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Corporation of President of Church of Jesus Christ of Latter-Day Saints. v. BN

United States District Court, D. Utah

October 23, 2019

BN, an individual, Defendant.


          Clark Waddoups, United States District Judge

         Before the court are two motions-Plaintiff Corporation of the President of the Church of Jesus Christ of Latter-Day Saints and Plaintiff LDS Family Services' (Plaintiffs) Motion for Preliminary Injunction, (ECF No. 7) and Defendant BN's Motion to Dismiss, (ECF No. 17). As explained below, the court stays the case because Plaintiffs have not exhausted Tribal remedies. The court therefore DENIES Plaintiffs' Motion for Preliminary Injunction and DENIES Defendant's Motion to Dismiss.


         After BN Files Suit in Navajo District Court, Plaintiffs File Action in Federal Court and Judge Shelby Dismisses for Failure to Exhaust Tribal Remedies

         “In May 2016, BN filed a complaint in the Navajo Nation District Court, District of Window Rock, Arizona . . . alleging that Plaintiffs are liable for injuries she claims to have suffered decades ago while living in Utah during her participation in a program called the Indian Student Placement Program . . . .” (Compl. ¶ 1, ECF No. 2 at 2.) “After being served with BN's complaint, Plaintiffs filed an action in this Court requesting that BN be enjoined from proceeding with her claims in the Navajo District Court because that court lacked subject-matter jurisdiction.” (Compl. ¶ 2, ECF No. 2 at 2.) That case was assigned to United States District Judge Robert J. Shelby, and was given case number 2:16-cv-453.[1] The court refers to this case as “the 2016 Case.”

         According to the Plaintiffs, “[t]he Navajo Nation intervened in” the 2016 Case “and represented that Plaintiffs could exhaust their tribal remedies by seeking review of the Navajo District Court's jurisdictional determination by filing a writ of prohibition with the Navajo Supreme Court.” (ECF No. 7 at 13 n. 4.) On November 16, 2016, Judge Shelby entered an order dismissing the 2016 Case-concluding that “Plaintiffs must exhaust their Tribal Court remedies before seeking relief from this court.” (2:16-cv-453, ECF No. 40 at 2.)

         Jurisdictional Discovery in Tribal Court and Plaintiffs' Motion to Dismiss BN's Tribal Suit for Lack of Subject Matter Jurisdiction

         On April 5, 2017, the Navajo District Court entered a Stipulated Protective Order, ordering “that discovery in [that] case . . . be limited to facts relevant to the issue of jurisdiction of the Court for the next 120 days, ” and ordering that “[a]fter 120 days, the parties [could] proceed with discovery in accordance with Navajo Rules of Civil Procedure . . . .” (ECF No. 23-1 at 3-4.)

         On October 23, 2017, Plaintiffs “filed a motion in the Navajo District Court to dismiss BN's complaint for lack of subject-matter jurisdiction . . . .” (ECF No. 7 at 6; ECF No. 2-2 at 2.) Plaintiffs “challenge[d] jurisdiction both facially and factually.” (ECF No. 29-6 at 10; see also ECF No. 29-3 at 4 (“Petitioners' Motion asserts that Petitioners are making both facial and factual challenges to the Complaint.”).[2])

         On November 17, 2017, Plaintiffs submitted the affidavit of Roger Van Komen, who provided, under oath, that “[d]ecisions regarding the placement of Navajo Nation members who chose to participate in the” Indian Student Placement Program “were not made on the Navajo Nation.” (ECF No. 29-1 at 57.)

         According to Defendant, on January 11, 2018, BN's counsel “took the deposition of Harold Call [Brown], who was Commissioner of LDS Family Services from 1976-1981 and 1985-1996.[3]” (ECF No. 29-4 at 7; see also ECF No. 29-4 at 30.)

         BN “responded to [Plaintiffs' Motion to Dismiss] on February 16, 2018 and a Reply was filed on March 2, 2018.” (ECF No. 29-1 at 33.)

         On May 25, 2018, the District Court of the Navajo Nation, Judicial District of Window Rock, Arizona entered an order denying Plaintiffs' Motion. (See ECF No. 2-2 at 5; ECF No. 29-1 at 36.) The District Court of the Navajo Nation stated that the Plaintiffs' “primary argument” was that the Navajo Court “lack[ed] jurisdiction over them because they are not members of the Navajo Nation and the allegations of sexual abuse giving rise to the . . . case occurred in the state of Utah or outside the Navajo Nation.” (ECF No. 29-1 at 33.) The District Court of the Navajo Nation found “jurisdiction based on the Treaty of 1868, Navajo Nation laws, and application of the Montana Test.” (ECF No. 2-2 at 3.) The tribal district “court's order [did] not analyze” Plaintiffs' “factual challenge, nor make an explicit finding regarding the location placement decisions were made.” (ECF No. 29-3 at 7.)

         State Settlement Agreement

         According to Plaintiffs, “[o]n August 1, 2018, Plaintiffs communicated” to Defendant BN's former counsel “an offer to settle Defendant's claim . . . .” (ECF No. 4-1 at 4.) According to Plaintiffs, the next day, on August 2, 2018, one of Defendant's former attorneys sent an email “stating that Defendant had accepted Plaintiffs' settlement offer.” (ECF No. 4-1 at 4.) According to Plaintiffs, on August 3, 2018, Defendant's former counsel-who had sent the email stating that Defendant had agreed to settle-received a letter from a different attorney indicating that Defendant was not interested in settling and indicating that Defendant had retained this new firm as substitute counsel. (ECF No. 4-1 at 5.) Defendant's former counsel forwarded this letter to Plaintiffs' counsel. (ECF No. 4-1 at 5.) On August 17, 2018, Plaintiffs' counsel sent a letter to BN's new attorney asking whether BN “intend[ed] to honor the terms of the settlement already reached.” (ECF No. 4-1 at 20.) On August 22, 2018, BN's new attorney responded, stating that BN's “prior counsel spoke with her husband, and her husband attempted to settle on her behalf. Her prior counsel never spoke with [her] and [she] never agreed to settle.” (ECF No. 4-1 at 23.) The new attorney concluded this letter by stating that they were “confident that Navajo courts will respect the fact that [BN] has not agreed to compromise her claim.” (ECF No. 4-1 at 25.)

         Plaintiffs Seek Writ of Prohibition

         On September 25, 2018, Plaintiffs “sought a writ of prohibition from the Navajo Nation Supreme Court . . . prohibiting the Navajo District Court from exercising jurisdiction.” (ECF No. 7 at 6-7; see also ECF No. 2-3 at 3.) In this writ, Plaintiffs provided that the parties had conducted some jurisdictional discovery. (See ECF No. 29-1 at 11 (“After some initial jurisdictional discovery, [BN] responded to the motion to dismiss.”).) Plaintiffs also argued that “[p]lacement decisions were not made on the Navajo Nation.” (ECF No. 29-1 at 12 (citing Declaration of Roger Van Komen[4]).)

         Plaintiffs File State Suit

         “On October 17, 2018, Plaintiffs filed suit against Defendant” in the Fourth Judicial District in and for Utah County, State of Utah seeking “an order finding that the settlement agreement entered into by Plaintiffs and Defendant on August 2, 2018, is valid and binding . . . .” (ECF No. 4-1 at 6.) After confirming that Defendant did not intend to respond to the Complaint, Plaintiffs move for a default certificate and later motion for default judgment. (See ECF No. 4-1.)

         Navajo Supreme Court Issues Alternative Writ and Navajo District Court Responds

         On October 22, 2018, the Navajo Nation Supreme Court issued an Alternative Writ ordering “[t]he Respondent District [Tribal] Court, through its staff attorney, ” to “file a response to” Plaintiffs' petition. (ECF No. 29-2 at 3.)

         The Window Rock District Court filed its response on November 13, 2018. In its response, the District Court noted that Plaintiffs' “Motion asserts that [they] are making both facial and factual challenges” to B.N.'s Complaint. (See ECF No. 29-3 at 4.) The District Court also provided:

The district court's order does not analyze this factual challenge, nor make an explicit finding regarding [where] the location placement decisions were made. The district court may have determined that this particular fact was not a ‘necessary fact for jurisdiction' as the location of the decision about where Navajo students would be placed is only one fact among many bearing on this issue.

(ECF No. 29-3 at 7.) Ultimately, the District Court argued that “[a] writ of prohibition cannot be issued because it is not clear that the Window Rock District Court lacks jurisdiction. To the contrary, as described in greater detail below, it is likely that the district court has jurisdiction, although it may have failed to articulate the sufficient findings in its ‘Order Denying Defendants' Motion to Dismiss-Jurisdiction' . . . .” (ECF No. 29-3 at 3 (emphasis added).)

         Parties Complete Briefing on Plaintiffs' Writ

         On November 13, 2018, BN's counsel filed a brief opposing Plaintiffs' writ. (See ECF No. 29-4 at 27.) In this brief, BN's counsel provided, in part, that Plaintiffs' “claim [that] they did not perform any placement decision activities within the Navajo Nation and that no actionable conduct occurred within the territorial boundaries” was contradicted by “Harold Brown, ” who served as the Commissioner for the LDS Family Services. (See ECF No. 29-4 at 26.)

         On November 26, 2018, Plaintiffs filed a reply in support of their petition for a writ of prohibition. (See ECF No. 29-6 at 29.) In this reply, Plaintiffs addressed the dispute regarding the location of placement decisions:

As the District Court notes, Petitioners challenge jurisdiction both facially and factually . . . Specifically, Petitioners challenge the allegation that placement decisions were made on the Navajo Nation by providing a declaration from Roger Van Komen demonstrating that decisions regarding the placement of participating tribal members from the part of the Navajo Nation where BN lived were made by LDS Social Services employees operating from their offices in Cedar City and Salt Lake City, Utah . . . Respondents fail to submit any ...

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