FILED

NOT FOR PUBLICATION

AUG 18 2022

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

PLATFORM 10, LLC, No. 21-17018

Plaintiff-Appellant, D.C. No. 3:20-cv-00238-RCJ-CLB v.

BATTLE MOUNTAIN BAND OF THE MEMORANDUM*

TE-MOAK TRIBE OF WESTERN

SHOSHONE INDIANS OF NEVADA,

Defendant-Appellee.

Appeal from the United States District Court for the District of Nevada Robert Clive Jones, District Judge, Presiding

Submitted August 16, 2022** San Francisco, California

Before: FERNANDEZ, SILVERMAN, and N.R. SMITH, Circuit Judges.

Platform 10, LLC (Platform 10) appeals from the district court’s dismissal of

its breach of contract action against the Battle Mountain Band of the Te-Moak

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Tribe of Western Shoshone Indians of Nevada (the Band) for lack of subject matter

jurisdiction. We review de novo,1 and we affirm.

The district court correctly determined that Platform 10 failed to carry its

burden of establishing federal subject matter jurisdiction. See id.; see also 28

U.S.C. § 1331.2 Platform 10’s two causes of action— for breaches of contract and

the covenant of good faith and fair dealing— are precisely the sort of “run-of-the-

mill contract claims”3 over which federal courts do not have jurisdiction, regardless

of the presence of an Indian tribe. See Gila River Indian Cmty. v. Henningson,

Durham & Richardson, 626 F.2d 708, 714–15 (9th Cir. 1980); see also Begay v.

Kerr-McGee Corp., 682 F.2d 1311, 1315 (9th Cir. 1982). They were not created

by federal law, nor is Platform 10’s claimed right to relief dependent “on the

resolution of a substantial question of federal law.” Peabody Coal Co. v. Navajo

Nation, 373 F.3d 945, 949 (9th Cir. 2004). The claims do not arise under federal

law merely because the subject of the parties’ contract was construction of a

gaming facility that would itself be subject to federal regulation and oversight. See

1 See Newtok Village v. Patrick, 21 F.4th 608, 615 (9th Cir. 2021). 2 We address federal question jurisdiction only because that is the only basis for jurisdiction asserted in Platform 10’s opening brief. See Padgett v. Wright, 587 F.3d 983, 985 & n.2 (9th Cir. 2009) (per curiam). 3 Cabazon Band of Mission Indians v. Wilson, 124 F.3d 1050, 1055 (9th Cir. 1997). 2 Littell v. Nakai, 344 F.2d 486, 487–88 (9th Cir. 1965). Rather, any right to relief

manifestly sounds in basic contract and tort. See Peabody Coal Co., 373 F.3d at

951; Newtok Village, 21 F.4th at 619.

Moreover, the Band’s alleged consent to federal court jurisdiction and

waiver of sovereign immunity in the contract cannot confer federal jurisdiction

where none otherwise exists. See Morongo Band of Mission Indians v. Cal. State

Bd. of Equalization, 858 F.2d 1376, 1380 (9th Cir. 1988); United States v. Park

Place Assocs., 563 F.3d 907, 923 (9th Cir. 2009).

AFFIRMED.

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