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United States Court of Appeals,

Second Circuit.

Joseph FRAZIER, also known as Smokin' Joe, Plaintiff-Appellant,

Rubin Mark, Inc., Plaintiff,

v.

Edward BROPHY, acting individually as a Boxing Promoter in connection with Turning Stone Casino and as a representative of the International Boxing Hall of Fame, also known as Edward Brofy, International Boxing Hall of Fame, an off-reservation entity, controlled by Edward Brophy, Turner Stone Casino, Oneida Indian Nation, Ray Halbritter, as an individual and a representative of the Oneida Indian Nation, Dwayne Stitzer, as an Individual and Marketing Manager, Turner Stone Casino, also known as Dwayne Stitizer, Defendants-Appellees.

No. 08-2919-CV.


Oct. 8, 2009.

Appeal from orders of the District Court for the Northern District of New York (Scullin, J.).

H. Todd Bullard, Esq., A. Vincent Buzard, Esq., Harris Beach PLLC, Pittsford, New York, NY, for Appellant.

Michael R. Smith, David A. Reiser, Jane M. Ricci, Zuckerman Spaeder LLP, Washington, D.C.; Peter D. Carmen, Meghan Murphy Beakman, Oneida Nation Legal Department, Verona, New York; Timothy P. Murphy, Ashley D. Hayes, Hancock & Estabrook, Syracuse, NY, for Appellees.

Present DENNIS JACOBS, Chief Judge, ROSEMARY S. POOLER, and BARRINGTON D. PARKER, Circuit Judges.


SUMMARY ORDER

*1 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the case be REMANDED to district court with orders to DISMISS for lack of subject matter jurisdiction.

Plaintiff Joe Frazier appeals from orders of the District Court for the Northern District of New York (Scullin, J.) dismissing claims against certain defendantsappellees and granting summary judgment in favor of other defendants-appellees. We assume the parties' familiarity with the underlying facts, the procedural history, and the issues presented for review.

The district court correctly ruled that it lacked subject matter jurisdiction to hear this case on either federal question or diversity grounds. Frazier v. Turning Stone Casino, 254 F.Supp.2d 295, 302-05 (N.D.N.Y 2003).FN* Out of an excess of caution, the district court went on to rule on the merits of the case.


FN* Frazier does not appeal that this court lacks federal question jurisdiction.

An Indian Tribe is not a citizen of any state for the purposes of diversity jurisdiction. Romanella v. Hayward, 114 F.3d 15, 16 (2d Cir.1997); Frazier, 254 F.Supp.2d at 304. (“[T]he Court cannot assert diversity jurisdiction over this action as long as the Oneida Indian Nation (“Oneida Nation”) and the Casino are Defendants.”). Because an Indian Tribe is not a citizen of any state, the Oneida Nation's presence as a party bars a federal court from hearing the matter under its diversity jurisdiction. Romanella, 114 F.3d at 16 (“[T]he diversity statute's provisions for suits between citizens of different states, 28 U.S.C. § 1332(a), strictly construed, cannot be said to embrace suits involving Indian tribes.”); see also Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 829 (1989) (holding that one stateless party destroys diversity jurisdiction). This accords with the treatment of other domestic sovereigns, such as states, which cannot sue or be sued in diversity. Romanella, 114 F.3d at 16. Given the continued presence of the Oneida Nation in this suit, the district court lacked subject matter jurisdiction to hear this case. We therefore remand with instructions to dismiss the matter.

Federal Rule of Civil Procedure 21 allows for a court at any stage of a litigation, including a court of appeals on its own authority, to dismiss parties in order to retain diversity jurisdiction. Fed.R.Civ.P. 21 (“Misjoinder of parties is not a ground for dismissing an action. On motion or on its own, the court may at any time, on just terms, add or drop a party.”). Nothing in this provision mandates that a court of appeals take action and neither party has moved for us to do so. We decline to exercise this power here to salvage jurisdiction.

The dismissal of this suit from federal court does not foreclose all relief against the tribe, its casino, and its agents. The Oneida Nation has a trial and appellate court system staffed by former New York Court of Appeals Judges Stewart Hancock and Richard Simons. FACT SHEET: The Oneida Nation Court, http://www.oneidaindiannation.com/pressroom/factsheets/26965674.html (last visited October 2, 2009). To the extent Frazier has live claims against the tribe, its casino, or the casino's employees, he could attempt to bring them there.




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