Rhonda Fred v. Washoe Tribe of Nevada and Cal

MEMORANDUM

This is an interlocutory appeal asserting jurisdiction in this court under the collat eral order doctrine. The underlying claims relate to the Washoe Tribe’s decision to take custody of the plaintiffs grandchildren due to allegations of abuse by the grandchildren’s mother (the plaintiffs daughter). After pursuing tribal remedies, the grandmother, Ms. Fred, filed suit against the Tribe in federal district court. The district court dismissed for failure to state a claim with leave to amend. The Tribe appeals the district court’s dismissal in its favor because the dismissal was without prejudice, arguing that the complaint should have been dismissed with prejudice for three reasons: 1) failure to exhaust tribal court remedies; 2) tribal sovereign immunity; and 3) lack of subject matter jurisdiction.

We note at the outset that the appellant has standing to appeal and the appeal is not moot. While a party generally cannot appeal a favorable ruling, Clapp v. C.I.R., 875 F.2d 1396, 1398 (9th Cir. 1989), where a party sought a dismissal with prejudice and the court granted a dismissal without prejudice, there is sufficient injury for appellate standing. See Farmer v. McDaniel…