Poitra v. Demarrias
| Decision Date | 27 October 1973 |
| Docket Number | Civ. No. 1167. |
| Citation | 369 F. Supp. 257 |
| Parties | Mary POITRA, as mother and surviving parent of Richard A. Primeau, Plaintiff, v. Donald DEMARRIAS, Defendant. |
| Court | U.S. District Court — District of South Dakota |
William A. Strutz, Fleck, Mather, Strutz & Mayer, Bismarck, N. D., for plaintiff.
John M. Olson, Sp. Asst. Atty. Gen., Bismarck, N. D., for Unsatisfied Judgment Fund.
In this action, brought under the provisions of Chapter 32-21, NDCC (Death by Wrongful Act), plaintiff seeks to recover damages occasioned by the death of her son.
Jurisdiction is predicated on diversity of citizenship, it being alleged that the plaintiff is a citizen of North Dakota, the defendant is a citizen of South Dakota, and the amount in controversy exceeds the sum of $10,000.00. It is uncontroverted that both parties are enrolled Indians residing on the Standing Rock Sioux Indian Reservation and that the accident giving rise to the alleged cause of action occurred within the exterior boundaries of that Reservation, near Selfridge, North Dakota.
The action was commenced by filing the complaint on June 15, 1972. Service was made upon the North Dakota State Highway Commissioner on June 16, 1972, in accordance with applicable North Dakota law. However, no responsive pleading was made, and on August 22, 1973, plaintiff filed its notice of application for default judgment. The defendant, acting by and through his attorney, John M. Olson, Special Assistant Attorney General for the North Dakota Unsatisfied Judgment Fund, responded on September 11, 1973, by filing a motion to dismiss the action for reason that this Court lacks subject matter jurisdiction. Plaintiff filed a brief in opposition to the motion to dismiss and requested oral argument. The matter was heard on October 3, 1973, and is now ready for determination.
The defendant concedes that the jurisdictional facts pleaded satisfy the diversity of citizenship requisites of 28 U.S. C.A. § 1332. However, in this particular case we have a situation where the plaintiff, a citizen of North Dakota, is an enrolled Indian residing in Fort Yates, within the confines of the Standing Rock Sioux Indian Reservation; the defendant, a citizen of South Dakota, is an enrolled Indian residing in Little Eagle, within the boundaries of the same Reservation; and the accident giving rise to the alleged cause of action occurred near Selfridge, North Dakota, also within the boundaries of the Standing Rock Reservation.
In a diversity action, this Court sits as another North Dakota Court; we cannot entertain any action not maintainable in a North Dakota Court. Erie v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. Also see: Wright, Federal Courts, Sec. 46, p. 152.
In Guaranty Trust Co. of N. Y. v. York, 326 U.S. 99, 108-109, 65 S.Ct. 1464, 1469, 89...
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Poitra v. Demarrias
...the action for lack of subject-matter jurisdiction. On October 27, 1973, the district court dismissed the action. Poitra v. Demarrias, 369 F.Supp. 257 (D.N.D.1973). In its memorandum and order it stated that in a diversity action it could not 'entertain any action not maintainable in a Nort......
- Longo v. Weinberger, Civ. A. No. 72-1894.
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Demarrias v. Poitra
...Viewing itself as another state court in diversity cases, the District Court concluded that it too could not entertain the suit. 369 F.Supp. 257 (N.D.1973). The Court of Appeals reversed. It concluded that there was no state policy involved in the absence of state-court jurisdiction over th......
- Gardner v. Richardson, Civ. A. No. 71-103.