UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT … · 3/14/2020 · plaintiffs, case no: 1:20-cv-00231 v. hon. robert j. jonker kewadin casinos gaming, magistrate judge ray

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

JLLJ DEVELOPMENT, LLC, A

MICHIGAN LIMITED LIABILITY

COMPANY, AND LANSING FUTURE

DEVELOPMENT II, LLC, A MICHIGAN

LIMITED LIABILITY COMPANY,

Plaintiffs, Case No: 1:20-cv-00231

v. Hon. Robert J. Jonker

KEWADIN CASINOS GAMING, Magistrate Judge Ray Kent

AUTHORITY, A DULY AUTHORIZED

ENTITY CREATED UNDER THE LAWS

OF THE SAULT STE. MARIE TRIBE

OF CHIPPEWA INDIANS,

Defendant.

_____________________________/

DEFENDANT KEWADIN CASINOS GAMING AUTHORITY’S

MEMORANDUM OF LAW IN SUPPORT OF ITS

MOTION TO DISMISS PLAINTIFFS’ COMPLAINT AND/OR FOR

DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF

DIANE M. SOUBLY (P32005)

BUTZEL LONG, a professional corporation

Counsel for Defendant Kewadin Casinos

Gaming Commission

301 E. Liberty Street, Suite 500

Ann Arbor, MI 48104

T: (734) 213-3625

F: (734) 995-1777

[email protected]

Dated: May 7, 2020

Case 1:20-cv-00231-RJJ-RSK ECF No. 14-1 filed 05/07/20 PageID.422 Page 1 of 37

mailto:[email protected]

i

STATEMENT OF ISSUES PRESENTED

Without waiving sovereign immunity in so doing, Defendant Kewadin Casinos

Gaming Authority (“Kewadin”) identifies the following issues:

1. Whether Plaintiffs’ claims fail, pursuant to Rule 12(b)(1) and/or (6), for lack

of federal court jurisdiction under the threshold issue of tribal sovereignty

jurisdiction?

2. Whether, pursuant to Rule 12(b)(1) and/or (6), this Court should dismiss

Plaintiffs’ claims with prejudice because Plaintiffs’ agreements and/or the

applicable tribal self-governance documents do not contain a clear and

unequivocal waiver of sovereign immunity for the claims as pled?


Plaintiffs’ claims pled and relief sought with prejudice because the claims

and the relief sought do not meet the limitations and conditions precedent

and procedural requirements placed on the limited waiver of tribal

sovereignty in the Agreements under which Plaintiffs sue?


Plaintiffs’ claims with prejudice because Kewadin lacks authority to waive

and did not waive, the tribal sovereign immunity of the Sault Ste. Marie

Tribe of Chippewa Indians (the “Tribe”) and did not subject the Tribe’s land

to lien or encumbrance?

5. Whether, pursuant to Rule 12(b)(6), this Court should dismiss Plaintiffs’

claims against Kewadin in light of Plaintiffs’ default on its funding

obligations since 2017 without cure, and in light of the Tribe’s successful

litigation vacating the Secretary of Interior’s denial of the Tribe’s Mandatory

Trust submission?

6. Whether, pursuant to 28 U.S.C. §§ 2201-2202, this Court should declare the

Plaintiffs cannot establish standing to bring their Declaratory Judgment Act

claim and should enjoin Plaintiffs from seeking their claimed relief (i.e.,

immediate liens and encumbrances against the Tribe’s landing holdings and

assets and Kewadin’s assets) in federal or state court?


ii

CONTROLLING OR SIGNIFICANT AUTHORITY

Cases:

Bryan v. Itasca Cty., Minn., 426 U.S. 373 (1976)

C&L Enter., Inc. v. Citizen Band Potowatomi Indian

Tribe of Okla., 532 U.S. 411 (2001)

Contour Spa at the Hard Rock, Inc. v. Seminole Tribe

of Florida, 692 F.3d 1200 (11th Cir. 2012)

Kiowa Tribe of Okla. v. Mfg. Techs., Inc.,

523 U.S. 751(1998)

Lesperance v. Sault Ste. Marie Tribe of Chippewa Indians,

259 F. Supp.3d 713 (W.D. Mich. 2017)

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)

Michigan v. Bay Mills Indian Cmty., 572 U.S. 782 (2014)

Memphis Biofuels LLC v. Chickasaw Nations Ind., Inc.,

585 F.3d 917 (6th Cir. 2009)

Okla. Tax Comm’n v. Citizen Band Potawatomi Indian Tribe

of Okla., 498 U.S. 505 (1991)

Santa Clara Pueblo v. Martinez, 436 U.S. 49(1978)

Sault Ste. Marie Tribe of Chippewa Indians v. Bernhardt et al

___ F.3d. ___, 2020 WL 1065406, C.A. 1:18cv02035

(D. D.C. Mar. 3, 2020)

South Dakota v. Yankton Sioux Tribe, 522 U.S. 329 (1989)

Spurr v. Pope, 976 F.3d 478 (6th Cir. 2019),

cert. den. 140 S.Ct. 850 (Jan. 13, 2020)


iii

Statutes:

Indian Regulatory Gaming Act, 25 U.S.C. § 2701 et seq.

Michigan Indian Land Claims Settlement Act, Pub. L. No. 105-143,

Stat. 2652 (1997)

Tribal Self-Governance Statutes:

Sault Tribe Constitution and ByLaws

Sault Tribe Tribal Code Provisions:

Chapter 42: Gaming Ordinance

Chapter 44: Waiver of Tribal Immunities Ordinance

Chapter 44: Waiver of Tribal Immunities Ordinance (2009)

Chapter 94: Gaming Authority Charter

Rules:

F. R. Civ. P. 12(b)(1)

Fed. R. Civ. P. 12(b)(6)

Other Authority:

Cohen’s Handbook of Federal Indian Law § 4.01[2][c] (2012)


iv

TABLE OF AUTHORITIES

Cases Page

Angel v. Kentucky, 314 F.3d 262 (6th Cir. 2002) 18

Ashcroft v. Iqbal, 556 U.S. 662 (2009) 18

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) 18

Blatchford v. Native Vill. Of Noatak & Circle Vill.,

501 U.S. 775 (1991) 19

Bryan v. Itasca Cty., Minn., 426 U.S. 373 (1976) 21

C&L Enter., Inc. v. Citizen Band Potowatomi Indian

Tribe of Okla., 532 U.S. 411 (2001) 21

Contour Spa at the Hard Rock, Inc. v. Seminole Tribe

of Florida, 692 F.3d 1200 (11th Cir. 2012) 21

County of Yakima v. Yakima Indian Nation,

502 U.S. 251 (1992) 6

Eungard v. Open Solutions, Inc., 517 F.3d 891(6th Cir. 2008) 24

Kiowa Tribe of Okla. v. Mfg. Techs., Inc.,

523 U.S. 751(1998) 19, 20, 21

Lesperance v. Sault Ste. Marie Tribe of Chippewa Indians,

259 F. Supp.3d 713 (W.D. Mich. 2017) 4, 23

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) 24

Michigan v. Bay Mills Indian Cmty., 572 U.S. 782 (2014) 20

Memphis Biofuels LLC v. Chickasaw Nations Ind., Inc.,

585 F.3d 917 (6th Cir. 2009) 19

Montana v. Blackfeet Tribe of Indians,

471 U.S. 759 (1985) 6


v


Cases Page

New England Health Care Employees Pension Fund

v. Ernst & Young, LLP, 336 F.3d 495 (6th Cir. 2003) 14-15

Okla. Tax Comm’n v. Citizen Band Potawatomi Indian Tribe

of Okla., 498 U.S. 505 (1991) 20

Sault Ste. Marie Tribe of Chippewa Indians v. Bernhardt et al

___ F.3d. ___, 2020 WL 1065406, C.A. 1:18cv02035

(D. D.C. Mar. 3, 2020) passim

Santa Clara Pueblo v. Martinez, 436 U.S. 49(1978) 20, 21

Scholz v. Montgomery Ward & Co.,

437 Mich. 83, 468 N.W.2d 845 (1991) 24

South Dakota v. Yankton Sioux Tribe, 522 U.S. 329 (1989) 19, 21

Spurr v. Pope, 976 F.3d 478 (6th Cir. 2019),

cert. den. 140 S.Ct. 850 (Jan. 13, 2020) 18-19

Statutes:

Indian Regulatory Gaming Act, 25 U.S.C. § 2701 et seq. 14

Michigan Indian Land Claims Settlement Act, Pub. L. No. 105-143,

Stat. 2652 (1997) 1, 20


vi


Page

Tribal Self-Governance Statutes:

Sault Tribe Constitution and ByLaws 14

Sault Tribe Tribal Code Provisions:

Chapter 42: Gaming Ordinance 14

Chapter 44: Waiver of Tribal Immunities Ordinance 15, 22

Chapter 44: Waiver of Tribal Immunities Ordinance (2009) 15, 22

Chapter 94: Gaming Authority Charter 14

Rules:

F. R. Civ. P. 12(b)(1) passim

Fed. R. Civ. P. 12(b)(6) passim

Other Authority:

Cohen’s Handbook of Federal Indian Law § 4.01[2][c] (2012) 20


vii

TABLE OF CONTENTS

STATEMENT OF ISSUES PRESENTED i

CONTROLLING OR SIGNIFICANT AUTHORITY ii

TABLE OF AUTHORITIES v

INTRODUCTION 1

I. STATEMENT OF FACTS 4

A. The Tribe’s Success in Vacating the

Secretary of the Interior’s Denial of Its

Mandatory Trust Application Marks Progress

Towards Economic Self-Sufficiency That

Plaintiffs’ Ill-Timed Lawsuit Undercuts. 4

.

B. The Amended and Restated Agreements Between

Each Plaintiff and Kewadin Impose Identical

Limitations and Conditions Precedent and

Procedural Requirements Before Any Purported

Limited Waiver of Tribal Sovereignty Immunity

Becomes Effective. 7

1. The Agreements Impose Limitations and

Restrictions on Claims and Remedies Before

the Limited Waiver of Sovereign Immunity

is Effective. 7

2. The Agreements Enforce Those Procedural

Requirements as to Developer Expenses,

Claims, and Claimed Relief. 10


viii

C. The Tribe’s Self-Governance Documents Contain

Express Limitations for Waivers of Tribal Sovereignty

Immunity. 14

D. Plaintiffs’ Complaint Seeks Relief and Claims

Beyond the Scope of the Limitations Imposed

By Their Agreements and/or by the Self-Governance

Documents on the Limited Waiver of Tribal Sovereignty 16

E. Plaintiffs Defaulted on Their Funding Obligations

Without Cure. 17

II. ARGUMENT 18

A. Legal Standard 18

B. Sixth Circuit Precedent Confers Sufficient Jurisdiction

on this Court to Determine the Threshold Issue of

Tribal Sovereign Immunity Jurisdiction. 18

C. A Purported Waiver of Tribal Sovereign Immunity

By A Tribe Must Be Express, Clear and Unequivocal

To Be Enforceable. 19

D. Plaintiffs’ Claims Seek Relief Beyond the Limitations

Imposed on Any Purported Limited Waiver of Tribal

Sovereign Immunity in Each Plaintiff’s Agreement or

Under Tribal Self-Governance Documents. 22

E. This Court Should Dismiss Plaintiffs’ Declaratory

Judgment Act Claim Because Plaintiffs Cannot

Establish Standing and Should Enjoin Plaintiffs’

Claimed Relief as Unavailable and Unenforceable

Against Kewadin and Against the Tribe. 24


ix

CONCLUSION 25

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE


1

INTRODUCTION

Without waiving tribal sovereign immunity, Defendant Kewadin Casinos

Gaming Authority (“Kewadin”) submits this Memorandum of Law and attached

Exhibits in support of its accompanying Motion:

Plaintiffs JLLJ Development LLC and Lansing Future Development LLC

(“Plaintiffs” or the “Developers”) seek to achieve through litigation what they did

not achieve through contract negotiations. They brought their baseless litigation

against Kewadin a mere twelve days after the District Court for the District of

Columbia granted in part the dispositive motion of the Sault Ste. Marie Tribe of

Chippewa Indians (the “Tribe”) and vacated the Secretary of Interior’s denial of

the Tribe’s Mandatory Trust submission, Sault Ste. Marie Tribe of Chippewa

Indians v. Bernhardt et al., ___ F.3d. ___, 2020 WL 1065406, at *1, C.A.

1:18cv02035 (D. D.C. Mar. 3, 2020) (Exhibit A attached) (the “DC Lawsuit”).1

1 The District Court also found, in a separate ruling, that the Tribe’s Mandatory

Trust submission for the Lansing parcel the Tribe owns appeared moot (2020 WL

1065406, at *27, n 2), a ruling based on the Tribe’s candid notification to the Court

of an impending re-conveyance of the parcel demanded by the new Mayor of the

City of Lansing. At this writing, the Tribe still owns the Parcel but has been

awaiting certain responses from the City’s counsel since December of last year and

since early February of this year relating to the demanded re-conveyance. Should

the re-conveyance not occur before this Court rules on Kewadin’s Motion to

Dismiss, then Kewadin notes that the legal conclusions of the District Court for the

District of Columbia in vacating the denial of the Mandatory Trust submission for

the 71-acre parcel in New Boston (i.e., that the Secretary had no authority to deny

the Mandatory Trust submission apply with equal force to the Mandatory Trust

submission for the Lansing parcels.


2

In vacating the denial, the District Court remarked that it had no “roving

license” to disregard clear language in a statute (2020 WL 1065406, at *24) and

concluded that the Secretary had “overstepped” his authority in denying the Tribe’s

Mandatory Trust submission under the Michigan Indian Land Claims Settlement

Act, Pub. L. No. 105-143, 111 Stat. 2652 (1997) (“MILCSA”), because the Act did

clearly not grant the Secretary the authority to verify whether the Tribe’s

acquisition of the land was “proper” under the purposes of the Act. The Tribe had

argued, and the Court agreed, that Congress had conferred only limited authority

on the Secretary: the authority to verify that the Tribe had acquired the land using

income or interest from the MILCSA Self-Sufficiency Fund (Id., at *3).2

Having vacated the Secretary’s denial, consistent with its earlier observation

at the outset of its legal analysis that it could only sit as an appellate tribunal on

legal issues under the federal Administrative Procedures Act (Id., at *5), the

District Court remanded the matter to the Secretary for an agency finding of fact

that the Tribe had purchased the land with income and interest from the Self-

Sufficiency Fund established for the Tribe under MILCSA. The administrative

record contains unopposed factual evidence of that funding source, and of the need

for the land-starved Tribe to benefit its virtually landless tribal members

2 As an alternative ground for vacatur, insofar as and if the relevant provisions of

MILCSA were deemed ambiguous, as discussed infra, note 3.


3

(particularly its elders), including those scattered throughout seven counties in the

Upper Peninsula and the more than 14,000 members living near the purchased

lands in the Lower Peninsula (See Exhibits B-E attached).

Plaintiffs’ Corrected Complaint (the (Complaint”) only obliquely mentions

that success and fails to provide the Court with the Memorandum Opinion in DC

Lawsuit. Plaintiffs appear to have filed suit to continue to avoid their funding

responsibilities as provided in Recital I of their Agreement, including the legal

expenses for that successful litigation, which the Tribe has funded on its own.

Instead of working toward progress through that litigation, Plaintiffs’ filing of a

suit and their attempt to encumber land held by the Tribe impedes that progress.

As the March 5, 2019 Notices of Default issued to the Developers state (see

Pl. Ex. 8 (ECF 5-7) and Exhibit F attached), Plaintiffs have ceased to reimburse

Kewadin for project expenses since the fall of 2017, despite documentation of

those expenses by Kewadin, by complaining about the litigation strategy of the

Washington DC law firms that Plaintiffs insisted Kewadin hire in the first place.

At this writing, they have not cured that default and have lost the right to seek their

Developers’ fees under the non-recourse and non-demand notes to be paid, as they

agreed, only out of the “Operating Expenses and Equipment” of the new casinos

when those casinos began operating.


4

The Tribe’s self-governance documents and the Agreements at issue contain

express limitations and conditions on the purported limited waiver of tribal

sovereign immunity that preclude Plaintiffs’ claims, and their claims for equitable

and other relief. As this Court has recognized, a tribe can limit the scope of its

waiver of sovereign immunity by placing any conditions or limitations on the

waiver. Lesperance v. Sault Ste. Marie Tribe of Chippewa Indians, 259 F. Supp.3d

713, 720 (W.D. Mich. 2017).

For the reasons discussed in this Memorandum, this Court should dismiss

Plaintiffs’ Complaint with prejudice for lack of “threshold” federal jurisdiction

and/or for lack of federal subject matter jurisdiction, pursuant to Fed. R. Civ. P.

12(b)(1) and/or (6). This Court should also dismiss Plaintiffs’ Declaratory

Judgment Act claim and requested relief because Plaintiffs cannot establish “live

case or controversy” standing and should enter declaratory and injunctive relief in

favor of Kewadin and the Tribe precluding the Plaintiffs from seeking to enforce

any encumbrances, constructive trusts or liens on tribal land or tribal assets.

I. STATEMENT OF FACTS

A. The Tribe’s Success in Vacating the Secretary’s Denial of Its

Mandatory Trust Submission Marks Progress Towards Economic

Self-Sufficient that Plaintiffs’ Ill-Timed Lawsuit Impedes.

In the DC Lawsuit, funded by the Tribe because of the Developers’

continuing default from 2017 to the present, the District Court vacated the


5

Secretary of Interior’s denial of the Tribe’s Mandatory Land-To-Trust Submission

(the “Submission”) and his refusal to take the 71 acres in New Boston into trust for

potential gaming (See Sault Ste. Marie Tribe of Chippewa Indians v. Bernhardt,

Exhibit A attached, 2020 WL 1065406, at *1). First, the Court held that, under

MILCSA’s clear language, Congress did not accord the Secretary any discretion to

scrutinize the purposes for which the Settlement Funds were to be spent. As the

Court noted, MILCSA Section 108(e)(2) provides that “[n]otwithstanding any

other provision of law,” the Secretary’s approval . . .for any payment or

distribution from the principal or income of the [Self-Sufficiency Fund created

under the Act for the Tribe” shall not be required and [he] shall have no trust

responsibility for the investment, administration, or expenditure of the principal or

income.” (Id., at *2). Moreover, the Court noted that MILCSA Section 108(f)

directs that “a]ny lands acquired using amounts from interest or other income of

the “Fund” shall be held in trust by the Secretary for the benefit of the tribe.” (Id.).

Second, the Court ruled that the Secretary had applied an impermissible

interpretation of the statutory term “enhancement of tribal lands.” (Id., at *6).

Having found that the Secretary had overstepped his authority, the Court

vacated the denial of the Mandatory Trust submission.3 Because the Secretary had

3 As an alternative ground for vacatur, insofar as the relevant provisions of

MILCSA were deemed ambiguous, then the District Court declined to accord

Chevron deference to the Department’s interpretation of the statutory term


6

made no finding as to the source of the funds used to purchase the land, the Court

remanded to the agency for such a finding. As the Supplemental Affidavit of

William Connolly submitted in the DC Lawsuit, the funds to purchase the lands came

from the separate account maintained for the interest and income of the Self-

Sufficiency Fund (Exhibit B attached).

Moreover, as all of the parties recognized at the consolidated hearings on the

motions of the original parties and the intervenor parties, litigation over land

acquisition into trust is not “the last stop” on the road to gaming on those lands, but a

prelude to a gaming application (if any) submitted to the National Indian Gaming

Commission (“NIGC”) under the Indian Gaming Regulatory Act, 25 U.S.C. §2701 et

seq. (“IGRA”) (Id., at *22). The Court reviewed the considerable support provided

by the Tribe (as additional arguments had the Court reached those arguments) in

some depth to demonstrate that the land acquisitions represented consolidation or

enhancement within the meaning of MILCSA, including affidavits the distribution of

tribal members in the Lower Peninsula near both the New Boston and Lansing

parcels, demonstrating the falling income of the 1993 Compact tribes in the Upper

Lower Peninsula and the Upper Peninsula after the advent of the Michigan Lottery

“consolidation or enhancement,” afforded the Department a form of “Skidmore

respect,” but followed the Indian canon of construction and deferred to the Tribe’s

interpretation of that phrase as more beneficial to the Tribe (2020 WL 1065406, at

*20), County of Yakima v. Yakima Indian Nation, 502 U.S. 251, 269 (1992);

Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985).


7

and the private and tribal intervenors’ casinos in the Lower Peninsula near more

densely populated areas of non-tribal patrons, and the need for affordable housing for

the tribal members living near those parcels (See Exhibits C-E submitted herewith).

Within twelve days after the District Court granted the Tribe vacatur of the

Secretary’s decision, Plaintiffs filed their Complaint, seeking relief and bringing

claims outside the limitations and conditions placed on the limited waiver of

sovereignty in Section 6.3 of the Agreements, contractual limitations consistent with

tribal self-governance documents and federal common law on tribal sovereignty.

B. The Amended and Restated Agreements Between Each Plaintiff and

Kewadin Impose Identical Express Limitations and Conditions

Precedent Before Any Purported Limited Waiver of Tribal Sovereignty

Immunity Becomes Effective.

1. The Agreements Impose Limitations and Restrictions on Remedies and

Claims Before the Limited Waiver of Sovereign Immunity is Effective.

Section 6.3 of both Agreements, read as a whole, is consistent with retention

of tribal sovereignty and grants a limited waiver of sovereignty immunity by

Kewadin only when certain limitations and conditions are fulfilled.

Section 6.3.2 makes clear that the limited waiver of sovereignty immunity is

“subject to” all of the provisions of Section 6.3:

Section 6.3.2: Scope of Waiver. Subject to the provisions of

Section 6.3, the Gaming Authority hereby expressly waives

the jurisdiction of any courts of the Tribe and expressly

provides a limited waiver of its sovereign immunity from suit

and consents to suit in accordance with and pursuant to the

terms and provisions of Section 6.3.1. Notwithstanding any


8

term or provision of this Agreement or any of the other

Transaction Document to the contrary, for purposes of this

Section 6.3, the Gaming Authority's waiver of its sovereign

immunity from suit pursuant to and in accordance with the

terms and provisions hereof shall be deemed an express and

explicit waiver of any sovereign immunity only of the Gaming

Authority, and both the Gaming Authority and the Gaming

Authority [sic] shall, upon request from Developer, execute

and deliver such documentation as Developer shall

reasonably request for the purposes of verifying the

effectiveness of the Gaming Authority's waiver of its

sovereign immunity pursuant to the terms and provisions

hereof.

(Pl. Exs. 2 and 3 (ECF 5-2, PageID.259 and ECF 5-3, PageID.304, respectively

(emphasis added)).

Section 6.3.1 simply addresses the forum in which suit may be brought and

the choice of laws, both consistent with retention of tribal sovereignty, which

arises under federal law articulated in federal rules of decision:

Section 6.3.1: Governing Law. The Parties agree that any

dispute arising out of or in connection with this Agreement

of the other Transaction shall be resolved first pursuant to

applicable federal law; second, pursuant to applicable State

law; and third, pursuant to the applicable laws of the Tribe if

no State or federal law applies. The parties designate the

United States District Court for the Western District of

Michigan as the forum for any litigation arising out of or

relating to the Gaming Authority. Notwithstanding the

foregoing, as to any dispute to which the Uniform

Commercial Code would apply, that Code, as adopted by the

State, shall apply.

(Pl. Exs. 2 and 3 (ECF 5-2, PageID.259 and ECF 5-3, PageID.304, respectively).


9

Further, Section 6.3.3 clearly and expressly explains that no waiver of

Kewadin’s tribal sovereignty is effective unless each and every one of the

following procedural requirements is met:

Section 6.3.3: Procedural Requirements. The Gaming

Authority's waiver of its sovereign immunity as to

unconsented suit is effective if, and only if, each and every

one of the following conditions is met:

A. The claim is made by a party designated under Section

6.3.5hereof [sic], and not by any other person, corporation,

partnership or entity, whatsoever;

B. The claim alleges a breach by the Gaming Authority of

one or more specific obligations or duties assumed pursuant

to the terms and provisions of this Agreement or the other

Transaction Documents; and

C. The claim seeks money damages for noncompliance

with the terms and provisions of this Agreement or any of the

other Transaction Documents, specific performance of this

Agreement of any of the Transaction Documents, and/or

injunctive relief related to the claimed noncompliance;

provided, however, that the property, assets or funds

specifically pledged and assigned to satisfy any judgment

Developer secures against the Gaming Authority under this

Agreement shall be limited to the Operating Profits and the

Equipment.

(Pl. Exs. 2 and 3 (ECF 5-2, PageID.259 and ECF 5-3, PageID.304, respectively

(emphasis added)).

Under Section 6.3.5 of both Agreements, only the Developer and its

successors or assigns are proper parties, in relevant part.4 (Pl. Exs. 2 and 3 (ECF 5-

4 The indemnification provisions referenced in Section 6.3.5 cover third-party

claims not in issue here.


10

2, PageID.260 and ECF 5-3, PageID.305, respectively). Section 6.3.7.1 of both

Agreements reinforces the limitation on property, assets or funds specifically

pledged for enforcement proceedings in Section 6.3.3(C) in no uncertain terms:

“The only assets of the Gaming Authority which shall be available, and which

are thus specifically pledged and assigned hereby, to satisfy any enforcement

proceedings or judgment in connection with this Agreement or the other

Amended and Restated Transaction Documents shall be limited to the

Operating Profits and the Equipment[.]” (Id.).

2. The Agreements Enforce Those Procedural Requirements as to

Developer Expenses, Claims and Claimed Relief.

Both Agreements contemplate in Recital I, in pertinent part, that the

Developers were to advance funds for the Mandatory Trust Submissions, for the

agency determination that the land purchased with loans reflected in the non-

recourse promissory notes would be gaming eligible under Section 20 of IGRA

(i.e., 25 U.S.C. 2719(b)(1)(B)(i) (land taken into trust after October 17, 1988

pursuant to settlement of a land claim, in this case under MILCSA), and for

litigation asserting and defending the Tribe’s legal right to undertake those

activities:

The Parties acknowledge that development and funding for the

Facility and any Temporary Facility will include, but not be

limited to (i) petitioning the United States to acquire title to the

Real Property in trust for the benefit of the Tribe, (ii) securing

any necessary determination that the Real Property constitutes


11

“Indian Lands” of the Tribe and are gaming eligible pursuant to

IGRA, including Section 20 thereof, (iii) asserting through

litigation the Tribe's legal right to undertake the above

activities, including defending challenges to various aspects of

the land-in-trust process, the "Indian Lands" determination,

and challenging the jurisdiction of the State . . . and (vi)

advancing as a limited recourse loan or loans the funds

necessary to accomplish all necessary and appropriate pre-

construction activities and presenting proposals for leasing of

Equipment on mutually agreeable terms.

(See Pl. Ex. 1 (ECF 5-2, PageID.240);5 Pl. Ex. 2 (ECF 5-3, Page ID.285).6

Section 1.2.2 of the Agreements both acknowledged the Developers’

obligation to provide funding for expenses, including the litigation expected for

taking the land into trust and provided that:

Section 1.2.2. Pre-Construction Period Expenses. Including

the Pre-Effective Date Expenses, Developer agrees to advance

an amount not to exceed $5,000,000 for the purpose of

acquiring the Real Property and funding those other expenses

referenced in Recital I to this Agreement ( collectively, the

“Pre-Construction Expenses”). Such Pre-Construction Period

Expenses shall be incurred only pursuant to a budget approved

in writing by the Parties and shall be repaid by the Gaming

Authority pursuant to the form of promissory note in the form

attached as Exhibit B (the “Pre-Construction Note”). The Pre-

Construction Note shall clearly state that it is assignable by the

Developer, that the sole source of repayment shall be the

Operating Profits and that it is subject to the limitations on

5 Plaintiffs’ Exhibit 1 (ECF 5-2) contains both the Agreement between Lansing

Future Development and Kewadin and a later-signed but undated Memorandum of

Understanding (“MOU”) submitted to the Department via email on May 4, 2013,

according to Plaintiffs’ Exhibit 3 (ECF 5-5, PageID.337 – PageID.338). 6 Plaintiffs’ Exhibit 2 (ECF 5-3) did not include its later-signed Memorandum of

Understanding submitted as described in note 4, supra. For the Court’s and the

parties’ convenience, both MOUs are submitted as Exhibit G herewith.


12

repayment referenced in Section 1.2.6 of this Agreement.

(See Pl. Exs. 1 and 2 (ECF 5-2, PageID. ___ and ECF 5-3, PageID.___,

respectively (emphasis added).) First, this Section does not expressly assign the

task of a budget only to Kewadin, as Plaintiffs complain in Paragraphs 10 and 23

of their Complaint (ECF 5, PageID.204 and PageID.209 – PageID.210): either

party could devise a budget and in 2012 Plaintiffs’ representative agreed to

develop the budget and memorialized that agreement in a written memo (See

Exhibit H attached).

Moreover, contrary to the suggestion in Paragraphs 22-25 of Plaintiffs’

Complaint that the Agreements required Kewadin to create budgets and to employ

a Development Coordinator and a Project Manager (Complaint, ECF 5,

PageID.209 – PageID.210),7 Plaintiffs’ own Exhibit 4 shows that the NIGC

concluded that the Developers had authority over budgets during the pre-opening

phase. While Plaintiffs stretch that period beyond the Pre-Construction Period to

Article 2 (construction of the Temporary Facility), the parties have not moved

into the Article 2 phase of the Agreements, as this Court may discern from the

absence of any promissory notes under Section 1.2.3 of the Agreements for

7 Plaintiffs also erroneously allege in footnote 4 that the NIGC “approved” the

Agreements, when Plaintiffs’ Exhibit 4 establishes that the NIGC just opined, in

part based on the 2013 MOUs, that those Agreements were neither management

contracts nor violated the sole proprietary interest standard. (Pl. Ex. 4, ECF 5-5,

PageID.338).


13

loans to cover Temporary Facility construction expenses. (See generally, Pl.

Exs. 2 and 3 (ECF 5-2, PageID.241- PageID.242 and ECF 5-3, PageID.286 –

PageId.287, respectively).

The non-recourse promissory notes issued under Article 1 (i.e., the Pre-

Construction Period) incorporate Section 1.2.6 by reference and expressly

recognize that payments made to satisfy such loans shall flow only from the

‘Operating Profits’ derived from the Gaming Authority from operations at the

Temporary Facility and the Facility.” (Pl. Ex. 5-7, PageID.352 – PageID.353,

PageID.356 – PageID.357, PageID.366 – PageID.367, PageID.368 – PageID369,

PageID.373 – PageID.374, and PageID.378 – PageID.379).8 The March 4, 2019

Amended Notes recognize that they are to conform to all terms and conditions of

the Agreements (Pl. Ex. (ECF 5-7, PageID.366 – PageID.377, PageID.378 –

PageID.379).

Both 2013 MOUs also expressly acknowledge those limitations of claims

and claimed relief (see Exhibit G, both MOUs, p. 1, ¶C), as well as Recital H

8 Contrary to the suggestion in Paragraphs 22 and 23 (and the erroneous claims that

the NIGC demanded to approve and “approved” the Agreements when it simply

recommended the preparation of the 2013 MOUs and opined that the Agreements

did not fall into the category of management contracts or the parties have not

moved into Article 2 phase of the Agreements, which this Court may discern

from the absence of any promissory notes for Temporary Facility expenses.

(See generally, Pl. Exs. 2 and 3 (ECF 5-2, PageID.241 – PageID.242, and ECF

5-3, PageID.286 – PageID.287, respectively).


14

(regarding land acquisition processes and the subsequent processes under IGRA)

in the Agreements (See Recital H in Pls. Ex. 1 and 2, (ECF 5-2, PageID.240 and

ECF 5-3, PageID.285, respectively).

C. The Tribe’s Self-Governance Documents Contain Express Limitations

for Waivers of Tribal Sovereignty Immunity.

The Tribe created Kewadin as a governmental instrumentality of the Tribe

with an autonomous existence for the purpose of overseeing licensed gaming

activities regulated under IGRA, and consistent with federal law, as demonstrated

in the Gaming Authority Charter (Chapter 94, attached as Exhibit I (“Charter”), §§

94.101, 94.105(1)), and the Tribe’s federally approved Gaming Ordinance

(Chapter 42, attached as Exhibit J (“Gaming Ordinance”), §§42.103, 42.104(2),

42.216, 42.713 (authorized under IGRA and the Tribe’s Constitution (attached as

Exhibit K) and to be administered in compliance with IGRA and federal

regulations).9 The Gaming Ordinance is to be liberally construed in favor of the

Tribe (Ex. J, § 42.104(1)).

9 Tribal ordinances, available on the Tribe’s Web site at www.saulttribe.com,

where sophisticated investors like Plaintiffs can access them, describe Kewadin,

the sovereign immunity of Kewadin and the Tribe, the prescribed limitations on

any purported waiver of sovereign immunity or of jurisdiction in order for the

waiver to be effective, the specifics and requirements of each waiver, and the

manner in which any purported waiver of sovereign immunity or jurisdiction must

be passed by the Board. The Court may take judicial notice of these publicly

available documents for a Rule 12(b)(1) or (6) motion without converting the

motion into a Rule 56 summary judgment motion. New England Health Care


http://www.saulttribe.com/

15

Under the Charter, Kewadin is not empowered to waive the sovereign

immunity of the Tribe (Exhibit I, Charter, § 94.111(1)).

No purported waiver of the sovereign immunity of Kewadin is effective

unless it is made by express resolution to waive sovereign immunity by Kewadin

Management Board (Exhibit I, Charter § 94.111(2)). Even if a Board resolution

were to supply such a waiver, such a waiver does not become a vested contractual

right unless it is attached to the subject contract. (Chapter 44, Waiver of Tribal

Immunities Ordinance (“Tribal Immunities Ordinance”) attached as Exhibits L

(2015) and M (2009), § 44.110).10

In addition, the Tribal Code imposes limitations and conditions on any

limited waiver of sovereign immunity so that the waiver becomes effective if and

only if it complies with those limitations and conditions. No waiver is effective

unless it fulfills the specific requirements set forth in § 44.105 as to the Tribe and §

44.107 as to Kewadin (Chapter 44, attached as Exhibits L and M). Those

conditions require that waivers of sovereign immunity and jurisdiction must be

Employees Pension Fund v. Ernst & Young, LLP, 336 F.3d 495, 501 (6th Cir.

2003). 10 In 2009, the Tribal Immunities Ordinance contained a § 44.108, since repealed.

(See Exhibit M, 2009 Tribal Immunities Ordinance, § 44.108). However, § 44.110

remained the same through 2009 to the present as a condition precedent for a

vested contractual right regarding a waiver of sovereign immunity or jurisdiction if

a contract did not incorporate the Board resolution waiving sovereign immunity or

jurisdiction (See Exhibits L and M, § 44.110).


16

specific and limited as to duration, transaction, property or funds of the Tribal

entity subject to the waiver, and specific as to jurisdiction and applicable law;

moreover, neither a sue and be sued clause nor a Board resolution waiving

immunity or jurisdiction may be deemed to consent to a judgment against the

Tribal entity (Id.). Only the Board of Directors may waive the jurisdiction of the

Tribal Court (Id., § 44.109).

D. Plaintiffs’ Complaint Seeks Relief and Claims Beyond the Scope of The

Limitations Imposed by Their Agreements and/or by the Self-

Governance Documents on the Limited Waiver of Tribal Sovereignty.

Plaintiffs bring a declaratory judgment “claim (Count I (ECF 5, PageID.216

– PageID.218), a breach of contract claim (Count II (ECF 5, PageID.218 –

PageID.225), five tort or equitable claims (Count III – negligent/innocent

misrepresentation (ECF 5, PageID.225 – PageID.226); Count IV – rescission (ECF

5, PageID.226 – PageID.228); Count V – for equitable accounting (ECF 5,

PageID.228 – PageID.229); Count VII – for equitable lien on land and operating

expenses (ECF 5, PageID.; Count VIII – constructive lien on land), all of

whichseek relief beyond those same limitations on relief and assert claims beyond

the limitations on the limited waiver of sovereignty in Section 6.3 of the

Agreements. (Id.) Moreover, the integration clause of each Agreement (See:

Section 6.7, Pl. Exs 1 and 2 (ECF 5-2, PageID.263 and ECF 503, PageID.308) bars

the claims themselves to the extent that they rely on oral representations and seek


17

equitable remedies for purported tortious conduct. The Complaint’s remaining two

claims (Count VI – promissory estoppel (ECF 5, PageID.229 – PageID.231) and

Count IX – implied in law contract (ECF 5, PageID.234 – Page ID.235) cannot

survive dismissal because of the same limitations. In addition, the counts fail

because express contracts governing the same subject matter bar promissory

estoppel claims and/or implied-in-fact contracts, as the integration clause in

Section 6.7 of each Agreement recognizes (Pl. Exs. 1 and 2 (ECF 5-2, PageID.263

and ECF 5-3, PageID.308).

E. Plaintiffs Defaulted on Their Funding Obligations Without Cure.

The Tribe’s January 4, 2018 Notice of Default and May 17, 2018 to each

Developer notifies each of the unacceptable default in providing investment

funding (see Pl. Ex. 8 (ECF 5-7, PageID.380 – PageID.392) and Exhibit F

attached).11 Although Plaintiffs included their own January 23, 2018 Notices of

Default under each Agreement (Id., alleging the same litany of lack of budget from

Kewadin, lack of Development Coordinator and Project Manager (not required in

the Pre-Construction stage), and their disagreement with the litigation strategy of

the very legal team they urged Kewadin to engage). Kewadin’s Notices of Default

11 Plaintiffs fail to include Kewadin’s May 17, 2018 responses (Exhibit F) to their

January 23, 2018 Notices.


18

invoked Sections 5.3.2 of the Agreements to the effect that the cure period for non-

payment of any expenses since 2017 had long past (Id. and Ex. F).

II. ARGUMENT

A. Legal Standard

Under the Rule 12(b)(1), “when [a] defendant challenges lack subject matter

jurisdiction through a motion to dismiss, the plaintiff bears the burden of

establishing jurisdiction. Angel v. Kentucky, 314 F.3d 262, 264 (6th Cir. 2002)

(citations omitted).

Under the Rule 12(b)(6) pleading standard on a motion to dismiss a

complaint must contain sufficient specific factual matter to state a claim to relief

plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 550 (2007). “[M]ere conclusions. . .are

not entitled to the presumption of truth. While legal conclusions can provide the

complaint’s framework, they must be supported by factual allegations.” Igbal, 556

U.S. at 664. “Threadbare recitals of the elements of a cause of action, supported

by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

B. Sixth Circuit Precedent Confers Sufficient Jurisdiction on this Court to

Determine the Threshold Issue of Tribal Sovereign Immunity.

In Spurr v. Pope, 976 F.3d 478, 482-83 (6th Cir. 2019), cert. den. 140 S.Ct.

850 (Jan. 13, 2020), the Sixth Circuit has instructed that tribal sovereignty is a

jurisdictional issue that must and should be determined first, even before a court


19

reaches the issue of federal question jurisdiction. Memphis Biofuels LLC v.

Chickasaw Nations Ind., Inc., 585 F.3d 917, 919-920 (6th Cir. 2009). The Court

also recognized that Congress had not waived tribal sovereignty in either 28 U.S.C.

§§ 1331 or 1362. In doing so, the Sixth Circuit clearly distinguished between

federal jurisdiction over claims and defenses against such claims: “[T]he fact that

Congress grants jurisdiction to hear a claim does not suffice to show Congress has

abrogated all defenses to that claim.” Spurr, 2019 WL 4009131, at *4 (quoting

Blatchford v. Native Vill. Of Noatak & Circle Vill., 501 U.S. 775, 786, n. 4 (1991).

For the reasons discussed in Part II.B and II.C., and pursuant to Rule

12(b)(1), this Court dismiss Plaintiff’s Complaint with prejudice because tribal

sovereign immunity functions as a jurisdictional bar to Plaintiffs’ claims.

C. A Purported Waiver of Tribal Sovereign Immunity By A Tribe or a

Tribal Entity Must Be Express, Clear and Unequivocal To Be

Enforceable.

On their face, Plaintiffs’ Agreements raise the issues of tribal sovereign

immunity in contracts relating to commercial activities. As federal courts have

recognized, tribal immunity is a matter of purely federal law. Kiowa Tribe of

Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 759 (1998); South Dakota v. Yankton

Sioux Tribe, 522 U.S. 329, 343 (1989). It shields not only a tribe, but also arms of

the tribe acting on its behalf. Spurr, 976 F.3d at 983; Memphis Biofuels, 585 F.3d

at 921; Kiowa Tribe, 523 U.S. at 754-55. In this case, Kewadin and the Tribe both


20

remain immune from suit, and the case should be dismissed with prejudice for

want of subject matter jurisdiction under Rule 12(b)(1) and/or (6).

Indian tribes are “separate sovereigns pre-existing the Constitution,”

“domestic dependent nations that exercise inherent sovereign authority,” and

enjoy the “common law immunity from suit traditionally employed by sovereign.”

Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 788 (2014) (quoting Santa

Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978). A tribe’s inherent sovereign

authority encompasses “extensive powers over [its] property.” Cohen’s

Handbook of Federal Indian Law § 4.01[2][c] (2012). “[C]ourts will not lightly

assume that Congress in fact intends to undermine Indian self-government.”

Michigan, 572 U.S. at 790. “The baseline position . . .is tribal immunity, and to

abrogate such immunity, Congress must unequivocally express that purpose.” Id.

(internal quotations marks omitted and edits accepted).

Suits against Indian tribes are barred by sovereign immunity absent a clear

and unequivocally expressed waiver of immunity by the tribe or by congressional

abrogation. Kiowa Tribe, 523 U.S. 754; Okla. Tax Comm’n v. Citizen Band

Potawatomi Indian Tribe of Okla., 498 U.S. 505, 509 (1991) (“Indian tribes are

domestic dependent nations that exercise inherent sovereign authority over their

members and territories. Suits against Indian tribes are thus barred by sovereign

immunity absent a clear waiver by the tribe or congressional abrogation.” (internal


21

quotation marks and citation omitted)). Nor is immunity from suit confined to

transactions on reservations and to governmental activities. Kiowa Tribe, 523 U.S.

at 755. Any doubt of any intent to abrogate sovereign immunity must be resolved

in favor of Indian tribes. Bryan v. Itasca Cty., Minn., 426 U.S. 373, 392 (1976).

Sovereign immunity is a matter of purely federal law, Yankton Sioux Tribe,

522 U.S. at 343, and “[m]uch like foreign sovereigns, Indian tribes have an interest

in a uniform body of federal law in this area.” Contour Spa at the Hard Rock, Inc.

v. Seminole Tribe of Florida, 692 F.3d 1200, 1202, 1206-07 (11th Cir. 2012).

A tribe’s “waiver of sovereign immunity cannot be implied but must be

unequivocally expressed.” Santa Clara Pueblo, 436 U.S. at 58 (internal quotation

marks omitted); see also: C&L Enter., Inc. v. Citizen Band Potowatomi Indian

Tribe of Okla., 532 U.S. 411, 418 (2001) (“[T]o relinquish its immunity, a tribes”

waiver must be clear.”

Here, the Agreements never waive the Tribe’s immunity (see Sections 6.3.2

limiting the waiver of immunity only to Kewadin (the “Gaming Authority”).

Under the Gaming Charter, Kewadin is not empowered to waive the sovereign

immunity of the Tribe (Ex. I, Charter, § 94.111(1)). Moreover, Section 6.3.7.1 of

the Agreements provides that the “only assets of the Gaming Authority which shall

be available . . . to satisfy any enforcement proceedings or judgment in connection

with this Agreement or the other Transaction Documents shall be limited to the


22

Operating Profits [defined in Section 4.1.3 as gross receives and revenues derived

from operations at the Temporary Facility or Facility, less certain deductions] and

the Equipment.” Nonetheless, Plaintiffs seek to encumber the Tribe’s land and the

Tribe’s and Kewadin’s assets with equitable and/or constructive liens imposed as

declaratory relief and equitable relief in Counts I, VII, and VIII of Plaintiffs’

Complaint.

Given the overreaching nature of their suit, and their default in providing the

promised funding for the expenses (including litigation) of taking land into trust

and seeking gaming rights under IGRA, this Court should dismiss Plaintiffs’

claims for liens and equitable encumbrances as unenforceable, pursuant to Rule

12(b)(1) and/or (6).

D. Plaintiffs’ Claims Seek Relief Beyond the Limitations Placed on Any

Purported Limited Waiver of Tribal Sovereign Immunity Permitted

Under Tribal Self-Governance Documents and in the Agreements.

As noted above in Part I.C., the Sault Tribal Code imposes limitations and

conditions on any limited waiver of sovereign immunity so that the waiver

becomes effective if and only if it complies with those limitations and conditions.

No waiver is effective unless it fulfills the specific requirements set forth in §

44.105 as to the Tribe and § 44.107 as to Kewadin (Chapter 44, attached as

Exhibits L and M). Those conditions require that waivers of sovereign immunity

and jurisdiction must be specific and limited as to duration, transaction, property or


23

funds of the Tribal entity subject to the waiver, and specific as to jurisdiction and

applicable law; moreover, neither a sue and be sued clause nor a Board resolution

waiving immunity or jurisdiction may be deemed to consent to a judgment against

the Tribal entity (Id.).

Despite their default over almost 2½ years, after an initial victory in the DC

Lawsuit funded solely by the Tribe after Plaintiffs’ default, Plaintiffs now file a

suit harmful to the Tribe’s and Kewadin’s reputation and their ability to find

investment partners for their projects for economic self-sufficiency and diversity.

Plaintiffs now demand that the Court reform their Agreements and turn their non-

recourse notes into immediate demand notes, during the COVID-19 pandemic

when casinos are closed for public health reasons, so that Plaintiffs can

immediately claim $124,000,000 dollars in “developers fees” and slap liens or

trusts on the Tribe’s landholdings and on the Tribe’s and Kewadin’s property.

Here, as detailed above in Parts I.C. and D., Plaintiffs’ claims do not

conform to the scope of permissible claims and remedies detailed in Section 6.3.3

of their Agreements, limitations and conditions reflecting tribal self-governance

documents. Here, as in Lesperance, this Court should dismiss Plaintiffs’ claims.

Lastly, Plaintiffs’ implied in fact contract and promissory estoppel claims

must fall under the well-settled principle of contract law that an express contract

governing the same subject matter (as here, the complex Agreements do) precludes


24

any such implied or quasi-contract claims. See: Eungard v. Open Solutions, Inc.,

517 F.3d 891, 899 (6th Cir. 2008) (citing Scholz v. Montgomery Ward & Co. 437

Mich. 83, 93, 468 N.W.2d 845 (1991).

Accordingly, this Court should dismiss Plaintiffs’ Complaint in its entirety

with prejudice under Rule 12(b)(1) or (6).

E. This Court Should Dismiss Plaintiffs’ Declaratory Judgment Act Claim

Because Plaintiffs Cannot Establish Standing and Should Declare and

Enjoin Plaintiffs’ Claimed Relief as Unavailable and Unenforceable

Against the Tribe and Kewadin.

Standing is a necessary and threshold legal issue, particularly given the live

case or controversy requirement in the federal Declaratory Judgment Act, 28 U.S.C.

§§ 2201-2202. To establish standing, a plaintiff must (1) have suffered an “injury

in fact” to a legally protected interest; (2) demonstrate a causal connection between

the alleged injury and the conduct at issue; and (3) redressability by the court. See

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Plaintiffs’ claimed

injury from Kewadin’s failure to supply a budget, to continue on the failed course of

approaching the Secretary (then Zinke) for a political resolution, and to appoint a

Project Manager and a Development Coordinator before entry in the Temporary

Facility Construction phase rose to the level of a concrete or particularized injury

caused by Kewadin, or that the length of the process were somehow Kewadin’s fault

(even after they defaulted, leaving the Tribe to fund the successful DC Lawsuit),


25

Plaintiffs cannot, as a matter of law, establish redressability. This Court lacks

jurisdiction and cannot order liens and encumbrances the lands and assets of a

separate sovereign where, as here, there has been no clear and unequivocal waiver

of tribal sovereignty immunity. For the reasons discussed above, in Parts II.B.-D.,

Plaintiffs cannot establish redressability; thus, they cannot establish jurisdiction in

this Court over Count II of their Complaint. As a result, this Court should dismiss

Count II and enjoin Plaintiffs from seeking to enforce, in any federal or state court,

the unenforceable and unavailable remedies they seek therein.

CONCLUSION

For the reasons discussed above, Defendant Kewadin Casinos Gaming

Authority requests that this Court grant its Motion to Dismiss and dismiss

Plaintiffs’ Claims with prejudice, pursuant to Rule 12(b)(1) and/or (6). Kewadin

also requests that this Court award Defendant its attorney’s fees and expenses so

wrongfully incurred in defending this action.

Respectfully submitted

/s/ Diane M. Soubly

Diane M. Soubly (P32005)

BUTZEL LONG, a professional corporation

Counsel for Defendant

301 E. Liberty St., Suite 500

Dated: May 7, 2020 Ann Arbor, MI 48104


26

CERTIFICATE OF COMPLIANCE

I, Diane M. Soubly, hereby certify in compliance with LCivR 7.2(b) that the

Word Count of this Memorandum of Law is 6, 943 words; that the pages of this

Memorandum do not exceed 25 pages; and that the font used is Times New Roman

14, in compliance with the Local Civil Rules of this Court.

/s/ Diane M. Soubly


1

CERTIFICATE OF SERVICE

I hereby certify that, on May 7, 2020, I caused the foregoing documents (the

Memorandum of Law in support of Defendant’s Motion to Dismiss Plaintiffs’

Complaint and/or for Declaratory Judgment and Injunctive Relief and Exhibits in

support of same to be filed electronically by CM/ECF, which caused notice to be

sent to all counsel of record.

/s/Diane M. Soubly
