Alaska Logistics, LLC v. Newtok Village Council et al

Filing 39

ORDER RE MOTION TO DISMISS AND MOTION TO STRIKE : IT IS ORDERED that Newtok Villages Motion to Dismiss at Docket 18 is GRANTED. IT IS FURTHER ORDERED that Newtok Villages Motion to Strike Answer to Counterclaim at Docket 27 is GRANTED as t o Alaska Logistics counterclaims to counterclaims. In light of the foregoing, the parties shall each file a status report as to the procedural posture of this case within 14 days of the date of this order. (See Order for details). Signed by Judge Sharon L. Gleason on 01/11/2019. (CME, COURT STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

ALASKA LOGISTICS, LLC,
Plaintiff,
v.
NEWTOK VILLAGE COUNCIL and
GOLDSTREAM ENGINEERING,
INC.,

Case No. 3:18-cv-00108-SLG

Defendants.
ORDER RE MOTION TO DISMISS AND MOTION TO STRIKE
Before the Court at Docket 18 is Defendant Newtok Village Council’s Motion
to Dismiss. Also before the Court at Docket 27 is Newtok’s Motion to Strike Answer
to Counterclaim. Plaintiff Alaska Logistics, LLC opposed both motions at Docket
29. Newtok replied at Docket 31. Oral argument was held on September 26, 2018
at Anchorage, Alaska before Judge Sharon L. Gleason. 1
BACKGROUND
Alaska Logistics, LLC (“Alaska Logistics”) is a limited liability company
based in Seattle, Washington. 2 Newtok Village Council (“Newtok”) is the governing
body of Newtok Village, a federally recognized Indian tribe located in Newtok,
Alaska. 3

1

Docket 38 (Minute Entry).

2

Docket 1 (Compl.) at 1, ¶ 1; Docket 6 at 1, ¶ 1.

3

Docket 1 at 1, ¶ 2; Docket 6 at 1, ¶ 2.

Alaska Logistics’ Complaint alleges as follows:
On March 17, 2017, Newtok issued an Invitation to Bid (“IFB”) prepared by
contractor Goldstream Engineering, Inc. (“Goldstream”). 4 The IFB stated that
Newtok was “accepting bids from Interested Bidders to provide barge services
from the Port of Anchorage to Mertarvik, AK . . . on Nelson Island near Newtok,
Alaska. Barge services require transport of 25,000 gallons of ultra low sulfur diesel
(ULSD) and diverse road construction materials and equipment, including but not
limited to corrugated metal pipe (culvert), vehicles, fuel tanks, and various heavy
equipment.” 5 A planning manifest with estimated shipping weights and dimensions
of the construction supplies and equipment was appended to the IFB. 6 The IFB
specified the Port of Anchorage as the “project Point of Departure,” and identified
June 1, 2017 as the estimated delivery date to Mertarvik. 7

It further stated that

“Bidders may choose to bid on one or both of [Newtok’s] transportation needs,”
and instructed bidders to submit separate bid forms for “25,000 gallons of ULSD
fuel delivery” and “Construction supplies & equipment.” 8 The IFB also instructed

4

Docket 1 at 2, ¶ 7; see Docket 1-1 (IFB) at 2.

5

Docket 1-1 at 5.

6

Docket 1-1 at 17.

7

Docket 1-1 at 6, 7.

8

Docket 1-1 at 6.

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bidders to “provide a proposed purchase agreement between [Newtok] and the
Bidder with project specific terms and conditions as part of the bid.” 9
In late March, Newtok issued addenda to the IFB. 10 The addenda included
estimated dimensions and weight for the construction materials and equipment
cargo. 11 Alaska Logistics alleges that “[t]he vast majority of the cargo set forth in
the Planning Manifest, as amended, consisted of ‘rolling stock’ or construction
vehicles and freight which could easily be rolled on and off barges with minimal
stevedoring.” 12
On March 31, 2017, Alaska Logistics submitted its bids to Newtok. 13 Alaska
Logistics included an unsigned proposed “Alaska Logistics, LLC Transportation
Agreement” (“Transportation Agreement”) with its bid. 14

The proposed

Transportation Agreement included a forum selection clause, which provided as
follows:
Any action brought by either party to enforce any term or provision of
this contract shall be commenced in the United States District Court
for the Western District of Washington at Seattle, as appropriate. The
parties submit to the exclusive personal jurisdiction of the United
States District Court located in Seattle, Washington with respect to
any litigation arising out of this agreement, with the substantially
prevailing party entitled to receive its reasonable legal fees and costs.
9

Docket 1-1 at 8.

10

Docket 1-2 (Addenda to IFB) at 2, 5.

11

Docket 1-2 at 4.

12

Docket 1 at 4, ¶ 18.

13

Docket 1-3 (Bid Proposals) at 9.

14

Docket 1-3 at 10–13.

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Shipper hereby submits to the jurisdiction of the courts of the United
States District Court for the Western District of Washington at Seattle
and consents to service fo process by certified mail, return receipt
requested, addressed in accordance with this contract. 15
The final page of the proposed agreement included unsigned signature lines,
which identified “Goldstream Engineering for [Newtok Village Council]” as the
“Shipper.” 16
On April 16, 2017, Goldstream informed Alaska Logistics that it was the
apparent low bidder for the transportation of the construction supplies and
equipment. 17 After receiving notice of the bid award, “Alaska Logistics repeatedly
asked Goldstream for an actual shipping manifest.” However, Goldstream did not
provide a shipping manifest until May 11, 2017. 18 Alaska Logistics alleges that this
delay “seriously impaired Alaska Logistics’ ability to plan for and arrange the
appropriate labor, shipping containers or flats, and other items necessary to load
the cargo.” 19
On or shortly before May 15, 2017, Alaska Logistics received the cargo to
be transported to Mertarvik. 20 Alaska Logistics contends that this cargo “materially

15

Docket 1-3 at 11, ¶ 4.3.

16

Docket 1-3 at 13.

17

Docket 1 at 5, ¶ 24. While Alaska Logistics did not receive the award for the transportation of
the 25,000 gallons of fuel, it later agreed to deliver 10,000 gallons of fuel to Mertarvik outside of
the contract. Docket 1 at 5, ¶ 27.

18

Docket 1 at 5, ¶ 28.

19

Docket 1 at 5–6, ¶ 28.

20

Docket 1 at 7, ¶ 36.

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differed from the representations set forth in the IFB and Addenda in several
respects.” 21 First, the cargo provided for transport included modular housing units
and refrigerated food items in addition to construction supplies and equipment.
Second, this additional cargo required considerably more space to transport than
had previously been indicated and did not consist of “rolling stock.” Third, the
cargo was not ready for shipment when it was provided to Alaska Logistics. Fourth,
Alaska Logistics was asked to make separate deliveries originating from Seward,
Alaska and Seattle, Washington, neither of which were points of departure
identified in the IFB or the bids. 22

In light of these issues, Alaska Logistics

contacted Goldstream president Mark Sherman on May 15 and advised him that
there would be additional costs associated with shipping the freight. 23 On May 18
— after the barges were underway — Alaska Logistics sent a formal change order
request for $231,391. 24 Goldstream offered $65,000 in response to the change
order request, which Alaska Logistics rejected. 25 On June 1, Newtok president
Paul Charles sent a letter to Alaska Logistics stating that “[t]he Newtok Village

21

Docket 1 at 6, ¶ 30.

22

Docket 1 at 6–7, ¶¶ 31–34.

23

Docket 1 at 7, ¶ 36.

24

Docket 1-4 (Change Order) at 5.

25

Docket 1 at 7–8, ¶ 38.

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Council is in agreement to pay the extra charges which total[] $213,391.00 per
your May 18, 2017 request.” 26
Meanwhile, while corresponding with Mr. Sherman and Mr. Charles, Alaska
Logistics transported the cargo to Mertarvik. 27 Alaska Logistics alleges that issues
with the cargo “forced [the company] to expend significantly more time and labor
unloading the cargo.” 28 It further contends that Newtok and Goldstream were not
capable of receiving 10,000 gallons of fuel that Alaska Logistics had transported,
which forced Alaska Logistics to leave its fuel tanks at Mertarvik. 29
On June 19, 2017, Alaska Logistics sent a second change order request for
an additional $9,755. 30 On June 29, Mr. Charles sent a letter to Alaska Logistics
requesting additional documentation supporting its change orders. 31 The letter
also stated that Newtok “acknowledges that additional freight costs have been
incurred by Alaska Logistics . . . and we are in agreement to pay the extra
charges.” 32 Alaska Logistics provided Newtok with additional documentation to
support its change orders on September 28. 33 However, Alaska Logistics alleges

26

Docket 1-5 (June 1, 2017 Paul Charles Letter) at 2.

27

Docket 1 at 8, ¶ 40.

28

Docket 1 at 8, ¶ 41.

29

Docket 1 at 8, ¶ 42.

30

Docket 1 at 8–9, ¶ 43.

31

Docket 1-6 (June 29, 2017 Paul Charles Letter) at 2.

32

Docket 1-6 (June 29, 2017 Paul Charles Letter) at 2; see Docket 1 at 9, ¶ 44.

33

Docket 1 at 9, ¶ 45.

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that Newtok and Goldstream have not “provide[d] any additional compensation for
the barge transportation services Alaska Logistics provided to [Newtok] and
Goldstream.” 34
Alaska Logistics filed a Complaint against both Newtok and Goldstream on
April 25, 2018. 35 The Complaint alleges six causes of action: (1) breach of contact
against Newtok and Goldstream; (2) breach of good faith and fair dealing against
Newtok and Goldstream; (3) quantum meruit against Newtok and Goldstream; (4)
misrepresentation against Newtok; (5) misrepresentation against Goldstream; and
(6) unfair trade practices against Newtok and Goldstream. 36 Newtok filed an
Answer and Counterclaims on June 7, 2018. Newtok alleged five counterclaims:
one claim for fraud, misrepresentation, and unfair and deceptive practices, and
four claims for breach of contract. 37 Newtok filed the instant Motion to Dismiss on
July 6, 2018. 38
On July 13, 2018, Alaska Logistics filed an “Amended Answer to Newtok’s
Counterclaims and Plaintiff’s Counterclaims to Counterclaims.” 39 The Amended
Answer alleges six counterclaims, which are identical to the causes of action

34

Docket 1 at 9, ¶ 46.

35

Docket 1 at 13.

36

Docket 1 at 9–13, ¶¶ 47–72.

37

Docket 6 at 10–14, ¶¶ 89–119.

38

Docket 18.

39

Docket 25 at 1, 18.

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alleged in Alaska Logistics’ initial Complaint. It also restates factual allegations
from the Complaint. 40 Newtok filed the instant Motion to Strike Counterclaims to
Counterclaims on July 23, 2018. 41
LEGAL STANDARD
I. Jurisdiction and Applicable Law
The Court has diversity jurisdiction pursuant to 28 U.S.C. § 1332 because
the parties are completely diverse and the amount in controversy exceeds
$75,000.00, exclusive of interest and costs. 42

The Court also has admiralty

jurisdiction pursuant to 28 U.S.C. § 1333 as Alaska Logistics alleges the breach of
a maritime contract. 43
II. Standard for Dismissal
A defendant may seek dismissal of an action for lack of subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1). When such a motion
is made, the plaintiff has the burden of proving jurisdiction. 44 If the defendant
raises a factual challenge to a court's jurisdiction, as opposed to a facial challenge
based solely on the allegations in the complaint, a court may consider matters

40

Docket 25 at 4–16, ¶¶ 1–72.

41

Docket 27.

42

Docket 1 at 2, ¶ 4. Alaska Logistics is a citizen of Washington; Newtok and Goldstream are
citizens of Alaska. Docket 1 at 1, ¶¶ 1–3.
43

Docket 1 at 2, ¶ 5.

44

Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010).

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outside the pleadings in ruling on the motion. 45 Here, the record contains some
additional materials. 46

“[N]o presumptive truthfulness attaches to plaintiff's

allegations, and the existence of disputed material facts will not preclude the trial
court from evaluating for itself the merits of jurisdictional claims.” 47
The issue of tribal sovereign immunity is “quasi-jurisdictional” in the sense
that it “may be asserted at any time.” 48 “Although sovereign immunity is only quasijurisdictional in nature, Rule 12(b)(1) is still a proper vehicle for invoking sovereign
immunity from suit.” 49 “In the context of a Rule 12(b)(1) motion to dismiss on the
basis of tribal sovereign immunity, ‘the party asserting subject matter jurisdiction
has the burden of proving its existence,’ i.e. that immunity does not bar the suit.” 50
A court may “‘hear evidence regarding jurisdiction’ and ‘resolv[e] factual disputes
where necessary’” when determining such a motion. 51
Federal Rule of Civil Procedure 12(f) permits the Court to “strike from a
pleading an insufficient defense or any redundant, immaterial, impertinent, or

45

See Roberts v. Corrothers, 812 F.2d 1173, 1177–78 (9th Cir. 1987); Kingman Reef Atoll Invs.,
L.L.C. v. United States, 541 F.3d 1189, 1195 (9th Cir. 2008).
46

See Docket 30 (Hamilton Aff.); Docket 30-1 (Planning Group Timeline, Planning Group
Participants, Goldstream Agreement, DOWL Agreement, BIA Letter).

47

Kingman Reef, 541 F.3d at 1195 (quoting Corrothers, 812 F.2d at 1177).

48

Pistor v. Garcia, 791 F.3d 1104, 1111 (9th Cir. 2015) (quoting Mitchell v. Franchise Tax Board
(In re Mitchell), 209 F.3d 1111, 1117 (9th Cir. 2000), abrogated on other grounds as recognized
by Hibbs v. Dep't of Human Res., 273 F.3d 844, 853 n.6 (9th Cir. 2001)).

49

Pistor, 791 F.3d at 1111.

50

Id. (quoting Miller v. Wright, 705 F.3d 919, 923 (9th Cir. 2013)).

51

Id. (alteration in original) (quoting Robinson v. United States, 586 F.3d 683, 685 (9th Cir.
2009)).

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scandalous matter.” The function of a Rule 12(f) motion to strike is “to avoid the
expenditure of time and money that must arise from litigating spurious issues by
dispensing with those issues prior to trial.” 52 “Motions to strike are generally
regarded with disfavor because of the limited importance of pleading in federal
practice, and because they are often used as a delaying tactic.” 53 “Given their
disfavored status, courts often require ‘a showing of prejudice by the moving party’
before granting the requested relief.” 54

“The possibility that issues will be

unnecessarily complicated or that superfluous pleadings will cause the trier of fact
to draw ‘unwarranted’ inferences at trial is the type of prejudice that is sufficient to
support the granting of a motion to strike.” 55
In its opposition to the motion to dismiss, Alaska Logistics also seeks
jurisdictional discovery. 56

Courts are afforded broad discretion in allowing

discovery when “pertinent facts bearing on the question of jurisdiction are in
dispute.” 57 “[I]t is clear that a court may allow discovery to aid in determining

52

Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010).

53

Cal. Dept. of Toxic Substances Control v. Alco Pac., Inc., 217 F. Supp. 2d 1028, 1033 (C.D.
Cal. 2002).

54

Alco Pac., 217 F. Supp. 2d at 1033 (citing S.E.C. v. Sands, 902 F. Supp. 1149, 1166 (C.D.
Cal. 1995), aff’d sub nom. S.E.C. v. First Pac. Bancorp, 142 F.3d 1186 (9th Cir. 1998)).

55

Id. (citing Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1528 (9th Cir. 1993), rev’d on other
grounds, 510 U.S. 517 (1994)).

56

Docket 29 at 15–18.

57

Am. West Airlines, Inc. v. GPA Group, Ltd., 877 F.2d 793, 801 (9th Cir. 1989) (citations
omitted).

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whether it has . . . subject matter jurisdiction.” 58 However, a court may deny
jurisdictional discovery if a discovery request is “based on little more than a hunch
that it might yield jurisdictionally relevant facts.” 59
DISCUSSION
1. Tribal Sovereign Immunity Protects Newtok From Suit.
Newtok contends that the Court should dismiss Alaska Logistics’ claims
against Newtok because the claims are barred by Newtok’s tribal sovereign
immunity. 60 Alaska Logistics responds that Newtok has waived its immunity from
suit. 61
“Indian tribes have long been recognized as possessing the common-law
immunity from suit traditionally enjoyed by sovereign powers.” 62

This tribal

immunity extends to tribal governing bodies. 63 Suits against Indian tribes are
barred by sovereign immunity “absent a clear waiver . . . or congressional
abrogation.” 64 “There is a strong presumption against waiver of tribal sovereign

58

Wells Fargo & Co. v. Wells Fargo Exp. Co., 556 F.2d 406, 430 n.24 (9th Cir. 1977).

59

Boschetto v. Hansing, 539 F.3d 1011, 1020 (9th Cir. 2008).

60

Docket 19 at 1.

61

Docket 29 at 12, 14; see Docket 1 at 5, ¶ 26.

62

Linneen v. Gila River Indian Cmty., 276 F.3d 489, 492 (9th Cir. 2002) (quoting Santa Clara
Pueblo v. Martinez, 436 U.S. 49, 58 (1978)).
63

Cook v. AVI Casino Enters., Inc., 548 F.3d 718, 725 (9th Cir. 2008).

64

Oklahoma Tax Comm’n v. Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S. 505, 509
(1991).

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immunity.” 65 Waiver of sovereign immunity may not be implied and must be
expressed unequivocally. 66
A.

Litigation Activity

Alaska Logistics first contends that “Newtok waived its immunity by asserting
counterclaims against Alaska Logistics.” 67 It notes that a tribe may waive its
immunity by “tak[ing] actions indicating consent to the litigation,” and that
“participation in a lawsuit can ‘effect a waiver for limited purposes.’” 68
Alaska Logistics contends that courts have held that conduct similar to
Newtok’s litigation activity constitutes a limited waiver of sovereign immunity.
Alaska Logistics first notes that when a tribe files suit in state or federal court, it
waives sovereign immunity as to its own claims. 69

Alaska Logistics further

contends that “federal courts have held that, by initiating a lawsuit in state or federal
court, a tribe also waives its sovereign immunity with regard to counterclaims
asserted by a defendant.” 70 It cites several cases to support this proposition. In

65

Demontiney v. United States, 255 F.3d 801, 811 (9th Cir. 2001).

66

See Kescoli v. Babbitt, 101 F.3d 1304, 1310 (9th Cir. 1996) (citing McClendon v. United
States, 885 F.2d 627, 629 (9th Cir. 1989)).

67

Docket 29 at 12.

68

Docket 29 at 9 (quoting Pistor v. Garcia, 791 F.3d 1104, 1111 (9th Cir. 2015); Quinault Indian
Nation v. Pearson for Estate of Comenout, 868 F.3d 1093, 1097 (9th Cir. 2017)); see Tohono
O’odham Nation v. Ducey, 174 F. Supp. 3d 1194, 1204 (D. Ariz. 2016) (referring to these rules
as the “waiver-by-litigation doctrine”).
69

Docket 29 at 9 (citing Bodi v. Shingle Springs Band of Miwok Indians, 832 F.3d 1011, 1017
(9th Cir. 2016); In re White, 139 F.3d 1268, 1271 (9th Cir. 1998)).

70

Docket 29 at 10.

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Quinault Indian Nation v. Pearson for Estate of Comenout, a tribe brought an action
against several tribal members. 71 After one member’s death, his estate asserted
counterclaims. 72 The Ninth Circuit concluded that “claims arising out of the same
transaction or occurrence and sounding in recoupment can be sustained as
counterclaims against a tribe” without violating the tribe’s sovereign immunity. 73 In
Tohono O’odham Nation v. Ducey, a tribe filed suit in federal district court, and the
director of the Arizona Department of Gaming asserted several counterclaims. 74
The court concluded that the tribe had waived its sovereign immunity with respect
to those counterclaims that did not “venture outside the subject of the original
cause of action.” 75 Alaska Logistics next cites Battle Mountain Band v. United
States Bureau of Land Management and Cayuga Indian Nation of New York v.
Seneca County. 76 In Battle Mountain Band, a court held that a tribe waived its
sovereign immunity as to an intervenor’s cross-claims that involved the “exact
issue” raised by the tribe’s claims. 77 And in Cayuga Indian Nation, a court held

71

868 F.3d 1093, 1096 (9th Cir. 2017).

72

Id.

73

Id. at 1099–1100. A recoupment claim “must (1) arise from the same transaction or
occurrence as the plaintiff's suit; (2) seek relief of the same kind or nature as the plaintiff's suit;
and (3) seek an amount not in excess of the plaintiff's claim.” United States v. Washington, 853
F.3d 946, 968 (9th Cir. 2017) (citation omitted).

74

174 F. Supp. 3d 1194, 1197 (D. Ariz. 2016).

75

Id. at 1207 (quoting United States v. Tsosie, 92 F.3d 1037, 1043 (10th Cir. 1996)).

76

Docket 29 at 12.

77

No. 3:16-CV-0268-LRH-WGC, 2018 WL 1532153, at *4 (D. Nev. Mar. 28, 2018).

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that “mirror-image counterclaims are not precluded by sovereign immunity.” 78
Alaska Logistics also cites United States v. Oregon, in which the Ninth
Circuit concluded that the Yakima tribe had waived its sovereign immunity though
its litigation activity. 79 The United States had initiated an action to apportion a
fishery, and the Yakima Tribe had intervened. The parties reached an agreement
that provided for continuing jurisdiction in the district court.

The State of

Washington later intervened, asking the district court to enjoin the tribe’s fishing.
The Oregon court concluded that such an injunction would not be barred by the
tribe’s sovereign immunity. 80 The Circuit Court analogized the underlying suit to
an equitable in rem action, and concluded that the district court could enjoin any
interference with the fishery. 81 Accordingly, by intervening in this equitable action
and expressly agreeing to submit later-arising issues to federal court, the tribe
“assumed the risk that any equitable judgment secured could be modified if
warranted by changed circumstances” and “that [it] would be bound by an order it
deemed adverse.” 82
The cases cited by Alaska Logistics indicate that a tribe may effect a limited
waiver of sovereign immunity through its litigation activity. None of these cases,

78

260 F. Supp. 3d 290, 299 (W.D.N.Y. 2017) (emphasis in original).

79

United States v. Oregon, 657 F.2d 1009, 1011 (9th Cir. 1981).

80

Id. at 1011–12.

81

Id. at 1015–16.

82

Id. at 1015.

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however, addresses whether a tribe waives its sovereign immunity as to an
opposing party’s claims when the tribe files counterclaims in response to those
claims.

Quinault, Tohono O’odham, Battle Mountain Band, and Cayuga all

address situations in which a tribe asserted that tribal sovereign immunity barred
an opposing party’s counterclaims; in each of these cases, it was the tribe that
initiated the litigation.

Tohono O’odham, Battle Mountain Band, and Cayuga

suggest only that a tribe’s filing of a lawsuit “can constitute a limited waiver with
respect to issues the [tribe] itself has put at issue.” 83 The Ninth Circuit’s holding in
Quinault does not support even that limited proposition; the Circuit Court held that
the Quinault Indian Nation did not waive its immunity even as to a counterclaim
that did not “go beyond the contours of the Nation’s suit,” reasoning that the tribe
“did not consent to any counterclaims.” 84

The Quinault court did state that

“counterclaims to recoup damages arising from the same transaction or
occurrence as a tribe’s claims do not violate the tribe's sovereign immunity.” 85
However, Alaska Logistics’ claims do not sound in recoupment; Alaska Logistics
seeks “[d]amages in an amount exceeding $231,391,” which would constitute
“affirmative relief” from Newtok rather than “an offset to [Newtok’s] requested

83

Tohono O'odham Nation v. Ducey, 174 F. Supp. 3d 1194, 1204 (D. Ariz. 2016).

84

Quinault Indian Nation v. Pearson for Estate of Comenout, 868 F.3d 1093, 1098 (9th Cir.
2017); see also id. (“The Estate could assert affirmative defenses against the Nation's claims,
but it could not bring counterclaims absent waiver of sovereign immunity.”).
85

Id. at 1099.

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relief.” 86
In Oregon, the Ninth Circuit concluded that a tribe waived its sovereign
immunity where, as here, the tribe elected to participate in litigation that it did not
initiate. After intervening in the initial litigation, however, the tribe in Oregon
“entered an agreement expressing its unequivocal consent to submit issues to
federal court.” 87 Newtok has not entered into such an agreement; moreover, it has
asserted its sovereign immunity defense throughout this litigation. 88 Furthermore,
the Ninth Circuit has expressed reluctance to apply the Oregon court’s reasoning
in distinguishable contexts; subsequent cases have characterized Oregon as
“test[ing] the outer limits of [the Supreme Court’]s admonition against implied
waivers.” 89 Accordingly, the authorities Alaska Logistics cites do not establish that
Newtok waived its tribal sovereign immunity as to the claims Alaska Logistics has
asserted against it by asserting counterclaims against Alaska Logistics.
The Court has found few other cases addressing tribal sovereign immunity
and the effect of litigation conduct analogous to that at issue here. 90 However,

86

Id. at 1100; see Docket 1 at 13, ¶ 1.

87

Id. at 1099 (distinguishing Oregon partly on this basis).

88

See Docket 6 at 14.

89

Quinault, 868 F.3d at 1099 (second alteration in original) (quoting Pan Am. Co. v. Sycuan
Band of Mission Indians, 884 F.2d 416, 420 (9th Cir. 1989)).

90

Cf. Oglala Sioux Tribe v. C & W Enterprises, Inc., 542 F.3d 224 (8th Cir. 2008). In C & W
Enterprises, the Eighth Circuit concluded that a tribe waived its sovereign immunity when it did
not object to a company’s arbitration demand, and instead “rais[ed] its own arbitral
counterclaims under the same contract.” Id. at 231. However, the court noted that the tribe had
explicitly acknowledged the potential limitation on the arbitrator’s authority but declined to object
“for the sake of expediency in resolving the dispute on its merits.” Id. Furthermore, the
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several courts have addressed whether similar conduct constitutes a waiver of
state sovereign immunity. In Mescalero Tribe v. State of New Mexico, a tribe filed
an action against the state of New Mexico; the state responded by filing an answer
and counterclaim while also “argu[ing] that it had Tenth and Eleventh Amendment
immunity.” 91

The Tenth Circuit considered whether the state had waived its

Eleventh Amendment immunity by filing a counterclaim, and concluded that it had
not. The court acknowledged that a state may waive its Eleventh Amendment
immunity, but noted that such waiver must be “unequivocal.” 92 It then concluded
that the state’s continued assertion of its Eleventh Amendment immunity was
“hardly consistent with the kind of unequivocal waiver necessary to waive that
immunity.” 93 Other courts have reached similar conclusions. 94
The Court is unaware of any Ninth Circuit case that has held that a tribe
waives its sovereign immunity as to the claims in an opposing party’s complaint by
asserting counterclaims. Furthermore, any waiver of tribal sovereign immunity
“must be unequivocal and may not be implied.” 95 Here, Newtok’s counterclaims

arbitration at issue in C & W Enterprises also addressed three additional contracts, all of which
included explicit immunity waivers. Id.
91

Mescalero Apache Tribe v. State of N.M., 131 F.3d 1379, 1381 (10th Cir. 1997).

92

Id. at 1384 n.4.

93

Id.

94

See United States v. Metro. St. Louis Sewer Dist., 578 F.3d 722, 725 (8th Cir. 2009) (“A state
may even file a counterclaim and third party complaint at the same time it asserts sovereign
immunity without waiving the defense.”); Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ.
Expense Bd., 131 F.3d 353, 365–66 (3d Cir. 1997), aff’d, 527 U.S. 666 (1999).

95

See Kescoli v. Babbitt, 101 F.3d 1304, 1310 (9th Cir. 1996) (citing McClendon v. United

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were accompanied by its assertion that Alaska Logistics’ claims were barred by
sovereign immunity. 96 In the absence of controlling precedent, the Court finds the
Mescalero Tribe court’s reasoning persuasive. 97 Accordingly, Newtok has not
waived its sovereign immunity through its litigation activity.
B.

Forum Selection Clause

Alaska Logistics next contends that Newtok waived its immunity by agreeing
to the forum selection clause in the proposed Transportation Agreement. 98 No
United States Supreme Court opinion or published Ninth Circuit opinion has
addressed whether a forum selection clause constitutes a waiver of a tribe’s
sovereign immunity. In C & L Enterprises, Inc. v. Citizen Band Potawatomi Indian
Tribe of Oklahoma, the Supreme Court held that a tribe waived its sovereign
immunity by consenting to arbitration and to the enforcement of arbitral awards in
Oklahoma state court. 99 The C & L Enterprises, Inc. court rejected the tribe’s
contention “that an arbitration clause simply ‘is not a waiver of immunity from suit’”:
The clause no doubt memorializes the Tribe's commitment to adhere
to the contract’s dispute resolution regime. That regime has a real
States, 885 F.2d 627, 629 (9th Cir.1989)).
96

Docket 6 at 14.

97

See Garcia v. Akwesasne Hous. Auth., 268 F.3d 76, 86–87 (2d Cir. 2001) (noting similarities
between principles governing waivers of state and tribal immunity); cf. C & L Enterprises, Inc. v.
Citizen Band Potawatomi Indian Tribe of Okla., 532 U.S. 411, 421 n.4 (2001) (reserving decision
on “whether parallel principles govern state and tribal waivers of immunity”).

98

Docket 29 at 14; see Docket 1 at 5, ¶ 26.

99

532 U.S. 411, 423 (2001). In an earlier decision, the Ninth Circuit had held that a tribe did not
effect a waiver of its tribal sovereign immunity by entering into an arbitration clause. Pan Am.
Co. v. Sycuan Band of Mission Indians, 884 F.2d 416, 420 (9th Cir. 1989).

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world objective; it is not designed for regulation of a game lacking
practical consequences. And to the real world end, the contract
specifically authorizes judicial enforcement of the resolution arrived at
through arbitration. 100
While the opinion addressed only the effects of an arbitration clause, the C & L
Enterprises, Inc. court’s reasoning would also seem to apply to a forum selection
clause.
Even assuming, however, that a forum selection clause may in some
circumstances constitute a waiver of a tribe’s sovereign immunity, there is no
indication here that Newtok agreed to a forum selection clause that “manifest[ed]
the tribe's intent to surrender immunity in ‘clear’ and unmistakable terms.” 101 The
clause was included in the proposed Transportation Agreement that Alaska
Logistics submitted with its bids. 102 In relevant part, the clause states that “[a]ny
action brought by either party to enforce any term or provision of this contract shall
be commenced in the United States District Court for the Western District of
Washington at Seattle, as appropriate.” 103 Elsewhere, however, the proposed
Transportation Agreement is characterized as an agreement “by and between
Alaska Logistics, LLC . . . (“Carrier”), and Goldstream Engineering, acting for the

100

C & L Enterprises, Inc., 532 U.S. at 422 (citing Native Vill. of Eyak v. GC Contractors, 658
P.2d 756, 760 (Alaska 1983); Val/Del, Inc. v. Superior Court In & For Pima Cty., 703 P.2d 502,
509 (Ariz. Ct. App. 1985); Rosebud Sioux Tribe v. Val-U Const. Co. of S. Dakota, 50 F.3d 560,
562 (8th Cir. 1995)).

101

Bodi v. Shingle Springs Band of Miwok Indians, 832 F.3d 1011, 1016 (9th Cir. 2016) (citing
C & L Enterprises, 532 U.S. at 418).

102

Docket 1-3 at 10–13.

103

Docket 1-3 at 11.

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Newtok Village Council . . . (“Shipper”).” 104

The last page of the proposed

Transportation Agreement includes signature lines with space for two signatories:
Alaska Logistics, identified as the “Carrier,” and “Goldstream Engineering for
[Newtok Village Council],” identified as the “Shipper.” 105 Even if the proposed
Transportation Agreement were binding on Goldstream, reading the proposed
Transportation Agreement as a whole, it is not apparent that the forum selection
clause would be binding on Newtok.

While the document characterizes

Goldstream as “acting for the Newtok Village Council,” the forum selection clause’s
reference to “either party” suggests that the clause binds only the two parties to
the agreement — which are identified elsewhere as “Carrier” Alaska Logistics and
“Shipper” Goldstream. There is no indication that Newtok itself was a “party” to
the proposed Transportation Agreement; unlike the agreement at issue in C & L
Enterprises, Inc., the proposed Transportation Agreement does not appear to have
been signed by the tribe. 106

Accordingly, the clause does not constitute an

“unmistakable” manifestation of Newtok’s intent to waive its sovereign immunity. 107
C.

Jurisdictional Discovery

In the alternative, Alaska Logistics contends that it should be permitted to

104

Docket 1-3 at 10.

105

Docket 1-3 at 13.

106

C & L Enterprises, Inc., 532 U.S. at 423. The record does not contain a signed copy of the
proposed Transportation Agreement. At oral argument, Alaska Logistics indicated that it was not
asserting that the proposed Transportation Agreement had been signed.

107

Bodi, 832 F.3d at 1016.

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take jurisdictional discovery on the sovereign immunity issue. 108 Alaska Logistics
contends that the Mertarvik construction project “has spanned for over a decade
and has involved dozens of state and federal agencies as well as numerous private
contractors,” and that “Newtok has routinely waived its sovereign immunity, by
contract, to qualify for government grants or enter into agreements with various
contractors” as part of the project. 109 Accordingly, Alaska Logistics contends that
it “has a reasonable basis to believe that Newtok has waived its sovereign
immunity in other contracts or grant applications with government agencies and
private contractors, and that some of those waivers may extend to Alaska
Logistics[’] claims and counterclaims to counterclaims.” 110
Alaska Logistics does not point to any “pertinent facts bearing on the
question of jurisdiction [that] are in dispute.” 111 Instead, it contends that Newtok
may have entered into a contract with another entity in which it waived its sovereign
immunity as to a broad range of claims that might extend to Newtok’s claims. To
support this contention, Alaska Logistics cites contracts between Newtok and two
other entities involved with the Mertarvik construction project. 112 However, both
contracts waive sovereign immunity only as to disputes between the contracting

108

Docket 29 at 15.

109

Docket 29 at 16–17.

110

Docket 29 at 17.

111

Am. W. Airlines, Inc. v. GPA Grp., Ltd., 877 F.2d 793, 801 (9th Cir. 1989).

112

Docket 29 at 17; see Docket 30-1.

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parties, and only as to disputes related to the contracts in question. 113 While it is
possible that Newtok has effected a broad waiver of sovereign immunity in relation
to the Mertarvik construction project, Alaska Logistics’ request for jurisdictional
discovery is “based on little more than a hunch that it might yield jurisdictionally
relevant facts.” 114 Accordingly, Alaska Logistics will not be permitted to take
jurisdictional discovery on the sovereign immunity issue.
2. Alaska Logistics’
Redundant.

“Counterclaims

to

Counterclaims”

are

Newtok asks the Court to strike Alaska Logistics’ “Amended Answer to
Newtok’s Counterclaims and Plaintiff’s Counterclaims to Counterclaims.” 115
Newtok contends that “the Federal Civil Rules do not contemplate any pleading
that might be styled as a ‘counterclaim to a counterclaim.’” 116 Newtok further
contends that “the Court should strike the pleading because it is largely redundant
as to [Alaska Logistics’] original complaint.” 117 In response, Alaska Logistics cites
several cases in which courts have held that “counterclaims to counterclaims” are
permissible under the Federal Rules of Civil Procedure. 118

However, Alaska

Logistics does not address Newtok’s contention that the pleading is redundant.

113

Docket 30-1 at 7, 11.

114

Boschetto v. Hansing, 539 F.3d 1011, 1020 (9th Cir. 2008).

115

Docket 28 at 1 (emphasis omitted).

116

Docket 28 at 1.

117

Docket 28 at 2.

118

Docket 29 at 18–19.

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Because the Court concludes that Alaska Logistics’ pleading should be stricken
pursuant to Federal Rule of Civil Procedure 12(f), the Court assumes without
deciding that “counterclaims to counterclaims” are permissible under the Federal
Rules of Civil Procedure.
Pursuant to Rule 12(f), a court may “strike from a pleading . . . any
redundant, immaterial, impertinent, or scandalous matter.” A claim is redundant if
it repeats another claim in the complaint. 119 “’Redundant’ allegations are those
that are needlessly repetitive or wholly foreign to the issues involved in the
action.” 120 Here, Alaska Logistics’ “claims and counterclaims” consist of claims
and allegations that are almost identical to those in its Complaint. 121 This portion
of Alaska Logistics’ pleading is redundant under Rule 12(f). The inclusion of
counterclaims in Alaska Logistics’ amended answer that are identical to Alaska
Logistics’ original claims would unnecessarily complicate this proceeding and
would prejudice Newtok. 122 Accordingly, Newtok’s Motion to Strike will be granted
as to the redundant portions of the pleading at Docket 25. 123

119

Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 974 (9th Cir. 2010); see also DocMagic,
Inc. v. Ellie Mae, Inc., 745 F. Supp. 2d 1119, 1134 (N.D. Cal. 2010) (characterizing as redundant
claim that “marshals no new factual allegations nor any new legal theories upon which [Plaintiff]
could obtain relief”); 2 J. MOORE, FEDERAL PRACTICE § 12.37[3] (2018) (“[G]enerally, courts will
strike a claim as ‘redundant’ when it essentially repeats another claim in the same complaint.”).

120

Cal. Dept. of Toxic Substances Control v. Alco Pac., Inc., 217 F. Supp. 2d 1028, 1033 (C.D.
Cal. 2002) (quoting Gilbert v. Eli Lilly Co., Inc., 56 F.R.D. 116, 121 n.4 (D.P.R. 1972)).

121

Compare Docket 1 at 1–13, ¶¶ 1–72, with Docket 25 at 4–16, ¶¶ 1–72.

122

See Alco Pac., 217 F. Supp. 2d at 1033 (citing Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1528
(9th Cir. 1993), rev’d on other grounds, 510 U.S. 517 (1994)).

123

Newtok asks the Court to award attorney’s fees because “[t]he ‘counterclaim to a

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CONCLUSION
In light of the foregoing, IT IS ORDERED that Newtok Village’s Motion to
Dismiss at Docket 18 is GRANTED. IT IS FURTHER ORDERED that Newtok
Village’s Motion to Strike Answer to Counterclaim at Docket 27 is GRANTED as to
Alaska Logistics’ “counterclaims to counterclaims.” 124
In light of the foregoing, the parties shall each file a status report as to the
procedural posture of this case within 14 days of the date of this order.
DATED this 11th day of January, 2019 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE

counterclaim’ is a frivolous filing under [the] Federal Civil Rules.” Docket 28 at 3. However,
several federal courts have concluded that a counterclaim may be asserted in reply to a
counterclaim. See Docket 29 at 18–19 (listing cases). Accordingly, Newtok’s request for
attorney’s fees will be denied.
While Alaska Logistics may not assert “counterclaims to counterclaims” that are identical to its
claims, Newtok conceded at oral argument that if Newtok elects to pursue its counterclaims,
Alaska Logistics will be entitled to pursue recoupment. See Quinault Indian Nation v. Pearson
for Estate of Comenout, 868 F.3d 1093, 1100 (9th Cir. 2017).
124

Specifically, the Court orders stricken the portion of Docket 25 that begins at Page 4, Line 20,
and ends at Page 16, Line 11.

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