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(Cite as: 2006 WL 2709687 (D.Utah))

United States District Court,D. Utah, Central Division.

Dale STEVENS, Plaintiff,

v.

Clark A. MCCELLEN, Defendant.

Clark A. MCCELLEN, Counterclaim Plaintiff,

v.

Dale STEVENS; Order of the White Light, a Utah Corporation dba Western Arbitration Council; Wampanoag Nation, Tribe of Grayhead, Wolf Band, an unincorporated association-in-fact; and John Does to be named later, Counterclaim Defendants.

No. 2:06CV215.

Sept. 20, 2006.

 

Dale Stevens, Vernal, UT, pro se.

Jesse C. Trentadue, J. Michael Hansen, Michael W. Homer, Suitter Axland, Salt Lake City, UT, for Defendant/Counterclaim Plaintiff.

ORDER ADOPTING REPORT AND RECOMMENDATION

CAMPBELL, J.

*1 Plaintiff Dale Stevens filed this action on March 14, 2006. Defendant Clark A. McCellen ^FN1 promptly filed a counterclaim and moved to dismiss Mr. Stevens's claims. On March 24, 2006, the court referred this case to United States Magistrate Judge Paul M. Warner under 28 U.S.C. § 636(b)(1)(B).

 

FN1. On the official court docket, the Defendant's last name is spelled ?McCellen.? But when filing papers with the court, the parties have used the spelling ?McClellan.? In this order, the court uses the spelling that appears on the docket.

After reviewing all relevant material, Judge Warner recommended that the court dismiss Mr. Stevens's claims for lack of jurisdiction, but allow Mr. McCellen's counterclaim to go forward. The court adopted that recommendation in an order dated June 19, 2006. Mr. Stevens then filed a motion to dismiss Mr. McCellen's counterclaim.

On September 5, 2006, Judge Warner issued a Report and Recommendation on Mr. Stevens's motion to dismiss, recommending that the court deny Mr. Steven's motion.^FN2 Mr. Stevens failed to file an objection to Judge Warner's Report and Recommendation within the established time limit.

 

FN2. The report and recommendation issued on September 5, 2006, amended and replaced a previous report and recommendation that had been filed on September 1, 2006.

The court has considered Judge Warner's recommendation and has reviewed the record de novo. Judge Warner concluded that Mr. Stevens and the Wampanoag Nation are not entitled to sovereign immunity. The court agrees. Mr. Stevens has not provided any information that indicates that the Wampanoag Nation is federally recognized Indian tribe and, therefore, neither Mr. Stevens nor the Wampanoag Nation can rely on the doctrine of sovereign immunity to avoid this suit.

Further, the court agrees with Judge Warner's conclusion that Mr. Stevens failed to submit sufficient evidence or argument in support of his position that Order of the White Light and the Western Arbitration Council should be dismissed as defendants. Finally, a review of Mr. McCellen's counterclaim belies Mr. Stevens's suggestion that the counterclaim is frivolous.

Accordingly, the court hereby adopts the United States Magistrate Judge's Report and Recommendation as the order of the court. Therefore, Mr. Stevens's Motion to Dismiss Counterclaim (dkt.# 28) is DENIED and the Amended Report and Recommendation (dkt.# 34) is adopted as the order of the court.

SO ORDERED.

 

REPORT AND RECOMMENDATION

WARNER, Magistrate J.

This matter was referred to Magistrate Judge Paul M. Warner by District Judge Tena Campbell pursuant to 28 U.S.C. § 636(b)(1)(B). The court previously dismissed Plaintiff's complaint, but allowed Defendant's counterclaims to proceed.^FN1 Plaintiff then filed the motion before the court to dismiss Defendant's counterclaims.^FN2 The court has carefully reviewed the memoranda submitted by the parties. Pursuant to local rule 7-1(f), the court has determined that oral argument would not be helpful or necessary and will consider the motion on the basis of the written memoranda. See DUCivR 7-1(f).

 

FN1. Docket nos. 21, 26.

FN2. Docket no. 28.

Plaintiff argues that Defendant's counterclaims against both Plaintiff and the Tribe of Grayhead, Wolf Band, in the Wampanoag Nation should be dismissed because Indian tribes and their officials are entitled to sovereign immunity from suit. This argument is without merit. Although it is true that federally recognized Indian tribes and their officials are generally immune from suit, see Fletcher v. United States, 116 F.3d 1315, 1324 (10th Cir.1997); 25 C.F.R. § 83.12 (2006), Plaintiff has not demonstrated that the Tribe of Grayhead, Wolf Band, in the Wampanoag Nation is a federally recognized Indian Tribe. Accordingly, neither Plaintiff nor the Tribe of Grayhead, Wolf Band, in the Wampanoag Nation is entitled to the sovereign immunity from suit enjoyed by federally recognized Indian tribes and their officials.

*2 Plaintiff also argues that two of the Counterclaim Defendants should be dismissed as parties to this case. Plaintiff asserts that the ?owner? of the Western Arbitration Council is deceased and, therefore, it should be dismissed from this case. Plaintiff also claims that the Order of the White Light has no relationship with the Tribe of Grayhead, Wolf Band, in the Wampanoag Nation and, as a result, it also should be dismissed from this case. Not only has Plaintiff failed to present the court with any evidence to support these bald assertions, he has also failed to provide the court with any reasoned analysis to support his conclusions that both parties should be dismissed. Accordingly, neither the Western Arbitration Council nor the Order of the White Light should be dismissed as parties to this case.

Finally, Plaintiff makes the unsupported assertion that Defendant's counterclaims are frivolous. The court has reviewed Defendant's counterclaims and determined that they are not frivolous.

For these reasons, it is hereby RECOMMENDED that Plaintiff's motion to dismiss ^FN3 be DENIED.

 

FN3. Docket no. 28.

DATED this 1st day of September, 2006.