the Tribal Toil Claims Ordinance. Spirit Mountain Casino simply is an assumed business name of SMGII, Defendants contend.

In response, Plaintiff has argued that she gave timely notice of the injury first to Casino first aid staff, to risk management for and the insurer for SMGII, and to the Secretary of the Tribal Council, the Tribal Attorney, and the “CEO” of the Commission. Citing Oregon case law, Plaintiff argues that she substantially complied with the notice requirements of the Ordinance. She contends that giving notice to risk management, to SMGII’s insurer, and to the Tribal Attorney should suffice because they are all agents of SMGII. She also notes that the attorney is the authorized representative for the Casino. Giving notice to the Tribe should be enough because it is the sole shareholder in SMGII, and notice to it, thus, should be imputed to SMGII.1 She asserts that the Commission is a proper Defendant because it regulates the Casino and SMGII.

Plaintiff does not contend that she gave timely notice to the CEO of SMGII. And, according to an affidavit filed by the CEO, he never has received any notice from Plaintiff, and only learned of Plaintiffs claim on September 9, 2004, when he discussed his affidavit with Defendants’ attorneys.

B. ISSUES

As framed by the parties, the issues before the Court are whether Plaintiff was required, before bringing suit, to give proper tort claim notice to the CEO of SMGII, and whether either the Tribe or the Commission are proper Defendants in this case. Defendants admit that Plaintiff gave proper and timely notice to the Tribe and the Commission, but they contend that the Commission is merely a regulatory body and that it is SMGII, rather than the Tribe, that is responsible for the day-today operation of the Casino.

C. Discussion

As explained below, the Court grants Defendants’ Motion to Dismiss. The Tribal Ordinance requires that Plaintiff have given timely tort claim notice to the CEO of SMGII. She did not do that. Principles of agency and of imputed knowledge do not apply here because the Ordinance is clear, more specific, and more demanding. The Casino is simply an assumed business name of SMGII and, even if that were not true, Plaintiff no more gave the required notice to the Casino than she did to SMGII. Neither the Commission nor the Tribe is a proper Defendant in this case.

1. No timely tort claim notice was given to the CEO of SMGII.

The Tribal Tort Claims Ordinance makes the giving of timely and proper notice of the claim a prerequisite to the filing of any Court action. In addition, [129]*129when a tort claim is based on the act or omission of any Tribal corporation, such as SMGII, written notice also must be given to the CEO of the corporation. Section 255.6(d)(1) of the Ordinance provides:

No action may be brought in Tribal Cm/ri for monetary damages under this Ordinance and no claim shall be valid for monetary damages under this Ordinance unless the person who claims to have suffered an injury shall send a written notice of the claim for monetary damages as provided in Section (d)(2) below by certified mail return receipt requested to the Secretary of the Tribal Council and the Office of Tribal Attorney. In the case of any claim 'wherein it is alleged an injury was caused by the act or omission of any Tribal Commission, authority, corporation or enterprise or any agent, employee or officer of such Tribal Commission, authority, corporation or enterprise, the written notice required by this section also shall be given to the chief executive officer of such Tribal Commission, authority, corporation or enterprise.

(Emphasis added). “To be valid under th[e] Ordinance,” the written notice of claim “shall have been given no later than 180 days after the act or omission giving rise to the injury.” § 255.6(d)(3). The written notice must include certain specified information, including the claimant’s name, address and telephone number, and a concise statement describing the circumstances of the injury and who was involved. § 255.6(d)(2).

Those provisions could not be much clearer or more emphatic. Giving timely written notice under the Ordinance is an absolute prerequisite to bringing a tort case in Tribal Court. Without such notice, “[n]o action may be brought” and “no claim shall be valid for monetary damages[.]” § 255.6(d)(1). And, when any claim alleges that an injury was caused by the act or omission of any Tribal authority, “corporation,” or enterprise, the written notice must be given, not only to the Secretary of the Tribal Council and the Tribal Attorney, but “also” to the CEO of the authority, corporation, or enterprise. Id.

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Cite This Page — Counsel Stack

Bluebook (online)
5 Am. Tribal Law 126, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nguyen-v-spirit-mountain-gaming-inc-grrondect-2004.