United States District Court, D. North Dakota
ORDER GRANTING DEFENDANT'S MOTION TO
L. HOVLAND, CHIEF JUDGE
the Court is the Defendant's motion to dismiss the
complaint filed on April 16, 2018. See Docket No. 8.
The Plaintiff filed a response on May 7, 2018. See
Docket No. 12. On May 21, 2018, the Defendant filed a reply
brief. See Docket No. 14. For the reasons set forth
below, the Defendant's motion to dismiss the complaint is
on the parties' diversity of citizenship, Shingobee
Builders, Inc. (Shingobee) brings a breach-of-contract suit
against North Segment Alliance (NSA). See Docket No.
1, pp. 1, 4-7. NSA is a non-profit corporation chartered
under tribal law by the Mandan, Hidatsa, and Arikara Nation
(MHA Nation), a federally recognized Indian tribe.
See Docket No. 10-2, p. 2. Shingobee's contract
claims stem from its work on the construction of an apartment
complex in New Town, North Dakota, located within the
boundaries of the Fort Indian Berthold Reservation.
See Docket No. 1, p. 2.
31, 2015, Shingobee signed a Guaranteed Maximum Price
contract with NSA's predecessor in interest to construct a
“30 unit apartment building and . . . student
housing” known as the Red Hawk Estates Project.
See Docket No. 1, p. 2; Docket No. 9, p. 9; Docket
No. 10-3, p. 2 (capitalization altered). Under the contract,
NSA's predecessor agreed to pay Shingobee for work as the
construction manager and general manager of that project.
See Docket No. 1, p. 2; Docket No. 10-3, p. 2.
March 8, 2017, the Tribal Business Council, the governing
body of the MHA Nation, authorized the formation of NSA as a
tribal non-profit corporation “under the laws of the
Tribe, ” and articles of incorporation were filed that
same day. See Docket No. 10-1, p. 2; Docket No.
10-2, p. 2; Docket 10-6, p. 2. On March 9, 2017, the MHA
Nation dissolved NSA's predecessor and authorized NSA to
“assume all assets and liabilities of [the
predecessor].” See Docket No. 10-6, p. 3.
Shingobee describes that, thereafter, the parties twice
amended the contract, each time enlarging the scope of work.
See Docket No. 1, pp. 1-3. Shingobee asserts that it
has not received payment for work it performed pursuant to
the contract amendments. See Docket No. 1, p. 3.
party invoking federal jurisdiction, Shingobee asserts in its
complaint that the Court has subject matter jurisdiction
because “the action involves citizens of different
states and the amount in controversy exceeds $75, 000.”
See Docket. No. 1, p. 2. Specifically, Shingobee
asserts that it “is a Minnesota corporation” with
a principal place of business in Minnesota and that NSA
should be “deemed a citizen of North Dakota”
because it is a “tribal corporation organized to
conduct business on behalf of the Three Affiliated Tribes of
the Fort Berthold Reservation [in] North Dakota.”
See Docket No. 1, p. 1. Shingobee's complaint
makes no reference to any federal law giving rise to any of
moves under Rule 12(b)(1) to dismiss this diversity action in
its entirety. See Docket No. 8. NSA asserts
that the Court lacks jurisdiction because NSA, as a tribal
entity, (1) is not a citizen of any state and not subject to
diversity jurisdiction and (2) functions as an arm of the
Tribe and is protected by sovereign immunity. See
Docket No. 9, pp. 12, 15.
tribe's immunity from suit and lack of state citizenship
are related but independent bars to subject matter
jurisdiction. See Hagen v. Sisseton-Wahpeton Cmty.
Coll., 205 F.3d 1040, 1043 (8th Cir. 2000) (explaining
that tribal sovereign immunity is jurisdictional). There
appears, however, to be no mandatory sequence in which to
address those issues. See, e.g., Sinochem Int'l
Co. v. Malay. Int'l Shipping Corp., 549 U.S. 422,
430-31 (2007); Ruhrgas AG v. Marathon Oil Co., 526
U.S. 574, 584 (1999). But see Ninigret Dev. Corp. v.
Narragansett Indian Wetuomuck Hous. Auth., 207 F.3d 21,
28 (1st Cir. 2000) (holding that subject matter jurisdiction
must be addressed prior to tribal sovereign immunity).
the Court lacks subject matter jurisdiction, as detailed
below, the Court need not consider whether NSA is immune from
or has consented to suit. See Auto-Owners Ins. Co. v.
Tribal Court of Spirit Lake Indian Reservation, 495 F.3d
1017, 1020 (8th Cir. 2007) (“Even if an Indian tribe
waives its sovereign immunity, such a waiver does not
automatically confer jurisdiction on federal courts.”);
Weeks Const., Inc. v. Oglala Sioux Hous. Auth., 797
F.2d 668, 671 (8th Cir. 1986) (“Mere consent to be
sued, even consent to be sued in a particular court, does not
alone confer jurisdiction upon that court to hear a case if
that court would not otherwise have jurisdiction over the
courts of limited jurisdiction, federal courts possess only
the powers authorized by the Constitution and statute,
referred to as subject matter jurisdiction. Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
“[I]t is to be presumed that a cause lies outside this
limited jurisdiction, and the burden of establishing the
contrary rests upon the party asserting
jurisdiction.'” Dakota, Minn. & E.R.R.
Corp. v. Schieffer, 715 F.3d 712, 712 (8th Cir. 2013)
(internal quotation marks omitted) (quoting
Kokkonen, 511 U.S. at 377). The party invoking
federal jurisdiction must establish subject matter
jurisdiction by a preponderance of the evidence. Moss v.
United States, 895 F.3d 1091, 1097 (8th Cir. 2018).
STANDARD OF REVIEW
12(b)(1) of the Federal Rules of Civil Procedure allows
a party to challenge a federal court's subject matter
jurisdiction at any time in the proceedings. When moving to
dismiss under Rule 12(b)(1), a party “may assert either
a ‘facial' or ‘factual' attack on
jurisdiction.” Moss, 895 F.3d at 1097. A court
must determine whether a 12(b)(1) motion is a facial attack
or a factual attack on jurisdiction. Carlsen v. GameStop,
Inc., 833 F.3d 903, 908 (8th Cir. 2016) (quoting
Osborn v. United States, 918 F.2d 724, 729 n.6 (8th
Cir. 1990)). A facial attack on jurisdiction “is based
on the complaint alone or on undisputed facts in the
record.” Harris v. P.A.M. Transp., Inc., 339
F.3d 635, 637 (8th Cir. 2003).
In a facial attack, the court restricts itself to the face of
the pleadings, and the non-moving party receives the same
protections as it would defending against a motion brought
under Rule 12(b)(6). In a factual attack, the court considers
matters outside the pleadings, and the non-moving party does
not have the benefit of 12(b)(6) safeguards.
Carlsen, 833 F.3d at 908 (footnote added) (citation
and internal quotation marks omitted) (quoting
Osborn, 918 F.2d at 729 n.6). Considering
“matters outside the pleadings when subject matter
jurisdiction is challenged under Rule 12(b)(1)” does
not “convert the 12(b)(1) motion to one for summary
judgment.” Harris, 339 F.3d at 637 n.4
(internal quotation marks omitted) (quoting Osborn,
918 F.2d at 729 n.6).
motion to dismiss is a facial attack on jurisdiction because
it is based on the complaint and undisputed facts in the
record. Shingobee neither challenges any evidence submitted
by NSA nor has submitted any evidence of its own. The parties
disagree not about the facts but rather the legal import of
those facts. See Docket. No. 12, p. 5 (identifying
NSA's “citizenship” as “the core of the
dispute”). Shingobee agrees that NSA “is a tribal
corporation organized to conduct business on behalf of [the
MHA Nation]” but disagrees that such a corporation is
free from citizenship in the state in which it has its
principal place of business. See Docket No. 1, p. 1
(“As such [a corporation], ” NSA should be
“deemed a citizen of North Dakota.”); Docket No.
12, p. 4 (“[NSA] appears to rely on an argument that it
is an extension of the Tribe, rather than a separate
corporation, to support a conclusion that this Court does not
have subject matter jurisdiction over this dispute. This
is an incorrect interpretation of the law.”
NSA's jurisdictional attack is facial, the Court views
the complaint in the light most favorable to Shingobee and
accepts as true the facts alleged therein. See Hamm v.
Groose, 15 F.3d 110, 112 (8th Cir. 1994).
28 U.S.C. § 1332(a)(1), “[a] federal court has
original jurisdiction over a civil action if the parties are
of diverse state citizenship and the courts of the state in
which the federal court sits can entertain the suit.”
Auto-Owners, 495 F.3d at 1020 (internal quotation
marks omitted) (quoting Weeks, 797 F.2d at 672). For
the parties to be of diverse state citizenship, there must be
complete diversity between opposing parties, meaning that no
defendant may be a citizen of a state of which a plaintiff
also holds citizenship. Junk v. Terminix Intern.
Co., 629 F.3d 439, 445 (8th Cir. 2010).
particular question of whether a court has diversity
jurisdiction over a tribal corporation brings together
two divergent legal standards-the standard for determining a
corporation's citizenship and the standard for
determining a tribe's citizenship. A corporation is
“deemed to be a citizen of every State and foreign
State by which it has been incorporated and of the State or
foreign State where it has its principal place of
business.” 28 U.S.C. § 1332(c)(1).
tribe “is not a citizen of any state and cannot sue or
be sued in federal court under diversity jurisdiction.”
Auto-Owners, 495 F.3d at 1020 (internal quotation
marks omitted) (quoting Standing Rock Sioux Indian Tribe
v. Dorgan, 505 F.2d 1135, 1140 (8th Cir. 1974));
accordGaming World Int'l v. White Earth
Band of Chippewa Indians, 317 F.3d 840, 847 (8th Cir.
2003) (“Diversity jurisdiction is not available here
under 28 ...