Robert C. BONNET, an individual; Bobby Bonnet Land Services, a sole proprietorship, Plaintiffs/Counterclaim-Defendants-Appellees,
HARVEST (U.S.) HOLDINGS, INC., a Delaware corporation; Branta Exploration & Production, LLC, a Delaware limited liability company; Elton Blackhair, an individual, Defendants/Counterclaim-Plaintiffs, and Ute Energy LLC, a Delaware limited company; Cameron Cuch, an individual, Defendants. Ute Indian Tribe of the Uintah and Ouray Reservation, Non-Party Movant-Appellant,
Frances C. Bassett (Thomas W. Fredericks, Jeremy J. Patterson, and Thomas McReynolds with her on the brief), Fredericks Peebles & Morgan LLP, Louisville, CO, for Non-Party Movant-Appellant.
Zachary E. Peterson (argued) (Lynn S. Davies and Rafael A. Seminario on the brief), Richards Brandt Miller Nelson, Salt Lake City, UT, for Plaintiffs-Appellees.
Before GORSUCH, BALDOCK, and BACHARACH, Circuit Judges.
BALDOCK, Circuit Judge.
The issue before us is whether a subpoena duces tecum served on a non-party Tribe and seeking documents relevant to a civil suit in federal court is itself a " suit" against the Tribe triggering tribal sovereign immunity. Exercising jurisdiction under 28 U.S.C. § 1291, pursuant to the collateral order doctrine, we hold the answer is yes. We therefore reverse the district court's denial of the Tribe's motion to quash based on tribal immunity.
Plaintiff Robert Bonnet is a petroleum landman who conducts business through his sole proprietorship, Bobby Bonnet Land Services; also a Plaintiff. In 2008, Plaintiffs entered into a written contract with the Energy and Minerals Department of the Ute Indian Tribe of the Uintah and Ouray Reservation to serve collectively as an independent contractor and consultant. When the Tribe terminated this contract in April 2009, Plaintiffs, on the basis of diversity jurisdiction, sued various companies and individuals (but not the Tribe) in federal court, alleging these defendants caused the Tribe to terminate this contract prematurely. Plaintiffs served the Tribe
with a non-party subpoena duces tecum requesting documents relevant to their suit. The Tribe moved to quash the subpoena based on the doctrine of tribal sovereign immunity. The district court denied the Tribe's motion to quash based on tribal immunity, but modified the subpoena to limit or strike requests it deemed overbroad. Bonnet v. Harvest (US) Holdings, Inc., 2012 WL 994403, at *1 (D.Utah Mar. 23, 2012) (unpublished). The Tribe now appeals.
In Part II of our opinion, we address whether the Tribe, as a non-party, can appeal the district court's denial of its motion to quash based on tribal immunity, notwithstanding lack of a final judgment. We hold such denial is an immediately appealable collateral order. In Part III, we address whether a subpoena duces tecum served on the Tribe and requesting documents relevant to the underlying civil suit in federal court is itself a " suit" against the Tribe triggering tribal sovereign immunity. We hold this form of judicial process is a " suit" against the Tribe and therefore tribal immunity bars enforcement of the instant subpoena.
Our appellate jurisdiction depends on whether the district court's denial of the Tribe's motion to quash the subpoena based on tribal sovereign immunity is an immediately appealable order notwithstanding lack of a final judgment. The denial of a motion to quash is generally a non-appealable interlocutory order. United States v. Ryan, 402 U.S. 530, 532, 91 S.Ct. 1580, 29 L.Ed.2d 85 (1971). Under the collateral order doctrine established in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), however, an order is immediately appealable if the order (1) conclusively determines the disputed question, (2) resolves an important issue completely separate from the merits of the case, and (3) is effectively unreviewable on appeal from a final judgment. See United States v. Leon, 132 F.3d 583, 587 (10th Cir.1997). We have recognized that " the denial of tribal immunity is an immediately appealable collateral order." See, e.g., Osage Tribal Council ex rel. Osage Tribe v. U.S. Dep't of Labor, 187 F.3d 1174, 1179 (10th Cir.1999). In Osage, we held an order denying tribal immunity meets the Cohen requirements for an immediately appealable collateral order because (1) the order conclusively determines the disputed question of tribal immunity, (2) tribal immunity is an important issue completely separate from the merits of the case, and most importantly, (3) the denial of tribal immunity is effectively unreviewable on appeal from a final judgment because tribal immunity is " ‘ an immunity from suit rather than merely a defense to liability,’ " which is " ‘ effectively lost’ " if the case is allowed to proceed. Id. (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)).
Osage and its progeny, however, involve cases where the tribe was a named party to the litigation. " [A] nonparty must independently satisfy our criteria for permitting a nonparty appeal." Bode v. Clark Equip. Co., 807 F.2d 879, 881 (10th Cir.1986) (citing Dietrich Corp. v. King Resources Co., 596 F.2d 422, 424 (10th Cir.1979)). In Bode, we held we lacked appellate jurisdiction over a non-party's appeal from an apportionment order because the apportionment order was neither a final order nor did it satisfy the requirements of an immediately appealable collateral order under Cohen. Id. By comparison, in Dietrich, we held a law ...