Glacier Electric Cooperative, Inc. v. Estate of Sherburne , 385 F. App'x 686 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 25 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GLACIER ELECTRIC No. 09-35216
COOPERATIVE, INC.;
D.C. No. CV-08-30-SEH
Plaintiff-Appellant,
v.
MEMORANDUM *
THE ESTATE OF SCOTT SHERBURNE,
RON BIRD, and HERB GILHAM,
Individually and on behalf of Glacier
Construction, Inc.;
Defendants-Appellees.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted February 2, 2010
Seattle, Washington
Before: W. FLETCHER and RAWLINSON, Circuit Judges, and MOSMAN, **
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Michael W. Mosman, District Judge for the District of
Oregon, sitting by designation .
Glacier Electric Cooperative ("GEC") appeals the district court's decision to
grant summary judgment in favor of Appellees (collectively, "Glacier Construction").
At summary judgment, GEC argued that a tribal court judgment against GEC was void
for lack of subject matter jurisdiction. In 1998, the issue of tribal subject matter
jurisdiction was fully litigated in the district court during a different but related lawsuit
between these same parties. Accordingly, the district court concluded that the doctrine
of res judicata precluded GEC from relitigating the tribal court's subject matter
jurisdiction in this proceeding.
Issue preclusion attached to the district court's 1998 decision. The issue of
subject matter litigation was actually litigated in 1998, determined by a valid and final
judgment on remand, and essential to judgment. See, e.g., Arizona v. California, 530
U.S. 392, 414 (2000) (quoting Restatement (Second) of Judgments § 27, p. 250
(1982)); Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 874 (1984). Even
though the appeal of this case was ultimately resolved on grounds of due process, the
determination of subject matter jurisdiction made by the district court was never
disturbed. See Wilson v. Marchington, 127 F.3d 805, 811 (9th Cir. 1997) ("[T]he
existence of subject matter jurisdiction is a threshold inquiry in virtually every federal
examination of a tribal judgment.").
AFFIRMED.
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