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Mitchell v. Bailey No. 19-51123

Before OWEN, Chief Judge, KING, and ENGELHARDT, Circuit Judges.
VACATED in part, AFFIRMED in part, REVERSED in part, and REMANDED.
(December 14, 2020).
Matthew Mitchell sued Orico Bailey and the Hoopa Valley Tribe in Federal District Court for violations of state tort and contract law. Hoopa Valley Tribe (“Hoopa Valley”) is a Federally recognized Indian tribe. Hoopa Valley created the AmeriCorps Hoopa Tribal Civilian Community Corps (“Hoopa Tribal CCC”) with a Federal grant. Following severe floods and the resulting Federal disaster declaration covering certain Texas counties, several AmeriCorps Disaster Response Teams, including Hoopa Tribal CCC, were deployed to Wimberley, Texas. Matthew Mitchell, a Texas resident, was injured while participating in the Wimberley disaster-relief efforts. Mitchell’s injuries were allegedly caused by Orico Bailey’s negligence. Bailey is a California citizen who, at all relevant times, was acting in his capacity as a member of the Hoopa Tribal CCC. Mitchell’s suit against Bailey and Hoopa Valley sought to recover damages for his injuries. Mitchell asserted a negligence claim and a breach-of-contract claim against Hoopa Valley, and a negligence claim against Bailey. Pursuant to Federal Rule of Civil Procedure 12(b)(1), Bailey and Hoopa Valley filed a motion to dismiss for lack of subject matter jurisdiction. They argued, inter alia, that Mitchell’s claims against Hoopa Valley and Bailey were barred by sovereign immunity. Hoopa Valley and Bailey also filed a motion seeking to substitute the United States as the proper defendant. The District Court granted the Rule 12(b)(1) motion on the basis of sovereign immunity and dismissed with prejudice the claims asserted against Bailey, in his official capacity, and Hoopa Valley. Without addressing the merits, the District Court dismissed as moot the motion seeking to substitute the United States as the proper defendant. The District Court then allowed any remaining individual capacity claims to proceed. The parties stipulated to the dismissal of such claims, the District Court entered final judgment. Mitchell appealed and Hoopa Valley cross-appealed. Because the Fifth Circuit finds the District Court lacked original jurisdiction, it vacates the judgment in part and affirms the District Court’s order of dismissal in part. Explaining that a dismissal predicated on Fed. R. Civ. P. 12(b)(1) must be without prejudice, the Court reverses in part and remands with instructions to dismiss the claims against Bailey, in his official capacity, and Hoopa Valley without prejudice.
On Appeal from the United States District Court for the Western District of Texas (David A. Ezra).
Attorney for Appellant – Stephen F. Lazor, San Antonio, TX
Attorney for Appellee – Thane D. Somerville, Seattle, WA


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