Santana v. Cherokee Casino , 215 F. App'x 763 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
February 6, 2007
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
ED D IE SA N TA N A ,
Plaintiff-Appellant, No. 06-5210
v. N.D. Oklahoma
C HEROK EE C ASIN O ; O SA G E (D.C. No. 06-CV-513-EA)
C ASIN O; C REEK N A TIO N CASINO,
Defendants-Appellees.
OR D ER AND JUDGM ENT *
Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges.
After examining the briefs and appellate record, this court has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
On September 25, 2006, Appellant Eddie Santana filed a complaint in
federal district court wherein he asserted Defendants use billboards and other
forms of advertising to entice individuals to gamble at their casinos. Santana
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
alleges he is currently being treated for a gambling addiction. He asserts
Defendants’ advertising unfairly targets individuals with gambling addictions,
resulting in Defendants’ unjust enrichment. Santana seeks damages in the
amount of $9000, a sum he alleges he has lost gambling since 2002.
Santana based his claims on the Indian G aming Regulatory Act (“IGRA”),
25 U.S.C. § 2701, and asserted the federal court had subject matter jurisdiction
under 28 U.S.C. § 1331. The district court, however, dismissed the suit for lack
of jurisdiction, noting Santana was attempting to pursue state law tort claims
against D efendants through the IGRA and concluding the IGRA does not contain
a private right of action in favor of an individual. See Hartman v. Kickapoo
Tribe Gaming Comm’n, 319 F.3d 1230, 1232-33 (10th Cir. 2003) (“[N ]ow here
does IGRA expressly authorize private individuals to sue directly under the
statute for failure of a tribe, a state, or the NIG C to comply with its provisions.”).
The court further concluded Santana could not rely on diversity jurisdiction since
all parties are citizens of Oklahoma for purposes of 28 U.S.C. § 1332. 1
This court reviews a dismissal for lack of subject matter jurisdiction de
novo. See U.S. West, Inc. v. Tristani, 182 F.3d 1202, 1206 (10th Cir. 1999).
1
W e note Santana has also failed to allege that the amount in controversy
exceeds $75,000. See 28 U.S.C. § 1332; Laughlin v. Kmart Corp., 50 F.3d 871,
873 (10th Cir. 1995) (holding that the requisite amount in controversy and the
existence of diversity must be affirmatively established in the pleading of the
party seeking to invoke jurisdiction).
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Based on our review of the record, the pleadings, and the arguments asserted by
Santana in his appellate brief, we conclude the district court did not err when it
dismissed Santana’s complaint for lack of subject matter jurisdiction.
Accordingly, we affirm the district court’s dismissal of Santana’s action.
ENTERED FOR THE COURT
M ichael R. M urphy
Circuit Judge
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