                                                                       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        This order and judgment is not binding precedent except under the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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