Section 17 corporation immunity – Page 2

Tenth Circuit Issues Amended Opinion in Oklahoma v. Hobia

December 23, 2014December 23, 2014Matthew L.M. Fletcher3 Comments

Here. Like its earlier decision, today’s amended opinion concludes that the district court erroneously granted the State’s request for a preliminary injunction and held that the State’s complaint, which alleged class III gaming activities on non-Indian lands, failed to state a claim under IGRA.

The Tenth Circuit also reiterated that arbitration provisions in the state’s gaming compact effectively barred Oklahoma from suing tribal officials in federal court for purported violations of the compact. The court remanded the matter to the Northern District of Oklahoma with instructions to vacate the preliminary injunction and to dismiss Oklahoma’s complaint with prejudice.

Also, the court denied the petition for en banc review.

Panel materials are here.

Federal Court Orders Exhaustion of Tribal Remedies in Suit against Penobscot Corporation

December 1, 2014Matthew L.M. Fletcher1 Comment

Here are the materials in Rassi v. Federal Program Intergrators LLC (D. Me.):

An excerpt:

I conclude that the sovereign immunity of the Penobscot Indian Nation does extend to FPI, but that FPI waived its immunity by adopting the “sue and be sued clause” in § 12.07 of its Operating Agreement, as required by 13 C.F.R. § 124.109(c)(1) in order for FPI to participate I the § 8(a) program. Nevertheless, I conclude that the tribal exhaustion doctrine applies to this case. The case is ORDERED STAYED with regard to FPI pending a determination by the tribal court as to its jurisdiction, and if necessary, an adjudication of the case on its merits. After the tribal court has ruled on the issue of its jurisdiction, and, if necessary, adjudicated the case on the merits, either party may return to this court and request that the stay be lifted. It is further ORDERED that all claims against PINE are DISMISSED, without prejudice.

Tenth Circuit Reverses Oklahoma v. Hobia Relying on Bay Mills

November 10, 2014Matthew L.M. Fletcher1 Comment

Here is the opinion:

CA10 Opinion

Lower court supplemental briefs here.

Briefs are here.

Lower court materials here.

Federal Court Materials (So Far) in Suit against Seminole Tribe’s Section 17 Corporation

October 30, 2014Matthew L.M. Fletcher

Here are the materials in Lujen Brands LLC v. Seminole Tribe of Florida Inc. (S.D. Fla.):

14 STOFI Motion to Dismiss

15 Lujen Response

18 STOFI Reply

DCT paperless order:

ORDER DENYING WITHOUT PREJUDICE Seminole Tribe of Florida, Inc., Mike Ulizio, and Chris Osceola’s (STOFI Defendants) 14 Motion to Dismiss Complaint With Prejudice for Lack of Subject Matter Jurisdiction; DENYING WITHOUT PREJUDICE the STOFI Defendants’ 31 Motion for Scheduling Conference; and GRANTING Plaintiff’s 32 Motion to Compel Initial Disclosures. On May 2, 2014, the STOFI Defendants filed a 14 Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(1), arguing that they are immune from suit by virtue of the doctrine of tribal sovereign immunity. In its 15 Response, Plaintiff requested jurisdictional discovery. It is ORDERED AND ADJUDGED that Plaintiff shall have forty-five (45) days to conduct jurisdictional discovery narrowly tailored to the subject-matter jurisdiction issue implicated by the STOFI Defendants’ 14 Motion to Dismiss. Discovery may not stray to merits issues. The Parties are directed to confer and cooperate in good faith in determining the logistics of the discovery. After the forty-five (45) day jurisdictional discovery period, the STOFI Defendants may, if they choose, refile their Motion to Dismiss for Lack of Subject Matter Jurisdiction. It is further ORDERED AND ADJUDGED that all parties shall proceed to merits discovery at the conclusion of the forty-five (45) day jurisdictional discovery period. This entry constitutes the ENDORSED ORDER in its entirety. Signed by Judge Joan A. Lenard on 8/22/2014. (jn) (Entered: 08/22/2014)

38 STOFI Motion for Reconsideration

46 Lujen Response

48 STOFI Reply

DCT Order:

ORDER GRANTING Seminole Tribe of Florida, Inc. (STOFI), Mike Ulizio, and Chris Osceola’s (STOFI Defendants) 38 Motion for Reconsideration of the Court’s August 22, 2014 Paperless Order. In their Motion, the STOFI Defendants argue that the Court’s August 22, 2014 Order (D.E. 33) implies that if they were to re-file their Motion to Dismiss for Lack of Subject Matter Jurisdiction based on sovereign immunity grounds at the close of jurisdictional discovery, they would nevertheless have to participate in merits discovery before the Court issued a ruling on the issue of subject-matter jurisdiction. (See D.E. 38 at 2). The STOFI Defendants further argue that if the Court were to order them to engage in merits discovery prior to resolution of the issue of sovereign immunity, the Court would be infringing on their tribal sovereign immunity and that such an order would constitute error. (Id.). Plaintiff asserts no argument on this issue in its Response. (See D.E. 46). The Court is permitted to resolve the issue of sovereign immunity before allowing discovery. See Caraballo-Sandoval v. Honsted, 35 F.3d 521, 524 (11th Cir. 1994). Accordingly, it is ORDERED that, at the close of jurisdictional discovery, should the STOFI Defendants re-file their Motion to Dismiss for Lack of Subject Matter Jurisdiction based on sovereign immunity grounds, the Court will stay this action as to the STOFI Defendants pending the resolution of the Motion to Dismiss.

The STOFI Defendants also argue in their Motion that the Court should more precisely define the boundaries of jurisdictional discovery. In its August 22, 2014 Order, the Court stated that “jurisdictional discovery [shall be] narrowly tailored to the subject-matter jurisdiction issue implicated by the STOFI Defendants’ [May 2, 2014] Motion to Dismiss. Discovery may not stray to merits issues.” (D.E. 33). STOFI argues that, because it has sovereign immunity unless it waives such immunity in its Charter or by contract, the only proper jurisdictional discovery against it concerning sovereign immunity goes to waiver, not to whether it is a subordinate economic entity of the Seminole Tribe of Florida. (See D.E. 38 at 8). The Court agrees. In accordance with binding precedent, STOFI is entitled to sovereign immunity unless and until it waives such immunity. Maryland Cas. Co. v. Citizens Nat. Bank of W. Hollywood, 361 F.2d 517, 520-22 (5th Cir. 1966); see also Inglish Interests, LLC v. Seminole Tribe of Florida, Inc., No. 2:10cv367FtM29DNF, 2011 WL 208289, at *5-6 (M.D. Fla. Jan. 21, 2011). Accordingly, it is ORDERED that jurisdictional discovery regarding STOFI is limited to the issue of whether STOFI waived sovereign immunity. Jurisdictional discovery shall not be permitted on the issue of whether STOFI is a subordinate economic entity of the Seminole Tribe of Florida, because, in the Eleventh Circuit, that issue is irrelevant with respect to whether STOFI has sovereign immunity. See Maryland Cas. Co., 361 F.2d at 520-22. Jurisdictional discovery shall be permitted on the issue of whether Ulizio and Osceola are also entitled to sovereign immunity.

It is further ORDERED that the forty-five day jurisdictional discovery period is to begin from the date of this order, as requested by the parties. Accordingly, the parties shall have until and including November 3, 2014, to complete jurisdictional discovery. This entry constitutes the ENDORSED ORDER in its entirety.

Signed by Judge Joan A. Lenard on 9/18/2014. (jn) (Entered: 09/18/2014)