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Dish Network Service LLC v. Brian Laducer and Hon. Madonna Marcellais

July 9, 2012

DISH NETWORK SERVICE LLC, PLAINTIFF,
v.
BRIAN LADUCER AND HON. MADONNA MARCELLAIS, IN HER OFFICIAL CAPACITY AS CHIEF JUDGE OF THE TURTLE MOUNTAIN BAND OF CHIPPEWA INDIANS TRIBAL COURT, AND PRESIDING JUDGE IN BRIAN LADUCER
v.
DISH NETWORK LLC,
DEFENDANTS.



The opinion of the court was delivered by: Daniel L. Hovland, District Judge United States District Court

ORDER DENYING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

Before the Court is the plaintiff Dish Network Service LLC ("Dish Network")'s "Motion for Preliminary Injunction and Expedited Hearing," filed on June 29, 2012. See Docket No. 11. For the reasons explained below, the motion is denied.

I. BACKGROUND

Defendant Brian Laducer is an enrolled member of the Turtle Mountain Band of Chippewa Indians and resides on the Turtle Mountain Indian Reservation in North Dakota. Dish Network provided television services to Brian Laducer at his home on the reservation. Dish Network subscribers are required to provide a credit card number. Brian Laducer provided the number of a credit card owned by his daughter, Lacey Laducer. Brian Laducer subsequently failed to pay Dish Network for their services and failed to return the equipment that Dish Network had installed. Dish Network then charged the credit card provided by Brian Laducer, which belonged to Lacey Laducer.

On April 21, 2009, Lacey Laducer filed a complaint against Dish Network in North Dakota state district court in Rollette County, North Dakota. See Case No. 4:09-cv-052, Docket No. 1-3. Lacey Laducer's complaint included two causes of action: conversion and consumer fraud. Dish Network removed the case to federal district court on August 21, 2009. See Case No. 4:09-cv-052, Docket No. 1. On September 1, 2009, Dish Network filed a third-party complaint against Brian Laducer in federal district court which included four causes of action: conversion, breach of contract, fraud, and implied indemnification. See Case No. 4:09-cv-052, Docket No. 4. On September 16, 2009, Lacey Laducer filed a motion to remand the case back to state district court. See Case No. 4:09-cv-052, Docket No. 6. On September 23, 2009, Brian Laducer filed a summons and complaint against Dish Network in Turtle Mountain Tribal Court. See Docket No. 1-1. On January 21, 2010, Dish Network filed a motion for default judgment against Brian Laducer on the third-party complaint. See Case No. 4:09-cv-052, Docket No. 11. On February 2, 2010, Brian Laducer filed a motion to dismiss the third-party complaint. See Case No. 4:09-cv-052, Docket No. 14. On March 8, 2010, this Court remanded the case back to the state district court and denied the motions for default judgment and to dismiss the third-party complaint as moot. See Case No. 4:09-cv-052, Docket No. 22.

On August 10, 2010, the state district court granted Dish Network's motion to join Brian Laducer as a third-party defendant. See Docket No. 1-2. Brian Laducer subsequently filed a motion for summary judgment on Dish Network's third-party complaint. On January 12, 2011, the state district court denied Brian Laducer's motion. See Docket No. 1-4. On September 13, 2011, the state district court determined it did not have jurisdiction and dismissed Lacey Laducer's complaint and Dish Network's third-party complaint. See Docket No. 1-5.

On October 26, 2011, the Tribal Court held a hearing on Dish Network's motion to dismiss Brian Laducer's complaint. On October 28, 2011, Tribal Court Judge Madonna Marcellais issued an order denying Dish Network's motion, stating:

THAT, this Court decides the prevailing argument is under the first Montana exception which allows tribal jurisdiction over non-members when they enter into consensual relationships with the tribe or its members.

IT IS THE ORDER OF THIS COURT that the Defendant's Motion to Dismiss for lack of subject matter jurisdiction over this abuse of process claim is hereby DENIED.

See Docket No. 1-6.

Dish Network appealed the Tribal Court's decision to the Turtle Mountain Tribal Court of Appeals. On February 7, 2012, the Tribal Court of Appeals dismissed Dish Network's petition. See Docket No. 1-7. The Tribal Court of Appeals stated:

Dish Network has petitioned this Court for review of a decision of the lower court sustaining its jurisdiction over an abuse of process suit filed by Mr. Laducer against Dish Network. The Court has reviewed the matter and finds that although it has discretion to hear the matter at this time a full development of the record after trial would better aid the Court in determining the lower court's jurisdiction.

See Docket No. 1-7. A trial in the Turtle Mountain Tribal Court is currently scheduled to commence on August 28, 2012.

On May 18, 2012, Dish Network filed a complaint in federal district court against Brian Laducer and Judge Marcellais. See Docket No. 1. ...


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