United States District Court, D. New Mexico
AMERIND RISK MANAGEMENT CORPORATION, a federally chartered Section 17 Tribal Corporation, Plaintiff,
BLACKFEET HOUSING, Defendant.
MEMORANDUM OPINION AND ORDER
Amerind Risk Management Corporation (Plaintiff) seeks
declaratory and injunctive relief from litigation brought by
Defendant Blackfeet Housing (Defendant) in the Blackfeet
Tribal Courts. See COMPLAINT (Doc. No. 1). Defendant
has moved to dismiss the Complaint, arguing that issue
preclusion bars Plaintiff from establishing subject matter
jurisdiction, that the Court lacks personal jurisdiction over
Defendant, and that Plaintiff has failed to exhaust tribal
remedies. See MOTION TO DISMISS (Doc. No. 11)
(Motion); MEMORANDUM IN SUPPORT OF MOTION TO DISMISS (Doc.
No. 12) (Memorandum); DEFENDANT'S REPLY BRIEF IN SUPPORT
OF ITS MOTION TO DISMISS (Doc. No. 19) (Reply). Plaintiff
opposes the Motion. See RESPONSE IN OPPOSITION TO
MOTION TO DISMISS (Doc. 17) (Response). The Court will deny
is a federally-chartered tribal corporation formed under
Section 17 of the Indian Reorganization Act, 25 U.S.C. §
477. See Compl. ¶ 11. The charter tribes are
the Red Lake Band of Chippewa Indians, the Confederated
Salish and Kootenai Tribes of the Flathead Reservation, and
the Pueblo of Santa Ana. See Compl. ¶ 11.
Plaintiff was formed to provide risk-sharing self-insurance
for tribal governments and entities in response to a lack of
affordable insurance options on Indian lands. See
Compl. ¶ 12. Plaintiff has over 400 tribal member
entities that contribute capital to a risk pool for each line
of coverage, from which Plaintiff pays all covered claims.
See Compl. ¶ 13. Members' participation in
the risk-sharing group is governed by contractual agreement.
See Compl. ¶ 13.
is a member entity that entered into a Participation
Agreement (PA) in March 2012 to join Plaintiff's Tribal
Operations Protection Plan (TOPP). See Compl. ¶
16. The PA provides that participants in TOPP “agree to
jointly share in the costs of protecting against financial
loss and in the monetary claims that may arise from financial
loss.” Compl. ¶ 17. They are “responsible
for annual contributions consisting of a proportional share
of expected loss costs of TOPP as well as a proportional
share of operational costs of TOPP.” Compl. ¶ 17
(internal brackets and quotation marks omitted). In return,
the PA guarantees that members are indemnified “in
accordance with any coverage documents issued to the
Participant and this agreement, but only from the assets of
TOPP.” Compl. ¶ 18.
contains agreed-upon procedures for the resolution of any
disputes between Plaintiff and participants that arise out of
or are related to the PA, including denials of
indemnification. See Compl. ¶¶ 19-20.
Disagreements must first be addressed through informal
mediation, which, if not successful within 90 days, is to be
followed by binding arbitration according to a specified
process. See Compl. ¶ 20. The PA provides that
the “arbitrator's award is final and may be entered
and enforced in one of three Courts of Competent
Jurisdiction: this Court, the Second Judicial District Court
of the State of New Mexico, or the Pueblo of Santa Ana Tribal
Court.” Compl. ¶ 21. The PA allows “either
party [to] bring an action in one of the Courts of Competent
Jurisdiction to: (i) compel arbitration, (ii) determine the
validity of [the PA], (iii) determine the authority of the
signatories to [the PA], or (iv) determine whether tribal
sovereign immunity or tribal remedies has been waived.”
Compl. ¶ 22. The PA also specifies that participants in
TOPP agree to waive the exhaustion of tribal remedies to the
extent permitted by law. See Compl. ¶ 22.
participant in TOPP governed by the March 2012 PA, Defendant
obtained four insurance policies from Plaintiff. See
Compl. ¶ 23. Defendant contacted Plaintiff in April 2013
regarding “snow entering through vents and ‘crawl
space' issues” with some of Defendant's
dwellings. Compl. ¶ 25. Defendant then made formal
claims under its policies for 130 dwellings in August 2013.
See Compl. ¶ 26. These claims were related to
the presence of mold in the dwellings, which is specifically
excluded from coverage under TOPP. See Compl. ¶
February 2014, while Plaintiff was still evaluating the
claims, Defendant sent Plaintiff a demand for over 1.4
million dollars. See Compl. ¶ 26. Plaintiff
denied the claims in March 2014 “for the specific
exclusion of mold, for construction defects, for failure to
maintain the dwellings properly, and for failure to report
damage on a timely basis.” Compl. ¶ 27. In April
2014, rather than invoking the dispute resolution procedures
contained in the PA, Defendant filed suit against Plaintiff
in the Blackfeet Tribal Court. See Compl. ¶ 28;
Blackfeet Hous. v. Amerind Risk Mgmt. Corp., Case
No. 2014 CA-60 (filed April 18, 2014).
made a special appearance in the Blackfeet Tribal Court and
moved to dismiss the suit for lack of jurisdiction, asserting
sovereign immunity and relying on the promises in the PA.
See Compl. ¶ 30. In December 2014, while the
motion to dismiss was pending in the tribal court, Plaintiff
filed for arbitration before the American Arbitration
Association. See Compl. ¶¶ 30, 32.
Plaintiff then filed suit in this Court to compel
arbitration. See Compl. ¶ 32; Amerind Risk
Mgmt. Corp. v. Blackfeet Hous., No. 15-cv-00072 WJ/KBM
(D.N.M. filed January 28, 2015). District Judge William
Johnson dismissed the suit for lack of jurisdiction after
concluding that the claim to compel arbitration of a
contractual dispute did not raise an issue of federal law.
See Compl. ¶ 32; MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANT'S MOTION TO DISMISS FOR LACK OF
SUBJECT MATTER JURISDICTION AND DENYING THE MOTION WITH
REGARD TO OTHER GROUNDS FOR DISMISSAL (Doc. No. 36),
Amerind Risk Mgmt. Corp. v. Blackfeet Hous., No.
15-cv-00072 WJ/KBM (D.N.M. May 11, 2015). Plaintiff filed an
appeal in the Court of Appeals for the Tenth Circuit, but
voluntarily dismissed the appeal before argument.
See Compl. ¶ 32; Amerind Risk Mgmt. Corp.
v. Blackfeet Hous., No. 15-2089 (10th Cir. Mar. 2,
2016). The arbitration file was closed and is no longer
pending. See Compl. ¶ 33.
October 1, 2015, the Blackfeet Tribal Court denied
Plaintiff's motion to dismiss after concluding that
Plaintiff did not have tribal sovereign immunity and that the
Blackfeet Tribal Court had jurisdiction to decide
Defendant's claim. See Compl. ¶ 30; Resp.
Ex. 2, Blackfeet Hous. v. Amerind Risk Mgmt. Corp.,
Case No. 2014 CA-60 (Order filed Oct. 1, 2015). Plaintiff
appealed the jurisdictional issue to the Blackfeet Court of
Appeals, which heard oral argument on March 22, 2016, but had
not yet decided the case when Plaintiff filed this suit for
declaratory and injunctive relief from the tribal litigation.
See Compl. ¶¶ 31, 34. However, the
Blackfeet Court of Appeals has since issued its decision,
holding that Plaintiff did have tribal sovereign immunity as
a Section 17 tribal corporation, but that Plaintiff had
waived that immunity by including an arbitration clause in
its contractual agreement. See Resp. Ex. 3,
Blackfeet Hous. v. Amerind Risk Mgmt. Corp., Cause
No. 2015-AP-09 (Order filed Nov. 7, 2016). The Blackfeet
Court of Appeals acknowledged Plaintiff's argument that
any waiver of immunity was limited to the courts specified in
the PA for enforcement of the arbitration provision, and
stated that the Court would normally agree. See
Resp. Ex. 3, Blackfeet Hous. v. Amerind Risk Mgmt.
Corp., Cause No. 2015-AP-09, at 16, ¶ 20 (Order
filed Nov. 7, 2016). But without pointing to any reason for
an exception to the limited waiver, the Blackfeet Court of
Appeals appears to have concluded that it had jurisdiction.
See Id. at 16-18, ¶¶ 20-25. The Blackfeet
Court of Appeals ordered the parties to “proceed to
mediation as contemplated by the Participation Agreement and
thereafter to arbitration if needed.” See Id.
at 18, ¶ 25. Because it concluded that Plaintiff
“previously failed to properly mediate this dispute,
and caused Blackfeet Housing to incur costs for an illusory
mediation at great expense, ” the Blackfeet Court of
Appeals ordered that Plaintiff would be “responsible
for the entire expense of the future mediation.”
See Id. at 18, ¶ 25.
contends that the Blackfeet Tribal Court and the Blackfeet
Court of Appeals lack jurisdiction over Plaintiff and
therefore lack jurisdiction to issue any orders regarding the
claims brought by Defendant against Plaintiff in the
Blackfeet Tribal Court. See Compl. ¶¶
38-43. Plaintiff states that because Defendant expressly
waived exhaustion of tribal remedies in the PA, the Blackfeet
tribal courts are not entitled to determine their
jurisdiction in the first instance. See Compl.
¶¶ 44-45. Additionally, Plaintiff maintains that
the Blackfeet courts have already had that opportunity.
See Compl. ¶ 46. Plaintiff asks this Court to
declare that the Blackfeet courts lack jurisdiction over
Plaintiff and to enjoin Defendant from continuing litigation
against Plaintiff in the Blackfeet tribal courts.
See Compl. ¶¶ 38, 49.
has moved to dismiss Plaintiff's Complaint under Federal
Rules of Civil Procedure 12(b)(1), 12(b)(2), 12(b)(6), and
the principle of deference to tribal courts. See
Mot. at 2. Defendant argues that this Court's dismissal
of Plaintiff's prior suit for lack of federal question
jurisdiction and Plaintiff's voluntary dismissal of its
Tenth Circuit appeal after raising the issue of diversity
jurisdiction preclude Plaintiff from establishing this
Court's subject matter jurisdiction over this case.
See Memo. at 7-8. Additionally, Defendant asserts
that this Court lacks personal jurisdiction over Defendant
and that Plaintiff has failed to exhaust tribal remedies.
See Memo. at 8.
resolving the Motion, the Court will take the well-pleaded
allegations of the Complaint as true, and it will not
consider materials outside of the pleadings other than those
referenced in the Complaint and central to Plaintiff's
claim, those necessary to resolve jurisdictional facts, and
court documents of which the Court may take judicial notice.
See Pace v. Swerdlow, 519 F.3d 1067, 1072-73 (10th
Cir. 2008) (in resolving a motion to dismiss, district courts
may properly consider documents referred to in the complaint
and central to the plaintiff's claim, and may take
judicial notice of adjudicative facts); Holt v. United
States, 46 F.3d 1000, 1003 (10th Cir. 1995) (when
jurisdictional facts are challenged, the district court may
consider materials outside the pleadings without converting
the motion to one for summary judgment); St. Louis
Baptist Temple, Inc. v. FDIC, 605 F.2d 1169, 1172 (10th
Cir.1979) (“[F]ederal courts, in appropriate
circumstances, may take notice of proceedings in other
courts, both within and without the federal judicial system,
if those proceedings have a direct relation to matters at