Winer v. Penny Enterprises, Inc.

• Decision Date: 28 January 2004
• Docket Number: No. 20030114.,20030114.
• Parties: Gary WINER, Plaintiff and Appellant v. PENNY ENTERPRISES, INC., Jerrid Mudgett, Sr., individually and as the next friend and guardian of his minor son, Jerrid Mudgett, Jr., Defendants and Appellees.
• Court: North Dakota Supreme Court

674 N.W.2d 9

2004 ND 21

Gary WINER, Plaintiff and Appellant v. PENNY ENTERPRISES, INC., Jerrid Mudgett, Sr., individually and as the next friend and guardian of his minor son, Jerrid Mudgett, Jr., Defendants and Appellees.

No. 20030114.

Supreme Court of North Dakota.

January 28, 2004.

Rehearing denied February 25, 2004.

Peter K. Halbach, Haugland, Halbach and Halbach, Devils Lake, N.D., for plaintiff and appellant.

Daniel M. Traynor, Traynor, Rutten & Traynor, P.C., Devils Lake, N.D., for defendants and appellees.

NEUMANN, Justice.

[¶ 1] Gary Winer appealed from an order and judgment dismissing, without prejudice, his personal injury action against Jerrid Mudgett, Sr., and Jerrid Mudgett, Jr., for lack of subject-matter jurisdiction, and against Penny Enterprises, Inc., for nonjoinder of the Mudgetts as indispensable parties. We conclude the district court correctly ruled it lacked subject-matter jurisdiction over this action brought by a non-Indian plaintiff against Indian defendants for damages resulting from a motor vehicle accident occurring on a state highway within the exterior boundaries of the Spirit Lake Indian Reservation. We affirm.

I

[¶ 2] Jerrid Mudgett, Sr., and his minor son Jerrid Mudgett, Jr., live in Benson County and are enrolled members of the Spirit Lake Tribe. Jerrid Mudgett, Sr., is employed by Penny Enterprises, Inc., which is a domestic corporation organized under North Dakota law with its principal place of business at St. Michael, within the exterior boundaries of the Reservation. Gary Winer is not an Indian but lives in St. Michael. On August 25, 2000, the Mudgetts and Winer were involved in a motor vehicle accident on North Dakota Highway 20 within the exterior boundaries of the Reservation.

[¶ 3] In December 2000, Winer sued Jerrid Mudgett, Sr., individually and as guardian of his son, and Penny Enterprises in state district court for his personal and bodily injuries received in the collision. Winer alleged Jerrid Mudgett, Sr., negligently entrusted the driving and operation of a semi truck tractor owned by Penny Enterprises to his 12-year-old son, Jerrid Mudgett, Jr., who stalled or stopped the tractor on the shoulder of the highway, where it was struck by Winer's vehicle. Winer also alleged Penny Enterprises was negligent in its training, supervision or control of its employees and was negligent in its care and maintenance of the semi truck tractor involved in the collision. Winer sought more than $50,000 in damages.

[¶ 4] The Mudgetts and Penny Enterprises moved to dismiss for lack of subject-matter jurisdiction because the Mudgetts are enrolled members of the Spirit Lake Tribe and the incident occurred within the exterior boundaries of the Reservation. The court granted the motion in May 2001 and dismissed without prejudice the action against the Mudgetts, but did not dismiss the action against Penny Enterprises.

[¶ 5] Penny Enterprises moved for summary judgment in December 2001, arguing Jerrid Mudgett, Sr., was an independent contractor and was not acting within the scope of employment. In July 2001, the court denied the motion, but concluded Mudgett was an independent contractor and Winer had no claim of vicarious liability against Penny Enterprises. The court limited Winer's recovery against Penny Enterprises to breach of duties arising from ownership of the semi truck tractor. In December 2002, Penny Enterprises moved to dismiss for nonjoinder of the Mudgetts as indispensable parties. Winer did not resist the motion to dismiss Penny Enterprises, and the district court dismissed the remainder of the action without prejudice in February 2003. Winer appealed.

II

[¶ 6] Ordinarily, an order dismissing a complaint without prejudice is not appealable because either side may commence another action after the dismissal. State v. Gwyther, 1999 ND 15, ¶ 10, 589 N.W.2d 575. However, a dismissal without prejudice may be final and appealable if it has the practical effect of terminating the litigation in the plaintiff's chosen forum. Rodenburg v. Fargo-Moorhead YMCA, 2001 ND 139, ¶ 12, 632 N.W.2d 407; Triple Quest, Inc. v. Cleveland Gear Co., 2001 ND 101, ¶ 8, 627 N.W.2d 379. In this case, the order and judgment effectively foreclose litigation of Winer's action in the courts of this state. Consequently, we conclude the dismissal is appealable.

III

[¶ 7] Winer argues the district court erred in ruling it did not have subject-matter jurisdiction over his personal injury action against the Mudgetts. Winer does not argue the court erred in dismissing Penny Enterprises from the action, so we do not address that issue.

[¶ 8] There is no dispute about the jurisdictional facts relied upon by Winer in this case. When the jurisdictional facts are not in dispute, we review the district court's dismissal for lack of subject-matter jurisdiction de novo. Allied Mut. Ins. Co. v. Dir. of N.D. Dep't of Transp., 1999 ND 2, ¶ 5 n. 1, 589 N.W.2d 201. The accident occurred within the exterior boundaries of the Reservation on Highway 20, which, at that location, runs on the section line of a township. The 66 foot section line right-of-way was expanded to 80 feet in 1930, and to 200 feet in 1955.

[¶ 9] Winer relied on the United States Supreme Court's decision in Strate v. A-1 Contractors, 520 U.S. 438, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997), where the Court held a tribal court in North Dakota did not have jurisdiction over an action brought by a non-Indian plaintiff against a non-Indian defendant seeking damages arising out of an auto accident on a state highway within the exterior boundaries of a reservation. Winer argued that, based on Strate, the accident actually occurred on state land, Highway 20, rather than on the Reservation, thus giving the state court subject-matter jurisdiction. The district court rejected this argument, concluding "a North Dakota state district court lacks subject-matter jurisdiction over an action brought by a non-Indian plaintiff against an individual Indian defendant for damages resulting from a collision on a state highway within the exterior boundaries of Indian country," and "[t]he land ownership analysis of the accident site as asserted by Plaintiff does not usurp the status of parties' (sic) analysis."

[¶ 10] Some basic Indian law background is helpful to understand the positions of the parties. "Within Indian country state jurisdiction is preempted both by federal protection of tribal self-government and by federal statutes on other subjects relating to Indians, tribes, their property, and federal programs." F. Cohen, Handbook of Federal Indian Law 349 (1982) (footnotes omitted). Civil cases where a non-Indian plaintiff seeks to sue an Indian are subject to this rule. Id. "A major step toward the transfer of federal jurisdictional responsibility over Indian affairs to the States was the passage of Public Law 280 [codified at 18 U.S.C. § 1162, 25 U.S.C. §§ 1321-1326, 28 U.S.C. § 1360] in 1953," which "transferred criminal and civil jurisdiction over Indian lands from the federal to state governments in five states and allowed for future assumptions of jurisdiction by the remaining states." Airvator, Inc. v. Turtle Mountain Mfg. Co., 329 N.W.2d 596, 599 (N.D. 1983) (footnotes omitted). "In 1968 Congress passed Public Law 90-284 [codified at 25 U.S.C. § 1322] requiring Indian consent to subsequent transfers of jurisdiction." Airvator, 329 N.W.2d at 599 (footnote omitted). In 1963, the Legislature had enacted N.D.C.C. ch. 27-19, which permits state courts to take jurisdiction over all civil causes of action which arise on an Indian reservation upon the acceptance of jurisdiction by the Indian citizens. Airvator, 329 N.W.2d at 600. "As a result, this Court has consistently held that state courts have no jurisdiction over civil causes of action involving Indians, arising within the exterior boundaries of an Indian Reservation, unless a majority of the enrolled residents of the Reservation vote to accept jurisdiction." Id. The Spirit Lake Tribe has not consented to civil jurisdiction of state courts. See Devils Lake Sioux Law and Order Code § 2-2-102 ("Nothing in this Code shall be deemed to constitute acceptance or waiver of jurisdiction to the State of North Dakota over any matter criminal or civil, over which the Tribal Court has jurisdiction as previously enumerated.").

[¶ 11] Although the United States Supreme Court has held North Dakota's disclaimer of pre-existing jurisdiction for suits brought by Indian plaintiffs is preempted by federal law, the Court has said that state court assumption of jurisdiction in cases against Indian defendants arising in Indian country is impermissible. See Three Affiliated Tribes v. Wold Eng'n, P.C., 476 U.S. 877, 880, 106 S.Ct. 2305, 90 L.Ed.2d 881 (1986) (Three Tribes II); Three Affiliated Tribes v. Wold Eng'n, P.C., 467 U.S. 138, 148, 104 S.Ct. 2267, 81 L.Ed.2d 113 (1984) (Three Tribes I). In Roe v. Doe, 2002 ND 136, ¶ 8, 649 N.W.2d 566, we recently pointed out:

There are two categories of claims over which the United States Supreme Court has held tribal courts have exclusive civil jurisdiction under the infringement test. Included in the first category are those claims in which a non-Indian asserts a claim against an Indian for conduct occurring on that Indian's reservation. See Williams [v. Lee, 358 U.S. 217, 223, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959)]. In the second category, are those claims in which all the parties are members of the same Indian tribe and the claim involves conduct occurring on that tribe's reservation. See Fisher v. District Court, 424 U.S. 382, 387-89, 96 S.Ct. 943, 47 L.Ed.2d 106 (1976) (per curiam).

Under the infringement test of Williams v. Lee, 358 U.S. at 223, 79 S.Ct. 269 state courts have no jurisdiction over claims if it "would undermine the authority of the tribal courts over Reservation affairs and hence would infringe on the right of the Indians to govern themselves."

[¶ 12] ...