Sipp v. Buffalo Thunder, Inc.

Office of the

Director New Mexico

Compilation

15:29:05 2022.03.14 Commission

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2022-NMCA-015

Filing Date: December 8, 2021

No. A-1-CA-36924

JEREMIAH SIPP a/k/a SAGE RADER,

and HELLA RADER,

Plaintiffs-Appellants,

v.

BUFFALO THUNDER, INC.; BUFFALO

THUNDER DEVELOPMENT AUTHORITY;

PUEBLO OF POJOAQUE; PUEBLO OF

POJOAQUE GAMING COMMISSION; and

POJOAQUE GAMING, INC.,

Defendants-Appellees.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY

David K. Thomson, District Judge

Certiorari Granted, February 8, 2022, No. S-1-SC-39169. Released for Publication

March 22, 2022.

Valdez and White Law Firm, LLC

Timothy L. White

Albuquerque, NM

for Appellants

Rey-Bear McLaughlin, LLP

Daniel I.S.J. Rey-Bear

Spokane, WA

for Appellees

OPINION

DUFFY, Judge.

{1} Plaintiff Jeremiah Sipp sued the Pueblo of Pojoaque and several Pueblo-owned

entities in New Mexico state district court after he was injured at the Buffalo Thunder

Resort and Casino. The district court dismissed the case for lack of subject matter

jurisdiction, ruling that Sipp did not fall within the limited waiver of sovereign immunity

contained in the Pueblo’s Tribal-State Class III Gaming Compact. We reverse.

BACKGROUND

{2} Sipp (also known as Sage Rader) was an employee of Dial Electric, a vendor

that sold lights to Buffalo Thunder for the facility’s parking lot. Sipp delivered the lights

and alleged that while he was moving in and out of a receiving area, a Buffalo Thunder

employee abruptly lowered a garage door, causing Sipp to hit his head. Sipp claimed

that he was knocked unconscious and suffered severe injuries, including a cervical

spine injury that required major surgery.

{3} Buffalo Thunder is operated by the Pueblo of Pojoaque pursuant to a Tribal-State

Class III Gaming Compact with the State of New Mexico, as required by the federal

Indian Gaming Regulatory Act (IGRA), 25 U.S.C. §§ 2701 to 2721. Section 8(A) of the

Compact addresses subject matter jurisdiction over claims for “bodily injury or property

damage proximately caused by the conduct of the Gaming Enterprise” and contains

both a waiver of sovereign immunity for such claims and an express agreement to state

court jurisdiction.

{4} Sipp and his wife, Hella Rader, filed a complaint for damages in state district

court, naming Buffalo Thunder, Inc., Buffalo Thunder Development Authority, the

Pueblo of Pojoaque, the Pueblo of Pojoaque Gaming Commission, and Pojoaque

Gaming, Inc. as Defendants. Plaintiffs sought damages for Sipp’s injuries and for Hella

Rader’s derivative tort claims. Defendants filed a motion to dismiss for lack of subject

matter jurisdiction under Rule 1-012(B)(1) NMRA, arguing that the Pueblo’s sovereign

immunity precluded the district court from hearing the suit and that the limited waiver of

sovereign immunity in Section 8(A) of the Compact was inapplicable in the present

case.

{5} The district court held a hearing and issued a brief order finding that Plaintiffs’

allegations did not fall within Section 8(A)’s immunity waiver. The court dismissed the

case, concluding that “Plaintiffs have not established an express abrogation or waiver of

Defendants’ sovereign immunity as required to establish subject matter jurisdiction

here.” Plaintiffs appeal.

DISCUSSION

{6} Plaintiffs contend the district court erred in granting Defendants’ motion to

dismiss because Section 8(A) of the Compact expressly waives sovereign immunity and

provides for state court jurisdiction over Plaintiffs’ claims. Section 8(A), entitled

“Protection of Visitors,” states:

The safety and protection of visitors to a Gaming Facility is a priority of the

Tribe, and it is the purpose of this Section to assure that any such persons

who suffer bodily injury or property damage proximately caused by the

conduct of the Gaming Enterprise have an effective remedy for obtaining

fair and just compensation. To that end, in this Section, and subject to its

terms, the Tribe agrees to carry insurance that covers such injury or loss,

agrees to a limited waiver of its immunity from suit, and agrees to proceed

either in binding arbitration proceedings or in a court of competent

jurisdiction, at the visitor’s election, with respect to claims for bodily injury

or property damage proximately caused by the conduct of the Gaming

Enterprise. For purposes of this Section, any such claim may be brought

in state district court, including claims arising on tribal land, unless it is

finally determined by a state or federal court that IGRA does not permit the

shifting of jurisdiction over visitors’ personal injury suits to state court.

See also Doe v. Santa Clara Pueblo, 2007-NMSC-008, ¶¶ 7-8, 141 N.M. 269, 154 P.3d

644 (holding that under Section 8(A), the Pueblos consented to state court jurisdiction

and waived sovereign immunity for personal injury claims concerning visitor safety

unless IGRA does not permit it); Guzman v. Laguna Dev. Corp., 2009-NMCA-116, ¶ 17,

147 N.M. 244, 219 P.3d 12 (stating that there is no question that this section “create[s]

an express and unequivocal waiver under the Compact”).

{7} Defendants argue that Section 8(A) does not permit the district court to exercise

jurisdiction in this case for two reasons. First, Defendants assert that the termination

clause at the end of Section 8(A) was triggered by two federal court decisions, Pueblo

of Santa Ana v. Nash, 972 F. Supp. 2d 1254 (D.N.M. 2013) (memorandum and order),

and Navajo Nation v. Dalley, 896 F.3d 1196 (10th Cir. 2018), such that Section 8(A) no

longer provides for state court jurisdiction. Second, Defendants claim that Sipp does not

qualify as a visitor to a gaming facility under Section 8(A) because (1) he had a

business purpose for visiting Buffalo Thunder and not a gaming purpose, and (2) he

was not injured in a “gaming facility.” We conclude that the termination clause has not

been triggered and, applying New Mexico precedent interpreting Section 8(A), hold that

Plaintiffs’ amended complaint sufficiently pleaded claims that fall within the Compact’s

waiver of sovereign immunity for visitors to a gaming facility.

I. Standard of Review

{8} “In reviewing an appeal from an order granting or denying a motion to dismiss for

lack of jurisdiction, the determination of whether jurisdiction exists is a question of law

which an appellate court reviews de novo.” Gallegos v. Pueblo of Tesuque, 2002-

NMSC-012, ¶ 6, 132 N.M. 207, 46 P.3d 668. We apply the same standard to a

determination of tribal sovereign immunity. Kosiba v. Pueblo of San Juan, 2006-NMCA-

057, ¶ 7, 139 N.M. 533, 135 P.3d 234. “For purposes of a motion to dismiss, we accept

all well-pleaded facts as true and question whether the plaintiff might prevail under any

state of facts provable under the claim.” Guzman, 2009-NMCA-116, ¶ 16 (internal

quotation marks and citation omitted).

II. The Compact’s Termination Clause

{9} The threshold issue is whether the termination clause in Section 8(A) was

triggered by federal court decisions in Nash or Dalley. The termination clause states,

“For purposes of this Section, any [personal injury] claim may be brought in state district

court, including claims arising on tribal land, unless it is finally determined by a state or

federal court that IGRA does not permit the shifting of jurisdiction over visitors’ personal

injury suits to state court.” (Emphasis added.) 1 Because neither Nash nor Dalley finally

determined that IGRA does not permit jurisdiction shifting over personal injury suits, we

hold that the termination clause has not been triggered and the jurisdiction-shifting

provision remains in force.

{10} In Nash, the Pueblo of Santa Ana brought an action in federal court seeking a

declaration that a New Mexico state court lacked subject matter jurisdiction over a

wrongful death claim against the Pueblo. 972 F. Supp. 2d at 1257-58. The underlying

lawsuit alleged that three people died in a car crash after being over-served alcohol at

the Santa Ana Star Casino. Id.; see also Mendoza v. Tamaya Enters., Inc., 2011-

NMSC-030, 150 N.M. 258, 258 P.3d 1050 (underlying state case). In the state court

proceedings, the Pueblo of Santa Ana challenged the state court’s jurisdiction to hear

the case under Section 8 of the Compact. On appeal, the New Mexico Supreme Court

held that Section 8 waived immunity and permitted jurisdiction in state court. Nash, 972

F. Supp. 2d at 1258 (citing Mendoza, 2011-NMSC-030, ¶¶ 3, 15). After remand, the

Pueblo of Santa Ana filed a declaratory judgment action in federal court seeking to

enjoin the state district court judge from exercising jurisdiction over the case. Id.

{11} Nash noted that Congress may provide express authorization to shift jurisdiction,

but reasoned that the plain language of IGRA only permits a tribe to allocate jurisdiction

to state courts for the enforcement of laws directly related to the licensing and regulation

of class III gaming. Id. at 1264. Applying that standard, the court concluded that IGRA

does not authorize an allocation of jurisdiction in state court for a wrongful death claim

arising from the negligent serving of alcohol because the litigation did not involve

licensing or regulation of Indian gaming activities. Id. at 1267. However, the court

specifically restricted its judgment to “the type of personal injury claim involved in the

underlying court case (i.e., a claim arising from the allegedly negligent serving of alcohol

on Indian land).” Id.

{12} Similarly, in Dalley, the Tenth Circuit Court of Appeals considered whether a tort

claim occurring within a Navajo Nation casino could be heard in New Mexico state court

under Section 8(A) of the Compact. Dalley, 896 F.3d at 1200. The underlying state

lawsuit arose when a man slipped and “fell on a wet bathroom floor in the Navajo

1The relevant portion of IGRA, 25 U.S.C. § 2710(d)(3)(C), states:

Any Tribal-State compact negotiated under subparagraph (A) may include provisions relating to—

(i) the application of the criminal and civil laws and regulations of the Indian tribe or

the State that are directly related to, and necessary for, the licensing and regulation of

[Class III gaming activity];

(ii) the allocation of criminal and civil jurisdiction between the State and the Indian

tribe necessary for the enforcement of such laws and regulations;

....

(vii) any other subjects that are directly related to the operation of gaming activities.

Northern Edge Casino.” Id. at 1202. The procedural posture of the case mirrored Nash:

the plaintiffs filed suit against the Navajo Nation in state court and defeated the

defendants’ motion to dismiss for lack of subject matter jurisdiction, at which point the

defendants filed for injunctive relief in federal court. Dalley, 896 F.3d at 1202-03. After

the federal district court denied the defendants’ requested relief, they appealed, and the

Tenth Circuit addressed the same substantive question raised in Nash—whether IGRA

permitted the Pueblo of Santa Ana to shift jurisdiction for personal injury claims not

directly related to gambling activity. Dalley, 896 F.3d at 1203. The Tenth Circuit

reasoned that IGRA authorized tribes to shift jurisdiction for tort claims to state court

only when the claims arose from gaming activity—i.e. “the stuff involved in playing class

III games.” Dalley, 896 F.3d at 1207 (quoting Michigan v. Bay Mills Indian Cmty., 572

U.S. 782, 792 (2014)). The Tenth Circuit concluded that the slip-and-fall on a wet

bathroom floor—an act that involved no class III gaming activity—could not be heard in

state court because IGRA did not authorize the Navajo Nation to shift jurisdiction for the

claim. Id. at 1218.

{13} Like Nash, the Tenth Circuit’s opinion in Dalley was narrow. The court confined

its holding to the circumstances presented in the case: a personal injury tort claim

arising in a tribal casino but unrelated to the actual playing of class III games. Dalley,

896 F.3d at 1210 n.7. The court went on to state, “[W]e do not intend . . . to categorically

negate the possibility that certain classes of tort or personal-injury claims stemming

from conduct on Indian land might conceivably satisfy the statutory conditions for tribal

allocation of jurisdiction to the states under . . . IGRA.” Id.; see also id. at 1209 (“While

we are comfortable assuming that tort, and more specifically personal-injury lawsuits,

constitute a type of regulation, we are unable to discern how applying this form of

regulation to a slip-and-fall event, like [the plaintiff]’s, is ‘directly related to, and

necessary for the licensing and regulation,’ of Class III gaming activity, as Bay Mills

conceives of it.” (citation omitted)). This language leaves the door open to other tort

claims directly related to class III gaming.

{14} Because both Nash and Dalley explicitly restricted their holdings to their case-

specific facts, and both cases left open the possibility that IGRA permits jurisdiction

shifting for tort claims under different circumstances, neither can be said to have “finally

determined . . . that IGRA does not permit the shifting of jurisdiction over visitors’

personal injury suits to state court.” Accordingly, under the plain language of the

Compact, the jurisdiction-shifting provision has not terminated by its own terms, and the

district court in this case was not stripped of subject matter jurisdiction on these

grounds.

{15} We also reject Defendants’ argument that the United States Supreme Court’s

decision in Bay Mills, 572 U.S. 782, requires us to adopt a similar view of the extent to

which IGRA allows tort-claim jurisdiction shifting. The holding in Bay Mills was limited to

the question of whether a different IGRA provision, § 2710(d)(7)(A)(ii), abrogates a

tribe’s sovereign immunity for “class III gaming activity” conducted off Indian lands. Bay

Mills, 572 U.S. 785-86. The State of Michigan alleged that the Bay Mills Indian

Community had tried to open a casino outside of Indian land and sought an injunction in

federal court under § 2710(d)(7)(A)(ii), which vests United States district courts with

jurisdiction over causes of action to enjoin class III gaming activity on Indian lands in

violation of any Tribal-State compact. Bay Mills, 572 U.S. at 787. Michigan argued that

even though the casino was not located on Indian land, the Tribe operated and

administered the casino from within its own reservation, thereby engaging class III

gaming activity on Indian land. Id. at 791-92. The United States Supreme Court rejected

Michigan’s argument, holding that offsite administration of class III gaming did not

constitute “gaming activity” for purposes of § 2710(d)(7)(A)(ii). Bay Mills, 572 U.S. at

791-92. While the Supreme Court explained that “numerous provisions of IGRA show

that ‘class III gaming activity’ means just what it sounds like—the stuff involved in

playing class III games[,]” id. at 792, the Court did not pass upon the question

addressed by Dalley and Nash—“whether IGRA permits an Indian tribe to allocate

jurisdiction over a tort claim arising on Indian land to a state court[.]” Dalley, 896 F.3d at

1200; Nash, 972 F. Supp. 2d at 1264. Consequently, Bay Mills is not dispositive of the

question before us. We continue to adhere to our Supreme Court’s decision in Doe and

its holding that IGRA does not prevent the tribes from negotiating the choice of law or

venue for personal injury suits against casinos. 2007-NMSC-008, ¶ 47. 2

III. Sipp’s Status as a “Visitor”

{16} We turn now to whether Sipp sufficiently alleged claims that fall within the

Compact’s immunity-waiver for visitors to a gaming facility. Defendants focus on the

business purpose of Sipp’s visit to Buffalo Thunder, arguing that the immunity-waiver

only applies to casino patrons and not persons on the premises for other purposes.

Defendants also assert that the waiver is inapplicable because Sipp was not injured in a

gaming facility. We hold that Sipp’s status as a visitor was sufficiently pleaded.

A. Plaintiffs Sufficiently Alleged Sipp Was a Visitor Under the Compact

{17} Plaintiffs urge us to evaluate Sipp’s status as a visitor using the longstanding

definition set forth in UJI 13-1302 NMRA, which states that “[a] visitor is a person who

enters or remains upon the premises with the [express or implied] permission of the

[owner or occupant] of the premises.” See also UJI 13-1302 comm. cmt. (noting that in

Ford v. Bd. of Cnty. Comm’rs, 1994-NMSC-077, 118 N.M. 134, 879 P.2d 766, our

Supreme Court “eliminated the distinction, for purposes of defining the landowner’s duty

of care, between licensees and business visitors or invitees”). However, this Court has

twice considered the term “visitor” as used in Section 8(A) and concluded that the

drafters of the Compact intended a more limited usage that excludes business entities

2Defendants recognize that their interpretation of Bay Mills conflicts with decisions from our Supreme

Court and ask us to “limit the prior rulings in Doe and Mendoza.” Even if we agreed that Bay Mills was on

point, we could not depart from Doe, as “[a]ppeals in this Court are governed by the decisions of the New

Mexico Supreme Court—including decisions involving federal law, and ‘even when a United States

Supreme Court decision seems contra.’ ” Dalton v. Santander Consumer USA, Inc., 2015-NMCA-030,

¶ 30, 345 P.3d 1086, rev’d on other grounds, 2016-NMSC-035, 385 P.3d 619; see also State ex rel.

Martinez v. City of Las Vegas, 2004-NMSC-009, ¶ 20, 135 N.M. 375, 89 P.3d 47; State v. Manzanares,

1983-NMSC-102, ¶ 3, 100 N.M. 621, 674 P.2d 511 (citing Alexander v. Delgado, 1973-NMSC-030, 84

N.M. 717, 507 P.2d 778); State v. Darkis, 2000-NMCA-085, ¶ 10, 129 N.M. 547, 10 P.3d 871.

who enter into business transactions with the Pueblo. See Guzman, 2009-NMCA-116,

¶ 16 (“Business entities who enter into business transactions with the Pueblo are not

considered visitors to whom the waiver applies.” (internal quotation marks and citation

omitted)); R & R Deli, Inc. v. Santa Ana Star Casino, 2006-NMCA-020, ¶ 24, 139 N.M.

85, 128 P.3d 513 (noting that the plaintiff, a restaurant business, fell within the definition

of “visitor” in UJI 13-1302, but that the term “visitor” as used in Section 8(A) of the

Compact was not intended to include business entities). This Court’s distinction

between individual and entity claims in those cases forms the crux of the dispute in this

appeal.

{18} We addressed entity claims in R & R Deli, Inc. There, the plaintiff, a restaurant

business, had entered a lease with Tamaya Enterprises, Inc. that allowed the plaintiff to

operate a restaurant in a casino owned by the Pueblo of Santa Ana and required the

plaintiff to maintain a Pueblo-issued liquor license. 2006-NMCA-020, ¶¶ 2, 5. After one

year of operation, the Pueblo refused to renew the liquor license, essentially terminating

the lease. Id. ¶ 5. The plaintiff sued, alleging breach of contract and a variety of

business torts. Id. ¶ 6. The defendants filed a motion to dismiss that argued the

Compact did not waive sovereign immunity for the lawsuit. Id. The district court granted

the motion and dismissed the complaint. Id. On appeal, this Court affirmed, holding that

the plaintiff was not a visitor under the Compact. Id. ¶ 19. Noting that the language used

in Section 8 refers to the types of claims it encompasses as “personal injury” claims, this

Court concluded that the waiver provision was unambiguous and was geared toward

casino patrons and guests who suffer physical injuries to their person or property, not

business entities or corporations who enter into business transactions with the Pueblo.

Id. ¶¶ 21-25. This Court also agreed with the Pueblo’s asserted policy rationale for that

distinction—that business entities could negotiate their terms of entry onto a gaming

facility premises in order to protect their own interests, while ordinary persons could not.

Id. ¶ 25.

{19} Three years later, this Court considered whether a casino employee could be a

“visitor” within the meaning of the Compact. Guzman, 2009-NMCA-116, ¶ 19. In

Guzman, the plaintiffs filed a wrongful death lawsuit after their son, Anthony, was killed

in a car accident on his way home from work as an employee of a gift shop on the

casino premises. Id. ¶¶ 1, 3. On the night of his death, Anthony consumed alcohol

during his shift that had been purchased by his manager, and after clocking out, stayed

to talk with his manager for about half an hour. Id. ¶ 3. The defendants filed a motion for

judgment on the pleadings, arguing that “as an employee, [Anthony] could not be a

‘visitor’ within the meaning of the Compact” and that his “status was not converted to

that of a visitor during the time he remained on the premises after clocking out because

he stayed for a business purpose, to discuss a potential promotion.” Id. ¶¶ 17, 19. The

district court agreed and dismissed the case. Id. ¶¶ 1, 17. This Court reversed, holding

that to the extent Anthony “[w]as a person lawfully on the premises with the permission

of the casino, the wrongful death claim was well pleaded and should have withstood

[the d]efendants’ motion for dismissal.” Id. ¶ 23.

{20} In this case, Defendants’ arguments as to why Sipp does not qualify as a visitor

largely consist of points we considered and rejected in Guzman. Defendants emphasize

that Sipp was only on the premises to do business as an employee of Dial Electric and

contend he cannot be a visitor under the Compact given the business nature of his visit.

As in Guzman, Defendants’ argument is essentially that, as a matter of law, Sipp “was

not like a regular patron or guest to whom the waiver applies.” Id. ¶ 19. The Guzman

Court “disagree[d] that the matter can be determined as a matter of law” for purposes of

a motion to dismiss and expressly distinguished R & R Deli, Inc., explaining that the

rationale for excluding claims by business entities as a matter of law did not apply to

individual plaintiffs who suffer physical injuries to their person or property. Guzman,

2009-NMCA-116, ¶¶ 19, 21. Instead, the Court considered whether the plaintiffs had

sufficiently alleged Anthony’s status as a visitor and held—using language that mirrored

UJI 13-1302—that to the extent Anthony was “on the premises with the permission of

the casino,” the wrongful death claim was well-pleaded. Guzman, 2009-NMCA-116,

¶ 23; accord UJI 13-1302.

{21} Defendants, citing to the policy rationale in R & R Deli, Inc., argue that

businesses like Dial Electric can negotiate the terms under which they enter the gaming

facility and suggest that employees of the business should be treated in the same

manner as the business itself for purposes of the waiver. However, this Court rejected

that argument as applied to individual employees, writing in Guzman that “we disagree

that the bargaining position of [an employee] . . . is analogous to that of a business

entity, such that he or she is similarly capable of protecting his or her own interests[.]”

2009-NMCA-116, ¶ 20. Likewise, Guzman noted that “the holding in R & R Deli, Inc.

was based on more than [the] mere bargaining positions of the parties. We also based

our decision on the unremarkable fact that business entities cannot suffer the type of

‘bodily injury’ contemplated in the waiver.” Guzman, 2009-NMCA-116, ¶ 21. The

Guzman Court thus concluded that a person capable of suffering a physical injury “is

simply not analogous to that of a business entity for purposes of the waiver.” Id. For the

same reasons, we decline to treat Sipp—an individual who suffered physical harm—as

a business entity here.

{22} Plaintiffs’ amended complaint alleged that Sipp was on the premises with the

permission of Defendants. In light of Guzman, we hold that Sipp’s status as a visitor

was well-pleaded and should have withstood Defendants’ motion for dismissal. See id.

¶ 17 (holding that whether the decedent was a “visitor” under the Compact was “a

question of fact that was sufficiently pleaded and that dismissal was not proper”).

B. Defendants Have Not Negated Plaintiffs’ Allegations That Sipp Was a

Visitor to a Gaming Facility

{23} Defendants also argue that the Compact’s waiver of sovereign immunity is

inapplicable because Sipp was not injured while a visitor to a “gaming facility.”

Defendants note that the Compact defines “gaming facility” as “the buildings or

structures in which Class III Gaming is conducted on Indian Lands[,]” and asserted in

their motion to dismiss that “Sipp was injured at a [Buffalo Thunder] receiving area with

a garage door (essentially, a loading dock), which is not a Gaming Facility[.]” Plaintiffs

counter that the Compact does not require that the injury occur within a gaming facility,

and in any event, the loading dock was part of a gaming facility.

{24} We turn first to Defendants’ argument that there is no waiver for Sipp’s injuries

because he was not at gaming facility when he was injured. To the extent Defendants

argue that there is no waiver of sovereign immunity for injuries that occur outside of the

gaming facility, we observe that they have not provided any authority for that

interpretation, and both the plain language of the Compact and New Mexico precedent

are to the contrary. Foremost, the Compact does not limit the waiver to claims for

injuries occurring “in” or “at” a gaming facility. Rather, Section 8 provides a waiver for

“visitors to the gaming facility” that suffer an injury caused by the Gaming Enterprise.

(Emphasis added.) Moreover, this Court and our Supreme Court have allowed claims

for physical injuries occurring outside the gaming facility to proceed in state court when

the injured party was a visitor to the gaming facility and the party’s injury was caused by

the Gaming Enterprise. See Doe, 2007-NMSC-008, ¶ 2 (holding that the Compact

validly conferred jurisdiction over a claim involving a fifteen-year-old girl who was

abducted from a casino parking lot); see also Mendoza, 2011-NMSC-030, ¶¶ 2-3

(concluding that the district court had jurisdiction under Section 8 when three patrons

who had been served alcohol at the casino were involved in a car crash after leaving

the casino); Guzman, 2009-NMCA-116, ¶ 1 (holding that the plaintiffs had sufficiently

pleaded that an employee who died on his way home from work was a “visitor” to the

casino within the terms of the Compact). We cannot adopt Defendants’ interpretation

while remaining consistent with these precedents.

{25} Defendants also contend their motion to dismiss raised a factual challenge to

subject matter jurisdiction that countered Plaintiffs’ jurisdictional allegations with

evidence that the receiving area was not part of the gaming facility. See South v. Lujan,

2014-NMCA-109, ¶¶ 7-9, 336 P.3d 1000 (discussing the standard of review for motions

to dismiss that raise factual challenges to subject matter jurisdiction). Defendants point

to an affidavit by Angela Padilla, the director of the Pueblo of Pojoaque Gaming

Commission, which stated:

[The Pueblo of Pojoaque Gaming Commission (PPGC)] has issued to

Buffalo Thunder Inc. (“BTI”) a license as a Gaming Enterprise with

authority to conduct gaming at Buffalo Thunder Resort and Casino

(“BRTC”). BRTC is a trade name that is not a legal entity which

encompasses both (1) Buffalo Thunder Resort (“BTR”), another trade

name that is not a legal entity, which refers to various hotel and resort

facilities that do not include any gaming, and (2) a physically distinct

casino. BTI is only authorized by its license from PPGC to operate gaming

at that casino, which does not include any receiving area with a garage-

type door. (Emphasis added.)

Defendants assert that Padilla’s affidavit is sufficient to negate Plaintiffs’ allegations that

Sipp was a visitor to a gaming facility. We disagree. While the affidavit states that the

casino does not have a receiving area, it is silent about whether the receiving area was

otherwise a part of “the buildings or structures in which Class III Gaming is conducted.”

Plaintiffs responded that the receiving area and the casino are all in the same building,

under the same roof, but as Defendants noted below, Plaintiffs did not submit evidence

on that point. However, during oral argument to this Court, Defendants acknowledged

that the receiving area is connected to the casino—specifically, that the receiving area

is at the back of the hotel, and access to the casino is through the hotel lobby. Under

the narrow circumstances presented here, neither party has produced evidence either

establishing or negating Plaintiffs’ jurisdictional allegations. In the absence of evidence

in the record, we are left only with the allegations in Plaintiffs’ complaint. Accepting

those allegations as true, we conclude Plaintiffs sufficiently pleaded that Sipp was a

visitor to Buffalo Thunder Resort and Casino who suffered a bodily injury proximately

caused by the conduct of the Gaming Enterprise.

{26} As a final matter, Defendants have argued on appeal that particular entities are

not properly joined and that Hella Rader’s derivative claims fail as a matter of law under

Guzman, 2009-NMCA-116, ¶¶ 24-26. These issues were not raised or litigated below

and the district court has not had the opportunity to resolve them. To the extent these

issues are jurisdictional, we decline to exercise our discretion to rule on them in the first

instance. See Morris v. Brandenburg, 2015-NMCA-100, ¶ 51, 356 P.3d 564 (noting that

appellate courts have the district to consider unpreserved questions involving

jurisdiction).

CONCLUSION

{27} For the foregoing reasons, we reverse the district court’s dismissal of Plaintiffs’

lawsuit and remand for further proceedings consistent with this opinion.

{28} IT IS SO ORDERED.

MEGAN P. DUFFY, Judge

WE CONCUR:

JACQUELINE R. MEDINA, Judge

SHAMMARA H. HENDERSON, Judge