FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS June 6, 2016
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED PLANNERS FINANCIAL
SERVICES OF AMERICA, L.P.,
Plaintiff - Appellant,
v.
SAC AND FOX NATION, a federally
recognized Indian Tribe; SAC AND No. 15-6117
FOX NATION HOUSING (D.C. No. 5:14-CV-01278-HE)
AUTHORITY, an administrative (W.D. Okla.)
department of the Sac and Fox Nation;
SAC AND FOX NATION DISTRICT
COURT; HONORABLE DARRELL
R. MATLOCK, JR., in his official
capacity as Judge of the Sac and Fox
Nation District Court,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before LUCERO, GORSUCH, and PHILLIPS, Circuit Judges.
This appeal represents the latest chapter in a long litigation between Sac
and Fox Nation and United Planners over an investment allegedly gone awry.
*
This order and judgment is not binding precedent, except under the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.
Back in 2011, the Nation brought suit in tribal court alleging a breach of contract.
But the tribal court found that the parties’ contract contemplated arbitration and
dismissed the case. Soon enough, though, the arbitrators also dismissed the case,
this time on statute of limitations grounds. And in light of that move the Nation
sought to try again in tribal court, arguing now that if arbitration isn’t available
litigation should be. No doubt frustrated by this latest twist, United Planners
responded by asking a federal district court to intervene and enjoin the Nation’s
most recent tribal court lawsuit. The district court held, however, that United
Planners had failed to exhaust its tribal court remedies and so could not invoke
federal jurisdiction. It’s this ruling United Planners asks us to undo in this
appeal.
We don’t see how we might. United Planners is certainly right that
someone who isn’t a tribal member presents a federal question if he alleges a
tribal court has asserted jurisdiction over him unlawfully. Nat’l Farmers Union
Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 852-53 (1985). But it’s also
true that before anyone may bring a claim like that to district court, he must first
exhaust available tribal court remedies. Id. at 856-57. And, as the district court
noted, that much United Planners has not done. United Planners points to the
tribal court’s order dismissing the Nation’s 2011 claims and urges us to read it
not only as requiring arbitration but as permanently closing the tribal court to the
Nation’s claims. But even if we read the order so broadly, it would only mean
-2-
United Planners now seeks, at most, a ruling that the Nation’s current tribal court
lawsuit is barred by its last tribal court lawsuit under the doctrines of claim or
issue preclusion. And as United Planners candidly acknowledged during oral
argument, nothing prevents the company from raising those defenses in tribal
court. An available tribal court remedy thus remains unexhausted and should be
tried before a federal court intercedes, just as the district court recognized. Of
course, exhaustion doctrine bears some exceptions. So, for example, a party
doesn’t have to exhaust tribal court remedies when doing so would lead only to
unnecessary delay or when the assertion of tribal jurisdiction is made in bad faith.
Burrell v. Armijo, 456 F.3d 1159, 1168 (10th Cir. 2006). But we don’t see how
those exceptions might help United Planners here. Someone has to decide
whether the trial court’s disposition of the Nation’s 2011 claims precludes its
current suit, and United Planners offers no reason to think that the tribal court
will do so any less expeditiously than a federal court might. Neither is it apparent
at this preliminary stage whether the Nation’s current invocation of tribal court
jurisdiction is made in bad faith, for at least sometimes the unavailability of
arbitration has permitted a dispute otherwise subject to arbitration to return to
court. See, e.g., In re Salomon Inc. Shareholders’ Derivative Litig. 91 Civ. 5500
(RRP), 68 F.3d 554, 560-61 (2d Cir. 1995). In saying this much, we do not mean
to suggest that United Planners might not eventually succeed in showing bad
faith, only to suggest it hasn’t established it yet.
-3-
If it must return to tribal court, United Planners asks us to abate rather than
dismiss its current federal lawsuit. This court has said that abatement may be an
appropriate remedy when a party shows good cause for its failure to exhaust tribal
remedies. See Valenzuela v. Silversmith, 699 F.3d 1199, 1208 n.4 (10th Cir.
2012). But United Planners hasn’t supplied good cause for its failure so we can
hardly say that the district court’s remedial decision to dismiss rather than abate
this case rises to the level of an abuse of discretion. See, e.g., BancInsure, Inc. v.
FDIC, 796 F.3d 1226, 1239 (10th Cir. 2015); Thlopthlocco Tribal Town v.
Stidham, 762 F.3d 1226, 1241 (10th Cir. 2014). Given, too, that we affirm the
district court’s exhaustion analysis and dismissal, we have no need to consider the
Nation’s alternative grounds for reaching the same result. See Sinochem Intern.
Co. v. Malaysia Int’l. Shipping Corp., 549 U.S. 422, 431 (2007) (courts may
choose between alternative threshold grounds for affirming an action’s dismissal).
Affirmed.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
-4-