Colombe v. Rosebud Sioux Tribe et al
Filing
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ORDER denying 34 Motion for Reconsideration ; denying 37 Motion for Permanent Injunction. Signed by U. S. District Judge Roberto A. Lange on 2/2/12. (DJP)
FILED
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
CHARLES COLOMBE, Individually and
as an Officer ofBBC Entertainment, Inc.,
a dissolved Minnesota corporation,
Plaintiff,
vs.
ROSEBUD SIOUX TRIBE, ROSEBUD
SIOUX TRIBAL COURT, and JUDGE
SHERMAN MARSHALL, in his Official
and Individual Capacities,
Defendants.
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FEB 0 2 2012
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CIV 11-3002-RAL
ORDER DENYING MOTION
TO RECONSIDER AND
MOTION FOR TRIAL ON
PERMANENT INJUNCTION
I. INTRODUCTION
This Court issued an Opinion and Order Granting in Part and Denying in Part Motion to
Dismiss (Doc. 33) on September 23,201 L Since then, Plaintiff Charles Colombe ("Colombe")
has filed a Motion for Reconsideration (Doc. 34) and a Motion for Trial on Permanent Injunction
Against Defendants Rosebud Sioux Tribal Court and Judge Sherman Marshall (Doc. 37).
Defendants Rosebud Sioux Tribe, Rosebud Sioux Tribal Court, and Judge Sherman Marshall
(collectively "Defendants") have filed responses (Doc. 36; Doc. 38) opposing both ofColombe's
motions.
For the reasons explained below, this Court denies Colombe's Motion for
Reconsideration and Motion for Trial on Permanent Injunction Against Defendants Rosebud
Sioux Tribal Court and Judge Sherman MarshalL
II. FACTS PERTINENT TO COLOMBE'S MOTIONS
This case involves a contract dispute between BBC Entertainment, Inc. ("BBC") and the
Rosebud Sioux Tribe ("Tribe").1 In June of 1994, the Tribe and BBC entered into a five-year
casino management contract under the Indian Gaming Regulatory Act of 1988, 25 U. S. C. ยง 2701
et. seq. ("IGRA"). After the contract concluded, the Tribe sued BBC in tribal court alleging that
BBC had illegally withdrawn funds from an "Operation Expense Reserve Account." The tribal
court litigation lasted several years and resulted in an October 16, 2007 judgment against BBC.
BBC did not appeal the judgment to the Supreme Court of the Rosebud Sioux Tribe.
On February 17,2009, the Tribe filed a tribal court complaint against BBC and two of
its owners, Wayne Boyd and Charles Colombe. The complaint sought to pierce BBe's corporate
veil and to hold Boyd and Colombe personally liable for the October 16,2007 judgment against
BBC. Colombe filed a motion to dismiss the complaint. Tribal Judge Sherman Marshall denied
Colombe's motion to dismiss. Colombe then filed a complaint in federal district court seeking
de novo review ofthe October 16,2007 judgment and an injunction prohibiting Defendants from
continuing the tribal court action to pierce BBe's corporate veil. Defendants moved to dismiss
the complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter
jurisdiction. (Doc. 5). In a September 23, 2011 Opinion and Order (Doc. 33), this Court
dismissed Colombe's claims concerning the October 16, 2007 tribal court judgment because BBC
never appealed the decision and therefore had failed to exhaust tribal court remedies. This Court
now considers in tum Colombe's two pending motions-the motion to reconsider dismissal of
Colombe's claims relating to the October 16, 2007 judgment, and the Motion for Trial on
1 This Court's earlier Opinion and Order contains a more complete rendition ofthe facts. See
Colombe v. Rosebud Sioux Tribe, No. Civ 11-3002,2011 WL 4458795, at *9-10 (D.S.D. Sept.
23,2011).
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Permanent Injunction to prohibit the Rosebud Sioux Tribal Court from assertingjurisdiction over
Colombe.
A. Motion for Reconsideration
The Federal Rules of Civil Procedure do not "recognize or otherwise provide for a
'Motion to Reconsider.'" Grozdanich v. Leisure Hills Health Ctr., Inc., 48 F. Supp. 2d 885,887
(D. Minn. 1999); see also Broadway v. Norris, 193 F.3d 987, 989 (8th Cir. 1999) (,The Federal
Rules ofCivil Procedure do not mention motions for reconsideration."). When, as in the present
case, the moving party fails to identify a provision within the Federal Rules of Civil Procedure
upon which the party bases its motion to reconsider, the party "leaves the characterization ofthe
motion to the court's somewhat unenlightened guess ..." Sanders v. Clemco Indus., 862 F.2d
161, 168 (8th Cir. 1988). This Court's September 23, 2011 Opinion and Order was not a final
order or judgment, because the order only granted in part Defendants' motion to dismiss.
Accordingly, this Court will address Colombe's motion for reconsideration under Rule 54(b).
See Steward v. Ryan, No. CV 10-111 O-PHX-MHM, 20 I 0 WL 2991559, at * 1 (D. Ariz. July 27,
2010) (addressing the plaintiffs motion to reconsider under Rule 54(b) where court had
dismissed some, but not all of plaintiffs claims); Doctor John's, Inc. v. City of Sioux City. lA,
438 F. Supp. 2d 1005, 1027 (N .D. Iowa 2006) (finding that Rule 54(b) provides authority for a
court to reconsider any interlocutory order, including a prior ruling on a motion for summary
judgment).
Rule 54(b) provides, in pertinent part, that "any order or other decision, however
designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than
all the parties ... may be revised at any time before the entry of a judgment adjudicating all the
claims and all the parties' rights and liabilities." Although the standard applicable to a motion
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to reconsider under Rule 54(b) is unclear, courts typically find it "to be less exacting than would
be amotion under Federal Rule of Civil Procedure 59(e), which is in turn less exacting than the
standards enunciated in Federal Rule of Civil Procedure 60(b)." Allstate Ins. Co. v. Weber, No.
1:05CV00039, 2007 WL 1427598, at *2 (E.D. Ark. May 11,2007) (quotation omitted). "It is
generally held that a court may amend or reconsider any ruling under Rule 54(b) to correct any
clearly or manifestly erroneous findings offacts or conclusions oflaw." Jones v. Casey's General
Stores, 551 F. Supp. 2d 848, 854 (S.D. Iowa 2008) (citation omitted). A motion to reconsider
under Rule 54(b), however, may not "serve as a vehicle to identifY facts or raise legal arguments
which could have been, but were not, raised or adduced during the pendency of the motion of
which reconsideration was sought." Grozdanich, 48 F. Supp. 2d at 888 (citation omitted); see
also Hagerman v. Yukon Energy Corp., 839 F.2d 407, 414 (8th Cir. 1988) ("Motions for
reconsideration serve a limited function: to correct manifest errors of law or fact or to present
newly discovered evidence ... a motion for reconsideration [should not] serve as the occasion
to tender new legal theories for the first time.") (citation omitted).
Here, Colombe asks this Court to reconsider its decision that BBC failed to exhaust its
tribal court remedies with respect to the October 16, 2007 judgment. Colombe contends that
BBC's failure to appeal the October 16, 2007 judgment should be excused because the Rosebud
Sioux Tribal Supreme Court lacked authority under the Tribe's constitution to hear BBC's appeal.
In support ofthis argument, Colombe has filed an affidavit in which he asserts that the Tribe has
failed to comply with an amendment to the Tribe's constitution that, in Colombe's view, required
the Tribe to implement a new tribal court system and rules ofappellate procedure by September
20,2007. Colombe makes no attempt to justifY his failure to raise this legal argument in his brief
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opposing Defendants' motion to dismiss. 2 Nor does Colombe explain why he waited until now
to file an affidavit concerning his interpretation of an amendment to the Tribe's constitution.
Even assuming that there is a basis to reconsider the Court's previous ruling that BBC
failed to exhaust its tribal court remedies, Colombe is not entitled to relief. The terms of the
management contract required that BBC seek review of the October 16, 2007 judgment at the
tribal appellate level before commencing litigation in federal court. See Colombe v. Rosebud
Sioux Tribe, No. Civ 11-3002,2011 WL4458795, at *9-10 (D.S.D. Sept. 23,2011). Colombe's
doubts about the legitimacy ofthe Rosebud Sioux Tribal Supreme Court does not excuse BBC's
failure to appeal the October 16,2007 judgment; at all times throughout 2007 to the present day,
the Rosebud Sioux Tribal Supreme Court was accepting appeals, issuing opinions, and acting
as a fully functional appellate court. (Doc. 36-1). Accordingly, the Court denies Colombe's
motion to reconsider.
B. Motion For Trial on Permanent Injunction
Colombe has filed a motion asking this Court to set a trial date on Colombe's request for
a permanent injunction prohibiting Defendants Rosebud Sioux Tribal Court and Judge Sherman
Marshall from assertingjurisdiction over Colombe in the Rosebud Sioux Tribal Court. The basis
for Colombe's request for a permanent injunction is similar to the basis for his motion to
reconsider. Colombe contends that an amendment to the Tribe's constitution required the Tribe
to implement a new tribal court system and rules of appellate procedure and that the Tribe's
2 Rather than arguing that the Rosebud Sioux Tribal Supreme Court lacked the authority to
hear an appeal from the October 16, 2007 judgment, Colombe's brief opposing Defendants'
motion to dismiss asserted that the Court should excuse BBC for its failure to appeal the judgment
because BBC lacked the funds necessary to comply with Rule 2 of the Rosebud Sioux Tribal Court
Rules of Appellate Procedure. (Doc. 8 at 10).
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failure to do so divested the Rosebud Sioux Tribal Court ofauthority to exercise jurisdiction over
Colombe in the pending tribal court action to pierce BBC's corporate veil.
Defendants argue that the Court should deny Colombe's motion for a trial on his request
for a permanent injunction because Colombe failed to exhaust his tribal court remedies. The
terms ofthe management contract3 required BBC to address issues ofthe Rosebud Sioux Tribal
Court's jurisdiction over BBC at the tribal appellate level before raising those issues in federal
court. Colombe, 2011 WL 4458795, at *9-10. Principles ofcomity support requiring Colombe
as well to exhaust tribal court remedies, including appeal to the Rosebud Sioux Tribal Supreme
Court, before this Court is expected to rule on a question concerning the Rosebud Sioux Tribal
Constitution. See Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 17 (1987) ("At a minimum,
exhaustion of tribal remedies means that tribal appellate courts must have the opportunity to
review the determinations of lower tribal courts."); Duncan Energy Co. v. Three Affiliated
Tribes, 27 F.3d 1294, 1299 (8th Cir. 1994) ("Because a federal court's exercise ofjurisdiction
over matters relating to reservation affairs can impair the authority of tribal courts . . . the
examination of tribal sovereignty and jurisdiction should be conducted in the first instance by
the tribal court itself."). Generally, questions regarding interpretation oftribal constitutions and
amendments thereto are for tribal, and not federal, courts to resolve.
In re Sac & Fox Tribe
ofMississippi in IowalMeskwaki Casino Litig., 340 F.3d 749, 763-64 (8th Cir. 2003) ("Jurisdiction
to resolve internal tribal disputes, interpret tribal constitutions and laws, and issue tribal
membership determinations lies with Indian tribes and not in the district courts."); Runs After v.
3 The portion of the management contract pertaining to exhaustion of tribal court remedies
states: "The jurisdiction of the Rosebud Sioux Tribal Court system with respect to disputes related
to this contract, shall extend through the Tribal Trial Court and Appellate Court level. Tribal Court
remedies must be exhausted before any party may initiate suit in Federal Court ..."
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United States, 766 F.2d 347,352 (8th Cir. 1985) (holding that the district court lacked jurisdiction
to resolve "disputes involving questions ofinterpretation ofthe tribal constitution and tribal law .").
The first time Colombe raised the argument that the Tribe's failure to comply with an
amendment to its constitution divested tribal courts ofjurisdiction over him was in a March 24,
2009 motion to dismiss the tribal court action to pierce BBC's corporate veil. (Doc. 5-10). On
April 26, 2010, Judge Sherman Marshall issued an order denying Colombe's motion to dismiss.
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(Doc. 5-25). On May 3, 2010, Colombe filed a "motion for interlocutory appeals" of Judge
Marshall's April 26, 2010 order. (Doc. 32-1). In this motion, Colombe once again raised his
argument concerning the Tribe's failure to comply with a constitutional amendment. 4 (Id.). The
Rosebud Rules of Appellate Procedure provide that the decision concerning whether or not to
grant an interlocutory appeal rests with the tribal trial court judge. (Doc. 32-3).5 Under these
rules, Judge Marshall denied Colombe's request for an interlocutory appeal in a June 30, 2010
order. (Doc. 32-2). To date, the Rosebud Sioux Tribal Supreme Court has not had an
opportunity to address Colombe's claim that the Tribe's failure to comply with an amendment
to its constitution divested the Tribe ofjurisdiction over Colombe. This Court recognizes that
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Colombe's effort to have that issue addressed on an interlocutory appeal to the Rosebud Sioux
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Tribal Court has been unsuccessful, but Colombe retains the ability to appeal to the Rosebud
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Sioux Tribal Supreme Court on the tribal constitutional issue ifJudge Marshall's ultimate ruling
Colombe also raised this argument in a September 9, 2010 motion in opposition to compel
and a motion to squash discovery. (Doc. 5-36).
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The portion of the Rosebud Sioux Tribal Court Rules of Appellate Procedure pertaining to
interlocutory appeals provides as follows: "No interlocutory appeals shall be allowed in either
criminal or civil matters unless expressly authorized by the Presiding Justice. The decision of
whether or not to accept interlocutory appeals shall be based upon the findings of fact, conclusions
of law and ruling entered by the Tribal Judge upon the Appellant's motion to file an interlocutory
appeal." (Doc. 32-3).
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is unfavorable to Colombe. Colombe has not exhausted his tribal court remedies on this issue.
Therefore, this Court denies his motion for a trial on his request for a permanent injunction. See
Elliot v. White Mountain Apache Tribal Court, 566 F.3d 842, 847 (9th Cir. 2009) (rejecting
plaintiffs argument that she had exhausted tribal court remedies by filing an interlocutory appeal
to tribal appellate court where tribal appellate court had held that rules of tribal civil procedure
prevented it from considering plaintiffs interlocutory appeal).
III. CONCLUSION
For the reasons stated above, it is hereby
ORDERED that Colombe's Motion for Reconsideration (Doc. 34) is denied. It is further
ORDERED that Colombe's Motion for Trial on Permanent Injunction Against
Defendants Rosebud Sioux Tribal Court and Judge Sherman Marshall (Doc. 37) is denied.
Dated February 2,2012.
BY THE COURT:
ROBERTO A. LANGE
UNITED STATES DISTRICT JUDGE
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