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Wopsock v. Dalton

United States District Court, D. Utah, Central Division

March 29, 2018

VERONICA M. WOPSOCK, Plaintiff,
v.
DEREK DALTON, in his individual and official capacity; TRAVIS MITCHELL, in his individual capacity and as the Duchesne County Sheriff, and DUCHESNE COUNTY, UTAH, Defendants. DEREK DALTON, Counterclaim and Third-Party Plaintiff,
v.
VERONICA M. WOPSOCK, Counterclaim Defendant.

          Robert J. Shelby, District Judge.

          MEMORANDUM DECISION AND ORDER DENYING IN PART AND GRANTING IN PART MOTION TO QUASH AND/OR FOR A PROTECTIVE ORDER (ECF NO. 130)

          Evelyn J. Furse, United States Magistrate Judge.

         This matter is before the Court on the Ute Indian Tribe (the “Tribe”), Ron Wopsock, Stuart Pike, Irene Cuch, and Veronica Wopsock's (herein after the “ Wopsock parties”) Motion to Quash the deposition subpoenas issued to the Tribe, Ms. Wopsock's uncle, Ron Wopsock, Ms. Wopsock's aunt, Irene Cuch, [1] and Stuart Pike. (ECF No. 130.) Having considered the parties' written memoranda, [2] along with all relevant legal authorities, the Court DENIES IN PART and GRANTS IN PART the Wopsock parties' Motion.[3]

         DISCUSSION

         On April 19, 2017, the Wopsock parties filed their Motion to Quash the deposition subpoenas the Duchesne Defendants served on the Wopsock parties. (Mot., ECF No. 130.) The subpoenas request testimony from Ms. Wopsock's uncle Ronald Wopsock, and Ms. Wopsock's aunt Irene Cuch, because the Duchesne Defendants want to know if Ms. Wopsock discussed her alleged sexual assault with either of them. (Defs.' Mem. in Opp'n to Wopsock parties' Mot. to Quash Depo. Notices and Subpoenas (“Opp'n”) 3- 4, ECF No. 137.) The Duchesne Defendants also served a subpoena on the Tribe “requiring the Tribe to designate and produce witnesses to testify on subjects related to its funding of this . . . lawsuit.” (Id. at 4.) The Duchesne Defendants contend they served deposition subpoenas on Mr. Wopsock, Ms. Cuch, and Mr. Pike “in order to defend against Ms. Wopsock's claims and to prosecute Dalton's counterclaims.” (Id. at 3.) Moreover, the Duchesne Defendants assert that they “subpoenaed these witnesses for their depositions because [Ms.] Wopsock had refused to respond to any written discovery concerning her discussions of this alleged assault with anyone.” (Id. at 3-4; Ex. 2, Wopsock Disc. Responses, ECF No. 137-2.) They also point out that Ms. Wopsock admitted during her deposition that she did not know who was paying for her legal fees. (Opp'n 7, ECF No. 137; Ex. 1, Wopsock Dep. at 36-39, ECF No. 137-1 at 10).

         In June 2012, Ms. Wopsock filed this lawsuit against former Duchesne County Deputy Sheriff Derek Dalton, Duchesne County Sheriff Travis Mitchell, and Duchesne County, Utah for Mr. Dalton's alleged sexual assault of Ms. Wopsock during a traffic stop on September 4, 2011. (Compl., ECF No. 2.) Mr. Dalton counterclaimed against Ms. Wopsock “for civil rights violations and conspiracy to violate civil rights pursuant to 42 U.S.C. §§ 1985 and 1986, for defamation and for intentional infliction of emotional distress.” (Opp'n 3, ECF No. 137.) The Tribe, Mr. Wopsock, Ms. Cuch, and Mr. Pike are not parties to the lawsuit.

         Through its Motion, the Wopsock parties seek to quash the Duchesne Defendants' deposition subpoenas by asserting the Tribe's sovereign immunity. (Pl.'s & Subpoenaed Deponents' Mem. in Supp. of Mot. to Quash Dep. Notices & Subpoenas (“Pl.'s Mem. in Supp.”), 2-5, ECF No. 136.) In the alternative, the Wopsock parties argue that the Court should quash the subpoenas pursuant to Rule 45(c) of the Federal Rules of Civil Procedure because of (1) improper service, (2) undue burden, and (3) privilege. (Mot. 2-3, ECF No. 130.) The Wopsock parties also argue that the Court should quash the subpoenas because “neither the deposition subpoenas nor the deposition notices are in proper form.” (Id. at 3.)

         The Duchesne Defendants oppose any attempt to quash the subpoenas, arguing that the Tribe's sovereign immunity does not extend to members of the Business Committee (either current or former) nor the Tribe because prior case law has only addressed tribal sovereign immunity when a party issued a subpoena duces tecum. (Opp'n 9, ECF No. 137.) The Duchesne Defendants further argue that they properly served the Wopsock parties with process and their deposition notices and subpoenas complied with the Federal Rules of Civil Procedure. (Id. at 10-11.) Lastly, the Duchesne Defendants argue that the deponent's potential testimony is not privileged, and the answers the Duchesne Defendants seek are highly relevant to their claims and defenses. (Id. at 12-14.)

         I. Sovereign Immunity

         The Wopsock parties ask this Court to quash the deposition subpoenas issued to the Tribe, Mr. Wopsock, Ms. Cuch, and Mr. Pike because “the Tribe is not a party, [and] the Tribe and its officers have sovereign immunity from a subpoena.” (Pl.'s Mem. in Supp. 2, ECF No. 136.) According to the Duchesne Defendants, when Ms. Wopsock filed her lawsuit and the Duchesne Defendants served their deposition subpoenas, Mr. Wopsock and Ms. Cuch served as members of the Ute Tribal Business Committee. (Opp'n 3, ECF No. 137.) Mr. Pike, however, was a former Business Committee Member when the Duchesne Defendants served him with a deposition subpoena. (Id.) The Duchesne Defendants contend that the Supreme Court's decision in Ex Parte Young, 209 U.S. 123 (1908), compels this Court to find that tribal immunity does not shield a tribal officer from a discovery demand if served on the appropriate official, rather on the tribe itself. (Opp'n 8, ECF No. 137.)

         The Ute Indian Tribe is a federally recognized sovereign Indian Tribe. Under long-standing law, “Indian tribes are ‘domestic dependent nations' that exercise ‘inherent sovereign authority.'” Michigan v. Bay Mills Indian Cmty., 572 U.S., 134 S.Ct. 2024, 2030 (2014) (quoting Okla. Tax Comm'n v. Citizen Band Potawatomi Tribe, 498 U.S. 505, 509 (1991)). “As dependents, the tribes are subject to plenary control by Congress.” Michigan, 572 U.S., 134 S.Ct. at 2030. “Thus, unless and ‘until Congress acts, the tribes retain' their historic sovereign authority.” Id. (quoting United States v. Wheeler, 435 U.S. 313, 323 (1978)). Common-law immunity from suit is one of the core aspects of sovereignty. Id. “That immunity… is ‘a necessary corollary to Indian sovereignty and self-governance.'” Id. (quoting Three Affiliated Tribes v. World Eng'g, P.C., 476 U.S. 877, 890 (1986)). “Because Indian tribes are sovereign powers, they possess immunity from suit to the extent that Congress has not abrogated that immunity and the tribe has not clearly waived its immunity.” Breakthrough Mgmt. Grp., Inc. v. Chukchansi Gold Casino & Resort, 629 F.3d 1173, 1182 (10th Cir. 2010). A suit for the purposes of tribal immunity includes third party subpoenas served on the tribe. See Bonnet v. Harvest (U.S.) Holdings, Inc., 741 F.3d 1155, 1159-60 (10th Cir. 2014). Therefore, unless Congress has acted or a tribe has unequivocally waived its immunity, courts must dismiss any suit against a tribe. See generally Kiowa Tribe v. Mfg. Techs., Inc., 523 U.S. 751, 760 (1998). “[A] waiver of sovereign immunity ‘cannot be implied but must be unequivocally expressed.'” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978) (quoting United States v. Testan, 424 U.S. 392, 399 (1976)). Tribal immunity also extends to tribal officers acting within the scope of their official capacities. Lewis v. Clarke, U.S., 137 S.Ct. 1285, 1291-92 (2017). A tribal officer does not enjoy tribal immunity for his individual actions, even if taken under color of law. Id. at 1292.

         The Wopsock parties argue that Supreme Court and Tenth Circuit precedent recognize that the “general rules of sovereign immunity” require this Court to quash the subpoenas. (Pl. Mem. in Supp. 4, ECF No. 136.) The Tribe specifically cites to Puyallup Tribe, Inc. v. Dep't of Game., 433 U.S. 165 (1977). (Id. at 2.)

         In further support of its position, the Tribe cities to Bonnet and Alltel Commc'ns, LLC v. DeJordy, 675 F.3d 1100 (8th Cir. 2012). (See Pl. Mem. in Supp. 2, ECF No. 136.) In Bonnet, the Tenth Circuit held that tribal sovereign immunity barred a subpoena duces tecum served on a non-party Indian tribe in a private civil action. Bonnet, 741 F.3d at 1161. The court stated in dicta, however, that it saw “no reason why an Indian tribe should be able to ‘shut off an appropriate judicial demand for discovery' served on a tribal official, rather than against the Tribe itself.” Id. a t 11 62. Alltel, an Eighth Circuit case held that “a federal court's third-party subpoena in private civil litigation is a ‘suit' that is subject to Indian tribal immunity.” Alltel, 675 F.3d at 1105. As a result, the court reversed the lower court's denial of a motion to quash subpoenas duces tecum served on a non-party tribe and a non-party tribal official. Id. at 1102, 1106. In reaching its decision, the court followed precedent from other circuits that have construed sovereign immunity to cover non-party subpoenas served on federal officers in their official capacities and agencies. See id. at 1103. The Eighth Circuit acknowledged that it might be conferring “greater immunity than that enjoyed by federal officers in their official capacities and agencies, or by the States, whose sovereign immunity is protected by the Eleventh Amendment” because tribes are not subject to the constraints of the Administrative Procedures Act. Id. at 1104. The Supreme Court provided further guidance in Lewis. “The identity of the real party in interest dictates what immunities may be available.” Lewis, 137 S.Ct. at 1292.

         Without question, tribal sovereign immunity bars the deposition subpoena served on the Tribe (ECF No. 130-1), and the Court QUASHES it. In considering the deposition subpoenas served on Mr. Wopsock (ECF No. 130-2), Ms. Cuch, [4] and Mr. Pike (ECF No. 130-3), the Court considers what the interest in the deposition is. In subpoenaing each individual, as opposed to subpoenaing say the Secretary of a tribe, the Duchesne Defendants subpoena the people for testimony in their individual capacities, not ...


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