Crowe & Dunlevy, P.C. v. Stidham, 09-CV-095-TCK-PJC.

• Decision Date: 24 April 2009
• Docket Number: No. 09-CV-095-TCK-PJC.,09-CV-095-TCK-PJC.
• Citation: 609 F.Supp.2d 1211
• Parties: CROWE & DUNLEVY, P.C., Plaintiff, v. Gregory R. STIDHAM, Defendant.
• Court: U.S. District Court — Northern District of Oklahoma

609 F.Supp.2d 1211

CROWE & DUNLEVY, P.C., Plaintiff, v. Gregory R. STIDHAM, Defendant.

No. 09-CV-095-TCK-PJC.

United States District Court, N.D. Oklahoma.

April 24, 2009.

COPYRIGHT MATERIAL OMITTED

James L. Kincaid, Susan E. Huntsman, Crowe & Dunlevy, Tulsa, OK, for Plaintiff.

Gabe Wiley Lawson, Keith Brian Bartsch, Michael Albert Simpson, Marthanda J. Beckworth, Atkinson Haskins Nellis Brittingham Gladd & Carwile, Tulsa, OK, for Defendant.

OPINION AND ORDER

TERENCE KERN, District Judge.

Before the Court are Plaintiff's Motion for Preliminary Injunction (Doc. 11) and Defendant's Motion to Dismiss Complaint and Plaintiff's Application for Preliminary Injunction (Doc. 17).

I. Background

Plaintiff Crowe & Dunlevy ("Crowe") has represented the Thlopthlocco Tribal Town ("the Tribe") for the past fourteen years. The Tribe has been recognized by the United States as a separate and distinct sovereign Indian band, and the Tribe has a Constitution and By-Laws. The Tribe has a historical relationship with the Muscogee (Creek) Nation, and many of its members hold dual citizenship in both tribes. Pursuant to the Tribe's Constitution, the governing body of the Tribe is the Business Committee. The Business Committee is comprised of ten individuals and has the power to transact business and act on behalf of the Tribe.

A. Muscogee Lawsuit

On June 5, 2007, the Tribe became aware that one member of the Business Committee, Mekko Nathan Anderson ("Anderson"), had attempted a coup d'etat. The Tribe alleges that, after serving on the Business Committee for five months, Anderson declared himself the only valid leader and "appointed" a new government. The Tribe claims that this action was unconstitutional, invalid, and had no legal effect. The Tribe further maintains that Anderson and his "co-conspirators" attempted to access the Tribe's bank accounts, issue resolutions on tribal letterhead, fire casino employees, and otherwise interfere with tribal business interests.

The Tribe was concerned that Anderson's actions would cause confusion with its business relations and therefore sought relief in the Muscogee (Creek) Nation District Court ("Muscogee Nation District Court") for the purpose of enjoining Anderson's allegedly unlawful actions ("Muscogee Lawsuit"). On June 7, 2007, the Tribe granted a narrow waiver of sovereign immunity in Business Committee Resolution No.2007-21 ("Waiver"). The Waiver outlined the basis of the dispute with Anderson and then stated:

[T]he Thlopthlocco Tribal Business Committee does hereby waive its immunity on a limited basis only for the purposes of adjudicating this dispute only, only claims brought by the Plaintiff, Thlopthlocco Tribal Town, and only for injunctive and declaratory relief. This waiver of immunity shall not include election disputes.

(Ex. A-3 to Pl.'s Mot. for Prelim. Inj.)

Four days later, on June 11, 2007, the Tribe initiated the Muscogee Lawsuit by filing a Verified Complaint and Application for Emergency Restraining Order ("Verified Complaint") in the Muscogee Nation District Court against Anderson and other co-defendants who allegedly acted in concert with Anderson ("Anderson defendants").¹ The Tribe was represented in the Muscogee Lawsuit by Michael McBride, an attorney at Crowe. The Verified Complaint requested that the Muscogee Nation District Court enjoin the Anderson defendants from the following: (1) interfering with the duly elected officials of the Tribe; (2) interfering with the functions of the tribal government; (3) taking any action contrary to the directions of the duly elected and appointed Business Committee; (4) removing any cash, proceeds, files, records, documents, equipment, fixtures, supplies or any other items from the Tribe's casino, any other business or entity owned by the Tribe, or from the Tribe's government; and (5) representing to banks or other financial institutions corporations, businesses, consultants, organizations, law firms, accountants or other governments or individuals that they currently hold any office with the Tribe. In response to the Verified Complaint, Chief District Judge Patrick Moore of the Muscogee Nation District Court entered an Order restraining the Anderson defendants from the acts listed above and declaring that any purported official actions taken by the defendants were null and void. The parties have represented that this Order continues to govern and will remain in effect until the Muscogee Lawsuit is resolved.

On September 11, 2008, Defendant Judge Gregory R. Stidham of the Muscogee Nation District Court ("Defendant") granted a motion made by the Anderson defendants, which requested that their attorneys' fees be paid by the Tribe. The Tribe appealed this order to the Muscogee Nation Supreme Court, which reversed the order as premature on January 16, 2009 ("January 16 Order"). In the January 16 Order, the Muscogee Nation Supreme Court found as follows:

It is premature to determine the issue of attorneys' fees in this case until the lawful governing body of Thlopthlocco is determined. Until then, it is unknown whether anyone among the litigants has the authority to vote to expend Thlopthlocco funds. In the interest of fairness, it is therefore ORDERED that no party is entitled to attorneys' fees during the pendency of these proceedings. The September 11, 2008 order of the District Court is reversed with instructions to dismiss Defendants' Motion for Attorney Fees as premature.

It is further ORDERED that any attorneys' fees paid from the Thlopthlocco treasury to the Plaintiff's counsel be returned and re-deposited into the treasury.

It is further ORDERED that at the conclusion of the District Court proceedings the District Court can determine the issue of attorneys' fees.

(Ex. A-5 to Pl.'s Mot. for Prelim. Inj.) The Tribe filed a petition for re-hearing with the Muscogee Nation Supreme Court on January 26, 2009, which was summarily denied. (Ex. A-6 to Pl.'s Mot. for Prelim. Inj. (stating "It is hereby Ordered by the Court that the Petition for Rehearing by Plaintiff Thlopthlocco Tribal Town is denied.").)

On February 5, 2009, Defendant ordered Crowe to "return all attorneys' fees paid from the Thlopthlocco Treasury with proof of repayment furnished to this court on or before February 20, 2009" ("February 5 Order"). (Ex. A-7 to to Pl.'s Mot. for Prelim. Inj.)² On March 6, 2009, Defendant found that Crowe had not complied with his February 5 Order and ordered that Crowe appear for a show cause hearing for contempt of court on April 3, 2009. The parties represent that since that time, Defendant has agreed to strike the show cause hearing in light of this Court's impending ruling on Plaintiff's Motion for Preliminary Injunction.

B. Federal Lawsuit

Crowe initiated this suit on February 24, 2009, seeking a judgment declaring that the "Muscogee courts do not have jurisdiction over Crowe; do not have jurisdiction over the expenditure by Thlopthlocco of its governmental funds to Crowe; do not have jurisdiction over agreements entered between Thlopthlocco and Crowe; did not have jurisdiction to issue the January 16 Order as it related to Thlopthlocco's attorneys' fees; and did not have jurisdiction to issue the February 5 Order." Crowe also requests that the Court enter judgment "declaring the January 16 Order as it relates to Thlopthlocco's attorney's fees, null and void and declaring the February 5 Order null and void." Finally, Crowe's Complaint seeks a preliminary and permanent injunction prohibiting Defendant from enforcing the January 16 and February 5 Orders.

Crowe filed a Motion for Preliminary Injunction on March 9, 2009, which seeks to enjoin Defendant from enforcing the February 5 Order or from otherwise attempting to enforce the January 16 Order as it relates to Crowe until this case is resolved. In conjunction with his response to Crowe's Motion for Preliminary Injunction, Defendant filed a Motion to Dismiss, attacking this Court's subject matter jurisdiction. A hearing on both motions was held before the Court on April 16, 2009.

II. Defendant's Motion to Dismiss

In his Motion to Dismiss, Defendant moves to dismiss Crowe's Complaint and Motion for Preliminary Injunction, arguing: (1) this case should be dismissed because the Court lacks subject matter jurisdiction; (2) this case should be dismissed because Crowe has failed to join all indispensable parties; and (3) in the event the Court declines to dismiss this matter, venue is improper and the case should be transferred to the United States District Court for the Eastern District of Oklahoma.

A. Subject Matter Jurisdiction

Defendant makes two arguments in support of his position that this Court does not have subject matter jurisdiction over this case: (1) he is entitled to judicial immunity as a judge of the Muscogee Nation District Court; and (2) he is entitled to sovereign immunity because he is an official of the Muscogee (Creek) Nation.

1. Judicial Immunity

Defendant argues that as a judge of the Muscogee Nation District Court, he is entitled to judicial immunity from suit, mandating dismissal of this action. Defendant is correct that, in many circumstances, judges enjoy judicial immunity from suit. See, e.g., Mireles v. Waco, 502 U.S. 9, 11, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991) ("Like other forms of official immunity, judicial immunity is an immunity from suit, not just from ultimate assessment of damages."); Stein v. Disciplinary Bd. of Supreme Ct. of N.M., 520 F.3d 1183, 1195 (10th Cir.2008) ("The Supreme Court has long held that judges are generally immune from suits for money damages"); Coleman v. Court of Appeals, Division No. Two, 550 F.Supp. 681, 683-84 (W.D.Okla.1980) ("[J]udges of courts of superior or general jurisdiction are not liable in a civil action for their judicial acts even when such acts are in excess of their jurisdiction and are alleged to have been done maliciously.") ("The purpose of judicial immunity is to...