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Big Horn County Electric Cooperative, Inc. v. Big Man

United States District Court, D. Montana, Billings Division

December 13, 2019

ALDEN BIG MAN, et al, Defendants.



         Before the Court is Defendants' motion for judgment on the pleadings with respect to Defendants Unknown Members of the Crow Tribal Health Board (“the Board or Board Members”). (Doc. 78.) Plaintiff Big Horn County Electric Cooperative, Inc. (“BHCEC”), has filed a response and Defendants replied. (Docs. 80 & 81.) Having considered the parties' submissions, the Court RECOMMENDS Defendants' motion be DENIED.


         In considering a motion for judgment on the pleadings, pursuant to Fed.R.Civ.P. 12(c), the Court accepts all factual allegations in the complaint as true and construes them in the non-movant's favor. Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). The Court may also consider materials attached to the complaint and documents incorporated by reference in the complaint. Fed.R.Civ.P. 10(c); United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003); Harris v. Amgen, Inc., 788 F.3d 916, 934 (9th Cir. 2015), cert. granted, judgment rev'd on other grounds, 136 S.Ct. 758, 193 L.Ed.2d 696 (2016). The following is a summary of the allegations and attachments of BHCEC's complaint.

         Defendant Alden Big Man (“Big Man”) is an enrolled member of the Crow Tribe and received electrical energy and service on the Crow Reservation from BHCEC, pursuant to a membership agreement with the cooperative. Big Man became delinquent on his account with BHCEC in January 2012. (Doc. 1 at 7, ¶ 15.) BHCEC gave Big Man termination notice on January 11, 2012, and again on January 24, 2012; the latter of which notified that service would be disconnected within 24 hours. (Docs. 1-2 at 5; 1-8 at 6.) BHCEC disconnected service on January 26, 2019. (Docs. 1 at 7, ¶ 15; 1-8 at 2, ¶ 5, and at 5.)

         Big Man subsequently initiated a lawsuit in May 2012 against BHCEC in Crow Tribal Court under Title 20 of the Crow Law and Order Code. Title 20, Chapter 1 of the code relates to “Termination of Electric Service.” (Doc. 1-3 at 1.) Particularly relevant to this case, § 20-1-110 of the code restricts the termination of electrical service during winter months and provides “[n]o termination of service may take place during the period of November 1st to April 1st except with specific prior approval of the Board.” (Id. at 8.) The chapter further provides for certain authority for the Board to implement and enforce the provisions of the code. Section 20-1-119(1), for example, provides that the Board is authorized to adopt rules to implement the chapter. (Id. at 11.) Decisions of the Board are reviewable in Crow Tribal Court, although § 20-1-120 directs that “[t]he Court shall affirm the decision of the Board if it is supported by substantial evidence and within the discretion of the Board.” (Id. at 11.)

         Big Man sought relief under § 20-1-120(2) of the code, which allows for maximum statutory damages of “twice the amount of a delinquent bill or other charge sought to be collected, ” or here, $992.94. (Docs. 1-2 at 3; 1-3 at 11.) The provision also bars utilities from collecting charges due at the time of the code violation. (Doc. 1-3 at 11.) Thus, not only would BHCEC be foreclosed from recovering the original past due amount but also be liable for double its value.

         The Crow Tribal Court dismissed the lawsuit for lack of jurisdiction. (Doc. 1 at ¶¶ 1, 20; Doc. 1-7 at 9.) Big Man appealed to the Crow Court of Appeals, which reversed and remanded, holding the Crow Tribal Court has subject matter jurisdiction. (Docs. 1 at ¶¶ 1, 21; 1-4 at 1; 1-5 at 16.)

         BHCEC subsequently filed the instant suit seeking a declaratory judgment that the Crow Tribal Court lacks subject matter and personal jurisdiction over BHCEC, and seeking an injunction prohibiting the Crow Tribe from attempting to regulate BHCEC's actions through Title 20 of the Crow Law and Order Code and Big Man's lawsuit in Tribal Court. (Doc. 1 at ¶¶ 32-44.) BHCEC names the Board Members as defendants, and alleges they purport to have regulatory authority over BHCEC pursuant to Title 20 of the code. (Id. at ¶ 5.)

         Defendants' now move for judgment on the pleadings to dismiss BHCEC's claims against the Board. Defendants assert that the Board and its members are protected by the Crow Tribe's sovereign immunity, and BHCEC has not alleged an effective waiver of sovereign immunity permitting this suit against the Board Members.


         Defendants have moved the Court for judgment on the pleadings, pursuant to Fed.R.Civ.P. 12(c).[1] Rule 12(c) provides that “[a]fter the pleadings are closed - but early enough not to delay trial - a party may move for judgment on the pleadings.” A Rule 12(c) motion is “functionally identical” to a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted. Cafasso, U.S. ex rel. v. General Dynamics C4 Systems, Inc., 637 F.3d 1047, 1054 n.4 (9th Cir. 2011). Thus, the same legal standard “applies to motions brought under either rule.” Id.

         “Dismissal under Rule 12(b)(6) is proper only when the complaint either (1) lacks a cognizable legal theory or (2) fails to allege sufficient facts to support a cognizable legal theory.” Zixiang Li v. Kerry, 710 F.3d 995, 999 (9th Cir. 2013) (quoting Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008)). The Court's standard of review under Rule 12(b)(6) is informed by Rule 8(a)(2), which requires that a pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 677-678 (2009) (quoting Fed. R. Civ. P 8(a)).


         Defendants argue that BHCEC's complaint is facially insufficient to invoke the Court's jurisdiction over the Board because the complaint does not allege a waiver of sovereign immunity. (Doc. 79 at 10.) Defendants assert that the Board is an arm of the Crow Tribe; thus, the Board Defendants are officials of the Crow Tribe afforded the protections of sovereign immunity. (Id. at 13.) Defendants maintain that without an allegation that the claims are brought under federal law that abrogates tribal immunity, or pursuant to a waiver of sovereign ...

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