McKesson Corporation et al v. Hembree et al
Filing
146
OPINION AND ORDER by Judge Terence Kern ; dismissing/terminating case (terminates case) ; granting 139 Motion to Dismiss; granting 140 Motion to Dismiss (lmc, Chambers)
Case 4:17-cv-00323-TCK-FHM Document 146 Filed in USDC ND/OK on 09/26/18 Page 1 of 7
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
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MCKESSON CORPORATION;
CARDINAL HEALTH, INC.;
AMERISOURCEBERGEN DRUG
CORPORATION; CVS HEALTH
CORPORTION; WALGREENS
BOOTS ALLIANCE, INC.; and
WAL-MART STORES, NC.,
Plaintiff,
v.
TODD HEMBREE, ATTORNEY
GENERAL OF THE CHEROKEE
NATION, in his official capacity;
JUDGE CRYSTAL R. JACKSON, in
her official capacity; DOE JUDICIAL
OFFICERS 1-5; and JUDGE T. LUKE
BARTEUX,
Defendants.
Case No. 17-CV-323-TCK -FHM
OPINION AND ORDER
Before the Court are Defendant Todd Hembree’s Motion to Dismiss for Lack of Subject
Matter Jurisdiction and the Motion to Dismiss of Defendant Judges Crystal R. Jackson, T. Luke
Barteux, and Doe Judicial Officers 1-5 (Docs. 139-140). Plaintiffs CVS Health Corporation;
Walgreens Boots Alliance, Inc. and Wal-Mart Stores, Inc. (“Pharmacies”); and McKesson
Corporation; Cardinal Health, Inc.; and AmeriSourcebergen Drug Corporation (the “Distributors”)
oppose the motions. For the reasons set forth below, Defendants’ Motions to Dismiss are granted.
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I. Background
On April 20, 2017, the Cherokee Nation filed suit against the Pharmacies and the
Distributors in the District Court for the Cherokee Nation, asserting claims under the Cherokee
Nation Unfair and Deceptive Practices Act (“CNUDPA”) and common law claims for nuisance,
negligence, unjust enrichment, and civil conspiracy. In the proceeding, Cherokee Nation v.
McKesson Corp., et al., the Tribal Court Petition alleged that the Pharmacies and Distributors
knowingly or negligently distributed and dispensed prescription opioid drugs within the Cherokee
Nation in a manner that foreseeably injured, and continues to injure, the Cherokee Nation and its
citizens.
On June 8, 2017, the Pharmacies and Distributors filed this action against Defendants Todd
Hembree (“Hembree”), Attorney General of the Cherokee Nation, in his official capacity; Judge
Crystal R. Jackson (“Judge Jackson”), in her official capacity; Judge T. Luke Barteaux (“Judge
Barteaux”), in his official capacity; and Doe Judicial Officers 1-4 (collectively, “Defendants”).
(Doc. 2). In their Complaint, Plaintiffs sought, inter alia, declaratory judgment that Defendants
lack jurisdiction to prosecute and hear the Tribal Court Action. Id. Plaintiffs asserted subject
matter jurisdiction under 28 U.S.C. §1331 because the existence of tribal jurisdiction over
nonmembers is a federal question. See Nat. Farmer’s Union Ins. Cos. v. Crow Tribe, 471 U.S. 845,
852 (1985)). (Doc. 2, Complaint, ¶21).
Concurrently with the filing of the Complaint in this case, the Pharmacies and Distributors
filed a Motion for Preliminary Injunction enjoining Defendants from taking any action or any step
in the Tribal Court Action as it relates to Plaintiffs until this case is resolved. (Doc. 13). In an
Opinion and Order entered January 9, 2018, this Court granted Plaintiffs’ Motion for Preliminary
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Injunction. (Doc. 138). In so ruling, the Court noted that that the Cherokee Nation “could assert
claims to redress any injury in another, non-tribal forum.” (emphasis added) (Doc. 138 at 24).
On January 22, 2018, the Cherokee Nation voluntarily dismissed the tribal court lawsuit
and refiled the case in Oklahoma state court. (Doc. 139-1). Subsequently, the Cherokee Nation
and the Cherokee Nation judges moved to dismiss this case, arguing that the Plaintiffs’ claims are
now moot, and therefore, the Court lacks subject matter jurisdiction of the case. (Doc. 139).
Plaintiffs oppose Defendant’s Motion to Dismiss, contending that their claims are not
moot. (Doc. 141 at 7).
II. Mootness
A. Burden of Proof
Defendants, as the parties contending that the controversy giving rise to this lawsuit is now
moot, “bear[] the burden of coming forward with the subsequent events” that have rendered the
case moot. Chihuahan Grasslands Alliance, 545 F.3d 884, 891 (10th Cir. 2008) (quoting Cardinal
Chem. Co. v. Morton Int’l, Inc., 408 U.S. 83, 93 (1993)).
B. Analysis
Under Article III of the Constitution, federal courts may adjudicate only actual
controversies. Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477-78 (1990); Fischbach v. N.M.
Activities Ass’n., 38 F.3d 1159, 1169 (10th Cir. 1994). The Supreme Court has explained:
In order to invoke federal-court jurisdiction, a plaintiff must demonstrate that
he possesses a legally cognizable interest, or personal stake, in the outcome of
the action. This requirement ensures that the Federal Judiciary confines itself to
its constitutionally limited role of adjudicating actual and concrete disputes, the
resolutions of which have direct consequences on the parties involved.
A corollary to this case-or-controversy requirement is that an actual controversy
must be extant at all stages of review, not merely at the time the complaint is
filed. If an intervening circumstance deprives the plaintiff of a personal stake
in the outcome of the lawsuit, at any point during litigation, the action can
no longer proceed and must be dismissed as moot.
Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 71-72 (2013) (citations omitted).
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“One exception to a claim of mootness is a defendant’s voluntary cessation of an alleged
illegal practice which the defendant is free to resume at any time.” Id. at 892. However, “[t]o
constitute an exception to the mootness doctrine, it is not enough that an issue will escape review
because of limited duration. It is also necessary that there be ‘a reasonable expectation that the
same complaining party [will] be subjected to the same action again.’” United States v. Seminole
Nation of Oklahoma, 321 F.3d 939 944 (10th Cir. 2002) (quoting Gannett Co. v. DePasquale, 443
U.S. 368, 377 (1979)).
Here, pleadings from the District Court of the Cherokee Nation establish that on January
19, 2018, the Cherokee Nation filed a Notice of Voluntary Dismissal Without Prejudice of the
tribal court case, and on January 22, 2018, the Cherokee Nation District Court filed an Order of
Dismissal Without Prejudice. (Doc. 139-1, Exs. A-1, A-2). The same day, the Cherokee Nation
filed suit against the Pharmacies and Distributors in Sequoyah County, Oklahoma, District Court.
Id., Ex. A, Declaration of Attorney General Todd Hembree, ¶ 5. On February 8, 2018, Attorney
General Hembree submitted a Declaration in this case stating, “It is the Cherokee Nation’s policy
and decision to pursue the litigation against the pharmacies and distributors in Oklahoma state
court until a judgment on the merits, and not to refile the action against these defendants in tribal
court.” Id., ¶ 8. The Defendants removed the state court case to the United States District Court
for the Eastern District of Oklahoma on February 26, 2018. See The Cherokee Nation v. McKesson
Corp., et al., Case No. 6: 18-CV-56 (E.D. Okla.). As a result, no case against the Pharmacies and
Distributors remains in tribal court.
“Because ‘the existence of a live case or controversy is a constitutional prerequisite to
federal court jurisdiction, the court must determine whether a case is moot before proceeding to
the merits.’” Citizens for Responsible Government State Political Action Committee v. Davidson,
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236 F.3d 1174, 1181-82 (10th Cir. 2000) (citing McClendon v. City of Albuquerque, 100 F.3d 863,
867 (10th Cir. 1996). “The crucial question is whether “granting a present determination of the
issues offered . . . will have some effect in the real world.’” Id. at 1182 (citing Kennecott Utah
Copper Corp. v. Becker, 186 F.3d 1261, 1266 (10th Cir. 1999) (quotations and citations omitted)).
With respect to injunctive relief and the question of mootness, “[p]ast exposure to illegal
conduct does not in itself show a present case or controversy regarding injunctive relief . . . if
unaccompanied by any continuing, present adverse effects.” Beatttie v. United States, 949 F.2d
1092, 1094 (10th Cir. 1991) (quotation marks and citation omitted). The party requesting relief
must “demonstrate a good chance of being likewise injured in the future.” Id. at 1093. “If an event
occurs while a case is pending that heals the injury and only prospective relief has been sought,
the case must be dismissed.” S. Utah Wilderness Alliance v. Smith, 110 F.3d 724, 727 (10th Cir.
1997) (citation omitted).
Plaintiffs argue that “the Tribe’s vague and non-binding statements of intent as to this
litigation do not moot this case” or “remove the threat of future prosecution or adjudication of the
Tribe’s claims against Plaintiffs in tribal court.” (Doc. 141 at 7).
“[O]ne exception to a claim of mootness is the defendant’s voluntary cessation of an
alleged illegal practice which the defendant is free to resume at any time.” Chihuahuan Grasslands
Alliance v. Kempthorne, 545 F.3d 884, 892 (10th Cir. 2008). This exception “exists to counteract
the possibility of a defendant ceasing illegal action long enough to render a lawsuit moot and then
resuming the illegal conduct.” Id. However, this exception is only applicable when: (1) the
duration of the challenged action is too short to be fully litigated prior to its cessation or expiration
and (2) there is a reasonable expectation that the complaining party . . . [will] be subjected to the
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same action again.’” Id. (citing Disability Law Ctr. v. Millcreek Health Ctr., 428 F.3d 992, 996
(10th Cir. 2005)
In this case, soon after the Court entered its Opinion and Order granting Plaintiffs’ Motion
for Preliminary Injunction, the Tribe dismissed the tribal court case and refiled it in Oklahoma
District Court, after which Defendants removed it to federal court. Thus, there appears to be little
or no likelihood the Cherokee Nation will attempt to refile its claims in tribal court.
Citing Friends of the Earth v. Laidlow Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000),
Plaintiffs assert that a voluntary cessation of challenged conduct does not moot a case unless it is
“absolutely clear that the challenged conduct will not recur,” and that standard is only satisfied
“when a defendant institutes an action of sufficient permanence—such as the enactment of a new
statute or a change in formal policy—to provide assurance that the threat of the conduct to the
plaintiff is over.” (Doc. 141 at 7).
Case law in the Tenth Circuit and elsewhere, however, makes it clear that a plaintiff lacks
standing to challenge tribal jurisdiction unless there is a tribal court action currently pending. See,
i.e. Bd. Of Education for the Gallup-McKinley County Schools v. Henderson, 696 Fed. Appx. 355,
356 (10th Cir. 2017) (unpublished) (holding that “an injury giving rise to standing must be [1] an
invasion of a legally protected interest that is [2] concrete and particularized and [3] actual or
imminent,” and that “‘[a]llegations of possible future injury’ do not satisfy the injury in fact
requirement.”); Moss v. Bossman, 2009 WL 891867 (D. S.D. March 31, 2009) (finding that
plaintiffs’ federal court claims against the Yankton Sioux Tribal Employee Rights Commission
and its director were moot after the commission voluntarily dismissed an earlier filed tribal court
petition against plaintiffs); Tamiami Partners, Ltd. V. Miccosukee Tribe of Indians of Florida, 898
F. Supp. 1549, 1559 (S.D. Fla. 1994) (holding that the tribe had “short-circuited” the Court’s
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consideration of a dispute over a management agreement for operation of a bingo gaming facility
between plaintiff and the Miccosukeee Tribe of Indians of Florida by voluntarily dismissing their
action in tribal court, rendering moot the issue of the tribal court’s jurisdiction over the
management company); State of Nev. v. Hicks, 944 F. Supp. 1455, 1459-60 (D. Nev. 1996) (noting
that tribe’s earlier dismissal of tribal court claims against state defendants had mooted the issue of
the Fallon-Paiute Shoshone tribal court’s jurisdiction over defendants).
Here, too, the Cherokee Nation’s dismissal of its tribal court claims against the Pharmacies
and Distributers, and its subsequent filing of the claims in Oklahoma District Court, have rendered
the Plaintiffs’ claims in this case moot.
III. Conclusion
For the reasons set forth above, Defendants’ Motions to Dismiss for Lack of Subject Matter
Jurisdiction (Docs. 139-140) are granted.
ENTERED this 26th day of September, 2018.
___________________________________
TERENCE C. KERN
UNITED STATES DISTRICT JUDGE
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