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Koniag, Inc., An Alaska Corporation, and Michael P. O'connell v. Kurt Kanam

July 3, 2012

KONIAG, INC., AN ALASKA CORPORATION, AND MICHAEL P. O'CONNELL, AN INDIVIDUAL, PLAINTIFFS,
v.
KURT KANAM, INDIVIDUALLY AND AS TRIBAL ATTORNEY FOR THE NATIVE VILLAGE OF KARLUK, AND ORBIE MULLINS, INDIVIDUALLY AND AS VILLAGE OF KARLUK TRIBAL COURT JUDGE FOR THE KARLUK TRIBAL COURT FOR THE NATIVE VILLAGE OF KARLUK, DEFENDANTS.



The opinion of the court was delivered by: Sharon L. Gleason United States District Judge

DECISION AND ORDER GRANTING PRELIMINARY INJUNCTION

Koniag, Inc. instituted this action on April 9, 2012.*fn1 That same day, Koniag filed a Motion for a Temporary Restraining Order and Preliminary Injunction.*fn2 Koniag seeks an order that would enjoin the tribal attorney and judge of the Karluk Tribal Court from proceeding in the tribal court against Koniag and from attempting or threatening to record or enforce any order or judgment of the Karluk Tribal Court against Koniag. Koniag appended to its motion a number of Karluk Tribal Court documents, including a document entitled Original Complaint for Declaratory Judgment that was filed in the Karluk Tribal Court case entitled The Native Village of Karluk, Plaintiff, v. Koniag Corporation, Defendant, Cause No. 3-19-12-1.*fn3 In that case, the Native Village of Karluk seeks an order from the tribal court that its voting members be "de-merged" from the Koniag Corporation. The Native Village of Karluk maintains that it is entitled to "the same awards as the other parties who were fraudulently misled" by the Koniag Corporation in a 1984 state court proceeding.*fn4

On April 11, 2012, this court entered an order denying Koniag's request for a temporary restraining order.*fn5 This court found then that Koniag had not demonstrated that any harm it may incur if the tribal court were to exceed its jurisdiction "is of such a degree and immediacy so as to warrant the entry of a temporary restraining order."*fn6

And this court expressly noted that Koniag could elect to enter a special appearance in the tribal court solely to contest that court's jurisdiction.*fn7

Later that same day, on April 11, 2012, Koniag filed an Amended Complaint that added Michael P. O'Connell as a plaintiff.*fn8 Mr. O'Connell is an attorney at the law firm that represents Koniag.*fn9 Mr. O'Connell was added as a plaintiff in this case based on allegations that on April 9, 2012, the Native Village of Karluk had filed a second lawsuit in the Karluk Tribal Court. Mr. O'Connell was named as a defendant in that case, along with a number of state bar associations.*fn10 In that second tribal court action, the Native Village of Karluk seeks a declaration that an April 5, 2012 letter that Mr. O'Connell wrote to Judge Orbie Mullins of the Karluk Tribal Court constituted the "intentional intimidation of a judge."*fn11

On April 17, 2012, the plaintiffs filed a Second Motion for Preliminary Injunction in this case.*fn12 The motion sought to obtain the same preliminary injunctive relief for Mr. O'Connell as Koniag had sought in its initial Motion for Preliminary Injunction. Among the attachments to that motion was a copy of a special limited entry of appearance by attorney Stephen Kelly in the Karluk Tribal Court on behalf of Koniag, and a motion to dismiss the tribal court case filed by Koniag.*fn13 Mr. Kelly is another attorney at the firm that represents Koniag in this action.

On April 25, 2012, Judge Mullins filed a response to the plaintiffs' motions in this court and a Motion for Enlargement of Time.*fn14 He maintained that Koniag had consented to the tribal court's jurisdiction since it had entered an appearance in the tribal court with the motion to dismiss that it had filed there.*fn15 And he asserted that Mr. O'Connell's letter to the tribe resulted in conferring tribal court jurisdiction over him.*fn16

Finally, Judge Mullins requested that this federal case be deferred pending the tribal court's determinations in The Native Village of Karluk, Plaintiff, v. Koniag Corporation, Defendant.*fn17 Included in the attachments to Judge Mullins' filing is an order from the tribal court dated April 17, 2012 that accords to the Native Village of Karluk an unspecified amount of time within which it may respond to the motion to dismiss that Koniag had filed in that tribal court case.*fn18

On May 3, 2012, the plaintiffs in this action filed their reply to Judge Mullins' opposition to the plaintiffs' motions for injunctive relief, as well as their opposition to Judge Mullins' motion for an extension of time.*fn19 The plaintiffs noted that Judge Mullins' motion was in effect a request to stay this court's proceedings until the tribal court proceedings were concluded. The plaintiffs asserted that request should be denied because "there is no possible basis for Tribal Court jurisdiction over non-members Koniag and O'Connell."*fn20 Included with this filing were copies of a motion for special and limited appearance and a motion to dismiss for lack of jurisdiction that attorney Stephen Kelly had filed on April 26, 2012 in the second tribal court case, The Native Village of Karluk v. Michael P. O'Connell, et al., Cause No. 4-09-12-1,on behalf of Mr. O'Connell.*fn21

On May 21, 2012, defendant Kurt Kanam filed a response to the plaintiffs' motions for injunctive relief in this action, together with an affidavit in support of a motion for dismissal.*fn22 Mr. Kanam asserted that this federal action should be dismissed because the concerns that Koniag and Mr. O'Connell had raised about the tribal court proceedings had now been addressed through a First Amended Complaint that the Native Village of Karluk Corporation had filed in the tribal court.*fn23 Mr. Kanam indicated that the First Amended Complaint in the tribal court case lists all of the voting shareholders of the Native Village of Karluk Corporation as plaintiffs.*fn24 And he asserted that Koniag had entered into a consensual relationship with Karluk, referring to 1980 Articles of Merger that he appended to his filing.*fn25 Mr. Kanam also asserted that Mr. "O'Connell is not under any indictment or subject to any sanctions from the Native Village of Karluk tribal court," such that Mr. O'Connell's federal claims should also be dismissed.*fn26 Mr. Kanam included copies of two orders issued by the Karluk Tribal Court dated May 14, 2012, one in each of the two pending actions in that court. In the Koniag case, the tribal court ordered Koniag to "to show cause by June 15, 2012. . . why this court does not have jurisdiction" to grant the relief requested by the Native Village of Karluk,*fn27 and in the O'Connell case, the tribal court ordered Mr. O'Connell to show cause "why this court should not grant Plaintiff's requested relief."*fn28
On May 25, 2012, the plaintiffs filed their reply to Mr. Kanam's opposition, and maintained their requests for injunctive relief.*fn29 They asserted that the 1980 Articles of Merger that Mr. Kanam had appended to his May 21, 2012 filing were between Koniag and the Karluk Native Corporation-and not with the Native Village of Karluk.*fn30 They also asserted that the addition of the shareholders of the Native Village of Karluk as parties in the tribal court proceedings did not operate to confer tribal court jurisdiction, particularly since none of these added parties were parties to the 1980 merger.*fn31 The plaintiffs also disagreed with Mr. Kanam's assertion that this action is moot, maintaining that there exists a "live dispute between the parties" that necessitates a ruling.*fn32

To date, neither defendant has filed an answer in this case, and no party has filed any copies of Karluk Tribal Court documents since May 21, 2012.

I. This Court's Subject Matter Jurisdiction.

This court has previously stated, and again holds, that it is well established that the district court has the authority to determine whether a tribal court has exceeded the lawful limits of its jurisdiction.*fn33

II. Standard for Preliminary Injunctive Relief.

A party seeking preliminary injunctive relief must establish that "(1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) a preliminary injunction is in the public interest."*fn34 "Under the 'sliding scale' approach to preliminary injunctions observed in [the Ninth Circuit], 'the elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another.'"*fn35 But in any event, even with the ...


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