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Alltel Communications, LLC v. Eugene Dejordy

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Submitted: December 13, 2011

Before LOKEN, MURPHY, and SHEPHERD, Circuit Judges.

Alltel Communications (“Alltel”) sued a former senior vice president, attorney Eugene DeJordy, in the Eastern District of Arkansas, alleging that DeJordy breached the terms of a Separation Agreement by, inter alia, assisting the Oglala Sioux Tribe in a tribal court lawsuit to enjoin Alltel from a proposed sale of assets that provide telecommunications services on the Pine Ridge Indian Reservation. In the Arkansas action, Alltel served District of South Dakota third-party subpoenas duces tecum on the Tribe and Joseph Red Cloud, a tribal Administrator who represents the Tribe in telecommunications matters. The subpoenas seek production of any documents that might establish a connection between DeJordy and the Tribe’s lawsuit against Alltel. Following a hearing, the district court denied the Tribe’s motion to quash based on tribal immunity and ordered the subpoenaed non-parties to deliver requested documents for in camera review. The Tribe and Red Cloud then filed this interlocutory appeal under the collateral order doctrine and 28 U.S.C. § 1292(b). The *fn1 only issue is whether tribal immunity bars enforcement of the subpoenas, an issue we review de novo. See Rupp v. Omaha Indian Tribe, 45 F.3d 1241, 1244 (8th Cir. 1995). We agree with the Tribe that a third-party subpoena in private civil litigation is a “suit” for purposes of the Tribe’s common law sovereign immunity. As that immunity has not been waived or abrogated, we reverse.

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