State ex rel. Nixon v. Coeur D'Alene Tribe, Nos. 98-1520

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtBefore LOKEN, LAY, and HANSEN; LOKEN; LAY
Citation164 F.3d 1102
PartiesSTATE of Missouri ex rel. Jeremiah W. (Jay) NIXON, Attorney General, Plaintiff-Appellant, v. COEUR D'ALENE TRIBE, a federally recognized Indian Tribe; Defendant-Appellee. State of Missouri ex rel. Jeremiah W. (Jay) Nixon, Attorney General, Plaintiff-Appellant, v. UniStar Entertainment, Inc.; Executone Information Systems, Inc.; Ernest Stensgar; David Matheson, Defendants-Appellees.
Decision Date06 January 1999
Docket Number98-1554,Nos. 98-1520

Page 1102

164 F.3d 1102
STATE of Missouri ex rel. Jeremiah W. (Jay) NIXON, Attorney
General, Plaintiff-Appellant,
v.
COEUR D'ALENE TRIBE, a federally recognized Indian Tribe;
Defendant-Appellee.
State of Missouri ex rel. Jeremiah W. (Jay) Nixon, Attorney
General, Plaintiff-Appellant,
v.
UniStar Entertainment, Inc.; Executone Information Systems,
Inc.; Ernest Stensgar; David Matheson,
Defendants-Appellees.
Nos. 98-1520, 98-1554.
United States Court of Appeals,
Eighth Circuit.
Submitted Sept. 21, 1998.
Decided Jan. 6, 1999.
Rehearing and Suggestion for Rehearing En Banc Denied in
No. 98-1520 Feb. 17, 1999.

Page 1104

Sue A. Sperry, Kansas City, MO, argued (J. Dale Youngs and Erwin O. Switzer, on the brief), for Plaintiff-Appellant.

Raymond C. Givens, Coeur d'Alene, ID, argued (Laurence R. Tucker and Stuart Shaw, on the brief), for Coeur D'Alene Tribe.

William Wright, Richmond, VA, argued (Edwin L. Noel, Thomas B. Weaver and Patricia M. Schwarzschild, on the brief), for UniStar Entertainment, Inc.

Before LOKEN, LAY, and HANSEN, Circuit Judges.

LOKEN, Circuit Judge.

The State of Missouri filed two cases in state court seeking to enjoin the Coeur D'Alene Tribe and its contractor, UniStar Entertainment, Inc. ("UniStar"), from conducting an Internet gambling program known as the National Indian Lottery with Missouri residents. Defendants removed both cases and persuaded both district courts that the Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C. §§ 2701-2721, completely preempts state regulation of tribal gaming. In the first case, the Western District of Missouri dismissed all claims against the Tribe as barred by the doctrine of tribal immunity. In the second case, the Eastern District of Missouri transferred venue to the Western District of Missouri, denying the State's motion for an immediate preliminary injunction. The State appeals. In the first case, we reject the Tribe's contention that we lack appellate jurisdiction and conclude that the district court improperly defined the preemptive scope of the IGRA in denying the State's motion to remand. We remand that case for reconsideration of subject matter jurisdiction. We dismiss the second appeal for lack of an appealable order.

I. Background and Issues of Appellate Jurisdiction.

The Tribe is federally registered and resides on a reservation in Idaho. The Tribe operates its lottery on the "US Lottery" website pursuant to an IGRA compact with the State of Idaho. See generally 25 U.S.C. § 2710(d); Seminole Tribe v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 1119-20, 134 L.Ed.2d 252 (1996). Computer users may electronically register to play from their local homes or offices, establish a gambling account funded by charges to their credit cards, and begin gambling once the account is funded. The Tribe offers the lottery to residents of thirty six States who have Internet access. At oral argument, counsel for UniStar argued the U.S. Lottery is lawful nationwide but appellees made the business decision to lower legal costs during start-up by not offering it in States with strong policies against gambling. Apparently, appellees misjudged the legal landscape in Missouri and Wisconsin, two States whose Attorneys General have commenced litigation. Appellees further explained they want to litigate the merits of these cases in a court in Idaho, no doubt because that State has approved the lottery by compact and may stand to profit from its nationwide revenues if non-consenting States like Missouri can be ignored.

Page 1105

The State of Missouri first sued the Tribe and UniStar in a state court in the Western District, seeking to enjoin operation of the lottery because Internet gambling is illegal in Missouri and therefore the Tribe is violating state law by offering unlawful services and falsely advertising that the lottery is legal in Missouri. See Mo.Rev.Stat. §§ 407.020, 407.100. Defendants removed to the Western District, claiming complete IGRA preemption. The State moved to remand, arguing the U.S. Lottery is not gambling on "Indian lands" within the meaning of 25 U.S.C. § 2703(4) and therefore is not within the scope of IGRA preemption. The Tribe and UniStar moved to dismiss for failure to state a claim, arguing tribal immunity. Relying on our decision in Gaming Corporation of America v. Dorsey & Whitney, 88 F.3d 536, 543 (8th Cir.1996), the district court denied the motion to remand, concluding the IGRA completely preempts the field of Indian gaming regardless of whether the gaming occurs on Indian lands. The court declined to certify that issue for interlocutory appeal. It then granted the Tribe's motion to dismiss all claims against the Tribe as barred by tribal immunity but denied UniStar's motion to dismiss, leaving open the question whether tribal immunity extends to tribal agents such as UniStar.

In January 1998, the State voluntarily dismissed its claims against UniStar without prejudice under Rule 41(a)(1)(i) of the Federal Rules of Civil Procedure. The State then appealed the district court's orders refusing to remand and dismissing all claims against the Tribe as now-final orders. Seeking to block the appeal, UniStar asked the Western District to hold the voluntary dismissal of UniStar "ineffective and void." On July 2, 1998, with the State's appeal pending, the district court granted UniStar's motion, concluding the State could not voluntarily dismiss UniStar without leave of court, which the district court refused to grant. The Tribe immediately moved this court to amend its pending motion to dismiss the appeal to incorporate this latest district court ruling. We grant the motion to amend.

Meanwhile, after voluntarily dismissing UniStar in the first case, the State sued UniStar and two tribal leaders in a state court in the Eastern District, alleging the same violations of state law. Defendants removed that case to the Eastern District. The State moved to remand or, alternatively, for a preliminary injunction. Defendants countered with a motion to transfer the case to a district court in Idaho or to the Western District of Missouri. In a single order, the district court denied the State's motion to remand, transferred the case to the Western District to "preserve judicial economy," and denied the State's motion for a preliminary injunction without further comment. The State appeals that order.

This rather tangled procedural history presents us with the following questions of appellate jurisdiction. In the first case, the order dismissing all claims against the Tribe was not appealable when entered because UniStar remained in the case, and there was no Rule 54(b) determination permitting immediate appeal of the order finally dismissing the Tribe. The issue is whether the State's unilateral Rule 41(a)(1)(i) dismissal of UniStar without prejudice made the order dismissing the Tribe (and the earlier order refusing to remand) immediately appealable. There are two subparts to that issue--whether a Rule 41(a)(1)(i) dismissal will normally have this effect, and if so, whether the district court's subsequent invalidation of the State's voluntary dismissal divested this court of jurisdiction. In the second case, the issue is whether the district court's interlocutory order transferring the case and denying a preliminary injunction is an appealable order "refusing [an] injunction" under 28 U.S.C. § 1292(a)(1). We will address these issues of appellate jurisdiction and then consider the question of subject matter jurisdiction under IGRA.

A. Appellate Jurisdiction in the First Case.

1. The Effect of a Voluntary Dismissal Without Prejudice. The Tribe argues that a voluntary dismissal without prejudice of a remaining defendant under Rule 41(a)(1)(i) does not render a previous order finally dismissing other defendants immediately appealable. We disagree. First, we note that this contention presumes the case has ended in the district court, yet the Tribe

Page 1106

offers no suggestion as to when the order dismissing it would be appealable. In other words, the Tribe seeks the windfall of complete freedom from appellate review because the State failed to dismiss UniStar with prejudice. A less equitable position is hard to imagine.

Second, the Tribe relies primarily upon cases from other circuits holding that a voluntary dismissal of the claims pending against a defendant must be with prejudice to render final and appealable a previous order dismissing other claims against the same defendant. See Chappelle v. Beacon Commun. Corp., 84 F.3d 652, 654 (2d Cir.1996); Horwitz v. Alloy Automotive Co., 957 F.2d 1431, 1435-36 (7th Cir.1992). But see Division 241 Amalgamated Transit Union v. Suscy, 538 F.2d 1264 (7th Cir.), cert. denied, 429 U.S. 1029, 97 S.Ct. 653, 50 L.Ed.2d 632 (1976). These cases further the well-entrenched policy that bars a plaintiff from splitting its claims against a defendant. But this policy does not extend to requiring a plaintiff to join multiple defendants in a single lawsuit, so the policy is not violated when a plaintiff "unjoins" multiple defendants through a voluntary dismissal without prejudice. See 8 MOORE'S FEDERAL PRACTICE p 41.33[g][i] (3d ed.1998). Moreover, our court has never adopted the rule applied in Chappelle and Horwitz. Indeed, in Chrysler Motors Corp. v. Thomas Auto Co., 939 F.2d 538 (8th Cir.1991), we upheld appellate jurisdiction after the parties agreed to dismiss without prejudice the only claims remaining against the defendant.

In Johnston v. Cartwright, 344 F.2d 773, 774 (8th Cir.1965), plaintiff appealed the dismissal of one defendant after voluntarily dismissing the remaining two defendants without prejudice by court order under Rule 41(a)(2). We held the dismissal order became final and appealable when the other defendants were voluntarily dismissed from the lawsuit. The Tribe's contention that Johnston should not apply equally to voluntary dismissals as of right under Rule 41(a)(1)(i) is unpersuasive....

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221 practice notes
  • At & T Corp. v. Coeur D'Alene Tribe, No. 99-35088.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 19, 2002
    ...court to determine whether the Lottery is a gaming activity on Indian lands subject to IGRA. State ex rel. Nixon v. Coeur D'Alene Tribe, 164 F.3d 1102 (8th Cir.1999). The parties have returned to the Missouri state court, from which the case was originally 2. The only relevant compact provi......
  • At & T Corp. v. Coeur D'Alene Tribe, No. 99-35088.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 19, 2002
    ...court to determine whether the Lottery is a gaming activity on Indian lands subject to IGRA. State ex rel. Nixon v. Coeur D'Alene Tribe, 164 F.3d 1102 (8th Cir.1999). The parties have returned to the Missouri state court, from which the case was originally 2. The only relevant compact provi......
  • In re Rodriguez, Bankruptcy No. 02-10605.
    • United States
    • United States Bankruptcy Courts. Fifth Circuit. U.S. Bankruptcy Court — Southern District of Texas
    • September 18, 2008
    ...(quoting Berthold Types Ltd. v. Adobe Systems, Inc., 242 F.3d 772, 775-76 (7th Cir.2001)); State ex rel. Nixon v. Coeur D'Alene Tribe, 164 F.3d 1102, 1107 (8th Cir.1999); Finley Lines Joint Protective Bd. Unit 200 v. Norfolk S. Corp., 109 F.3d 993, 997 (4th Cir.1997); Aamot v. Kassel, 1 F.3......
  • Carruthers v. Flaum, No. 03 CIV.7768(CM).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • March 31, 2005
    ...American Casino Corp. v. Eastern Pequot Nation, 175 F.Supp.2d 205, 209 (D.Conn.2000) (citing State ex rel. Nixon v. Coeur D'Alene Tribe, 164 F.3d 1102 (8th Cir.1999)), cert. denied, 527 U.S. 1039, 119 S.Ct. 2400, 144 L.Ed.2d 799 (1999); Gaming Corp. of America v. Dorsey & Whitney, 88 F.3d 5......
  • Request a trial to view additional results
221 cases
  • At & T Corp. v. Coeur D'Alene Tribe, No. 99-35088.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 19, 2002
    ...court to determine whether the Lottery is a gaming activity on Indian lands subject to IGRA. State ex rel. Nixon v. Coeur D'Alene Tribe, 164 F.3d 1102 (8th Cir.1999). The parties have returned to the Missouri state court, from which the case was originally 2. The only relevant compact provi......
  • At & T Corp. v. Coeur D'Alene Tribe, No. 99-35088.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 19, 2002
    ...court to determine whether the Lottery is a gaming activity on Indian lands subject to IGRA. State ex rel. Nixon v. Coeur D'Alene Tribe, 164 F.3d 1102 (8th Cir.1999). The parties have returned to the Missouri state court, from which the case was originally 2. The only relevant compact provi......
  • In re Rodriguez, Bankruptcy No. 02-10605.
    • United States
    • United States Bankruptcy Courts. Fifth Circuit. U.S. Bankruptcy Court — Southern District of Texas
    • September 18, 2008
    ...(quoting Berthold Types Ltd. v. Adobe Systems, Inc., 242 F.3d 772, 775-76 (7th Cir.2001)); State ex rel. Nixon v. Coeur D'Alene Tribe, 164 F.3d 1102, 1107 (8th Cir.1999); Finley Lines Joint Protective Bd. Unit 200 v. Norfolk S. Corp., 109 F.3d 993, 997 (4th Cir.1997); Aamot v. Kassel, 1 F.3......
  • Carruthers v. Flaum, No. 03 CIV.7768(CM).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • March 31, 2005
    ...American Casino Corp. v. Eastern Pequot Nation, 175 F.Supp.2d 205, 209 (D.Conn.2000) (citing State ex rel. Nixon v. Coeur D'Alene Tribe, 164 F.3d 1102 (8th Cir.1999)), cert. denied, 527 U.S. 1039, 119 S.Ct. 2400, 144 L.Ed.2d 799 (1999); Gaming Corp. of America v. Dorsey & Whitney, 88 F.3d 5......
  • Request a trial to view additional results

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