United States District Court, D. New Mexico
December 29, 2016
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
Subject Matter Jurisdiction
argues that both issue preclusion and claim preclusion
prevent Plaintiff from establishing this Court's subject
matter jurisdiction. See Memo. at 7-9; Reply at 5,
9. Issue preclusion bars “successive litigation of an
issue of fact or law actually litigated and resolved in a
valid court determination essential to the prior judgment,
even if the issue recurs in the context of a different
claim.” Taylor v. Sturgell, 553 U.S. 880, 892
(2008) (internal quotation marks omitted). Issue preclusion
(1) the issue previously decided is identical with the one
presented in the action in question, (2) the prior action has
been finally adjudicated on the merits, (3) the party against
whom the doctrine is invoked was a party, or in privity with
a party, to the prior adjudication, and (4) the party against
whom the doctrine is raised had a full and fair opportunity
to litigate the issue in the prior action.
Park Lake Res. Ltd. Liab. Co. v. U.S. Dep't of
Agric., 378 F.3d 1132, 1136 (10th Cir. 2004) (quoting
Dodge v. Cotter Corp., 203 F.3d 1190, 1198 (10th
Cir. 2000)). “By precluding parties from contesting
matters that they have had a full and fair opportunity to
litigate, [issue preclusion] protect[s] against the expense
and vexation attending multiple lawsuits, conserv[es]
judicial resources, and foster[s] reliance on judicial action
by minimizing the possibility of inconsistent
decisions.” Taylor, 553 U.S. at 892 (internal
brackets and quotation marks omitted). Even though a
dismissal for lack of jurisdiction is not “on the
merits” of the underlying claim, it nevertheless
“preclude[s] relitigation of the issues determined in
ruling on the jurisdiction question.” Park
Lake, 378 F.3d at 1136 (internal quotation marks
omitted). But it does not preclude the consideration of
issues that have not yet been decided. See Matosantos
Commercial Corp. v. Applebee's Intern.,
Inc., 245 F.3d 1203, 1209 (10th Cir. 2001) (“A
jurisdictional dismissal precludes only the relitigation of
the ground of that dismissal, and thus has collateral
estoppel (issue preclusion) effect rather than the broader
res judicata effect.” (internal brackets and quotation
Court previously concluded in No. 15-cv-00072 WJ/KBM that it
lacked jurisdiction over Plaintiff's suit to compel
arbitration because neither the Complaint in that case nor
the underlying contractual dispute raised any issues of
federal law. See Amerind Risk Mgmt. Corp. v. Blackfeet
Hous., No. 15-cv-00072 WJ/KBM (D.N.M. May 11, 2015).
Here, Plaintiff has alleged federal jurisdiction to determine
the scope of the Blackfeet Tribal Court's jurisdiction
over Plaintiff as a nonmember of the tribe. See
Compl. ¶ 7. Defendant states that Plaintiff's
current claims are “essentially identical” to
those in its first suit, see Memo. at 9-10, but the
Court earlier noted specifically that the extent of tribal
jurisdiction was not before the Court, see Amerind Risk
Mgmt. Corp. v. Blackfeet Hous., No. 15-cv-00072 WJ/KBM
(D.N.M. May 11, 2015). While the substantive facts of the
underlying dispute between the parties are the same, the
jurisdictional issue is not, and consequently the prior
determination that jurisdiction was lacking will have no
preclusive effect in this case.
scope of a tribal court's jurisdiction is a federal
question over which federal district courts have
jurisdiction.” Thlopthlocco Tribal Town v.
Stidham, 762 F.3d 1226, 1234 (10th Cir. 2014) (internal
quotation marks omitted) (considering a tribal court's
exercise of jurisdiction over another tribe). See also
Nat'l Farmers Union Ins. Cos. v. Crow Tribe of
Indians, 471 U.S. 845, 853 (1985) (“[A] federal
court may determine under § 1331 whether a tribal court
has exceeded the lawful limits of its jurisdiction.”).
Although Defendant questions the reasoning behind this
principle, see Reply at 6-7, it presents no law to
the contrary. The Court therefore concludes that it has
jurisdiction under 28 U.S.C. § 1331 to determine the
extent of the Blackfeet Tribal Court's jurisdiction over
the Court concludes that it is not precluded from considering
diversity jurisdiction in the present suit because that issue
has not previously been decided. See Brereton v.
Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir.
2006) (“The preclusive effect, however, [of a dismissal
for lack of jurisdiction] is one of issue preclusion
(collateral estoppel) rather than claim preclusion (res
judicata).”). While Plaintiff did raise diversity
jurisdiction in its appeal to the Tenth Circuit, the issue
had not been raised in the district court and the appeal was
dismissed before argument without any decision. See
Compl. ¶ 32; Resp. at 16; Memo. at 6-8.
argues that diversity does not exist because Plaintiff
“is a member-owned organization” that shares in
the citizenship of its members, including Defendant.
See Memo. at 12. Unincorporated entities share the
citizenship of all members for purposes of diversity. See
Americold Realty Trust v. Conagra Foods, Inc., 136 S.Ct.
1012, 1015 (2016). But the same rules do not apply to
corporations. See Id. (citizenship of a corporation
is determined by its place of incorporation and principal
place of business). Plaintiff is a federally-chartered tribal
corporation with its principal place of business in New
Mexico. See Compl. ¶ 3. “Such a corporate
entity may be considered a citizen of the state of its
principal place of business for diversity jurisdiction
purposes.” Gaines v. Ski Apache, 8 F.3d 726,
729 (10th Cir. 1993). Defendant, by contrast, is a Montana
corporation with its principal place of business in Montana.
See Compl. ¶ 5. Accordingly, the Court finds
that the parties have diverse citizenship. Because Plaintiff
seeks to halt tribal litigation in which Defendant claims
over 1.4 million dollars in damages against Plaintiff, the
amount in controversy requirement has been met. See
McPhail v. Deere & Co., 529 F.3d 947, 953 (10th Cir.
2008) (plaintiff must allege an amount in excess of $75,
000). The Court therefore concludes that diversity
jurisdiction is present under 28 U.S.C. § 1332.
though the Court has subject matter jurisdiction to consider
Plaintiff's claim, Defendant argues that the Court lacks
personal jurisdiction over Defendant so must still dismiss
the Complaint. See Memo. at 14. “Where a
district court considers a pre-trial motion to dismiss for
lack of personal jurisdiction without conducting an
evidentiary hearing, the plaintiff need only make a prima
facie showing of personal jurisdiction to defeat the
motion.” AST Sports Sci., Inc. v. CLF
Distribution Ltd., 514 F.3d 1054, 1056-57 (10th Cir.
2008). “The plaintiff may make this prima facie showing
by demonstrating, via affidavit or other written materials,
facts that if true would support jurisdiction over the
defendant.” Id. at 1057. “In order to
defeat a plaintiff's prima facie showing of jurisdiction,
a defendant must present a compelling case demonstrating
‘that the presence of some other considerations would
render jurisdiction unreasonable.'” OMI
Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d
1086, 1091 (10th Cir. 1998) (quoting Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 477 (1985)).
first contends that Defendant consented to the jurisdiction
of this Court by its entry into the PA with Plaintiff.
See Resp. at 16-17. Unlike subject matter
jurisdiction, the requirements for personal jurisdiction may
be waived by the parties. See Burger King Corp., 471
U.S. at 472 n.14.
[B]ecause the personal jurisdiction requirement is a waivable
right, there are a variety of legal arrangements by which a
litigant may give express or implied consent to the personal
jurisdiction of the court. For example, particularly in the
commercial context, parties frequently stipulate in advance
to submit their controversies for resolution within a
particular jurisdiction. Where such forum-selection
provisions have been obtained through freely negotiated
agreements and are not unreasonable and unjust, their
enforcement does not offend due process.
Id. (internal citations and quotation marks
omitted). “[J]urisdiction over a party may be conferred
upon a court by contractual agreement of the parties.”
Williams v. Life Sav. & Loan, 802 F.2d 1200,
1202 (10th Cir.1986). “[A] valid consent or a
stipulation that the court has jurisdiction prevents the
successful assertion of a Rule 12(b)(2) defense.” 5B
Charles Alan Wright et al., Federal Practice and Procedure
§ 1351 (3d ed., Apr. 2016 update). The Court will
therefore analyze the PA-the contract through which Defendant
allegedly consented to jurisdiction.
provides that disputes between the parties that are not
resolved by informal mediation must be settled by binding
arbitration. See Compl. ¶ 20. The
arbitrator's award “may be entered and enforced
only in either the United States District Court for the
District of New Mexico, the Second Judicial District Court of
the State of New Mexico, or the Pueblo of Santa Ana Tribal
Court.” Compl. ¶ 21; Resp. Ex. 1, PA §
8(a)(5). “For this purpose, each party agrees to submit
to the jurisdiction” of any of these three courts,
referred to in the PA as the “Courts of Competent
Jurisdiction.” Compl. ¶ 21; Resp. Ex. 1, PA §
8(a)(5). Further, “[e]ither party may bring an action
in either 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; Resp. Ex.
1, PA § 8(a)(9).
plain language of the PA demonstrates that Defendant
consented to the jurisdiction of the Court over the listed
matters. Defendant argues that Section 8(a)(9) does not
specify the meaning of “Courts of Competent
Jurisdiction, ” so should be interpreted to include the
Blackfeet Tribal Court. See Reply at 11-12. But
contracts must be read as a whole, see Mastro Plastics
Corp. v. NLRB, 350 U.S. 270, 279 (1956), and
“Courts of Competent Jurisdiction” is defined in
Section 8(a)(5) of the PA to include only the three listed
courts. Additionally, while Defendant advocates for the
inclusion of the Blackfeet Tribal Court, Defendant does not
argue that Section 8(a)(9) is not a valid consent to the
jurisdiction of this Court.
Plaintiff's claim concerns the validity of the PA as a
bar to the jurisdiction of the Blackfeet tribal courts and
whether Plaintiff's tribal sovereign immunity and
Defendant's right to the exhaustion of tribal remedies
have been waived, matters specified in Section 8(a)(9) of the
PA, the Court finds that the PA is prima facie evidence that
supports jurisdiction over Defendant. This jurisdictional
stipulation will control unless Defendant
“‘clearly show[s] that enforcement would be
unreasonable and unjust, or that the clause was invalid for
such reasons as fraud or overreaching.'” Niemi
v. Lasshofer, 770 F.3d 1331, 1351 (10th Cir. 2014)
(quoting M/S Bremen v. Zapata Off-Shore Co., 407
U.S. 1, 15 (1972)). Defendant has not presented any such
evidence, much less the compelling case required to defeat
Plaintiff's prima facie showing.
the extent that parties have consented to personal
jurisdiction in a certain forum, application of a forum
state's long-arm statute and analysis of a party's
contacts with the forum state are unnecessary.”
Elec. Realty Assocs., L.P. v. Vaughan Real Estate,
Inc., 897 F.Supp. 521, 522-23 (D.Kan. 1995). But
undertaking the analysis in the interests of thoroughness,
the Court reaches the same result. “New Mexico's
long-arm statute . . . is coextensive with constitutional
limitations imposed by the Due Process Clause.”
Fireman's Fund Ins. Co. v. Thyssen Min. Const. of
Canada, Ltd., 703 F.3d 488, 492-93 (10th Cir. 2012)
(internal quotation marks omitted). “[W]ith respect to
interstate contractual obligations, . . . parties who reach
out beyond one state and create continuing relationships and
obligations with citizens of another state are subject to
regulation and sanctions in the other State for the
consequences of their activities.” Burger King
Corp., 471 U.S. at 473. Defendant maintains that it does
not have sufficient contacts with New Mexico to allow the
exercise of jurisdiction. See Memo. at 14-17. While
the existence of a contract alone is not sufficient,
“prior negotiations and contemplated future
consequences, along with the terms of the contract and the
parties' actual course of dealing” may demonstrate
that “the defendant purposefully established minimum
contacts within the forum.” Burger King Corp.,
471 U.S. at 479.
is a tribal entity member of the plaintiff corporation that
has held insurance policies with Plaintiff for approximately
30 years. See Compl. ¶ 24; Resp. at 18. The
terms of the PA reveal that arbitration of any dispute must
be held in Albuquerque, New Mexico, and that the
arbitrator's award is enforceable only in certain courts,
all located in New Mexico. See Resp. at 18-19, Ex.
1, PA § 8(a)(4)-(5). The substantive law that will
govern the dispute and any construction of the PA is that of
the Pueblo of Santa Ana, see Resp. at 19, Ex. 1, PA
§§ 8(a)(6), 9(m), also in New Mexico. All notices
and reports must be sent to Plaintiff in New Mexico, where
all records are made available for inspection. See
Resp. at 19, Ex. 1, PA §§ 4(b)(7), 9(d).
Court finds that Plaintiff has sufficiently alleged
Defendant's purposeful connection to New Mexico through
its relationship with Plaintiff. See Burger King
Corp., 471 U.S. at 480-82 (concluding that a franchisee
had established minimum contacts through a lengthy
contractual relationship that contemplated continuing
regulation from the forum state and stipulated that the law
of the forum state would govern disputes). Because this
dispute arises out of Defendant's contacts with New
Mexico through its contractual relationship with Plaintiff,
Plaintiff has met its burden to establish the minimum
contacts necessary for jurisdiction. See Dudnikov v.
Chalk & Vermilion Fine Arts, Inc., 514 F.3d
1063, 1079-80 (10th Cir. 2008).
Court will next “inquire whether the exercise of
personal jurisdiction would offend traditional notions of
fair play and substantial justice.” Id. at
1080 (internal quotation marks omitted). But “it is
incumbent on defendants to present a compelling case that the
presence of some other considerations would render
jurisdiction unreasonable.” Id. (internal
quotation marks omitted). This determination generally rests
on the following factors:
(1) the burden on the defendant, (2) the forum state's
interests in resolving the dispute, (3) the plaintiff's
interest in receiving convenient and effectual relief, (4)
the interstate judicial system's interest in obtaining
the most efficient resolution of controversies, and (5) the
shared interest of the several states [or foreign nations] in
furthering fundamental social policies.
contends that personal jurisdiction would be unreasonable
because it has no presence in New Mexico and because the
property and witnesses involved in the coverage dispute are
not located in New Mexico. See Memo. at 18-19. But
the location of the property and witnesses is not relevant
because the existence of coverage is not before the Court.
Defendant's lack of presence in New Mexico is no
different than any case involving a nonresident defendant, so
does not present an unreasonable burden. See
Dudnikov, 514 F.3d at 1081. Defendant also argues that
Blackfeet tribal law governs the underlying dispute, so that
Defendant will be prejudiced by being forced to litigate in a
forum unfamiliar with that law, which will be inefficient and
will intrude on tribal policy interests. See Memo.
at 18-20. But the scope of tribal jurisdiction that forms the
basis for Plaintiff's Complaint is a matter of federal
law. See Thlopthlocco Tribal Town, 762 F.3d at 1234
(internal quotation marks omitted). Further, the PA provides
that the governing substantive law is that of Santa Ana
Pueblo. See Resp. at 19, Ex. 1, PA §§
8(a)(6), 9(m), so that Blackfeet tribal law will not apply.
The Court concludes that Defendant has failed to present a
compelling case that jurisdiction would be unreasonable, and
therefore that the exercise of personal jurisdiction over
Defendant does not violate due process.
Exhaustion of Tribal Remedies
Finally, Defendant argues that this Court should dismiss
Plaintiff's suit for failure to exhaust tribal remedies.
See Memo. at 21. “The tribal exhaustion rule
requires that absent exceptional circumstances, federal
courts typically should abstain from hearing cases that
challenge tribal court jurisdiction until tribal court
remedies, including tribal appellate review, are
exhausted.” Thlopthlocco Tribal Town, 762 F.3d
at 1237. In this Circuit, application of the tribal
exhaustion rule may not be waived. See Navajo Nation v.
Intermountain Steel Bldgs., Inc., 42 F.Supp.2d 1222,
1227 (D.N.M. 1999) (“‘the requirement of
exhaustion of tribal remedies' is not ‘a mere
defense to be raised or waived by the parties.'”
(quoting Smith v. Moffett, 947 F.2d 442, 445 (10th
Cir.1991)). But a federal court may excuse the exhaustion
requirement “(1) where an assertion of tribal
jurisdiction is motivated by a desire to harass or is
conducted in bad faith; (2) where the action is patently
violative of express jurisdictional prohibitions; . . . (3)
where exhaustion would be futile because of the lack of an
adequate opportunity to challenge the court's
jurisdiction[; or] (4) where it is clear that the tribal
court lacks jurisdiction and that judicial proceedings would
serve no purpose other than delay.” Thlopthlocco
Tribal Town, 762 F.3d at 1237 (internal citation and
quotation marks omitted).
the Order entered on November 7, 2016, by the Blackfeet Court
of Appeals, Defendant argues that tribal remedies have not
yet been exhausted because Defendant intends to “seek
reconsideration and if necessary an appeal to the Blackfeet
Supreme Court.” Memo. at 3, 21. Plaintiff responds that
no further exhaustion is required because the Blackfeet Court
of Appeals has already ruled on its own jurisdiction and no
further tribal remedies are available. See Resp. at
23-24. The Blackfeet Court of Appeals is the highest court of
the Blackfeet Tribe. See Blackfeet Tribal Law &
Order Code, ch. 11, § 1 (1974). Under tribal court rules
of appellate procedure, the parties had ten days from the
issuance of the November 7 decision in which to file a
petition for rehearing. See Blackfeet Tribal Law
& Order Code, ch. 11, § 50 (1974). Because that time
has expired and the tribal court determination of
jurisdiction is final, the Court concludes that Plaintiff has
exhausted tribal remedies and Plaintiff's claim can now
go forward in this Court. See Iowa Mut. Ins. Co. v.
LaPlante, 480 U.S. 9, 19 (1987) (“If the Tribal
Appeals Court upholds the lower court's determination
that the tribal courts have jurisdiction, petitioner may
challenge that ruling in the District Court.”).
ORDERED that Defendant's MOTION TO DISMISS (Doc. No. 11)