Stock West Corporation, an Oregon Corporation v. Michael Taylor

964 F.2d 912 STOCK WEST CORPORATION, an Oregon corporation, Plaintiff-Appellant, v. Michael TAYLOR, Defendant-Appellee. No. 90-35201. United States Court of Appeals, Ninth Circuit. Argued and Submitted En Banc March 19, 1992. Decided May 18, 1992. Barbee B. Lyon, Tonken, Torp, Galen, Marmaduke & Booth, Portland, Or., for plaintiff-appellant. Alan C. Stay, Colville Confederated Tribes, Nespelem, Wash., for defendant-appellee. Appeal from the United States District Court for the District of Oregon. Before: WALLACE, Chief Judge, and PREGERSON, ALARCON, D.W. NELSON, HALL, THOMPSON, O'SCANNLAIN, LEAVY, TROTT, FERNANDEZ, and T.G. NELSON, Circuit Judges. ALARCON, Circuit Judge: 1 Stock West Corporation ("Stock West") appeals from the dismissal of this action by the district court for lack of jurisdiction and because the claims are barred by tribal sovereign immunity. We affirm the dismissal of this action because we conclude that the district court did not abuse its discretion in abstaining from the exercise of its jurisdiction in this matter pending the presentation of Stock West's claim to the Colville Tribal Court. We vacate that portion of the judgment holding that Michael Taylor…

dissenting:

Because the majority improvidently extends the National Farmers Union-LaPlante abstention doctrine far beyond the scope intended by the Supreme Court, and because the record is inadequate to determine whether defendant Taylor’s actions fall within the scope of tribal immunity, I respectfully dissent.

I

A

Talismanic invocation of tribal court jurisdiction is surely insufficient to mandate federal court abstention. Yet that is all that is present here. This is a tort action for alleged malpractice committed in Portland, Oregon. Neither party to this litigation is a member of the Colville Tribes, nor is even Native American. Indeed, the only connection to an Indian tribe is that the alleged tortfeasor, Taylor, was employed by a tribal corporation and was in Portland on his client’s business when he allegedly committed the tort. The majority would close the door to the federal court whenever a suit had any connection to a tribe, no matter how removed or remote. I simply cannot read National Farmers Union and LaPlante so expansively as to require federal court abstention in this situation.

There are two fundamentals of this case that the majority seems unwilling to…

Stock West Corporation (“Stock West”) appeals from the dismissal of this action by the district court for lack of jurisdiction and because the claims are barred by tribal sovereign immunity. We affirm the dismissal of this action because we conclude that the district court did not abuse its *914 discretion in abstaining from the exercise of its jurisdiction in this matter pending the presentation of Stock West’s claim to the Colville Tribal Court. We vacate that portion of the judgment holding that Michael Taylor was protected by sovereign immunity for his conduct as Reservation Attorney for the Confederated Tribes of the Colville Reservation (“Colville Tribes”).

I.

Procedural and Factual Background

Before analyzing the legal questions presented in this appeal, we must set forth the genesis of this prolonged and multifaceted dispute in some detail. In 1983, James F. Stock was invited to the reservation by the Colville Tribes to discuss the construction of a sawmill on tribal lands. Mr. Stock agreed that he would prepare a design and a marketing plan for a tribal sawmill. A document entitled “Professional Services Agreement” was signed by Mr. Stock and a representative of the…