United States District Court, D. North Dakota
J.C. Johnson, and Diamond Willow, LLC, Plaintiffs,
Randy Phelan, John Doe I thru VI, Mark Fox, Fred Fox, and Monica Mayer, M.D., Defendants.
ORDER OF DISMISSAL WITHOUT PREJUDICE
L. Hovland, District Judge
the Court is the Plaintiffs' “Motion for Emergency
Temporary Restraining Order Without Notice” filed on
August 26, 2019. See Docket No. 6. The Plaintiffs
seeks a temporary restraining order pursuant to Rule 65(b) of
the Federal Rules of Civil Procedure, specifically requesting
an order prohibiting the Defendants from interfering with the
Plaintiffs' business operations located on the Fort
Berthold Indian Reservation and the State of North Dakota.
Johnson, individually, and Diamond Willow, LLC
(“Diamond Willow”) initiated this action on June
11, 2019, by filing a complaint in federal court against
Randy Phelan and John Does I through VI. See Doc.
No. 1. The Plaintiffs filed an amended complaint on August
26, 2019. See Doc. No. 4. In the amended complaint,
the Plaintiffs added Mark Fox, Fred Fox, and Monica Mayer,
M.D., as Defendants. The Plaintiffs allege the individually
named Defendants, as members of the Three Affiliated Tribes
Tribal Council, have interfered with Johnson's operation
of Diamond Willow “in an effort to shut down Diamond
Willow.” On August 16, 2019, the Tribal Business
Council took Executive Action to stay the renewal of Diamond
Willow's business license “until such time as the
IBA responds to the trespass inquiry and completes its
investigation, and directs the TERO Commission to take action
consistent with this [Executive Action].” See
Doc. No. 4-3. The Office of Chairman Mark Fox distributed the
Executive Action to certain oil and gas companies on August
22, 2019. Prior to the issuance of the Executive Action,
Diamond Willow conducted operations on the Fort Berthold
Indian Reservation though a business license with the Tribal
Employment Rights Office (“TERO”) of the Three
Affiliated Tribes. See Doc. No. 4, p. 5.
Plaintiffs allege five (5) causes of action in their
complaint: (1) tortious interference with contract, (2)
conspiracy, (3) declaratory relief, (4) injunctive relief,
and (5) intentional infliction of emotional distress.
However, the Plaintiffs allege this action “involves
federal Indian preference law and federal mineral leases that
mandate Indian preference in employment on Indian/federal
trust lands, and more specifically to allotted lands held in
trust by the United States for individual Plaintiffs.”
Id. at 3.
Plaintiffs filed the motion for temporary restraining order
on August 26, 2019. That same day, Defendant Randy Phelan
filed a motion to dismiss the original complaint for lack of
jurisdiction. See Doc. No. 8. The Defendants filed a
response to the motion for temporary restraining order on
August 27, 2019. See Doc. No. 11.
the Court may address a motion for preliminary injunction,
the Court must be satisfied it has jurisdiction over the
matter. “Federal courts are courts of limited
jurisdiction.” Myers v. Richland County, 429
F.3d 740, 745 (8th Cir. 2005) (quoting Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994)). The burden of establishing a federal court's
jurisdiction rests upon the party asserting jurisdiction.
Kokkonen, 511 U.S. at 377. Jurisdictional issues may
be raised sua sponte by a federal court when there
is an indication that jurisdiction is lacking. Krein v.
Norris, 250 F.3d 1184, 1187 (8th Cir. 2001) (citing
Thomas v. Basham, 931 F.2d 521, 522 (8th Cir. 1991))
Plaintiffs allege this Court's jurisdiction arises
pursuant to 28 U.S.C. § 1331. See Doc. No. 4,
p. 3. Section 1331 provides that “district courts shall
have original jurisdiction of all civil actions arising under
the Constitution, laws, or treaties of the United
States.” 28 U.S.C. § 1331. Consequently, pursuant
to Rule 8(a)(1) of the Federal Rules of Civil Procedure, the
Plaintiffs are required to plead a “short and plain
statement of the grounds for the court's [subject matter]
jurisdiction . . . .” Fed.R.Civ.P. 8(a)(1). The
Plaintiffs allege this Court has subject matter jurisdiction
“because the action involves federal Indian preference
law and federal mineral leases that mandate Indian preference
in employment on Indian/federal trust lands, and more
specifically to allotted lands held in trust by the United
States for individual Plaintiffs.” See Doc.
No. 4, p. 3.
claims asserted against the Defendants in the amended
complaint consist of (1) tortious interference with contract,
(2) conspiracy, (3) declaratory relief, (4) injunctive
relief, and (5) intentional infliction of emotional distress.
The Plaintiffs' causes of action arise exclusively from
the actions of the Tribal Business Council's staying the
renewal of Diamond Willow's business license by Executive
Action, and Chairman Fox's communication of such stayed
renewal to oil and gas companies. Those actions of the Tribal
Business Council are certainly troubling and suspect. The
Plaintiffs couch their claims as arising under federal law;
however, a review of the allegations in the complaint
unquestionably reveals the claims asserted do not arise under
the Constitution, laws, or treaties of the United States.
See 28 U.S.C. § 1331. The mere reference in the
complaint to “federal Indian preference law” and
“federal mineral leases, ” or “federal
trust lands” is insufficient to trigger federal
question jurisdiction. The Plaintiffs have failed to meet
their burden to establish this Court's subject matter
jurisdiction over this action. Consequently, the Court finds
it lacks jurisdiction over the case and it must be
Court has thoroughly reviewed the record and finds the Court
lacks jurisdiction over the case. Consequently, the Court
ORDERS Plaintiffs' amended complaint
(Doc. No. 4) against the Defendants be DISMISSED
WITHOUT PREJUDICE. This case involves common law
tort claims and remedies that can be, and need to be,
addressed in tribal court.