Plaintiff, Case No. CIV HE

Transcription

1 Case 5:14-cv HE Document 20 Filed 03/12/15 Page 1 of 28 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (1) UNITED PLANNERS FINANCIAL SERVICES OF AMERICA, L.P., vs. Plaintiff, Case No. CIV HE (2) SAC AND FOX NATION, a federallyrecognized Indian Tribe, (3) SAC AND FOX NATION HOUSING AUTHORITY, an administrative Department of the Sac and Fox Nation, (4) SAC AND FOX NATION DISTRICT COURT, and (5) THE HONORABLE DARRELL R. HAYCOCK, JR., in his official capacity as Judge of the Sac and Fox Nation District Court, Defendants. PLAINTIFF UNITED PLANNERS FINANCIAL SERVICES OF AMERICA'S RESPONSE TO DEFENDANTS SAC AND FOX NATION DISTRICT COURT AND THE HONORABLE DARRELL R. HAYCOCK, JR.'S MOTION TO DISMISS FOR LACK OF JURISDICTION AND BRIEF IN SUPPORT March 12, 2015 Wm. David McCullough OBA No Doerner, Saunders, Daniel & Anderson, L.L.P N. Interstate Dr., Ste. 211 Norman, Oklahoma Telephone: (405) Facsimile: (405) dinccullough(a~ dsda. corn AttoNneys fog^ United PlanneJ~s Financzal Services ofamenica, L.P.

2 Case 5:14-cv HE Document 20 Filed 03/12/15 Page 2 of 28 TABLE OF CONTENTS INTRODUCTION... 1 STANDARD OF REVIEW... 5 SUMMARY OF THE ARGiJ1V~NT...:... 6 ARGIJN~NT AND AUTHORITIES...:... 7 L IL SOVEREIGN IMMi.JNITY CLAIMS DO NOT BAR THE ACTION AGAINST TRIBAL COURT DEFENDANTS... 7 TRIBAL DEFENDANTS' CLAIMS GIVE RISE TO THE EXPARTE YOUNG EXCEPTION TO THE BAR OF SOVEREIGN IM]VIIINITY A. Plaintiff's Complaint Alleges Ongoing Violation of Federal Law : B. Plaintiff Seeks Prospective Relief Only III. PLAINTIFF HAS EXHAUSTED ITS TRIBAL COURT REMEDIES A. Dismissal of the arbitration proceedings neither confers jurisdiction to the Nation's District Court over the Plaintiff...: B. Plaintiff has not consented to the jurisdiction of the Tribal Court Defendants in the 2014 Tribal Court Action C. Tribal Court Defendants do not have jurisdiction over Plaintiff in the 2014 Tribal Court Action under the Montana analysis D. Even if Plaintiff had not E~iausted its Tribal Court Remedies, Which it has, this Court Would Have to Apply the Exceptions to the E~austion Doctrine IV. SERVICE OF PROCESS ON TRIBAL COURT DEFENDANTS WAS SUFFICIENT AS A MATTER OF LAW CONCLUSION i

3 Case 5:14-cv HE Document 20 Filed 03/12/15 Page 3 of 28 TABLE OF AUTHORITIES Cases Am. Soda LLP v. ZI.S. Filter Wastewater Gp., Inc., 428 F.3d 921, 927 (lotl' Cir. 2005) Ashc~ oft >>. Igbal, 129 S. Ct. 1937, 1949 (2009)... 5 Bell Atlantic Corp. v. Tu~ombly, 550 U.S. 544, 570 (2007)... 5 BZrN~ell v. Armijo, 456 F.3d 1159, 1168 (10th Cir. 2006) Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 595 (1991) CNo~~e & Dunlevy, P. C, v. Stidham, 640 F.3d 1140, , ~l~ttt Cir. 2011)...10, 11, 14, Edelman v. Jordan, 415 U.S. 651, 678 (1974)... 8 Ex pante Young, 209 U.S. 123 (1908)... 10, 11, 14 Fed. Mar. Comm'n v. S. C. State Ports Azcth., 535 U.S. 743, 766 (2002)... 9 GeneNal Rocli &Sand Corp, v. Chacska Dev. Corp., 55 F.3d 1491, 1492 (10th Cir. 1995) Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 754 (1998)... 9 M/SBremen v. Zapata Off-Shoe Co., 407 U.S. 1, 10 (1972) Millz'N'More, Inc. v. Beavert, 963 F.2d 1342, 1346 (lotl' Cir. 1992) Montana ~v. United StatesJ, 450 U.S. 544 (1981)... 15; 19 Muhammad v. Casino, 742 F.Supp.2d 1268, 1276 (W.D. Ol~la, 2010)... 5 Muhammad v. Comanche Nation Casino, 2010 WL , at * 1 n.2 (W.D. Okla. Oct. 27, 2010) Muscogee (Creek) Nation.v. Okla. Tax Comm'n, 611 F.3d 1222, 1232 (lotl' Cir. 2010) National FaNmet~s Union InsZCNance Companies v. C~^ow Ti^zbe oflndians, 471 U.S. 845, 848, 852, & n.21 (1985)... 8, 9, 10 Nevada v. Hicks, 533 U.S. 353, , (2001)... 9, 21 Strate v. A-1 Contractors, 520 U.S. 438, 445, 459 (1997)... 9, 21 Thlopthlocco Tribal Town v. Stidham, 762 F.3d 1226, 1235 (10th Cir. 2014)... 5, 14 Va. Office for Protective &Advocacy v. StewaNt, - U.S. -, 131 S.Ct. 1632, , 179 L.Ed.2d 675 (2011) Vey izon Md.., Inc, v. Pub. Serv. ComTn'n, 535 U.S. 635, 645, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002)...: Federal Rules of Civil Procedure Rule 7.1 Cg)...1 Rule 12(b)(1)...2 Rule 12(b)(5)...2 Rule4~e)~2)~B) Rule 4(h)(1) Financial Industry Regulatory Authority (FINRA) Rules FINRA Rule FINRA Rule 12206(a) F1NRA Rule 12206(b)...:...15, 16 FINRA Rule 12206(c)...16 ii

4 Case 5:14-cv HE Document 20 Filed 03/12/15 Page 4 of 28 Statutes 28 U.S.C , 6 United States Constitution U.S. CONST. Ai~t. VI, cl ii

5 Case 5:14-cv HE Document 20 Filed 03/12/15 Page 5 of 28 Plaintiff United Planners Financial Services of America, L.P., consistent with LCvR 7.1(g), responds in opposition to Defendants' Sac and Fox District Court ("Tribal Court") and the Honorable Darrell R. Matlock, Jr. ("Judge Matlock"), in his capacity as judge of the Sac and Fox Nation District Court (collectively "Tribal Count Defendants") motion to dismiss.l INTRODUCTION "INDEED, UNITED PLANNERS PREVAILED BEFORE THE NATION'S SUPREME COURT." (Doc. 17, p.17, fn. 5 "Motion of the Sac and Fox Nation District Court and the Honorable Darrell R. Matlock, Jr., to Dismiss for Lack of Jurisdiction and Brief in Support) (emphasis added). As will be described hereafter, of all the parties to this action, the only party asserting the finality and sanctity of the sovereign Sac and Fox Nation Supreme Court ruling is the Plaintiff. Plaintiff seeks to prohibit the Tribal Court Defendants' from unlawfully asserting jurisdiction over Plaintiff in an action filed in Tribal Court by the Tribal Defendants. The facts are simple. In 2011, the Tribal Defendants filed an action against Plaintiff in Sac and Fox District Court ("2011 Tribal Court Action"), alleging that Plaintiff breached certain duties 1 Co-Defendants Sac and Fox Nation and Sac and Fox Nation Housing Authority (collectively "Tribal Defendants"), previously filed a motion to dismiss [Doc. 13]. United Planners subsequently filed an opposition to that motion to dismiss [Doc. 18]. Because a number of the arguments raised by Tribal Court Defendants overlap with Tribal Defendants, to the extent not discussed herein, Plaintiff incorporates its response in opposition to Tribal Defendants motion to dismiss [Doc. 18] as part of this response. 1

6 Case 5:14-cv HE Document 20 Filed 03/12/15 Page 6 of 28 owed to Tribal Defendants arising from certain broker agreements. Plaintiff sought to enforce the terms of the broker agreements executed by the parties which mandated any dispute would be settled in arbitration. In 2013, the Nation's Supreme Court held that "the Nation inay pursue its claims in arbitration if it so chooses to adjudicate its claim against [United Planners], but it inay not proceed with its case in the District Court or any other count." (Doc. 1-1, p. 11). Thereafter, Tribal Defendants submitted the dispute to arbitration but immediately filed a motion to dismiss their own action. The arbitration panel granted Tribal Defendants' motion to dismiss their own arbitration proceedings. See (Doc. 1-7). In 2014, on the day after the panel entered its order dismissing the arbitration proceedings, Tribal Defendants filed a new complaint in the Tribal Court [2014 Tribal Court Action] asserting the wine cause of action and requesting, verbatim, the same relief sought in the 2011 Tribal Court Action. Plaintiff filed this current action against all Defendants. In addition, Plaintiff filed a special appearance, without submitting to the jurisdiction of the Tribal Court, and motion to dismiss in the Tribal Court for lack of jurisdiction. See (Doc. 13-2) Tribal Court Defendants have filed a motion in this court seeking to have this lawsuit dismissed pursuant to Rules 12(b)(1) (subject-matter jurisdiction) and 12(b)(5) (insufficient service of process). Tribal Court Defendants argue that (1) Tribal Court Defendants are cloaked with Tribal Defendants' sovereign immunity, and (2) Plaintiff has failed to e~aust tribal court remedies. Tribal Court Defendants are mistal~en on both counts. 2

7 Case 5:14-cv HE Document 20 Filed 03/12/15 Page 7 of 28 First, Tribal Court Defendants assert they are cloaked with the Tribe's unmunity from unconsented suit, subject only to a very narrow exception. However, the undisputed facts of this case place this dispute squarely within the Ex pate Young exception to immunity from unconsented suit. Second, Tribal Court Defendants assert this litigation is premature. However, Tribal Defendants are attempting to re-litigate the same set of facts that gave rise to the Nation's Supreme Court decision dismissing the 2011 Tribal Court Action. The Supreme Court decision is controlling. Plaintiff has e~austed its tribal court remedies. Third, even if it had not e~austed its tribal court remedies (which Plaintiff has), "e~austion" does not apply to the facts presented in Plaintiff's Complaint because (1) the Nation's Supreme Court has already determined that all disputes between the parties must be resolved by arbitration, as mandated by the forum selection clause in the agreements, thereby excusing e~austion of tribal remedies and (2) the Nation's Supreme Court has already determined that the Tribal Court Defendants do not have jurisdiction over disputes arising under the broker agreements. Because Tribal Court Defendants' motion to dismiss lacks merit, it should be denied. UNDISPUTED JURISDICTIONAL FACTS Tribal Court Defendants set forth 21 "jurisdictional facts" which they assert are "not in genuine dispute." Doc. 17, pp Plaintiff does not agree that Jurisdiction z For purposes of reference in this response brief, these facts shall be designated "Jurisdictional Fact #." 3

8 Case 5:14-cv HE Document 20 Filed 03/12/15 Page 8 of 28 Fact #8 is undisputed. Plaintiff does not dispute the other 20 Jurisdictional Facts. In addition, Plaintiff offers four more Jurisdictional Facts that are not in dispute as reflected by the pleadings on file with this Court: 1-7. These Jurisdictional Facts are not in dispute. 8. No party requested that the Tribal Court decide whether United Planners had consented to Tribal Court jurisdiction, ~~~-n~l~t'~~ Tr~'~~' r^~~~* se~~'z~t~e~~v~s~--a~~e-~t r~r~~r.f l9 ~l~~lr)~al~)\~la\~i~~~~'l~/t Jt1\~1~1l~~[~~~~~\~Jn~~~~\~~~~\~ \1t SCI\~1~1~'~~[~SR~I~J ~~/~~~\~1/~~I~91~/~\iSl~~\~~ Ee~r~. Accordingly, no ruling was entered on mss this issues. (Exs. "A" & `B."). Plaintiff disputes the str^zclzen langzfage, and the ~^eco~d cites do not support this statement. As recognized in Jurisdictional Fact #2, Plaintiff did assent affirmative defenses of lack of pe~^sonal and subject matten jurisdiction. Plaintiff does not dispute the Jurisdictional Fact as amended herein These Jurisdictional Facts are not in dispute. 22. In the 2011 Tribal Court Action, Tribal Defendants requested: relief against the defendant [United Planners] for its misconduct, negligence, breach of contract, breach of fiduciary duty, breach of Tribal policies, breach of US Government policies, breach of industry customs, practices, rules and regulations, and failure to supervise. (Doc. 1-8, p. 3; Doc. 13, at 2) (Jurisdictional Fact #1) 23. In its 2013 decision, the Nation's Supreme Court stated: the Nation may pursue its claims in arbitration if it so chooses to adjudicate its claim against [United Planners], but it may not proceed with its case in the District Court or any other court. (Doc. 1-1, p. 11) (Jurisdictional Fact #10) r~

9 Case 5:14-cv HE Document 20 Filed 03/12/15 Page 9 of In its order denying motion to modify, the Nation's Supreme Court stated: Appellees lnay pursue their claims in arbitration if they so choose, but they may not proceed with their claims in the District Court. (Doc. 1-2, p. 1) (Jurisdictional Fact #14) 25. In the 2014 Tribal Court Action, Tribal Defendants requested: relief against the defendant [United Planners] for its misconduct, negligence, breach of contract, breach of fiduciary duty, breach of Tribal policies, breach of US Government policies, breach of industry customs, practices, rules and regulations, and failure to supervise. (Doc. 18-2, p. 3; Doc. 13, at 2) (Jurisdictional Fact #17) STANDARD OF REVIEW "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face. "' Ashcroft v. Igbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic CoNp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at Plaintiff Complaint sets forth facts sufficient to state a claim for relief. Thlopthlocco TNibal Town v. Stidham, 762 F.3d 1226 (10th Cir. 2014) ("whether an Indian tribe retains the power to compel anon-indian.., to submit to the civil jurisdiction of a tribal court is one that must be answered by reference to federal law and is a `federal question' under 1331." [citation omitted]); Muhammad v. Casino, 742 F.Supp.2d 1268, 1276 (W.D. Okla, 2010) ("Clearly, the question whether a tribe can compel anon-indian to 5

10 Case 5:14-cv HE Document 20 Filed 03/12/15 Page 10 of 28 submit to tribal civil-adjudicatory jurisdiction "must be answered by reference to federal law and is a `federal question' under 1331." [citations omitted]). As evidenced in the Complaint and the Undisputed Jurisdictional Facts, Plaintiff has inet that burden here and Tribal Court Defendants' motion to dismiss must be denied. SUMMARY OF THE ARGUMENT This is not a case where Plaintiff is waging war on the principles of tribal sovereign immunity. As the Tribal Court Defendants have succinctly stated, "[I]ndeed, United Planners prevailed before the Nation's Supreme Court." (Doc. 17, p. 17, fn. 5). And what does it mean for Plaintiff to have prevailed before the Nation's Supreme Court? According to Tribal Court Defendants, it means nothing. To the Tribal Court Defendants, it means nothing that (1) the Nation's Supreme Court ruled that the Tribal Defendants "must seek to adjudicate such claims in arbitration and not in the Nation's courts or any other judicial forum, as required by the parties' agreements." See (Jurisdictional Fact #12); (2) the Nation's Supreme Court denied Tribal Defendants' motion to modify its order which Tribal Defendants sought, in part, to preserve an argument that Plaintiff had waived the arbitration provisions in the agreements by consenting to the jurisdiction of the Tribal Court in the 2011 Tribal Court Action. See (Jurisdictional Fact #14); and (3) Judge Matlock issued an "Order and Mandate" dismissing the [2011 Tribal Court Action]." See (Jurisdictional Fact #15). Tribal Court Defendants moved to dismiss this action because, inter^ alia, "United Planners' claims are premature because it failed to pursue them to a conclusion prior to seeking federal court review." (Doc. 17, p. 8) Plaintiff defended itself in the 2011 Tribal

11 Case 5:14-cv HE Document 20 Filed 03/12/15 Page 11 of 28 Court Action by asserting that all disputes between the parties had to be submitted to arbitration. See (Jurisdictional Fact #3). Plaintiff pursued its defense and "indeed... prevailed before the Nation's Supreme Court" which held Tribal Defendants "inay pursue [their] claims in arbitration if [they] so choose[] to adjudicate [their] claim against [United Planners], but [they] inay not proceed with its case in the District Court or any other court." (Jurisdictional Fact #23). The Nation's Supreme Court denied Tribal Defendants request to modify the order, stating "[Tribal Defendants] may pursue their claims in arbitration if they so choose, but they may not proceed with their claims in the District Court." (Jurisdictional Fact #24). Tribal Defendants assert the claim and requested relief in the 2014 Tribal Court Action is exactly the same as asserted in the 2011 Tribal Court Action. (Jurisdictional Facts #22 and #25). Plaintiff has defended to a conclusion (e~austed its Tribal Court remedies) the claims of Tribal Defendants. Plaintiff has e~iausted its tribal court remedies. ARGUMENT AND AUTHORITIES I. SOVEREIGN IMMUNITY CLAIMS DO NOT BAR THE ACTION AGAINST TRIBAL COURT DEFENDANTS Tribal Court Defendants spend three long paragraphs (Doc. 17, pp.9-11) with endless string cites detailing the "settled law" that Indian tribes and, by extension, tribal officers and employees enjoy immunity from unconsented lawsuits. Plaintiff does not dispute the "settled law." But the analysis does not address the issue before this court. In this case, Plaintiff does not attack the sovereign immunity of the Tribal Court Defendants. This case involves an action where Plaintiff is seeking to prevent the Tribal

12 Case 5:14-cv HE Document 20 Filed 03/12/15 Page 12 of 28 Court Defendants from unlawfully asserting of jurisdiction over a nonmember of the tribe. Jurisdiction which the Nation's Supreme Court has ruled Tribal Court Defendants do not have. In National FaNme~^s Union Insu~~ance Companies v. Crow TNibe of Indians, 471 U.S. 845, 852 (1985), the Supreme Court held that federal law may intervene to prevent a tribe's unlawful activity. When federal law applies, it is supreme. U.S. CONST. Art. VI, cl. 2. Neither Tribal Court Defendants' argument nor cases cited in support thereof are applicable here. See ~ Doc. 1-1, p. 11 ("the Nation may pursue its claims in arbitration if it so chooses to adjudicate its claim against [United Planners], but it may not proceed with its case in the District Court of tiny other count.") (emphasis added). The facts of National Fa~me~s Union demonstrate that sovereign immunity provides no defense because the matter was actually litigated in that case. The plaintiffs in National FaNmeNs Union had "named as defendants the Crow Tribe of Indians, the Tribal Council, the Tribal Court, judges of the court, and the Chairman of the Tribal Council," as well as two tribe members. Natzonal Farmers, 471 U.S. at 848. Despite the fact that a sovereign immunity defense "sufficiently partal~es of the nature of a jurisdictional bar" that it must be given effect if applicable, and inay be raised for the first time even in the highest court, Edelman v.,io~dan, 415 U.S. 651, 678 (1974), the Supreme Court in National FaNmeNs Union gave no weight to the defendants' professed immunity. Instead the Court merely held that, in most cases, anon-indian must e~aust tribal remedies, as Plaintiff has done here, before bringing an action to declare tribal jurisdiction unlawful. Nat'l Farmers Union, 471 U.S. at 856 & n.21. The Court did

13 Case 5:14-cv HE Document 20 Filed 03/12/15 Page 13 of 28 not suggest that sovereign immunity unposed a hurdle, and its remand order left the lower court with discretion to keep the tribe and other tribal defendants in the case as defendants pending exhaustion. See id. at 857. That result would not have obtained if the tribal defendants enjoyed immunity from suit. Fed. Mai^. Comm'n v. S.C. State Ports Auth., 535 U.S. 743, 766 (2002)("Sovereign immunity does not merely constitute a defense to monetary liability... it provides an iininunity from suit.") It makes.sense that tribal immunity is irrelevant when anon-indian invokes National FaNmers Zlnion to vindicate his federal rights. Though immunity is generally lost only through abrogation or waiver, it exists only "[a]s a matter of federal law." Kiowa Vibe of Olzla. v. Mfg. Techs., Inc., 523 U.S. 751, 754 (1998). Under National Farmers Union, federal courts are entrusted with policing a federal right to be free from unlawful tribal court interference. The balance of interests thus dictates that, when a nonmember plaintiff brings suit to enjoin the unlawful exercise of tribal-court power, a tribe lacks iininunity to waive. Indeed, since National Farmers Union was decided, not a single Supreme Court decision has even hinted that a tribal waiver is necessary before a federal court can apply federal law to declare that a tribal court's exercise of jurisdiction exceeds federal limits. See, e.g., Nevada v. Hiclzs, 533 U.S. 353, (2001)(suit brought against tribal court; tribal court lacked jurisdiction and e~iaustion was not required); State v. A-1 ContractoNs, 520 U.S. 438, 445 (1997)(suit brought against both a tribal court and tribal judge; tribal court proceedings declared unlawful).

14 Case 5:14-cv HE Document 20 Filed 03/12/15 Page 14 of 28 In sum, Tribal Cout-t Defendants incorrectly presuppose that a waiver of sovereign immunity is required to maintain this National FaNmeNs Union action. That view is incompatible with National Farmers Union itself. This Court has jurisdiction. The Tribal Court does not. Tribal Court Defendants' motion to dismiss must be denied. II. TRIBAL DEFENDANTS' CLAIMS GIVE RISE TO THE EX PARTS YOUNG EXCEPTION TO THE BAR OF SOVEREIGN IMMUNITY. Having asserted sovereign iininunity, Tribal Court Defendants pre-emptively argue that the exception to Ex pante Young, 209 U.S. 123 (1908), which recognizes limited circumstances for federal court review of tribal court cases, does not apply in this litigation. But the Ex pane Young exception unquestionably applies here. The Tenth Circuit Court of Appeals has set out the parameters for application of the Ex parte Young doctrine: The Supreme Court has explained that, in determining whether the doctrine of Ex pane Young applies, "a court need only conduct a straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective." Verizon Md., Inc. v. Pub. Serv. Coinm'n, 535 U.S. 635, 645, 122 S.Ct. 1753, 1.52 L.Ed.2d 871 (2002) (internal quotation marks omitted) (alteration in original); see also Va. Office for Protection & Advocacy v. Stewart, U.S. 131 S.Ct. 1632, , 179 L.Ed.2d 675 (2011) (applying Verizon ); Muscogee (Creek) Nation v. Okla. Tax Comm'n, 611 F.3d 1222, 1232 (lotl' Cir.2010) (same). A prayer for injunctive relief asking "that state officials be restrained from enforcing an order in contravention of controlling federal law" satisfies Verizon's straightforward inquiry. Verizon, 535 U.S. at 645, 122 S.Ct Dunlevy v. Stidham, 640 F.3d 1140, 1155 (10 1 Cir. 2011). Plaintiff has certainly lnet that burden in this case. 10

15 Case 5:14-cv HE Document 20 Filed 03/12/15 Page 15 of 28 A. Plaintiff s Complaint Alleges Ongoing Violation of Federal Law. "[T)he alleged unlawful exercise of tribal court jurisdiction in violation of federal common law is an ongoing violation of "federal law" sufficient to sustain the application of the Ex parte Young doctrine." Crowe, 640 F.3d at Plaintiff's Complaint details (and the statement of Undisputed Jurisdictional Facts offered by Tribal Court Defendants reinforces) the unlawful exercise of tribal court jurisdiction in violation of federal law. The Nation's Supreme Court found in the 2011 Tribal Court Action that "no claim arising under the broker agreements by the Nation against [United Planners] may be adjudicated in the District Court." (Doc. 1-1, p. 10). The 2014 Tribal Court Action attempts to re-litigate the same claims Tribal Court Defendants' protestations notwithstanding. Tribal Court Defendants contend the Ex pate Young exception cannot apply in this case because "the inherent sovereignty of the Sac and Fox Nation requires that the Tribal Court be allowed to rule on substantive issues subject only to appellate review by the Nation's Supreme Court." (Doc. 17, p. 14). So what are the substantive issues to be ruled upon? First, according to Tribal Court Defendants, there is the issue of "an interpretation of a contractual arbitration clause, and whether it is enforceable." (Doc. 17, p. 14). To the extent the 2014 Tribal Court Action requires an interpretation of the contractual arbitration clause, such interpretation has already been rendered by the Nation's Supreme Court. See Doc. 1-1, p. 10 ("This is akin to a forum selection clause that may be agreed upon by any party to an agreement... As stated, the Nation cannot be compelled to 11

16 Case 5:14-cv HE Document 20 Filed 03/12/15 Page 16 of 28 arbitrate its claim with Broker, but, if it chooses to do so, the Nation will have to adjudicate such claims in arbitration, in accordance with the broker agreements.") To the extent the arbitration clause is enforceable, that interpretation has also been rendered by the Nation's Supreme Court. See ~ Doc. 1-1, p. 11 ("the Nation lnay pursue its claims in arbitration if it so chooses to adjudicate its claim against [United Planners], but it may not proceed with its case in the District Court o~ any other court.") (emphasis added). Second, Tribal Court Defendants assert, despite the clear directive from the Nation's Supreme Court that all disputes arising from the agreements must be resolved through arbitration, Tribal Defendants have stated a new claim "namely, that the matter was submitted to arbitration but dismissed under an arbitration rule that allows for subsequent adjudication by a court." (Doc. 17, p. 14) The Nation's Supreme Court, in ordering that the 2011 Tribal Court Action be dismissed, was aware of this matter because it was brought to the Supreme Court's attention by Tribal Defendants. The Nation's Supreme Court stated "We do not speak to any issue of jurisdiction or procedural rule of the arbitration, including whether any statute of limitation precludes the arbitration before [FINRA] or any other arbitrator. Such issues will have to be addressed by any party who seek to address the claims in arbitration, if a party so chooses." (Doc. 1-1, p.10, fn. 13). Finally, Tribal Court Defendants state the dismissal of the arbitration proceedings "allow[s] for subsequent adjudication by a court." (Doc. 17, p. 14). The problem with this assertion is self-evident. FINRA rules cannot confer jurisdiction upon a court assuming an action can be brought, the court would still have to have jurisdiction over the 12

17 Case 5:14-cv HE Document 20 Filed 03/12/15 Page 17 of 28 person and subject matter of the litigation. As discussed in more detail in Section III below, the Tribal Cout-t has neither. Tribal Defendants, according to Tribal Court Defendants, "assert that the Nation's Supreme Court ordered dismissal `without prejudice' thereby authorizing a second suit of the same substantive claim." (Doc. 17, p. 14). Whatever the dismissal without prejudice may or inay not mean, it does not confer jurisdiction to the Tribal Court over Plaintiff. "While the broker agreements do preclude the claims from being adjudicated in a judicial forum, the salve parties to the agreement could very well amend or waive the part of the agreement and consent to have their claims heard in court, assuming jurisdiction exists. We are mindful that, while seeking to have the Nation's claims heard in arbitration, Broker has been participating in the District Court proceedings without special appearance and challenging tribal court jurisdiction; further, Broker has not sought dismissal for lack of jurisdiction or otherwise." (Doc. 1-1, p. 10) (emphasis added) Plaintiff has filed a special appearance and motion to dismiss in the 2014 Tribal Court Action. See (Jurisdictional Fact #20). Plaintiff does not consent to the jurisdiction of the Tribal. Court. Plaintiff only consented to litigate any dispute arising from the agreements in an arbitration proceeding. See (Doc. 1-1, p. 9) ("This is akin to a forum selection clause that may be agreed upon by any party to the agreement...the Nation will have to adjudicate such claims in arbitration, in accordance with the broker agreements. ") B. Plaintiff Seeks Prospective Relief Only. Plaintiff seeks declarative and injunctive relief against Tribal Court Defendants for an alleged unlawful exercise of tribal court jurisdiction. Plaintiff's relief is prospective 13

18 Case 5:14-cv HE Document 20 Filed 03/12/15 Page 18 of 28 only. See e.g. Crowe, 640 F.3d at 1156 (Action falls within the Ex parte Young exception because Plaintiff "seeks prospective relief to enjoin a tribal a tribal official from enforcing an order in contravention of controlling federal law.); Thloptlzlocco TNibal Town v. Stidham, 762 F.3d 1226, 1235 (10th Cir. 2014) ("the relief sought against Judge Stidham involved only prospective relief and `the alleged unlawful exercise of tribal court jurisdiction in violation of federal common law is an ongoing violation of federal law sufficient to sustain the application of the Ex pante Young doctrine. "') Plaintiff seeks relief from Tribal Court Defendants' attempt to assert jurisdiction over it in contravention of federal law. Tribal Court Defendants' motion to dismiss must be denied. III. PLAINTIFF HAS EXHAUSTED ITS TRIBAL COURT REMEDIES. Tribal Court Defendants assert that "Tribal e~iaustion requires that the matter be heard not only in the tribal trial court, but also that it must be pursued through all tribal appellate courts." (Doc. 17, p. 15). By this definition, Plaintiff has e~iausted its tribal court remedies "Indeed, United Planners prevailed before the. Nation's Supreme Court." (Statement of Tribal Court Defendants in their Brief supporting their motion to dismiss.) (Doc. 17, p.17, fn. 5) (emphasis added). Despite this obvious e~iaustion of tribal court remedies in the Nation's Supreme Court, Tribal Court Defendants assert e~austion has not occurred because "the motion {sic}3 currently pending before the Tribal Court involves new zssues that were not present 3 Plaintiff assumes Tribal Court Defendants are referring here to Tribal Defendants' Complaint in the 2014 Tribal Court Action. 14

19 Case 5:14-cv HE Document 20 Filed 03/12/15 Page 19 of 28 in the pnio~^ proceedings and that are based on subsequent events." (Doc. 17, p. 16) (emphasis by Tribal Court Defendants). According to Tribal Court Defendants, the new issues are (1) "whether the inability to arbitrate and the rule cited by the Tribal Defendants allows the new case to proceed in Tribal Court;" (2) "by participating in the [2011 Tribal Court Action], United Planners effectively consented to the jurisdiction of tribal court [in the new, 2014 Tribal Court Action];" and (3) "the tribal court has jurisdiction under federal common law established by Montana [v. United StatesJ, 450 U.S. 544 (1981). None of these issues are "new issues" that withstand the finality of the decision of the Nation's Supreme Court. A. Dismissal of the arbitration proceedings neither confers jurisdiction to the Nation's District Court over the Plaintiff. Tribal Court Defendants assert, on behalf of Tribal Defendants, that FINRA Rule "give [Tribal Defendants] the right to return to court after dismissal" (Doc. 17, p. 16), impliedly conferring jurisdiction to the Tribal Court. Tribal Court Defendants refer to the portion of FINRA Rule 12206(b) which states "[d]ismissal of a claim under this rule does not prohibit a party from pursuing the claim in court." (Jurisdictional Fact #16). However, the remainder of Rule 12206(b) reads "By filing a motion to dismiss a claim under this rule, the movin~party agrees that if the panel dismisses a claim under this rule, the non-movinglpartx inay withdraw any remaining claims without prejudice and may pursue all of the claims in court." (emphasis added). Two facts are evident from the language 12206(b): (1) only the non-moving party may is conferred the right to pursue all claims in court (in this case, Tribal Defendants 15

20 Case 5:14-cv HE Document 20 Filed 03/12/15 Page 20 of 28 were the moving party, Plaintiff was the non-moving party)4, and (2) nowhere does it confer jurisdiction of any court over either party to the arbitration proceedings, i.e. the Tribal Court must have jurisdiction over the subject matter and the person. Neither is present here. The Nation's Supreme Court' has already answered the jurisdictional question: "the Nation may pursue its claims in arbitration if it so chooses to adjudicate its claim against [United Planners], but it may not proceed with its case in the Dzst~ict Court or any other court." (Doc. 1-1, p. 11) (emphasis added). The Nation's Supreme Court has made it abundantly clear that Tribal Court Defendants lack the jurisdiction over Plaintiff for any action arising from the agreements with Tribal Defendants. B. Plaintiff has not consented to the jurisdiction of the Tribal Court Defendants in the 2014 Tribal Court Action. Tribal Court Defendants next argue that "tribal court jurisdiction over United Planners and the subject matter of Tribal Defendants' substantive claims as a general matter was not determined in the prior proceedings." Doc. 17, p. 16. In fact, tribal court 4 While Tribal Court Defendants, on behalf of the Tribal Defendants, focused on FINRA Rule 12206(a) and (b) in requesting the dismissal, Tribal Defendants never did consider F17~]RA Rule 12206(c) which states that the "six-year dine limit on the submission of claims [does not] apply to any claim that is directed to arbitration by a court of competent jurisdiction upon request of a member or associated person." (Doc. 13-1). This provision was not brought to, or considered by, the arbitration panel. While the language might have authorized Tribal Defendants to pursue their claim in arbitration, it is now a moot point because Tribal Defendants solicited, and. received, a dismissal with prejudice of the arbitration claim. 16

21 Case 5:14-cv HE Document 20 Filed 03/12/15 Page 21 of 28 jurisdiction over the Plaintiff was specifically addressed by the Nation's Supreme Court in the 2011 Tribal Court Action and resolved in favor of Plaintiff. First, the Nation's Supreme Court found that the arbitration clause in the agreements between-the parties- was a mandatory forum selection clause, stating: In this case, the Nation has not asserted a plausible argument that; as the party seeking affirmative relief, it should be free to ignore that part of the agreement that requires arbitration to resolve a dispute rather than filing an action in any court, including the Nation's courts. This is akin to a forum selection clause that may be agreed upon by any party to an agreement, including an Indian tribe or tribal entity, without invoking issues of tribal sovereign immunity. As stated, the Nation cannot be compelled to arbitrate its claims with Broker, but, if it chooses to do so, the nation will have to adjudicate such claims in arbitration, in accordance with the broker agreements. (Doc. 1-1, pp. 9-10) (emphasis added) In other words, the Nation's Supreme Court determined that the only mandatory forum in which Plaintiff had consented to the jurisdiction of was arbitration. Forum selection clauses "are prima facie valid and should be enforced." M/S Bremen v. Zapata Off-ShoNe Co., 407 U.S. 1, 10 (1972). See also Milk 'N' More, Inc. v. Beaver t, 963 F.2d 1342, 1346 (10th Cir. 1992); Carnival Guise Lines, Inc. v. Shute, 499 U.S. 585, 595 (1991). "[W]hen venue is specified, such as when the parties designate a particular county or tribunal, and the designation is accompanied by mandatory or obligatory language, a forum selection clause will be enforced as mandatory." Am. Soda LLP v. U.S. Filter Wastewater Gp., Inc., 428 F.3d 921, 927 (10th Cir. 2005). The Nation's Supreme Court made this determination. 17

22 Case 5:14-cv HE Document 20 Filed 03/12/15 Page 22 of 28 Tribal Court Defendants, on behalf of the Tribal Defendants, assert that the 2014 Tribal Court Action raises "new issues". But these "new issues" still arise from the same agreements that were at issue in the 2011 Tribal Court Action. Those agreements still have a mandatory arbitration provision. The agreements have not changed. The only forum to which Plaintiff had consented was arbitration. The Nation's Supreme Court has decided this matter. Plaintiff has e~austed its tribal court remedies on this issue and Tribal Court Defendants' motion to dismiss should be denied. Second, the Nation's Supreme Court, after finding that the agreements contained a mandatory forum selection clause, observed in the 2011 Tribal Court Action that: [t]he District Court did not rule and make any findings of law and fact on whether [United Planners] has effectively consented to tribal court jurisdiction and, by both parties participating in the District Court, the preclusion in the broker agreement against judicial remedies has been waived or tacitly amended to permit adjudication in court. Therefore, that issue is not before us on appeal. (Doc. 1-1, p. 11) (emphasis added). The 2011 Tribal Court Action was dismissed. (Doc. 1-3). There is no "new issue" concerning consent to Tribal Court jurisdiction in the 2014 Tribal Court Action. Plaintiff has not consented to Tribal Court jurisdiction nor waived the arbitration clause in these agreements. See (Jurisdictional Fact #19). Tribal Defendants understood the importance of the 2011 Tribal Court Action dismissal as it related to the argument Tribal Court Defendants are now snaking and attempted to dissuade the Nation's Supreme Court from entering the dismissal order. Irrunediately after the Supreme Court issued its order and judgment, Tribal Defendants 18

23 Case 5:14-cv HE Document 20 Filed 03/12/15 Page 23 of 28 filed a "Motion to Modify ONdeN." (Doc. 18-3). In it, Tribal Defendants asked the Nation's Supreme Court "to modify the third holding, to stay the case, hold it in abeyance, or place it on administrative hold, rather than dismissing it without prejudice." Id. at p. 1. In other words, the Tribal Defendants were imploring the Nation's Supreme Court to do anything but dismiss the action. In denying the motion, the Nation's Supreme Court stated "this Court entered in this case its ONde~ and Judgment holding, among other things, that, per the parties' broker agreements, Appellees [Defendants] may pursue their claims in arbitration if they so choose, but they may not proceed with their claims in the District Court." (Doc. 1-2, p. 1) (emphasis added). The Nation's Supreme Court held in the 2011 Tribal Court Action that the agreements between the parties contained mandatory arbitration provisions. The 2014 Tribal Court Action is based upon the same underlying agreements and, therefore, the only proper forum (with jurisdiction) was arbitration. Plaintiff has e~iausted its tribal court remedies on this issue and Tribal Court Defendants' motion to dismiss should be denied. C. Tribal Court Defendants do not have jurisdiction over Plaintiff in the 2014 Tribal Court Action under the Montana analysis. The relationship between Plaintiff and Tribal Defendants is based upon contract. Tribal Court Defendants cite Montana for the proposition that the Tribal Court can conduct an analysis in the 2014 Tribal Court Action to determine whether it has jurisdiction over the Plaintiff. The Nation's Supreme Court has already ruled on this matter. First, it clearly found that Plaintiff had consented only to arbitration for resolution of any dispute between the parties. Second, it recognized in passing on the 2011 Tribal Court Action that a party fc

24 Case 5:14-cv HE Document 20 Filed 03/12/15 Page 24 of 28 could waive the mandatory forum selection clause, but did not consider the issue in the 2011 Tribal Court Action because Tribal Defendants and Tribal Court Defendants did not raise the issue. The 2011 Tribal Court Action was dismissed. Plaintiff has not consented to the jurisdiction of the Tribal Court as demonstrated by its special appearance and motion to dismiss filed in the 2014 Tribal Court Action. Plaintiff has e~austed its tribal court remedies and Tribal Court Defendants' motion to dismiss must be denied. D. Even if Plaintiff had not Exhausted its Tribal Court Remedies, which it has, this Court Would Have to Apply the Exceptions to the Exhaustion Doctrine. As this Court has held, the "rule of tribal court e~austion is a matter of comity and not jurisdiction." Muhammad v. Comanche Nation Casino, 2010 WL , at * 1 n.2 (W.D. Okla. Oct. 27, 2010) (DeGiusti, J.). See also GeneNal Rock &Sand Corp. v. Chuslza Dev. Copp., 55 F.3d 1491, 1492 (10th Cir. 1995) (stating that dismissal under for lack of subject matter jurisdiction is inappropriate "because the e~austion rule is one of comity and not a jurisdictional limitation"). Moreover, "[a]s a prudential rule based on comity, the e~iaustion rule is not without exception." CNowe & Dunlevy, P.C. v. Stidha~~, 640 F.3d 1140, 1150 (10th Cir. 2011); see also Bu~^~^ell v. A~mijo, 456 F.3d 1159, 1168 (10th Cir. 2006) (listing exceptions to exhaustion rule). Comity does not require tribal e~austion because, it is clear, as determined by the Nation's Supreme Court, that the Nation's District Court does not have jurisdiction to consider the 2014 Tribal Court Action. `B~iaustion is not required if it is clear that the tribal court lacks jurisdiction, such that the e~austion requirement would serve no purpose other than delay." Crowe, 640

25 Case 5:14-cv HE Document 20 Filed 03/12/15 Page 25 of 28 F.3d at 1150 (internal quotations omitted). In Crowe, the Tenth Circuit thoroughly analyzed the tribal court's jurisdiction over the non-tribal member plaintiff, and found it lacking. Id. at Accordingly, in the absence of any compelling argument establishing tribal court jurisdiction, the Court of Appeals held that "the e~austion requirement would serve no purpose, and there is no need to require further tribal court litigation before the exercise of federal jurisdiction in this case." Id. at The same is true here. Despite Tribal Court Defendants' protestations to the contrary, in this case the Nation's Supreme Court has made a final determination concerning its jurisdiction over any action arising from the broker agreements, holding specifically that "any dispute arising under the broker agreements between the parties should be adjudicated in arbitration." Doc. 1, E~ibit 1, pp The Nation's Supreme Court went on to say that "the Nation may pursue its claims in arbitration if it so chooses to adjudicate its claim against [United Planners], but it may not proceed with its case in the District Court or any other' court." Id. at p. 11 (emphasis added). Further, unlike Thlopthlocco, where the Tenth Circuit agreed with the District Court determination that tribal remedies had not been e~austed because the tribal Supreme Court had not reached a final decision over its jurisdiction, in the present case, the Nation's Supreme Court has reached a final decision concerning the jurisdiction of the Nation's District Court to proceed with any action brought by Tribal Defendants. arising from the broker agreements. As a result, tribal e~austion would serve no purpose and therefor does not apply. See CNowe, 640 F.3d at 1153; Sty ate, 520 U.S. at 459; Nevada, 533 U.S. at

26 Case 5:14-cv HE Document 20 Filed 03/12/15 Page 26 of 28 IV. SERVICE OF PROCESS ON TRIBAL COURT DEFENDANTS WAS SUFFICIENT AS A MATTER OF LAW The Tribal Court and Judge Matlock raise insufficient service of process. Rule 4 of the Federal Rules of Civil Procedure set forth the proper service process. As Tribal Court Defendants correctly point out, Federal Rule 4 does not provide a specific exception to the general rule for service of Tribes and Tribal Officials. Rule 4(e)(2)(B) provides that an individual inay be served process by "leaving a copy of [the summons and complaint] at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there." In the case of Judge Matlock, this was done. See (Doc. 6). Rule 4(h)(1) provides for service of process on an entity subject to suit in a coininon name. In the case of the Tribal Court, this was done. See (Doc. 8). Tribal Court Defendants' motion to dismiss for insufficient service of process should be denied. V. CONCLUSION Plaintiff is the only party to this action asserting the finality of a decision entered by the Supreme Court of the Sac and Fox Nation. Having prevailed on the substantive issue of law in the Nation's Supreme Court, Plaintiff is asserting Plaintiff's federal right to be free from unlawful tribal court interference after it has e~austed its tribal court remedies. Vindicating that federal right does not hinge on the tribe's permission (waiver of sovereign immunity): this Court thus has jurisdiction over the subject matter and the parties. In contrast, the Nation's District Court clearly lacks jurisdiction over Plaintiff and the claims advanced in Nation's District Court. See ~ Doc. 1-1, p. 11 ("the Nation 22

27 Case 5:14-cv HE Document 20 Filed 03/12/15 Page 27 of 28 may pursue its claims in arbitration if it so chooses to adjudicate its claim against [United Planners], but it miry notproceed with its case in the District Court or ~rny otlle~ court.") (emphasis added). For these reasons, Tribal Court Defendants' motion to dismiss must be denied. Dated this 12th day of March, Respectfully submitted, By: s/david McCullough Win. David McCullough OBA No Doerner, Saunders, Daniel & Anderson, L.L.P N. Interstate Dr., Ste. 211 Norman, Oklahoma Telephone: (405) Facsimile: (405) dmccullough(a~dsda.com Attorneys fog United PlanneNs Financial Se~^vices ofamej^ica, L.P. 23

28 Case 5:14-cv HE Document 20 Filed 03/12/15 Page 28 of 28 CERTIFICATE OF SERVICE I hereby certify that on March 12, 2015, I electronically transmitted the foregoing document to the Clerk of the U.S. District Court for the Western District of Oklahoma using the ECF System for filing and transmittal of a Notice of Electronic Filing to all ECF registrants. /s/david McCullough William David McCullough v1 24