FIRST CHOICE BUS. MACH. v. TULALIP TRIBES

6 NICS App. 1, FIRST CHOICE BUS. MACH. v. TULALIP TRIBES (March 1999)

IN THE TULALIP TRIBAL COURT OF APPEALS

TULALIP INDIAN RESERVATION

TULALIP, WASHINGTON

First Choice Business Machines, Appellant,

The Tulalip Tribes, Appellees.

No. TUL-Ci-6/98-1061 (March 2, 1999)

SYLLABUS^*

Trial court dismissed Defendant’s counterclaims in a contract dispute. Defendant appealed dismissal of its counterclaims. Court of Appeals, relying on federal law in absence of applicable Tribal law, holds that dismissal of a counterclaim without adjudication of Plaintiff’s claim does not constitute a final judgment and that Tribal Code does not provide for interlocutory appeals. Trial court order affirmed and appeal dismissed with note that Defendant may appeal dismissal of its counterclaims following final judgment.

Before: Robert McCarthy, Chief Justice; Lawrence Numkena, Justice; Darwin Longfox, Justice.

OPINION

THIS MATTER came before the Tulalip Tribal Court of Appeals pursuant to a Notice of Appeal filed by First Choice Business Machines (hereinafter, "First Choice"). First Choice appeals from the January 5, 1999 order of the trial court dismissing the counterclaims filed by First Choice in this case.

On January 19, 1999, The Tulalip Tribes (hereinafter, "The Tribes") filed a Motion to Dismiss Appeal and Memorandum in Support. On January 29, 1999, First Choice filed a Response to Motion to Dismiss Appeal. The Tulalip Tribes filed a Reply on February 2, 1999, and First Choice filed a Reply on February 3, 1999. Upon review of the record and the legal memoranda, this Court hereby finds and orders as follows:

Title 1, §1.11 of the Tulalip Law and Order Code governs appellate proceedings and provides, in relevant part:

6 NICS App. 1, FIRST CHOICE BUS. MACH. v. TULALIP TRIBES (March 1999) p. 2

Any person who claims, in good faith, that the Tulalip Tribal Court made a mistake in interpreting the law or a mistake in procedure which affected the outcome of a case shall have the right to appeal from the final judgment ...

(Emphasis added).

Tribal law does not permit interlocutory appeals. See, Tulalip Tribes v Seven Arrows, No. TUL‑CI‑4/96‑499 (Court of Appeals, 15 April 1997) (dismissing appeal from order determining jurisdiction and denying motion to dismiss or stay); Tulalip Tribes v Seven Arrows, No. TUL‑Ci‑4/96‑499 (Court of Appeals, 14 July 1997) (dismissing appeal from order denying motion for stay pending arbitration).

The question presented to this Court is whether the trial court's order dismissing the counterclaims of First Choice is an appealable final judgment. The law to be applied in answering this question is defined by Title 1, §1.2.3 of the Tulalip Law and Order Code, which provides, in relevant part:

Where no applicable Tulalip tribal law, ordinance, or custom law can be found, the Courts may utilize, in the following order, federal statutes, federal common law, state common law and state statutes...

The Tribes argue that the order dismissing the counterclaims is not a final judgment, since the trial court has yet to rule on the claims made in The Tribes' complaint. The Tribes argue further that dismissal of a counterclaim is not a final judgment under federal common law. First Choice argues that some federal cases have held dismissal of less than all claims may be considered a final decision and appealable. Both parties cite state case law on both sides of the question.

The historic rule in the federal courts has always permitted appeals only from final judgment. Catlin v. United States, 324 U.S. 229 (1945). The adoption of Federal Rule of Civil Procedure 54(b) permitted a federal district court to enter final judgment on fewer than all claims presented in an action under certain circumstances. Rule 54(b) states, in relevant part:

When more than one claim for relief is presented in an action, ... the court may direct the entry of a final judgment as to one or more but fewer than all of the claims ... only upon an express determination that there is no just reason for delay and upon an express direction for entry of judgment. In the absence of such determination and direction, any order or other form or decision, however designated, which adjudicates fewer than all the claims ... shall not terminate the action as to any of the claims ... and the order or other form of decision is subject to revision at any time before entry of judgment adjudicating all the claims...

(Emphasis added.)

6 NICS App. 1, FIRST CHOICE BUS. MACH. v. TULALIP TRIBES (March 1999) p. 3

Dismissal of counterclaims by a federal district court without adjudication of the plaintiff's claims is not a final judgment and is not subject to appeal, absent a finding by the district court that there was no just reason for delay in entering judgment and express direction for entry thereof. Johnson v. Reconstruction Finance Corporation, 223 F.2d 101 (9th Cir. 1955). There is no provision in tribal law for certification by the trial court that an order dismissing counterclaims should be considered a final judgment. Nor does this Court find sufficient grounds to direct entry of final judgment on the counterclaims.

In determining whether there is "no just reason for delay in entering judgment," a court should examine the factors which bear on the interests of judicial administration, so as to preserve the historic policy against piecemeal appeals; consider whether the claims under review are separable from the others remaining; and evaluate whether postponement of review until final judgment on all claims would injure any rights. Curtiss‑Wright Corporation v. General Electric Company, 446 U.S. 1 (1980).

The First Choice counterclaims are inextricably linked to the Tribe's claims and there has been no showing that First Choice would be injured by waiting until final judgment on all claims to bring its appeal. First Choice itself has argued as follows:

The Tribes, in their Complaint have sought a determination of whether the contract between the Tribes and First Choice is valid, alleging that the contract is null and void. First Choice seeks the same determination in its counterclaim, alleging that the contract is valid and enforceable. With or without the counter claim, the ultimate issue to be decided by the Tribal Court is whether the contract is valid and enforceable.

Response in Opposition to Motion to Dismiss Counterclaims, at 6.

Therefore, based on the foregoing,

ORDER

IT IS HEREBY ORDERED that the Appeal by First Choice is dismissed. The time for appeal from the order dismissing counterclaims will not run until entry of final judgment.

The syllabus is not a part of the Court's Opinion. The syllabus is a summary of the Opinion prepared by the publishers of this Reporter only for the convenience of the reader. Therefore, the syllabus should not be cited in whole or part as legal authority. Only the Opinion, which follows the syllabus, may be cited as legal authority.