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Free v. Dellinger

United States District Court, N.D. Oklahoma

July 24, 2018

KALYN FREE, Plaintiff,
KEVIN W. DELLINGER, Attorney General of the Muscogee Creek Nation, in his official capacity, and GREGORY H. BIGLER, Judge, in his official capacity, Defendants.



         Now before the Court are the following motions: Plaintiff's Motion for Preliminary Injunction and Brief in Support (Dkt. # 3); Defendant Dellinger's Motion to Dismiss Plaintiff's Complaint for Failure to Exhaust Tribal Remedies (Dkt. # 8); Defendant Gregory H. Bigler's Motion to Dismiss Plaintiff Kalyn Free's Complaint for Failure to Exhaust Tribal Remedies and Brief in Support (Dkt. # 14); Plaintiff's Motion to Deem Confessed Her Motion for Preliminary Injunction for Defendant Dellinger's Failure to Timely Respond (Dkt. # 19); and defendant Kevin W. Dellinger's Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) (Dkt. # 24).


         This case arises out of an ongoing dispute about gaming activities on land over which the Muscogee Creek Nation (MCN) claims to have exclusive jurisdiction. The land in question is located in Broken Arrow, Oklahoma and is known as the Bruner Parcel, and the MCN claims that Bruner Parcel is within the historical boundaries of the MCN reservation.[1] Dkt. # 9-2, at 1-2 (original complaint in tribal court action). Bruner is a citizen of the MCN, but he was apparently a member of the Kialegee Tribal Town as well. Id. at 2, 5 n.3. On August 16, 2017, the MCN filed a civil action in the District Court of the MCN seeking a declaratory judgment and injunctive relief preventing defendants Bruner, The Kialegee Tribal Town, Jeremiah Hobia, Red Creek Holdings, LLC, and Luis Figueredo from taking any action in furtherance of gaming activity on the Bruner Parcel. Id. The Kialegee Tribal Town was allegedly claiming that it had shared jurisdiction over the Bruner Parcel and it had issued a gaming license to Bruner. Id. at 3. The MCN argues that it has sole jurisdiction over the Bruner Parcel, and it is seeking to prevent illegal gaming activity on its lands.

         The MCN filed an amended complaint (Dkt. # 2, at 14-18) based on the same factual allegations, and the amended complaint added Bruner Investments, Kalyn Free, Shane Rolls, John Fox, and D.J. Aleman as parties. As to Free, the amended complaint alleges that she is spouse of Bruner and a principal in Bruner Investments. Dkt. # 2, at 15. The amended complaint further alleges she has “individually enabled and/or participated in the development of Red Creek Casino” on the Bruner Parcel. Id. The amended complaint is silent as to Free's membership in the MCN, and she states that she is a citizen of the Choctaw Nation. Id. at 24 (Affidavit of Kalyn Free). Free states that she has no “right, title or interest in any of [her] husband's restricted trust property, including the [Bruner Parcel], ” and she denies that she has any ownership interest in Free Bruner Investments, LLC or Bruner Investments, LLC. Id.

         On November 15, 2017, the MCN filed a motion to stay the proceedings until a related criminal case pending in tribal court was concluded. Dkt. # 9-4. The criminal case was filed against Bruner by the MCN, and the MCN alleged that Bruner was using the discovery rules in the civil proceedings in furtherance of his defense in the criminal matter. Id. at 2. The tribal court set the motion to stay the civil action for a hearing on November 28, 2017. Dkt. # 9-5, at 1. The MCN and Bruner appeared through counsel at the hearing.[2] Bruner's counsel did not oppose a stay of discovery until the new parties named in the amended complaint had been served. Dkt. # 31-1, at 7-8. Bruner's counsel made a statement that the stay order should “not transgress the right of a party not in the case currently to challenge jurisdiction of the Court, ” but he did not specifically reference Free or request that parties who not been served be permitted to file motions challenging the subject matter jurisdiction of the Court if the case were stayed. Id. at 16-17.

         On the day after the hearing, Free filed a motion to dismiss in the civil case alleging that the Court lacked subject matter and personal jurisdiction over Free and Free-Bruner Investments, LLC. The motion to dismiss was two pages long and consisted of four sentences of argument, and there was no evidence attached to the motion. Dkt. # 25-1, at 2. The MCN filed a response arguing that the tribal court had jurisdiction over Free based on the Supreme Court's decisions in Montana v. United States, 450 U.S. 544 (1981), and Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9 (1987). Dkt. # 25-2. The tribal court entered an order staying the civil case in its entirety and it did not rule on Free's motion to dismiss. Dkt. # 9-7. Instead of asking the tribal court judge, Gregory H. Bigler, to rule on the motion to dismiss, Free filed an application for writ of prohibition and mandamus in the Supreme Court of the MCN raising numerous arguments that were not raised in her motion to dismiss challenging the jurisdiction of the MCN's tribal court over her. Dkt. # 9-8. The Supreme Court of the MCN denied Free's application and found that she had not exhausted “all legal avenues before the [MCN's] District Court prior to utilizing the [MCN]'s appellate court system.” Dkt. # 2, at 22.

         On April 4, 2018, Free filed this case seeking a declaratory judgment that the tribal courts of the MCN lack jurisdiction over Free based on the allegations contained in the amended complaint filed in tribal court. Dkt. # 2. Free has also filed a motion (Dkt. # 3) seeking a preliminary injunction enjoining the tribal court from exercising jurisdiction over her. Judge Bigler has filed a response (Dkt. # 15) to the motion for preliminary injunction and has filed a motion to dismiss (Dkt. # 14) this case for lack of jurisdiction. Dellinger has not filed a response to the motion for preliminary injunction, but he has filed two motions to dismiss (Dkt ## 8, 24). Free asks the Court to find that Dellinger has confessed her motion for preliminary injunction by filing motions to dismiss, instead of a response to her motion for preliminary injunction. Dkt. # 19. However, Dellinger's motions to dismiss raise issues of judicial comity and subject matter jurisdiction, and it would make no sense to grant plaintiff's motion for preliminary injunction based on a technicality when Dellinger has filed timely motions arguing that the Court should decline to exercise jurisdiction over this case. Plaintiff's motion (Dkt. # 19) to deem her motion for preliminary injunction confessed is denied.


         A motion to dismiss due to the alleged failure to exhaust tribal court remedies should be considered under Fed.R.Civ.P. 12(b)(6), rather than Fed.R.Civ.P. 12(b)(1), because exhaustion of tribal remedies is a matter of judicial comity rather than a jurisdictional prerequisite to suit. Iowa Mut. Ins. Co., 480 U.S. at 16 n.8; EnCana Oil & Gas (USA) Inc. v. Whitlock, 2009 WL 10699703, *1 (D. Wyo. Aug. 28, 2009). In considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a court must determine whether the claimant has stated a claim upon which relief may be granted. A motion to dismiss is properly granted when a complaint provides no “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint must contain enough “facts to state a claim to relief that is plausible on its face” and the factual allegations “must be enough to raise a right to relief above the speculative level.” Id. (citations omitted). “Once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.” Id. at 562. Although decided within an antitrust context, Twombly “expounded the pleading standard for all civil actions.” Ashcroft v. Iqbal, 556 U.S. 662, 683 (2009). For the purpose of making the dismissal determination, a court must accept all the well-pleaded allegations of the complaint as true, even if doubtful in fact, and must construe the allegations in the light most favorable to a claimant. Twombly, 550 U.S. at 555; Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007); Moffett v. Halliburton Energy Servs., Inc., 291 F.3d 1227, 1231 (10th Cir. 2002). However, a court need not accept as true those allegations that are conclusory in nature. Erikson v. Pawnee Cnty. Bd. of Cnty. Comm'rs, 263 F.3d 1151, 1154-55 (10th Cir. 2001). “[C]onclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1109-10 (10th Cir. 1991).

         Sovereign immunity is a limitation on the Court's subject matter jurisdiction, and defendants' motions to dismiss are considered a challenge to the Court's subject matter jurisdiction to the extent that defendants assert that they possess sovereign immunity from suit. See Clymore v. United States, 415 F.3d 1113, 1118 n.6 (10th Cir. 2005). When considering a motion to dismiss under Rule 12(b)(1), the Court must determine whether the defendant is facially attacking the complaint or challenging the jurisdictional facts alleged by the plaintiff. In Holt v. United States, 46 F.3d 1000 (10th Cir. 1995), the Tenth Circuit stated:

Generally, Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction take two forms. First, a facial attack on the complaint's allegations as to subject matter jurisdiction questions the sufficiency of the complaint. In reviewing a facial attack on the complaint, a district court must accept the allegations in the complaint as true.
Second, a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends. When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations. . . . In such instances, a court's reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion.

Id. at 1002-03. Defendants rely on evidence outside the pleadings and the Court will construe its motion as a factual attack on the jurisdictional facts alleged by plaintiff. When ruling on a factual attack on subject matter jurisdiction, a court “has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts” without converting the motion into a motion for summary judgment. Stuart v. Colorado Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001) (quoting Holt, 46 F.3d at 1003); see also Davis ex rel. Davisv. United States, 343 F.3d 1282, 1295-96 (10th Cir. 2003) (district court had authority to review evidence outside the pleadings without converting defendant's motion to dismiss for lack of subject matter jurisdiction into a motion for summary judgment). To defeat the defendant's Rule 12(b)(1) motion, “plaintiff must ...

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