Manzini v. Cypress

SUONUITTEHDE RSTNA DTIESTS RDIICSTTR OIFC TF LCOORUIRDTA

CASE NO. 24-CV-24670-RAR

NICOLAS A. MANZINI,

Plaintiff,

v.

TALBERT CYPRESS, and

LUCAS K. OSCEOLA,

Defendants.

______________________________________/

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS

AND DENYING AS MOOT DEFENDANTS’ MOTION TO QUASH

THIS CAUSE comes before the Court upon Defendants’ Motion to Dismiss, [ECF No.

21] (“MTD”), and Defendants’ Motion to Quash Service of Process, [ECF No. 22], both filed on

February 5, 2025.1 In the Motion to Dismiss, Defendants Talbert Cypress and Lucas K. Osceola

maintain that this Court does not have subject matter jurisdiction. See MTD, at 6–17. Defendants

also assert that if this Court finds that it has jurisdiction, Plaintiff has failed to state a claim. Id. at

17–25. Plaintiff relies on the Indian Gaming Regulatory Act of 1988 (“IGRA”) and regulations

of the National Indian Gaming Commission (“NIGC”) to underpin both federal question

jurisdiction and the state law violations he alleges under the Florida Unfair and Deceptive Trade

Practices Act (“FDUTPA”) and the common law torts of conversion and unjust enrichment. Am.

Compl. at 12, 16.

As explained herein, the Court finds that: 1) it does have subject matter jurisdiction to

review this action because it presents a question of federal law; 2) sovereign immunity bars

1 Both Motions are fully briefed and ripe for adjudication. See Pl.’s Opp’n to Defs.’ Mot. to Dismiss, [ECF

No. 27]; Reply to Resp. in Opp’n to Mot. to Dismiss, [ECF No. 29]; Pl.’s Opp’n to Defs.’ Mot. to Quash,

Plaintiff’s state-law claims but not his federal claims, which fall under the Ex Parte Young

doctrine; and 3) Plaintiff’s federal claims ultimately fail because neither IGRA, nor the regulations

of the NIGC, provide for a private right of action. Accordingly, having reviewed the briefs, the

record, and applicable law, and being otherwise fully advised, it is

ORDERED AND ADJUDGED that Defendants’ Motion to Dismiss is GRANTED and

Defendants’ Motion to Quash is DENIED AS MOOT for the reasons stated herein.

BACKGROUND

On November 27, 2024, Nicolas A. Manzini, a former lawyer proceeding pro se, filed a

Complaint alleging that Defendants Talbert Cypress, the Chairman of the Miccosukee General

Council, and Lucas K. Osceola, the Assistant Chairman of the Miccosukee General Council, in

their individual and official capacities violated the Indian Gaming Regulatory Act, 25 U.S.C.

§§ 2701–2721 (1988); regulations of the National Indian Gaming Commission, 25 U.S.C.

§ 2704(a), (b)(1); and the Florida Deceptive and Unfair Trade Practices Act, Fla. Stat. §§ 501.201

et seq. Compl., [ECF No. 1] ¶¶ 28–39. The Complaint also alleged claims for Conversion and

Unjust Enrichment, see id., and requested declaratory and injunctive relief under the Federal

Declaratory Judgment Act, id. at ¶¶ 41–45. Plaintiff asserted that this Court’s jurisdiction arose

from “the Tribe’s status as a federally recognized Indian tribe and Defendants’ violations of federal

law, to-wit, the IGRA and the NIGC’s regulations.” Id. at ¶ 5.

On January 13, 2025, the Court issued an Order to Show Cause requiring a supplemental

clarification of jurisdiction, given the precedents set by Ex Parte Young, 209 U.S. 123 (1908);

Tamiami Partners By & Through Tamiami Dev. Corp. v. Miccosukee Tribe of Indians of Fla., 63

F.3d 1030 (11th Cir. 1995); and Florida v. Seminole Tribe of Fla., 181 F.3d 1237 (11th Cir. 1999).

See [ECF No. 9]. In response, Plaintiff filed both a Response to the January 13, 2025 Order to

Show Cause, [ECF No. 13], and an Amended Complaint, [ECF No. 12].

In the Response to the Order to Show Cause, filed on January 21, 2025, [ECF No. 13],

Plaintiff asserted this Court had subject matter jurisdiction on the basis of both federal question

and diversity jurisdiction. Id. at 1–2. Specifically, Plaintiff averred that federal question

jurisdiction arises “from Defendants Cypress and Osceola’s status as members and officers of a

federally recognized Indian tribe who have violated federal law, to-wit, IGRA and the NIGC’S

regulations.” Id. at 2. Plaintiff avers that diversity jurisdiction arises from the fact that he is a

resident of Florida while Defendants Cypress and Osceola are foreign defendants because they are

members of a federally recognized tribe; he does not address the amount-in-controversy

requirement. Id.

In his Amended Complaint, filed contemporaneously with the jurisdictional response,

Plaintiff details this action’s factual basis, which pertains to Defendants’ direction of tribal

operations at the Miccosukee Resort & Gaming Casino. See generally Am. Compl. Plaintiff

alleges that the Tribe “has made false and misleading statements to deceive Plaintiff . . . and []

countless other casino patrons” through “refusing to refund cash change,” and by “taxing its

players by manipulating the cash-out system employed by its electronic gaming systems (slot

machines).” Id. ¶¶ 1–2, 13. Plaintiff alleges that Defendants Cypress and Osceola are responsible

for overseeing tribal gaming operations through their roles as Miccosukee Business Council

officers and that in these roles, they have acted in bad faith and beyond the scope of their authority.

Id. ¶¶ 4, 6.

The purported manipulation of the casino’s cash-out system involves their automatic cash-

out machines, or “kiosks.” During the COVID-19 pandemic, there was a coin shortage during

which the casino changed the cash-out system (the conversion of credits into U.S. currency) by

discontinuing the refund of coins in the kiosks. Id. ¶¶ 14–20. Before the coin shortage, the kiosks

gave exact change, but now the kiosks round down to the nearest dollar for the cash refund and

otherwise issue a “change voucher” worth the remaining value of the coins, which can be redeemed

at the cashier’s window. Id. ¶¶ 21–22. So, for example, if a person cashed out $1.35 worth of

credits, they would receive $1 dollar from the kiosk and a voucher for $0.35 that could be redeemed

at the cashier’s window. Id. ¶ 21.

The allegedly deceptive part of this exchange is that the voucher refund kiosks fail to

inform patrons that they do not dispense coins until after the patron has received the voucher—nor

do the kiosks or the vouchers themselves inform patrons that they must visit the cashier’s window

to receive their change. Id. ¶ 23. Plaintiff also takes issue with the fact that the change vouchers

expire. Id. Plaintiff alleges that three other local casinos posted signs explaining that coins would

be dispensed only at the cashier’s window, id. ¶ 26, but that the Miccosukee casino did not

expressly inform patrons of this policy until after Plaintiff filed a complaint with the NIGC, id. ¶

27. Plaintiff avers that he informed Defendant Osceola about this fraudulent scheme and that

Defendant Osceola disingenuously rejected the complaint,2 in violation of “both IGRA’s mandate

that tribal gaming must be conducted in a fair and honest manner and the NIGC’s regulation that

requires the Tribe to have procedures in place to resolve disputes between the gaming public like

Plaintiff and itself.” Id. ¶¶ 28–29. Lastly, Plaintiff maintains that the Tribe’s decision to

permanently ban him from tribal facilities and territories was in violation of IGRA and NIGC

2 Plaintiff attaches as an exhibit the response letter from Defendant Osceola addressing his complaint, [ECF

No. 12-1]. The letter explains that after the NIGC forwarded the complaint to the tribe, an investigation

was conducted and a determination was made that the complaint was without merit. Id. The letter then

states:

All patrons have ample information to discern that the change remaining on all redeemed

tickets at the Kiosks may be cashed out by simply proceeding to the cashier cage to retrieve

said change in coins, or use the remaining credits at any gaming machine within 30 days.

This is standard practice at tribal and non-tribal casinos throughout the U.S.

Id. In conclusion, the letter adds: “In an abundance of caution, signs have been enhanced throughout

regarding the redemption of Kiosk tickets (see attachment), however all rules and procedures remain the

same with no alterations.” Id.

because he engaged in the “protected activity of complaining about the Tribe’s unfair and dishonest

acts[.]”3 Id. ¶ 30.

The Amended Complaint contains two causes of action: 1) “Violation of IGRA and NIGC

Regulations (FDUTPA, Conversion, Unjust Enrichment),” and 2) “Declaratory and Injunctive

Relief Pursuant to the Federal Declaratory Judgment Act.” Am. Compl. at 12, 16. Plaintiff seeks

“individual remedies including actual and compensatory damages, declaratory and injunctive

relief, taxable costs and (if applicable at a later date) reasonable attorney’s fees which are all

expressly recoverable under FDUTPA” or alternatively “declaratory and injunctive relief under

the Federal Declaratory Judgment Act.” Id. at 5.

On February 5, 2025, Defendants filed a Motion to Dismiss, [ECF No. 21], and a Motion

to Quash Service of Process, or in the Alternative, Vacate the Court’s Order Authorizing Service

of Process by Alternative Means, [ECF No. 22]. In the MTD, Defendants argue that this Court

lacks subject matter jurisdiction because: 1) tribal sovereign immunity bars this action, see MTD

at 6–10; 2) diversity jurisdiction is lacking because Plaintiff fails to allege a sufficient amount-in-

controversy and because all parties live in the same state, see MTD at 10–12; 3) diversity

jurisdiction is lacking under the Class Action Fairness Act (“CAFA”),4 see MTD at 12–13; 4)

federal question jurisdiction is lacking, see MTD, at 13–17; and 5) Plaintiff’s declaratory relief

does not confer federal question jurisdiction, see MTD at 17. Defendants also argue that Plaintiff

3 Plaintiff also attaches the Tribe’s Trespass Order against him. [ECF No. 12-1]. Confusingly, the Trespass

Order is dated October 7, 2024, while Defendant Osceola’s letter responding to Plaintiff’s complaints is

dated October 31, 2024. Id. The letter also states that Plaintiff’s complaints to the NIGC were dated

October 17, 2024 and October 22, 2024. Id. The Court is not quite sure how a trespass order that pre-dates

a complaint could be in retaliation for said complaint; rather, the timeline of events implies that the NIGC

complaints might be in response to the trespass order.

4 Though Plaintiff’s allegations, at points, certainly sound like a putative class action is being alleged, see

Am. Compl., ¶¶ 1, 28, 33, 40, 46 (describing the Tribe’s harm to Plaintiff and “countless others”), Plaintiff

has not filed as a class representative. Accordingly, the Court will not address the MTD’s CAFA rebuttal.

has failed to state a claim because: 1) no private right of action exists under IGRA or the NIGC,

see MTD at 17–19; 2) Plaintiff fails to state a claim under FDUTPA, see MTD at 19–22; 3)

Plaintiff fails to state a claim for conversion, see MTD at 22–23; 4) Plaintiff fails to state a claim

for unjust enrichment, see MTD at 23–24; 5) Plaintiff cannot state a claim for declaratory relief,

see MTD at 24; and 6) Plaintiff violates pleading rules by combining separate claims for relief in

a single count and failing to allege a showing of entitlement to relief, see MTD at 24–25.

Defendants also argue that 1) service of process was insufficient, see MTD at 25; 2) the

Miccosukee Tribe of Indians of Florida is a necessary and indispensable party under Rule 19, see

MTD at 26–28; and 3) that the Amended Complaint is an improper shotgun pleading, see MTD at

28.

In response, Plaintiff maintains that this Court has subject matter jurisdiction under both

diversity and federal question jurisdiction, and that sovereign immunity does not bar this action.

See generally Opp’n to MTD. Plaintiff also disputes Defendants’ characterizations regarding the

sufficiency of the pleadings. See id. Regarding jurisdiction, Plaintiff repeats the assertions made

in his response to the Order to Show Cause. Id. at 7–11. And as for sovereign immunity, Plaintiff

states that he is allowed to sue tribal members in their individual capacity—but does not provide

any detail about their personal versus official capacity roles in the events underlying this action,

nor does he explain how either Defendant acted outside the scope of their authority. Id. at 6–7.

Plaintiff also states that “[c]ourts have recognized that a private right of action is available to non-

Indians under certain circumstances,” but does not provide any additional detail or analysis on this

point. Id. at 7.

LEGAL STANDARD

Federal courts are empowered to hear only those cases “‘within the judicial power of the

United States as defined by Article III of the Constitution,’ and which have been entrusted to them

by a jurisdictional grant authorized by Congress.” Univ. of S. Alabama v. Am. Tobacco Co., 168

F.3d 405, 409 (11th Cir. 1999). The presumption is that “federal courts lack jurisdiction unless

the contrary appears affirmatively from the record.” DaimlerChrysler Corp. v. Cuno, 547 U.S.

332, 342 n.3 (2006) (quoting Renne v. Geary, 501 U.S. 312, 316 (1991)). In other words, it is the

Court’s responsibility to “zealously insure that jurisdiction exists over a case.” Smith v. GTE

Corp., 236 F.3d 1292, 1299 (11th Cir. 2001). When a multitude of jurisdictional questions exist,

“there is no mandatory ‘sequencing of jurisdictional issues,’” and “a federal court has leeway ‘to

choose among threshold grounds for denying audience to a case on the merits.’” Sinochem Int’l

Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 431 (2007) (quoting Ruhrgas AG v. Marathon

Oil Co., 526 U.S. 574, 584–85 (1999)).

Defendants bring the Motion to Dismiss for lack of subject matter jurisdiction under

Federal Rule of Civil Procedure 12(b)(1). See MTD at 1. Plaintiff makes rebuttal arguments under

both Rule 12(b)(1) and Rule 12(b)(6). See Opp’n to MTD at 4–6. Defendants also advance a

subset of arguments that sound in Rule 12(b)(6). See MTD at 23–25.

Jurisdictional challenges under Federal Rule of Civil Procedure 12(b)(1) “lie within the

exclusive province of the trial court.” Bentley v. Miami Air Int’l, Inc., No. 16-CV-24607, 2017

WL 8232192, at *2 (S.D. Fla. Feb. 13, 2017). “As the party seeking to invoke the Court’s

jurisdiction, Plaintiff bears the burden of proving, by a preponderance of the evidence, facts

supporting the existence of federal jurisdiction.” Big League Ventures, LLC v. Certain

Underwriters at Lloyd’s, London, 474 F. Supp. 3d 1279, 1281 (S.D. Fla. 2020).

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When

evaluating a Rule 12(b)(6) motion to dismiss, the court must accept well-pleaded factual

allegations as true and draw all inferences in favor of the plaintiff. Smith v. United States, 873

F.3d 1348, 1351 (11th Cir. 2017).

But, “when a defendant properly challenges subject matter jurisdiction under Rule 12(b)(1)

the district court is free to independently weigh facts.” Morrison v. Amway Corp., 323 F.3d 920,

925 (11th Cir. 2003). In reviewing a 12(b)(1) motion, “no presumptive truthfulness attaches to

plaintiff’s allegations, and the existence of disputed material facts will not preclude the trial court

from evaluating for itself the merits of the jurisdictional issue.” Lawrence v. Dunbar, 919 F.2d

1525, 1529 (11th Cir.1990) (quotation omitted). Notably, “it is extremely difficult to dismiss a

claim for lack of subject matter jurisdiction.” Garcia v. Copenhaver, Bell & Assocs., M.D.’s, P.A.,

104 F.3d 1256, 1260 (11th Cir. 1997) (citing Simanonok v. Simanonok, 787 F.2d 1517, 1519 (11th

Cir. 1986)).

ANALYSIS

The Miccosukee Tribe of Indians is a federally recognized Indian tribe. See Indian Entities

Recognized and Eligible to Receive Services from the United States Bureau of Indian Affairs, 89

Fed. Reg. 944, 945 (Jan. 8, 2024). The Tribe established the Miccosukee Business Council’s

Gaming Ordinance under tribal law and in accordance with the Indian Gaming Regulatory Act

(IGRA). See 25 U.S.C. §§ 2701 et seq.; see also [ECF No. 21-1]. IGRA “creates a framework for

regulating gaming activity on Indian lands.” Michigan v. Bay Mills Indian Cmty., 572 U.S. 782,

785 (2014); see also § 2702(3) (describing IGRA’s purpose as establishing “regulatory authority

. . . [and] standards for gaming on Indian lands”). IGRA is for tribes and states to manage gaming;

IGRA is not for private citizens to bring their consumer state law complaints about how a casino

is being managed.

This action raises a variety of jurisdictional questions related to subject matter jurisdiction,

tribal sovereign immunity, and implied federal statutory private rights of action. Though the Court

finds that the federal law on which Plaintiff relies—IGRA—imbues this Court with subject matter

jurisdiction and that sovereign immunity does not bar all claims, IGRA does not ultimately open

the door to federal court here.

I. Subject Matter Jurisdiction

The Court begins with the issue of subject matter jurisdiction, as it must. See Am. C.L.

Union of Fla., Inc. v. City of Sarasota, 859 F.3d 1337, 1340 (11th Cir. 2017) (“[B]ecause of the

fundamental constitutional precept of limited federal power, a district court should inquire into

whether it has [subject-matter] jurisdiction at the earliest possible stage in the proceedings.”

(internal citations omitted)); see also Okla. Tax Comm’n v. Graham, 489 U.S. 838, 841 (1989)

(“The jurisdictional question in this case is not affected by the fact that tribal immunity is governed

by federal law.”).

Defendants assert that this Court does not possess the requisite jurisdiction to hear this

action, while Plaintiff assures this Court that it possesses both diversity and federal question

jurisdiction. Plaintiff’s invocation of IGRA does provide federal question jurisdiction in this case,

but Plaintiff’s arguments regarding diversity jurisdiction are markedly wrong. The Court begins

with the question of diversity jurisdiction.

A. Diversity Jurisdiction Is Lacking

Diversity jurisdiction exists “where the matter in controversy exceeds the sum or value of

$75,000, exclusive of interest and costs, and is between citizens of different states.” 28 U.S.C.

§ 1332(a)(1). “Where [] the plaintiff asserts diversity jurisdiction, he has the burden to prove that

there is diversity” by a preponderance of the evidence. King v. Cessna Aircraft Co., 505 F.3d

1160, 1171 (11th Cir. 2007); see also Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1275 (11th

Cir. 2000).

Here, Plaintiff asserts that this Court enjoys diversity jurisdiction because he is a resident

of Florida while Defendants Cypress and Osceola are foreign defendants because they are

members of a federally recognized tribe. Opp’n to MTD at 9–11. Defendants maintain that there

is no diversity in this action because tribal members are citizens of the states where they reside.

MTD at 10. Defendants also contend that Plaintiff has failed to allege that the amount in

controversy exceeds the sum or value of $75,000. Id.

In his response, Plaintiff confusingly asserts that the amount-in-controversy requirement

in § 1332 is “irrelevant,” explaining that his Amended Complaint “does not contain any limiting

language from which the Court can conclude that his prayer for monetary damages falls below the

jurisdictional amount.” Opp’n to MTD at 9. Plaintiff then cites a single case from 1938 that

mentions the existence of the legal certainty test before conclusorily adding that “[m]easured by

that standard, it cannot be said to a legal certainty that Plaintiff’s Amended Complaint does not

satisfy that test.” Id. (citing St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283 (1938)).

Plaintiff also contends that “neither the United States Supreme Court nor the Eleventh Circuit nor

any district court within the Eleventh Circuit having controlling or persuasive authority over this

Court has ever ruled that for purposes of diversity jurisdiction, members of a federally recognized

Indian tribe . . . are deemed citizens of the state where they reside.” Id. at 10. In Reply, Defendants

claim that Plaintiff has misstated the legal certainty test and cite to several binding and persuasive

cases supporting the contention that tribal members are citizens of the states in which they reside

for purposes of diversity jurisdiction. See MTD Reply at 5.

i. Amount-in-Controversy

Plaintiff does not allege any facts in the Amended Complaint that would satisfy the

amount-in-controversy requirement. See generally Am. Compl. Though Plaintiff attaches some

nearly illegible photos to the Amended Complaint that show at least one approximately $0.40

voucher, see [ECF No. 12-1], there is otherwise no allegation that he has suffered any monetary

damages—let alone $75,000. And Plaintiff’s seeming invocation of the legal certainty test—“it

cannot be said to a legal certainty that Plaintiff’s Amended Complaint does not satisfy that test,”

see Am. Compl. at 9—provides no assistance either.

Defendants are correct that Plaintiff misstates that test. The legal certainty test provides

that when “taking [the Plaintiff’s] factual allegations as true, the court can dismiss only if it is

convinced ‘to a legal certainty’ that the claims of the plaintiff in question will not exceed $75,000

(the current jurisdictional threshold).” McIntosh v. Royal Caribbean Cruises, Ltd., 5 F.4th 1309,

1312 (11th Cir. 2021) (quoting Hunt v. Washington State Apple Advert. Comm’n, 432 U.S. 333,

346 (1977)). “However, when the plaintiff pleads an unspecified amount of damages, it bears the

burden of proving by a preponderance of the evidence that the claim on which jurisdiction is based

exceeds the jurisdictional minimum.” Fastcase, Inc. v. Lawriter, LLC, 907 F.3d 1335, 1342 (11th

Cir. 2018) (internal citations omitted). “This additional requirement is warranted because there is

simply no estimate of damages to which a court may defer.” Id.

Plaintiff’s contention that the amount-in-controversy requirement is irrelevant because his

Amended Complaint contains no limiting language inexcusably flips the burden. See Opp’n to

MTD at 9. Plaintiff bears the burden of meeting the requirements that bestow jurisdiction upon

this Court—not Defendant. But, beyond simply misstating which party bears the burden, Plaintiff

also alleges that Defendants possess specific accounting on the quantity of damages, i.e., how

many times Plaintiff has received a coin voucher at the casino—and accordingly requests

discovery. Opp’n to MTD at 2–3 n.1. While there are situations in which jurisdictional discovery

is warranted, a plaintiff must make an initial showing sufficient to warrant such discovery. Here,

Plaintiff has failed to meet any burden.

Unfortunately for Plaintiff, the math just does not add up. See Young v. Caesars Ent., Inc.,

No. 22-5331, 2023 WL 3295600 (W.D. La. May 05, 2023) (finding as a legal certainty that

Plaintiff’s identical cash-out kiosk claims could not meet the amount-in-controversy requirement

on either an individual or class basis); see also Scherer v. MGM Resorts Int’l, No. 1:22cv258-

HSO-BWR, 2023 WL 2776675 (S.D. Miss. Apr. 04, 2023) (finding as a legal certainty that

Plaintiff’s identical cash-out kiosk claims could not meet the amount-in-controversy requirement

on a class basis). Defendants aver it is highly improbable that Plaintiff could meet the threshold

because “for Plaintiff to reach the $75,000 amount in controversy, he would need at least 75,576

maximum value ($0.99) change vouchers for himself during a period of nearly three years –

approximately 56 maximum value change vouchers every day for 1399 days.” MTD at 10. But

given these numbers, it is not just highly improbable that Plaintiff could meet this threshold—it is

legally certain that he cannot. Plaintiff has thus failed to establish that the amount-in-controversy

requirement is satisfied.

ii. Citizenship

Plaintiff asserts that this Court enjoys diversity jurisdiction because he is a citizen of

Florida and because “[a]s members of a federally recognized Indian tribe, i.e., a sovereign nation,

Defendants Cypress and Osceola are foreign defendants.” Am. Compl. ¶ 4. Plaintiff is wrong.

The Supreme Court has stated that Native Americans “are citizens of the States in which

they reside.” Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 18 n.10 (1987). Several persuasive

authorities, including some within the Eleventh Circuit, have concluded the same. See, e.g.,

Henry-Bey v. Champery Real Est. 2015, LLC, No. 18-80953, 2018 WL 7824482, at *2 (S.D. Fla.

Dec. 18, 2018) (failing to find diversity citizenship requirements met where “Plaintiff appear[ed]

to be claiming that, because he is a Native American, he [wa]s not a citizen of the United States

and [wa]s instead a ‘federal plaintiff’ who is diverse from any defendants who are citizens of the

United States”); Ward v. Mortimer, No. 10-CV-4154 JSWDW, 2010 WL 3761906, at *1

(E.D.N.Y. Sept. 16, 2010) (“The law is clear that, for diversity purposes, Native Americans

residing on reservations are citizens of the state where the reservation is located.”).

Tribal members are citizens of the states in which they reside. In this case, both Defendants

reside in Florida, an undisputed fact, and Plaintiff also resides in Florida. Since all parties reside

in Florida, the diversity requirement is not satisfied.

B. Federal Question Jurisdiction Is Conferred by IGRA

Federal question jurisdiction exists “only when a federal question is presented on the face

of the plaintiff’s well-pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987)

(interpreting 28 U.S.C. § 1331). “[A] federal court may dismiss a federal question claim for lack

of subject matter jurisdiction only if: (1) ‘the alleged claim under the Constitution or federal

statutes clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction’;

or (2) ‘such a claim is wholly insubstantial and frivolous.’” Blue Cross & Blue Shield of Ala. v.

Sanders, 138 F.3d 1347, 1352 (11th Cir. 1998) (citing Bell v. Hood, 327 U.S. 678, 682–83 (1946)).

Defendants contend that there is no federal question jurisdiction here because of the

Eleventh Circuit’s decision in Tamiami Partners, Ltd. By and Through Tamiami Development

Corp. v. Miccosukee Tribe of Indians of Fla., 63 F.3d 1030 (11th Cir. 1995) (Tamiami II).5

Specifically, Defendants argue that under Tamiami II,

the Eleventh Circuit determined that the plaintiffs brought claims

arising under the laws of the United States because the plaintiffs had

a written agreement with the Tribe that “incorporates – by operation

of law if not by reference – the provisions of the IGRA and the

NIGC’s regulations that govern [the parties’ gaming] operations”

and “Tamiami’s claims that the Tribe has an obligation under IGRA

5 Tamiami II is the second of three Eleventh Circuit opinions regarding an IGRA-related dispute between

the Miccosukee Tribe and the contractor managing the Tribe’s bingo facility that were issued in 1993, 1995,

and 1999. See Tamiami Partners, Ltd. v. Miccosukee Tribe of Indians of Fla., 999 F.2d 503 (11th Cir.

1993) (Tamiami I); Tamiami II, 63 F.3d 1030; Tamiami Partners ex rel. Tamiami Dev. Corp. v. Miccosukee

Tribe of Indians of Florida, 177 F.3d 1212 (11th Cir. 1999) (Tamiami III).

aton dp rtohcee sNsI aGnC a’psp rleicgautliaotnio fnosr —a lwicheincshe tihne g Aoogdr efeamithe natn din tchoartp tohrea Ttersi—be

has breached that obligation are claims arising under federal law;

hence the district court had subject matter jurisdiction over

Tamiami's breach of contract claim against the Tribe.”

MTD at 14 (quoting Tamiami II, 63 F.3d at 1047). Defendants then continue: “Plaintiff does not

allege a written agreement between himself and Defendants, let alone the Miccosukee Tribe of

Indians of Florida, incorporating the IGRA or NIGC, such that federal question jurisdiction would

exist.” MTD at 15. In other words, Defendants maintain that under Tamiami II, subject matter

jurisdiction only exists where the action incorporates IGRA or the NIGC. Id. But this reading is

misplaced. The court in Tamiami II went on to explain that failure to state a proper cause of action,

as the plaintiffs in that case had failed to do, is a merits question; it does not warrant dismissal for

want of jurisdiction. See Tamiami II, 63 F.3d at 1047 (quoting Bell, 327 U.S. at 682). And the

Supreme Court has said the same, also in the context of IGRA. See Michigan v. Bay Mills Indian

Cmty., 572 U.S. 782 (2014).

In Bay Mills, the Supreme Court addressed the scope of tribal sovereign immunity in a

gaming dispute between the state of Michigan and the Bay Mills Indian Community governed by

IGRA. In a footnote, the Court explained that: “The general federal-question statute, 28 U.S.C.

§ 1331, gives a district court subject matter jurisdiction to decide any claim alleging a violation of

IGRA. Nothing in § 2710(d)(7)(A)(ii) or any other provision of IGRA limits that grant of

jurisdiction (although those provisions may indicate that a party has no statutory right of action).”

Bay Mills, 572 U.S. at 788 n.2 (emphasis added). Though expressed in a footnote, the Supreme

Court could not have been any clearer that an alleged IGRA violation confers federal question

jurisdiction upon a district court.6

6 The Supreme Court’s declaration in Bay Mills does not appear to affect the general rule that a federal

statute confers federal question jurisdiction “unless the claim ‘clearly appears to be immaterial and made

solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous.’”

Moreover, the conclusion that an alleged violation of IGRA confers jurisdiction—

regardless of whether a statutory right of action exists—aligns with precedent outside the context

of IGRA. As the Supreme Court has explained, “[i]t is firmly established in our cases that the

absence of a valid (as opposed to arguable) cause of action does not implicate subject-matter

jurisdiction, i.e., the courts’ statutory or constitutional power to adjudicate the case.” Steel Co.,

523 U.S. at 89; see also Bell, 327 U.S. at 682 (explaining that “[j]urisdiction . . . is not defeated

. . . by the possibility that the averments might fail to state a cause of action on which petitioners

could actually recover”). Accordingly, this Court has subject matter jurisdiction by way of federal

question under IGRA. Any questions as to the existence of a statutory right of action are

subsequently analyzed as a matter of pleading sufficiency. See also M.H.D. v. Westminster

Schools, 172 F.3d 797, 802 n.12 (11th Cir. 1999) (“When a party claims a right that arises under

the laws of the United States, a federal court has jurisdiction over the controversy. If the court

concludes that the federal statute provides no relief, . . . then it properly dismisses that cause of

action for failure to state a claim under Fed. R. Civ. P. 12(b)(6) or 12(c).”).7

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998) (quoting Bell, 327 U.S. at 682). Arguably,

here, both IGRA and the errant NIGC regulations are included merely for the purpose of obtaining

jurisdiction. See, e.g., Miccosukee Tribe of Indians of Fla. v. Kraus-Anderson Const. Co., 607 F.3d 1268,

1273 (11th Cir. 2010) (“Although this is not a stringent standard, a mere incantation that the cause of action

involves a federal question is not always sufficient.”). Because the Court finds that neither IGRA, nor the

NIGC regulations provide a private right of action, see supra Section III, the Court does not assess whether

the inclusion of these statutes was wholly insubstantial and frivolous. Cf. Tamiami II, 63 F.3d at 1047 n.2

(quoting Bell, 327 U.S. at 682–83) (“Tamiami’s IGRA claims are not ‘immaterial and made solely for the

purpose of obtaining jurisdiction’; nor are they ‘wholly insubstantial and frivolous.’”).

7 Given the presence of federal question jurisdiction under IGRA, the Court has supplemental jurisdiction,

see 28 U.S.C. § 1367, over Plaintiff’s interrelated (but improperly commingled) state-law claims in Count

I of the Amended Complaint. Royal Canin U.S.A., Inc. v. Wullschleger, 604 U.S. 22, 27 (2025) (“But if a

complaint includes the requisite federal question, a federal court often has power to decide state-law

questions too.”); United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966) (explaining supplemental

jurisdiction exists when the state and federal claims “derive from a common nucleus of operative fact”).

II. Sovereign Immunity

Next, because of “the fundamentally jurisdictional nature of a claim of sovereign

immunity,” the Court addresses the question of whether sovereign immunity bars Plaintiff’s

claims. Seminole Tribe of Fla., 181 F.3d at 1241 n.4. Questions of tribal sovereignty must be

considered “before reaching the issue of failure to state a claim.” Id.; see also Inglish Ints., LLC

v. Seminole Tribe of Fla., Inc., No. 2:10-CV-367, 2011 WL 208289, at *2 (M.D. Fla. Jan. 21,

2011) (explaining that “even if a federal court has statutory jurisdiction, Indian sovereign

immunity is a ‘consideration [which] determines whether a court has jurisdiction to hear an

action’”) (quoting Taylor v. Ala. Intertribal Council, Title IV J.T.P.A., 261 F.3d 1032, 1034 (11th

Cir. 2001)).

“Although the Supreme Court has expressed some doubt about the continued wisdom of

the tribal immunity doctrine, it is nonetheless clear that ‘[a]s a matter of federal law, an Indian

tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its

immunity.’” Contour Spa at the Hard Rock, Inc. v. Seminole Tribe of Fla., 692 F.3d 1200, 1203–

04 (11th Cir. 2012) (citing Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 754 (1998)).

Moreover, “[t]ribal officials ordinarily enjoy sovereign immunity in federal court from claims

against them in their official capacities under federal or state law.” Muscogee (Creek) Nation v.

Rollin, 119 F.4th 881, 887 (11th Cir. 2024). There is no dispute here that sovereign immunity as

to the tribe, a non-party, has not been waived. However, the Eleventh Circuit has “extended the

Ex parte Young doctrine to tribal officials” for alleged violations of federal law. Alabama v. PCI

Gaming Auth., 801 F.3d 1278, 1288 (11th Cir. 2015); see also Muscogee (Creek) Nation, 119 F.4th

at 887 (“But, under Ex parte Young, tribal officials are not immune from suits that seek prospective

declaratory or injunctive relief against ongoing violations of federal law.”).

The Eleventh Circuit’s analysis of comparable claims in Alabama v. PCI Gaming Authority

provides useful guidance in this context. 801 F.3d 1278 (11th Cir. 2015). In PCI Gaming

Authority, the Eleventh Circuit considered whether tribal officers, sued as individuals in their

official capacity, enjoyed sovereign immunity. Id. at 1288. The Court considered immunity

regarding alleged violations of IGRA and state law separately. Id. at 1288–93; see also Muscogee

(Creek) Nation, 119 F.4th at 887 (“Courts must consider sovereign immunity and any exceptions

to it on a claim-by-claim and defendant-by-defendant basis.”). Accordingly, this Court will

analyze the federal law and state-law claims separately.8

A. Sovereign Immunity Does Not Bar Plaintiff’s Federal Law Claims

The Eleventh Circuit began with alleged violations of federal law under IGRA. The Court

explained that “‘[a]n allegation of an ongoing violation of federal law where the requested relief

is prospective is ordinarily sufficient to invoke the Young fiction,’ such that the state officer is not

immune from suit.” PCI Gaming Auth., 801 F.3d at 1288 (quoting Idaho v. Coeur d’Alene Tribe

of Idaho, 521 U.S. 261, 281 (1997)). The Court then noted that “[a]lthough tribal officials are

generally entitled to immunity for acts taken in their official capacity and within the scope of their

authority, ‘they are subject to suit under the doctrine of Ex parte Young when they act beyond their

authority’ by violating a federal statute.” Id. at 1288 (quoting Tamiami III, 177 F.3d at 1225). The

Court distinguished Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 47 (1996), which bars

application of Ex parte Young where a detailed remedial scheme exists, by explaining that

“Seminole Tribe I neither addressed nor decided whether state and tribal officials are immune from

8 Plaintiff does not separately delineate the federal and state-law claims in his Amended Complaint, which

bears many of the hallmarks of a “shotgun pleading.” See generally Am. Compl.; accord Weiland v. Palm

Beach Cnty. Sheriff’s Off., 792 F.3d 1313, 1321 (11th Cir. 2015). But, for purposes of the sovereign

immunity analysis, the Court differentiates Plaintiff’s federal law claims under IGRA and NIGC regulations

from those under state law, namely violations of FDUTPA, conversion, and unjust enrichment.

other IGRA-based claims to enforce rights for which the statute does not set forth such a detailed,

limited remedial scheme.” Id. at 1289.

Here, Plaintiff similarly invokes sections of IGRA that do not include a detailed remedial

scheme barring the application of Ex parte Young. And, because Plaintiff alleges that Defendants

are committing ongoing violations of federal law outside the scope of their authority, and Plaintiff

seeks declaratory and injunctive relief, his federal law claims are not barred by sovereign

immunity.9 PCI Gaming Auth., 801 F.3d at 1288 (“Because [plaintiff] alleges that the Individual

Defendants are committing ongoing violations of IGRA, a federal law, and seeks declaratory and

injunctive relief to stop the violations, the officials are not entitled to immunity.”).

B. Sovereign Immunity Bars Plaintiff’s State-Law Claims

As for the state-law claims in PCI Gaming Authority, however, the Eleventh Circuit

reached a different conclusion, because “the Ex parte Young doctrine does not reach such claims.”

Id. at 1290. The Court explained that “[t]he immunity tribal officials enjoy from state-law claims

brought in federal court is narrower than the immunity of state officials from such claims . . . tribal

officials may be subject to suit in federal court for violations of state law under the fiction of Ex

parte Young when their conduct occurs outside of Indian lands.” Id. (citing Bay Mills, 572 U.S.

at 795–96) (emphasis added); see also Muscogee (Creek) Nation, 119 F.4th at 887 (“And although

Ex parte Young also permits suits against tribal officials for prospective relief against ongoing

violations of state law, it permits that relief only when the challenged conduct occurs outside of

Indian lands.” (internal citations omitted)). However, as Alabama conceded in PCI Gaming

9 Plaintiff’s allegations are bare and likely do not state a plausible claim for relief. For example, Plaintiff

never explains how Defendants acted outside the scope of their authority, nor does Plaintiff explain how

the harm is ongoing since Defendants have now, as far as the record shows, put up signs alerting customers

about the cash-out kiosk system. See generally Am. Compl.; cf. MTD at 8 (“Plaintiff fails to raise any

allegations about what, when, where, or why the Defendants acted beyond their authority.”). However,

because the federal law upon which Plaintiff’s claims rest does not provide a right of action, see supra

Section III, the Court need not reach the issue of pleading sufficiency.

Authority, the “Individual Defendants enjoy immunity from its state law claim if the casinos are

located on Indian lands.” PCI Gaming Auth., 801 F.3d at 1290. That is because “tribal immunity

‘is a matter of federal law and is not subject to diminution by the States.’” Bay Mills, 572 U.S. at

789 (quoting Kiowa Tribe of Okla., 523 U.S. at 756)). Accordingly, Plaintiff’s state-law claims

commingled under Count I are barred by sovereign immunity.

III. IGRA Affords Jurisdiction but Not a Private Right of Action

As Bay Mills instructs, the question of whether a statute such as IGRA confers jurisdiction

is clear, but the question of whether it provides a private right of action is an entirely different

inquiry. See Bay Mills, 572 U.S. at 788 n.2. Whether a statute provides a valid cause of action

does not implicate subject-matter jurisdiction; rather, it is a pleading question. See Steel Co., 523

U.S. at 89. Here, because the federal law upon which Plaintiff relies does not provide a statutory

right of action, Plaintiff fails to state a federal claim under Count I.10

Defendants assert a litany of reasons why and how Plaintiff fails to state a claim, see

generally MTD, but the Court need only address the first: that IGRA provides no private right of

action. In support of his assertion that there is, in fact, a private right of action under IGRA,

Plaintiff makes one brief conclusory statement and cites a single entirely inapt case. Plaintiff

merely proffers that “Courts have recognized that a private right of action is available to non-

10 As Defendants note, Plaintiff never identifies a specific provision of the NIGC regulations on which to

base jurisdiction. See MTD at 15. Plaintiff, at one point, mentions “25 C.F.R. section 552.2(e)” in relation

to NIGC regulations, but as far as the Court can tell, this provision does not exist. See Am. Compl. at 10

n.4. It is possible that Plaintiff intended to cite to 25 C.F.R. § 522.2(e), titled “Submission requirements,”

which states that “A tribe shall submit to the Chair via electronic or physical mail all of the following

information with a request for approval of a class II or class III ordinance or resolution, or amendment

thereto . . . A copy of the procedures for resolving disputes between the gaming public and the tribe or the

management contractor.” It is not at all clear to the Court how a private right of action could exist within

such a quotidian statute detailing submission requirements for tribal gaming agreements. Accordingly,

without accurate citations or developed arguments, the Court cannot comment. Campbell v. Air Jamaica

Ltd., 760 F.3d 1165, 1168–69 (11th Cir. 2014) (explaining that liberal construction of pro se pleadings

“does not give a court license to serve as de facto counsel for a party, or to rewrite an otherwise deficient

pleading in order to sustain an action” (quotation omitted)).

Indians under certain circumstances.” Opp’n to MTD at 7 (citing Contour Spa, 692 F.3d at 1209

(citing Dry Creek Lodge, Inc. v. Arapahoe & Shoshone Tribes, 623 F.2d 682, 685 (10th Cir. 1980)).

Contour Spa determined the scope of tribal sovereign immunity in a case in which a commercial

lessee brought an action against the Tribe based on the leasing agreement and the Indian Civil

Rights Act (ICRA)—not IGRA. Contour Spa, 692 F.3d at 1201. Despite Plaintiff’s assertion, it

is obvious that the Court in Contour Spa did not contemplate a private right of action. After briefly

describing the Tenth Circuit’s opinion in Dry Creek Lodge, Inc., the Court explained that the

district court need not have gone so far as to apply the circuit’s framework for determining when

ICRA creates an implied right of action because “[t]he law is crystal clear that tribal immunity

applies unless there has been congressional abrogation or waiver by the tribe.” Contour Spa, 692

F.3d at 1209. Then, entirely undermining Plaintiff’s argument here, the Court explained that: “The

very notion of an implied cause of action against an Indian tribe protected by sovereign immunity

is at war with the requirement that Congress must expressly abrogate the tribe’s immunity. The

Indian Civil Rights Act provides no basis to subject the Seminole Tribe to the instant suit.”

Contour Spa, 692 F.3d at 1209–10.

Plaintiff also attempts to distinguish the Southern District of California’s persuasive

opinion in Harris v. Sycuan Band of Diegueno Mission Indians, No. 08CV2111-WQH-AJB, 2009

WL 5184077 (S.D. Cal. Dec. 18, 2009). In Harris, the plaintiff was similarly seeking to hook the

question of federal jurisdiction on the remedies provided by IGRA. Harris, 2009 WL 5184077, at

*1–2. The court found that it did not have jurisdiction to hear the case because IGRA does not

confer a private right of action. Id. at *6–7. Moreover, as here, the plaintiff in Harris tried to cite

the same provision of IGRA regarding conformance with the Tribal-State compact, but the court

found that “[e]ven if the [complaint] had alleged that [IGRA provisions] were violated, the ‘IGRA

provides no general private right of action.’” Id. at *7 (citing Hein v. Capitan Grande Band of

Diegueno Mission Indians, 201 F.3d 1256, 1260 (9th Cir. 2000)).

Plaintiff first asserts that Harris is inapplicable because in that case, the Tribe was the sole

defendant and no individual officers were joined. However, Plaintiff does not explain how this

difference overcomes IGRA’s lack of a private right of action. Opp’n to MTD at 8. The Court’s

most generous reading is that perhaps Plaintiff means to state that the differing applications of

sovereign immunity as to sovereigns compared to individuals somehow translates in equal force

to the question of private rights of action. But with no explanation from Plaintiff, the Court cannot

adequately analyze such a claim. And, in any event, whether a statute confers a private right of

action is a different question than whether immunity bars such an action. PCI Gaming Auth., 801

F.3d at 1293 (analyzing failure to state a claim due to the absence of a right of action after

determining which claims were barred by sovereign immunity).

Next, Plaintiff maintains Harris is distinguishable “because Tamiami Partners, 63 F.3d

1030, and Michigan v. Bay Mills Indian Community, 572 U.S. 782, amply recognize that a private

cause of action exists against individual tribal officials who engage in unlawful conduct.” Opp’n

to MTD at 8. Again, Plaintiff provides no further explanation for this assertion, nor does he even

provide a pincite that might point the Court in the direction of a colorable argument. Moreover,

the Tamiami II Court disposed of a claim alleging violations of IGRA and the NIGC’s regulations

on the grounds that there was no right of action. 63 F.3d at 1048 (“We dispose of that claim on

the separate ground that, because IGRA provides Tamiami no right of action, Tamiami has failed

to state a claim for relief.”).

Lastly, Plaintiff declares that Harris is distinguishable “because Plaintiff’s Amended

Complaint expressly requires that the Court interpret discrete provisions of IGRA and the NIGC

regulation insofar as the individual Defendants’ unlawful conduct is concerned.” Opp’n to MTD

at 9. Again, Plaintiff provides no further explanation beyond this single conclusory statement and

cites no law in support of his position. Without more, the Court cannot adequately address

Plaintiff’s arguments as to this purported distinction.

Beyond the obviously relevant application of Harris, there is ample case law clearly stating

that IGRA does not confer a private right of action. See, e.g., Hein, 201 F.3d at 1260 (“IGRA

provides no general private right of action.”); Hartman v. Kickapoo Tribe Gaming Comm’n, 319

F.3d 1230, 1233 (10th Cir. 2003) (holding that “IGRA contains no implied private right of action

in favor of an individual seeking to enforce compliance with the statute’s provisions.”); Tamiami

II, 63 F.3d at 1049 (“IGRA provides it no right to relief.”); see also Seminole Tribe of Fla., 181

F.3d at 1242 (explaining that “ambiguities in federal laws implicating Indian rights must be

resolved in the Indians’ favor”).

Because “where IGRA creates a private cause of action, it does so explicitly” and “[w]here

a statute creates a comprehensive regulatory scheme and provides for particular remedies, courts

should not expand the coverage of the statute,” the Court declines to expand IGRA’s coverage.

Hein, 201 F.3d at 1260 (citations omitted). Plaintiff cites to no provision of IGRA or the NIGC

regulations that explicitly provides a private right of action, and that is because he cannot do so—

no such provision exists. See Hartman, 319 F.3d at 1233 (“[N]owhere does IGRA expressly

authorize private individuals to sue directly under the statute for failure of a tribe . . . to comply

with its provisions.”).

Given the widespread agreement that IGRA confers no private right of action, the Court

sees no need to delve deeply into the “issue of whether a statute creates by implication a private

right of action”—which is “a ‘question of statutory construction.’” Love v. Delta Air Lines, 310

F.3d 1347, 1351 (11th Cir. 2002) (quoting Cannon v. Univ. of Chicago, 441 U.S. 677, 688 (1979)).

That being said, the Court adds a few observations.

First, the specific provision upon which Plaintiff hinges his argument is an introductory

section explaining that IGRA is for the protection of the tribes, not consumers such as himself.

Plaintiff’s singular IGRA hook is that “Section 2702(b) [sic] of IGRA expressly declares that

among the Act’s purposes is ‘to assure that gaming is conducted fairly and honestly by both the

operator [Tribe] and players.’” Am. Compl. at 10 n.4. But the subsection in its entirety relays

quite a different meaning. Subsection (2) of § 2702, entitled Declaration of Policy, explains that

the purpose of the chapter is:

to provide a statutory basis for the regulation of gaming by an Indian

tribe adequate to shield it from organized crime and other

corrupting influences, to ensure that the Indian tribe is the primary

beneficiary of the gaming operation, and to assure that gaming is

conducted fairly and honestly by both the operator and players[.]

25 U.S.C. § 2702 (emphases added). Plaintiff’s alteration of the quote to add “[Tribe]” is also not

entirely accurate. In this case, the Tribe might be operating the casino, but in most of the other

IGRA cases cited by the parties, the operator is a contracted third-party in a dispute with the Tribe

over an operative gaming agreement. See, e.g., Tamiami I, 999 F.2d 503; Tamiami II, 63 F.3d

1030; Tamiami III, 177 F.3d 1212; Contour Spa, 692 F.3d 1200. Read in its entirety, this section

of IGRA clearly lacks any enforcement language and only seeks to explain a single purpose: IGRA

is for tribes—it is not for casino patrons.

Second, though the question of legislative intent comes second to statutory construction in

determining whether a private right of action exists, see Love, 310 F.3d at 1353 (citing Alexander

v. Sandoval, 532 U.S. 275, 288 (2001)), it seems illogical that Congress would have contemplated

a private right of action for IGRA. Beyond the vital importance of a tribe’s self-determination,

see National Farmers Union Insurance Companies v. Crow Tribe of Indians, 471 U.S. 845, 856

(1985) (“Congress is committed to a policy of supporting tribal self-government and self-

determination.”), the statute was designed to regulate gaming between tribes and states—not to

allow a vehicle for casino patrons to air their grievances. As the Eleventh Circuit has stated, “[t]he

legislative history makes clear the purpose and effect of the statute: to protect the Indian gaming

industry from corruption and to provide for extensive federal oversight of all but the most

rudimentary forms of Indian gaming.” Tamiami II, 63 F.3d at 1033.

Thus, IGRA provides no private right of action and Plaintiff fails to state a claim for relief.

And in the words of the Eleventh Circuit: “This result should come as no surprise[.]” Tamiami II,

63 F.3d at 1049. “[A]s the Supreme Court has observed, ‘the fact that a federal statute has been

violated and some person harmed does not automatically give rise to a private cause of action in

favor of that person.’” Id. (quoting Touche Ross & Co. v. Redington, 442 U.S. 560, 568 (1979)).

IV. Plaintiff’s Claim Under the Federal Declaratory Judgment Act Fails

Given that there is no private right of action under IGRA and sovereign immunity bars

Plaintiffs’ state-law claims, the commingled causes of action found under Count I of the Amended

Complaint are foreclosed. That leaves only Count II for declaratory relief under the Federal

Declaratory Judgment Act. See Am. Compl at 16. But under the Act, a court maintains broad

discretion over whether to exercise jurisdiction over claims. “The Declaratory Judgment Act

provides that a court ‘may declare the rights and other legal relations of any interested party,’ 28

U.S.C. § 2201(a) (emphasis added), not that it must do so.” MedImmune, Inc. v. Genentech, Inc.,

549 U.S. 118, 136 (2007); see also Ameritas Variable Life Ins. Co. v. Roach, 411 F.3d 1328, 1330

(11th Cir. 2005) (explaining the Declaratory Judgment Act “only gives the federal courts

competence to make a declaration of rights; it does not impose a duty to do so.”). Courts thus have

“unique and substantial discretion in deciding whether to declare the rights of litigants.” Wilton v.

Seven Falls Co., 515 U.S. 277, 286 (1995).

More importantly, a federal declaratory judgment action requires an “actual controversy.”

28 U.S.C. § 2201(a). To satisfy the “actual controversy” requirement, “there must be a substantial

continuing controversy between two adverse parties.” Malowney v. Federal Collection Deposit

Group, 193 F.3d 1342, 1347 (11th Cir. 1999) (quoting Emory v. Peeler, 756 F.2d 1547, 1552 (11th

Cir. 1985) (“The plaintiff must allege facts from which the continuation of the dispute may be

reasonably inferred. Additionally, the continuing controversy may not be conjectural,

hypothetical, or contingent; it must be real and immediate, and create a definite, rather than

speculative threat of future injury.”)). “Consequently, a party seeking declaratory relief must

satisfy the same jurisdictional requirements prerequisite to the bringing of other suits.” Wendy’s

Int’l, Inc. v. City of Birmingham, 868 F.2d 433, 435 (11th Cir. 1989); see also Antares

Underwriting Ltd. v. E&D Mainstreet Corp, No. 6:21-CV-371-JA-DCI, 2021 WL 6298666, at *1

(M.D. Fla. Oct. 21, 2021) (“Before declaratory relief is available pursuant to the Act, an

independent basis for federal jurisdiction must be established.”).

Here, given that there is no federal cause of action under IGRA or NIGC regulations and

that sovereign immunity bars Plaintiff’s remaining state-law claims, there is simply no “actual

controversy” remaining. The Federal Declaratory Judgment Act, 28 U.S.C. § 2201(a), “does not

provide an independent basis for federal question jurisdiction.” Emmanuel v. Charter Bank, NA,

LLP, No. 616CV2165ORL41KRS, 2017 WL 4271666, at *3 (M.D. Fla. July 31, 2017), report and

recommendation adopted sub nom. Emmanuel v. Charter Bank, NA, No. 616CV2165ORL41KRS,

2017 WL 4242392 (M.D. Fla. Sept. 22, 2017); see also Wendy’s, 868 F.2d at 435 (“[T]he

Declaratory Judgment Act does not enlarge the jurisdiction of the federal courts but rather ‘is

operative only in respect to controversies which are such in the constitutional sense . . . Thus the

operation of the Declaratory Judgment Act is procedural only.’” (quoting Aetna Life Ins. Co. v.

Haworth, 300 U.S. 227, 240 (1937)). Indeed, the Amended Complaint “does not contain any

allegations which could reasonably support a finding that the [Plaintiff is] likely to be subject to

future injury from the application of the statute [he] challenges.” Malowney, 193 F.3d at 1347.

Accordingly, the Federal Declaratory Judgment Act includes no hook on which to provide

this Court with the power to review Plaintiff’s claims. As such, Count II, like Count I, warrants

dismissal.

V. Tribal Right to Self-Governance

As a final note, there is a reasonable argument that this underlying dispute should have

been brought in the tribal courts. An essential element of sovereignty is self-governance. See

Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55 (1978) (“Indian tribes are ‘distinct, independent

political communities, retaining their original natural rights’ in matters of local self-government.”)

(quoting Worcester v. Georgia, 6 Pet. 515, 559 (1832)); Weeks Const., Inc. v. Oglala Sioux Hous.

Auth., 797 F.2d 668, 673 (8th Cir. 1986) (“The power to hear and adjudicate disputes arising on

Indian land is an essential attribute of that sovereignty.”).

Many courts have recognized an exhaustion requirement for disputes that implicate the

sovereignty of tribes. See § 3579 Indian Tribes, 13D Fed. Prac. & Proc. Juris. § 3579 (3d ed.) (“As

a general rule reflecting comity and prudence, however, federal jurisdiction should not be

exercised until litigants exhaust remedies at the tribal court.”); see, e.g., Inglish Ints., LLC, No.

2:10-CV-367, 2011 WL 208289, at *4 (“Finally, even if there was a basis for federal question

jurisdiction, plaintiff would have to exhaust available remedies in the tribal court system before

pursuing relief in federal court.” (citing Nat’l Farmers, 471 U.S. at 855–56 (1985)); Auto-Owners

Ins. Co. v. Tribal Ct. of Spirit Lake Indian Rsrv., 495 F.3d 1017, 1021 (8th Cir. 2007) (“But even

where a federal question exists, due to considerations of comity, federal court jurisdiction does not

properly arise until available remedies in the tribal court system have been exhausted.”); Weeks

Const., Inc., 797 F.2d at 673 (“The Supreme Court has repeatedly recognized that tribal courts

have inherent power to exercise civil jurisdiction over non-Indians in disputes affecting the

interests of Indians which are based upon events occurring on a reservation.”).

However, the scope of this exhaustion requirement is not well-defined—particularly not in

this circuit. See, e.g., Tamiami IT, 63 F.3d at 1040 n.38 (explaining that “the district court did not

have a National Farmers case before it” when there was no order seeking to enjoin the tribal court).

And, in the end, such a requirement does not apply where a plaintiff cannot proceed in federal

court for other reasons, as is the case here.

CONCLUSION

Because Plaintiff has failed to state a claim and amendment would be futile, Defendants’

Motion to Dismiss, [ECF No. 21], is GRANTED, and this case is hereby DISMISSED with

prejudice. Defendants’ Motion to Quash is DENIED AS MOOT. The Clerk is directed to

CLOSE this case.

DONE AND ORDERED in Miami, Florida, this 23rd day of July, 2025.

UNITED STATES DISTRICT JUDGE

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