United States District Court, D. New Mexico
KIM R. JIM, Plaintiff,
SHIPROCK ASSOCIATED SCHOOLS, INC., Defendant.
MEMORANDUM OPINION AND ORDER
C. BRACK SENIOR U.S. DISTRICT JUDGE
matter is before the Court on Defendant's Motion to
Dismiss for Lack of Subject Matter Jurisdiction and, in the
Alternative, for Failure to State a Claim upon Which Relief
can be Granted, filed on February 8, 2018. (Doc. 5.) Having
considered the motion, briefs, and relevant law, the Court
finds that Defendant's motion shall be converted into a
motion for summary judgment, and the parties shall be given
time for limited discovery on the issue of subject matter
accuses Defendant, her previous employer, of discriminating
against her due to her pregnancy. Plaintiff asserts claims
under Title VII of the Civil Rights Act of 1964 (Title VII)
and the Americans with Disabilities Act (ADA). Defendant
moves to dismiss under Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6) on the basis that it should be
considered an “Indian tribe” and, as such, is
exempt from coverage under both Title VII and the ADA.
Because the issue of subject matter jurisdiction is
intertwined with the merits of Plaintiff's claims, the
Court will convert Defendant's motion to dismiss into one
for summary judgment and give the parties time to conduct
limited, relevant discovery.
motion to dismiss, Defendant argues that this Court does not
have subject matter jurisdiction over Plaintiff's claims.
(See Docs. 5; 6.) Motions to dismiss under Rule
12(b)(1) “generally take one of two forms: (1) a facial
attack on the sufficiency of the complaint's allegations
as to subject matter jurisdiction; or (2) a challenge to the
actual facts upon which subject matter jurisdiction is
based.” Campos v. Las Cruces Nursing Ctr., 828
F.Supp.2d 1256, 1265 (D.N.M. 2011) (quoting Ruiz v.
McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002)
(internal citations omitted)). “On a facial attack, a
plaintiff is afforded safeguards similar to those provided in
opposing a rule 12(b)(6) motion: the court must consider the
complaint's allegations to be true.” Id.
(quoting Alto Eldorado Partners v. City of Santa Fe,
No. Civ. 08-0175 JB/ACT, 2009 WL 1312856, at *8 (D.N.M. Mar.
11, 2009), aff'd, 634 F.3d 1170 (10th Cir. 2011)
(internal citations omitted)).
when the attack is factual, a district court may not presume
the truthfulness of the complaint's factual
allegations” and may “allow affidavits, other
documents, and a limited evidentiary hearing to resolve
disputed jurisdictional facts under Rule 12(b)(1). In such
instances, a court's reference to evidence outside the
pleadings does not convert the motion to a Rule 56
[summary-judgment] motion.” Id. (quoting
Alto Eldorado Partners, 2009 WL 1312856, at *8-9
(internal quotation omitted)). “However, a court is
required to convert a Rule 12(b)(1) motion to dismiss into a
Rule 12(b)(6) motion or a Rule 56 summary judgment motion
when resolution of the jurisdictional question is intertwined
with the merits of the case.” Holt v. United
States, 46 F.3d 1000, 1003 (10th Cir. 1995) (citing
Wheeler v. Hurdman, 825 F.2d 257, 259 (10th Cir.
1987); Redmon v. United States, 934 F.2d 1151, 1155
(10th Cir. 1991)). “The jurisdictional question is
intertwined with the merits of the case if subject matter
jurisdiction is dependent on the same statute which provides
the substantive claim in the case.” Id.
(citing Wheeler, 825 F.2d at 259).
argues that the Court should dismiss Plaintiff's
complaint for lack of subject matter jurisdiction, because
Defendant is an “Indian tribe” for purposes of
both Title VII and the ADA and is exempt from coverage under
both statutes. (See Docs. 5; 6.) Defendant also
argues that the Court should dismiss Plaintiff's
complaint for failure to state a claim on the very same
basis. (Doc. 6 at 7.)
Title VII of the 1964 Civil Rights Act and Title I of the ADA
exempt Indian tribes from the definition of
“employer.” See 42 U.S.C. §
2000e(b) (defining “employer” but specifically
excluding from the definition, in relevant part, “an
Indian tribe”); 42 U.S.C. § 12111(5)(B) (same).
Thus, Defendant argues that if it is not an
“employer” within the definition of the federal
statutes, this Court lacks subject matter jurisdiction as
Plaintiff has no viable federal claims. (Doc. 5 at 2.) The
resolution of this issue is necessarily intertwined with the
merits of Plaintiff's claims, as Plaintiff will be unable
to state a claim if she cannot establish that Defendant is an
“employer” under either statute. See Clark v.
Tarrant Cty., 798 F.2d 736, 742 (5th Cir. 1986)
(“Here the federal statute, Title VII, both conveys
jurisdiction and creates a cause of action. The determination
of whether appellants come within an exception of Title VII
is intertwined with the merits of the Title VII
has requested limited discovery on the issue of subject
matter jurisdiction. (See Doc. 11 at 2-3.) The Court
will allow the parties until November 15, 2018, to complete
this limited discovery.
the Court must decide whether Defendant is an
“employer” within both federal statutes to
resolve the issue of subject matter jurisdiction, and because
the Court will allow the parties to conduct limited, relevant
discovery on this issue, the Court will convert
Defendant's motion to dismiss into one for summary
judgment. See Holt, 46 F.3d at 1003.
IT IS ORDERED that the parties have until
November 15, 2018, to conduct limited
discovery on the issue of subject matter jurisdiction;
IS FURTHER ORDERED that Defendant's motion to
dismiss shall be converted into a motion for summary
judgment. Defendant shall, no later than November 30,
2018, file a supplemental memorandum in support of
the motion for summary judgment, in accordance with D.N.M.
LR-Civ. 56.1(b). Plaintiff may file a supplemental response
in opposition to the motion for summary judgment within 14
days from the date the supplemental ...