607 F.3d 1268 (11th Cir. 2010), 07-13039, Miccosukee Tribe of Indians of Florida v. Kraus-Anderson Constr. Co.

Docket Nº:07-13039
Citation:607 F.3d 1268, 22 Fla.L.Weekly Fed. C 895
Opinion Judge:TJOFLAT, Circuit Judge.
Party Name:MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, Plaintiff-Counter Defendant-Appellant, v. KRAUS-ANDERSON CONSTRUCTION COMPANY, Defendant-Counter Claimant-Appellee
Attorney:For Miccosukee Tribe of Indians of Florida, Appellant: Michael Gregory Moore, Guy A. Lewis, Michael Ross Tein, LEWIS TEIN, P.L., MIAMI, FL; Davisson F. Dunlap, Jr., Dana George Toole, Dunlap, Toole, Shipman & Whitney, P.A., TALLAHASSEE, FL. For Kraus-Anderson Construction Company, Appellee: Norma...
Judge Panel:Before TJOFLAT and CARNES, Circuit Judges, and BOWEN, [*] District Judge.
Case Date:May 28, 2010
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1268

607 F.3d 1268 (11th Cir. 2010)

22 Fla.L.Weekly Fed. C 895

MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, Plaintiff-Counter Defendant-Appellant,

v.

KRAUS-ANDERSON CONSTRUCTION COMPANY, Defendant-Counter Claimant-Appellee

No. 07-13039

United States Court of Appeals, Eleventh Circuit

May 28, 2010

Page 1269

Appeal from the United States District Court for the Southern District of Florida. D. C. Docket No. 04-22774-CV-UU.

For Miccosukee Tribe of Indians of Florida, Appellant: Michael Gregory Moore, Guy A. Lewis, Michael Ross Tein, LEWIS TEIN, P.L., MIAMI, FL; Davisson F. Dunlap, Jr., Dana George Toole, Dunlap, Toole, Shipman & Whitney, P.A., TALLAHASSEE, FL.

For Kraus-Anderson Construction Company, Appellee: Norman Davis, Jason D. Joffe, Squire, Sanders & Dempsey, LLP, MIAMI, FL.

Before TJOFLAT and CARNES, Circuit Judges, and BOWEN, [*] District Judge.

OPINION

Page 1270

TJOFLAT, Circuit Judge.

In 2004, Kraus-Anderson Construction Company (" Kraus-Anderson" ) sued the Miccosukee Tribe of Indians of Florida (the " Tribe" ) for breach of contract in the Miccosukee Tribal Court. The Tribe denied liability and counterclaimed, alleging that Kraus-Anderson was the breaching party. Following a trial on the merits, the Tribal Court denied Kraus-Anderson's claims and, finding for the Tribe on its counterclaim, awarded the Tribe a judgment of $ 1.65 million. Kraus-Anderson petitioned the Tribe's Business Council for leave to appeal the judgment to the Tribe's General Council, which acts as the Tribal Court of Appeals. 1 The Council denied Kraus-Anderson's petition.

Kraus-Anderson refused to satisfy the Tribal Court's judgment, so the Tribe brought suit against Kraus-Anderson in the United States District Court for the Southern District of Florida to enforce it. As an affirmative defense, Kraus-Anderson alleged that, in denying its petition for leave to appeal the Tribal Court's judgment, the Business Council denied it due process of law, thereby rendering the judgment void. On cross-motions for summary judgment, the district court, relying on principles of comity, held the judgment unenforceable and granted Kraus-Anderson summary judgment. The Tribe now appeals. We reverse and remand the case to the district court with the instruction that it dismiss the case for lack of subject matter jurisdiction.

I.

A.

The Tribe, a federally recognized Indian tribe, has approximately 550 members and maintains its reservation in Miami-Dade County, Florida. Kraus-Anderson is a large Minnesota-based construction company that specializes in building casino properties for Indian tribes. 2

Kraus-Anderson and the Tribe negotiated and signed three contracts from 1997 to 1998 for the construction of several buildings on the Tribe's reservation, including a

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resort hotel and halfway house. 3 The parties agreed to base the three contracts on the American Institute of Architects Standard Form of Agreement Between Owner and Design/Builder (the " AIA Form" ). 4 Some of the AIA Form provisions were amended by interlineation; one provision, " Article 10 Arbitration," was eliminated altogether. 5 Although Kraus-Anderson preferred that claims be resolved pursuant to the arbitration procedures of that article, the Tribe asserted that it would waive its sovereign immunity only if Kraus-Anderson agreed to use the Tribal Court as the forum for resolving contract disputes. Kraus-Anderson relented and, in lieu of Article 10, the parties inserted the following section in Article 14 :

14.4.1.2 Waiver of Sovereign Immunity. The [Tribe] hereby waives any defense of sovereign immunity from suit in Miccosukee Tribal Court in connection with any action or proceeding, including any claim, cross-claim or counterclaim, brought by or against it in connection with this [contract] or any of the transactions contemplated in this [contract] . . . for and only with respect to actions brought in Miccosukee Tribal Court. [The Tribe] does not waive immunity in any form for actions in any court (including Miccosukee Tribal Court) not in connection with this [contract] or any of the transactions contemplated in this [contract].

The AIA Form's choice of law provision, " Article 11 Miscellaneous Provisions," states, in section 11.1, that " [t]his Part 2 shall be governed by the law of the place where the Work is located." The parties amended section 11.1 so that it provided that Part 2 would be governed by " substantive contract laws of the State of Florida and other substantive laws of the Miccosukee Tribe."

In mid-1999, the parties began to disagree as to the amounts due under the contracts. The Tribe refused to honor certain invoices submitted by Kraus-Anderson, contending that the company had overcharged for the work it had performed and had failed to remedy several construction defects. Settlement negotiations ensued, but the parties were unable to resolve their differences, and the invoices remained unpaid.

B.

On May 24, 2001, Kraus-Anderson filed a complaint against the Tribe in the Tribal Court alleging that $ 7,077,604.70 was due under the contracts. The Tribe responded with a counterclaim and set-off, neither of which specified a monetary amount, based on Kraus-Anderson's allegedly improper overcharges and construction defects. On June 18, 2004, following discovery and a sixteen-day bench trial, the Tribal Court issued its " Trial Decision," a 166-page document that summarized the evidence and set forth the court's findings and conclusions.

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In it, the Tribal Court denied Kraus-Anderson's claims and awarded the Tribe judgment in the sum of $ 1,654,998.88 on its counterclaim.

Kraus-Anderson filed a notice of appeal to the Miccosukee Business Council on July 1, 2004, asserting the following claims of error: the Tribal Court (1) exceeded its powers; (2) rendered a decision based on mathematical errors; (3) excluded material evidence and prejudiced Kraus-Anderson's ability to present its case; and (4) was generally prejudiced against Kraus-Anderson. The Business Council considered these asserted errors and reached a " consensus" that the Tribal Court committed no procedural error in reaching its decision. On July 15, 2004, the Business Council notified Kraus-Anderson that it had " disallowed" its appeal because the company " raise[d] no issues meriting review" by the Tribal Court of Appeals.

C.

Kraus-Anderson did not pay any portion of the judgment entered against it. On November 2, 2004, the Tribe commenced this action to enforce the Tribal Court's judgment. The Tribe's complaint alleged that the district court had federal question jurisdiction under 28 U.S.C. § 1331, diversity jurisdiction under 28 U.S.C. § 1332, and " federal common law of comity jurisdiction" under 28 U.S.C. § 1738. After reciting the contractual events that led to the Tribal Court judgment, the complaint requested the court to " find that the Trial Decision (final judgment) is entitled to recognition, registration, and enforcement in accordance with the applicable federal law and [to] enter [an] order recognizing, registering and enforcing the Tribal Court's Trial Decision (final judgment)."

In its answer, Kraus-Anderson asserted, as an affirmative defense, that the Tribal Court judgment was unenforceable because the Business Council's refusal to allow the appeal denied Kraus-Anderson due process of law. Addressing the complaint's assertion of subject matter jurisdiction, Kraus-Anderson disagreed that the district court had jurisdiction under § § 1332 and 1738 but admitted that the court had jurisdiction under § 1331 because its answer contained a defense based on the Due Process Clause.

The parties having joined issue...

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