Bonnet v. Harvest (U.S.) Holdings, Inc.

• Decision Date: 28 January 2014
• Docket Number: No. 12–4068.,12–4068.
• Citation: 741 F.3d 1155
• Court: U.S. Court of Appeals — Tenth Circuit
• Parties: Robert C. BONNET, an individual; Bobby Bonnet Land Services, a sole proprietorship, Plaintiffs/Counterclaim–Defendants–Appellees, v. HARVEST (U.S.) HOLDINGS, INC., a Delaware corporation; Branta Exploration & Production, LLC, a Delaware limited liability company; Elton Blackhair, an individual, Defendants/Counterclaim–Plaintiffs, and Ute Energy LLC, a Delaware limited company; Cameron Cuch, an individual, Defendants. Ute Indian Tribe of the Uintah and Ouray Reservation, Non–Party Movant–Appellant,

741 F.3d 1155

Robert C. BONNET, an individual; Bobby Bonnet Land Services, a sole proprietorship, Plaintiffs/Counterclaim–Defendants–Appellees,

v. HARVEST (U.S.) HOLDINGS, INC., a Delaware corporation; Branta Exploration & Production, LLC, a Delaware limited liability company; Elton Blackhair, an individual, Defendants/Counterclaim–Plaintiffs,andUte Energy LLC, a Delaware limited company; Cameron Cuch, an individual, Defendants.Ute Indian Tribe of the Uintah and Ouray Reservation, Non–Party Movant–Appellant,

No. 12–4068.

United States Court of Appeals, Tenth Circuit.

Jan. 28, 2014.

Frances C. Bassett (Thomas W. Fredericks, Jeremy J. Patterson, and Thomas McReynolds with her on the brief), Fredericks Peebles & Morgan LLP, Louisville, CO, for Non–Party Movant–Appellant.

Zachary E. Peterson (argued) (Lynn S. Davies and Rafael A. Seminario on the brief), Richards Brandt Miller Nelson, Salt Lake City, UT, for Plaintiffs–Appellees.

Before GORSUCH, BALDOCK, and BACHARACH, Circuit Judges.

BALDOCK, Circuit Judge.

The issue before us is whether a subpoena duces tecum served on a non-party Tribe and seeking documents relevant to a civil suit in federal court is itself a “suit” against the Tribe triggering tribal sovereign immunity. Exercising jurisdiction under 28 U.S.C. § 1291, pursuant to the collateral order doctrine, we hold the answer is yes. We therefore reverse the district court's denial of the Tribe's motion to quash based on tribal immunity.

I.

Plaintiff Robert Bonnet is a petroleum landman who conducts business through his sole proprietorship, Bobby Bonnet Land Services; also a Plaintiff. In 2008, Plaintiffs entered into a written contract with the Energy and Minerals Department of the Ute Indian Tribe of the Uintah and Ouray Reservation to serve collectively as an independent contractor and consultant. When the Tribe terminated this contract in April 2009, Plaintiffs, on the basis of diversity jurisdiction, sued various companies and individuals (but not the Tribe) in federal court, alleging these defendants caused the Tribe to terminate this contract prematurely. Plaintiffs served the Tribe with a non-party subpoena duces tecum requesting documents relevant to their suit. The Tribe moved to quash the subpoena based on the doctrine of tribal sovereign immunity. The district court denied the Tribe's motion to quash based on tribal immunity, but modified the subpoena to limit or strike requests it deemed overbroad. Bonnet v. Harvest (US) Holdings, Inc., 2012 WL 994403, at *1 (D.Utah Mar. 23, 2012) (unpublished). The Tribe now appeals.

In Part II of our opinion, we address whether the Tribe, as a non-party, can appeal the district court's denial of its motion to quash based on tribal immunity, notwithstanding the lack of a final judgment. We hold such denial is an immediately appealable collateral order. In Part III, we address whether a subpoena duces tecum served on the Tribe and requesting documents relevant to the underlying civil suit in federal court is itself a “suit” against the Tribe triggering tribal sovereign immunity. We hold this form of judicial process is a “suit” against the Tribe and therefore tribal immunity bars enforcement of the instant subpoena.

II.

Our appellate jurisdiction depends on whether the district court's denial of the Tribe's motion to quash the subpoena based on tribal sovereign immunity is an immediately appealable order notwithstanding lack of a final judgment. The denial of a motion to quash is generally a non-appealable interlocutory order. United States v. Ryan, 402 U.S. 530, 532, 91 S.Ct. 1580, 29 L.Ed.2d 85 (1971). Under the collateral order doctrine established in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), however, an order is immediately appealable if the order (1) conclusively determines the disputed question, (2) resolves an important issue completely separate from the merits of the case, and (3) is effectively unreviewable on appeal from a final judgment. See United States v. Leon, 132 F.3d 583, 587 (10th Cir.1997). We have recognized that “the denial of tribal immunity is an immediately appealable collateral order.” See, e.g., Osage Tribal Council ex rel. Osage Tribe v. U.S. Dep't of Labor, 187 F.3d 1174, 1179 (10th Cir.1999). In Osage, we held an order denying tribal immunity meets the Cohen requirements for an immediately appealable collateral order because (1) the order conclusively determines the disputed question of tribal immunity, (2) tribal immunity is an important issue completely separate from the merits of the case, and most importantly, (3) the denial of tribal immunity is effectively unreviewable on appeal from a final judgment because tribal immunity is “ ‘an immunity from suit rather than merely a defense to liability,’ ” which is “ ‘effectively lost’ ” if the case is allowed to proceed. Id. (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)).

Osage and its progeny, however, involve cases where the tribe was a named party to the litigation. “[A] nonparty must independently satisfy our criteria for permitting a nonparty appeal.” Bode v. Clark Equip. Co., 807 F.2d 879, 881 (10th Cir.1986) (citing Dietrich Corp. v. King Res. Co., 596 F.2d 422, 424 (10th Cir.1979)). In Bode, we held we lacked appellate jurisdiction over a non-party's appeal from an apportionment order because the apportionment order was neither a final order nor did it satisfy the requirements of an immediately appealable collateral order under Cohen. Id. By comparison, in Dietrich, we held a law professor who provided consulting services to two law firms in a particular case could appeal a trial court order limiting his compensation agreement with the firms even though he was neither a party nor an attorney of record in the case. Dietrich, 596 F.2d at 424. Without much reasoning or reference, we stated that this order was a final order. We allowed the non-party professor to appeal because his interest in the consulting contract made him “an aggrieved party [whose] property interest can be protected only by recognizing this as one of those extraordinary cases where a nonparty may be allowed to appeal.” Id. (citing Commercial Sec. Bank v. Walker Bank & Trust Co., 456 F.2d 1352, 1354 (10th Cir.1972)).

The Tribe argues that even though it is not a party to the underlying litigation, the district court's denial of its motion to quash based on tribal immunity is an immediately appealable collateral order because tribal immunity is a jurisdictional issue. Plaintiffs concede the denial of tribal immunity generally satisfies the Cohen requirements and generally constitutes an immediately appealable collateral order. They argue, however, that in order to appeal as a non-party, Dietrich requires the Tribe to also show this is an extraordinary case where the Tribe's property interests can only be protected by permitting a non-party appeal. Plaintiffs argue the Tribe cannot make this showing because the district court limited or struck the discovery requests “that would significantly impact the tribal treasury or tribal governance.”

The issue of tribal immunity is indeed jurisdictional, Ramey Const. Co. v. Apache Tribe of Mescalero Reservation, 673 F.2d 315, 318 (10th Cir.1982), and a look at the precedent underlying Dietrich belies Plaintiffs' argument. In Walker Bank & Trust Co., 456 F.2d at 1354, the United States appeared specially, as a non-party, to argue the district court lacked jurisdiction to enjoin the United States from conducting a sheriff's sale. The district court declined to rule on the United States' motion. The United States then appealed, again arguing the district court did not have jurisdiction to enjoin it. The plaintiffs in that case argued the United States, as a non-party, could not appeal. We rejected this argument “by application of the classic reductio ad absurdum method.” Id. We reasoned that: “To enjoin an act, the court must have jurisdiction of the [non-party] so enjoined.... Assuming arguendo that the court below had no such jurisdiction,” denying the non-party an opportunity to appeal, and binding it to honor the order, “would in effect vest the court below with jurisdiction, by estoppel of the [non-party's] appeal, where none previously existed. Such a result is patently absurd.” Id.

As in Walker Bank & Trust Co., the district court here exercised original jurisdiction over a non-party, the Tribe, not to enjoin an act, but to require an affirmative act by enforcing a subpoena. Assuming the district court had no jurisdiction to enforce Plaintiffs' subpoena against the Tribe because of tribal immunity, to deny the Tribe the opportunity to appeal and thereby vest the district court with jurisdiction over the Tribe by estoppel where no jurisdiction previously existed would be absurd. Furthermore, the Cohen requirements are met in this case. First, the order conclusively determines the disputed question of tribal immunity. Second, tribal immunity is an important issue completely separate from the merits of this case. Finally, the denial of tribal immunity is effectively unreviewable on appeal from a final judgment because, if the Tribe is entitled to immunity from a particular judicial process, this immunity is effectively lost as soon as the Tribe is subjected to that process. Moreover, given that tribal immunity is itself a jurisdictional issue, the district court's denial of tribal sovereign immunity is an immediately appealable collateral order even where the tribe is a non-party. Thus, we have jurisdiction over this appeal and proceed.

III.

We review de novo the legal question whether the Tribe, as a non-party, is entitled to tribal immunity from a subpoena duces tecum. See Ute Distrib. Corp. v. Ute IndianTribe, 149 F.3d 1260, 1263 (10th Cir.1998). The doctrine of tribal sovereign immunity dictates a federally recognized tribe “is subject to suit only where Congres...