Evans Energy Partners, LLC v. Seminole Tribe of Florida, Inc.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13493
Non-Argument Calendar
____________________
EVANS ENERGY PARTNERS, LLC,
A Delaware limited liability company,
Plaintiff-Appellant,
versus
SEMINOLE TRIBE OF FLORIDA, INC.,
A federal corporation,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 2:20-cv-00978-JLB-MRM
____________________
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2 Opinion of the Court 21-13493
Before R OSENBAUM , BRASHER , and ANDERSON, Circuit Judges.
PER CURIAM:
This appeal turns on whether an agreement between the
Seminole Tribe of Florida and Evans Energy Partners contained a
clear waiver of tribal immunity. In relevant part, the clause pro-
vides that “the Company through its parent company the Seminole
Tribe of Florida, Inc., agrees to a limited waiver of its Sovereign
Immunity. . . .” One of many ambiguities in this clause is that the
Tribe cannot both be “the Company” and the Company’s parent.
After the deal went sour, Evans sued in federal court, seeking to
enforce the contract’s arbitration clause under the Federal Arbitra-
tion Act. The district court held that the contract did not clearly
waive the Tribe’s immunity. Thus, it dismissed Evans’s complaint
and petition to compel arbitration for lack of jurisdiction. After
careful consideration, we affirm.
I. BACKGROUND
Evans Energy Partners was a wholesale and commercial dis-
tributor of petroleum products operating under the trade name
“Askar Energy.” In 2013, Evans and the Seminole Tribe of Florida
executed an agreement by which the Tribe would purchase Askar’s
assets for a sum of ten-million dollars. But the Tribe wanted to do
more than just buy Askar, it wanted to run it together with Evans.
So the two parties entered into a “Management and Operations
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21-13493 Opinion of the Court 3
Agreement,” the interpretation of which is the subject of this ap-
peal.
The agreement included two relevant provisions: a limited
arbitration clause and a waiver of tribal immunity. The arbitration
clause explained that, though disputes arising out of the agreement
would normally be settled in the Tribe’s courts, Evans retained the
right “to initiate a binding arbitration proceeding . . . for the sole
and exclusive purpose of terminating the Management Agreement
and compelling the payment of the Termination Fee . . . .” But this
right did not extend to a proceeding against the Tribe, as the parties
agreed that “in no event shall the Seminole Tribe of Florida, Inc.,
or any of its other affiliated entities be named a party in any arbi-
tration . . . .” Instead, Evans’s rights were “restricted to compelling
Seminole Energy to participate in an arbitration proceeding for the
express purpose set forth herein.” Seminole Energy is a third entity
that is mentioned several times throughout the agreement, but
whose identity is never clearly defined.
The agreement also included a clause waiving tribal immun-
ity. That clause stated that “[T]he Company through its parent
company the Seminole Tribe of Florida, Inc., agrees to a limited
waiver of sovereign immunity in order to allow Evans Energy” to
exercise its rights under the arbitration clause. This clause would
become a point of contention when the Tribe terminated the
agreement in April 2016.
About three months after termination, the Tribe petitioned
for declaratory relief and damages in tribal court, which eventually
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4 Opinion of the Court 21-13493
resulted in a default judgment against Evans for over two and a half
million dollars. Shortly before the final judgment was issued, Evans
served the American Arbitration Association, the chosen arbitral
forum under the agreement, with a demand for arbitration of a
breach of contract claim against the Tribe. The arbitral panel issued
an opinion and order concluding that Evans could not “show that
there [was] clear and unmistakable evidence that the parties in-
tended to empower the panel with the authority to decide the gate-
way question of who decides the arbitrability of the[] dispute.” Ev-
ans then sued the Tribe in the United States District Court for Mid-
dle District of Florida, seeking a declaratory judgment and an order
compelling arbitration under the Federal Arbitration Act. The
Tribe moved to dismiss under Federal Rule of Civil Procedure
12(b)(1), arguing that it was immune from suit. The district court
granted the Tribe’s motion, and Evans timely appealed.
II. STANDARD OF REVIEW
We review a district court’s dismissal on sovereign grounds
de novo.
Contour Spa at the Hard Rock, Inc. v. Seminole Tribe of
Fla., 692 F.3d 1200, 1203 (11th Cir. 2012).
III. DISCUSSION
The issue in this appeal is whether the district court properly
dismissed Evans’s complaint for lack of jurisdiction based on tribal
immunity.
Furry v. Miccosukee Tribe of Indians of Fla., 685 F.3d
1224, 1228 (11th Cir. 2012) (“Tribal sovereign immunity is a juris-
dictional issue.”). That question in turn depends on whether the
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21-13493 Opinion of the Court 5
Management and Operations Agreement clearly waived the
Tribe’s immunity from suit. Evans argues that the district court
erred in concluding that the language of the agreement did not con-
tain a sufficiently clear waiver to support jurisdiction. We disagree.
Indian tribes “are domestic dependent nations that exercise
inherent sovereign authority over their members and territories.”
Alabama v. PCI Gaming Auth., 801 F.3d 1278, 1287 (11th Cir. 2015)
(quoting
Okla. Tax Comm'n v. Citizen Band Potawatomi Indian
Tribe of Okla., 498 U.S. 505, 509 (1991)). Thus, tribes “possess the
common-law immunity from suit traditionally enjoyed by sover-
eign powers.”
Id. (quoting
Florida v. Seminole Tribe of Fla., 181
F.3d 1237, 1241 (11th Cir. 1999)). This immunity extends to “suits
on contracts, whether those contracts involve governmental or
commercial activities and whether they were made on or off a res-
ervation.”
Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751,
760 (1998). And although a tribe may waive its immunity by con-
tract, such waivers must be clear to be enforceable.
C & L Enters.,
Inc. v. Citizen Band Potawatomi Indian Tribe of Okla., 532 U.S.
411, 418 (2001) (explaining that “to relinquish its immunity, a
tribe’s waiver must be ‘clear’” and concluding that an “express con-
tract . . . to adhere to certain dispute resolution procedures” unam-
biguously subjecting the tribe to binding arbitration spoke with
“the requisite clarity”);
see also PCI Gaming Auth., 801 F.3d at 1287
(“A suit against a tribe is barred unless the tribe clearly waived its
immunity . . . .”) (internal quotation marks omitted);
Okla. Tax
Comm’n, 498 U.S. at 509 (“Suits against Indian tribes are thus
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6 Opinion of the Court 21-13493
barred by sovereign immunity absent a clear waiver by the tribe . .
. .”);
Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978) (“[A]
waiver of sovereign immunity cannot be implied but must be une-
quivocally expressed.” (internal quotation marks omitted)).
Because the parties agree that our precedents would ordi-
narily compel a conclusion that the Tribe is immune from suit, the
only live issue is whether the agreement clearly waived that im-
munity. It did not. Although the agreement typically refers to the
Tribe as “the Company” and the purported waiver expressly states
that “the Company” waives its sovereign immunity, we cannot
read “the Company” as “the Tribe” in the waiver without creating
an absurdity. Were we to read the phrase “the Company” in the
waiver clause as a reference to the Tribe, as that phrase is admit-
tedly used elsewhere in the agreement, the new waiver and arbi-
tration provision would read: “
[The Seminole Tribe of Florida,
Inc.], through its parent company the Seminole Tribe of Florida,
Inc., agrees to a limited waiver of sovereign immunity in order to
allow Evans Energy to initiate a binding arbitration proceeding . . .
for the sole and exclusive purpose of terminating the Management
Agreement and compelling the payment of the Termination Fee .
. . .” Because the Tribe cannot be its own parent company, Evans’s
proposed construction is facially absurd.
Instead, in the context of the waiver provision, “the Com-
pany” is best read to refer to Seminole Energy. Seminole Energy is
the entity against which the agreement gives Evans arbitration
rights, and Seminole Energy is the entity that must pay any
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21-13493 Opinion of the Court 7
termination fee. Thus, when the contract says that “the Company”
is waiving its immunity to compel the payment of the termination
fee, it makes sense that “the Company” is the entity that owes that
fee under the contract. This reading is also the only way to make
sense of the language in the agreement that “restrict[s Evans] to
compelling Seminole Energy to participate in an arbitration pro-
ceeding for the express purpose set forth herein” and providing that
“in no event shall the Seminole Tribe of Florida, Inc., or any of its
other affiliated entities be named a party in any arbitration . . . .”
At the very least, we cannot conclude that this language
waives the Tribe’s immunity “with the requisite clarity.”
C & L En-
ters., 532 U.S. at 412. A contractual provision, the plain text of
which subjects a tribe to binding arbitration, “no doubt memorial-
izes the [t]ribe’s commitment to adhere to the contract’s dispute
resolution regime.”
See id. at 422. Such a clause constitutes a clear
waiver of tribal immunity.
Id. But where the relevant provision
fails to unambiguously designate the tribe as the entity subject to
arbitration, that clarity is lost. The agreement at issue here doubles
down on this deficiency by providing that the Tribe shall “in no
event . . . be named a party in any arbitration.” Such language does
not waive the Tribe’s immunity with any clarity at all.
Because the alleged waiver is ambiguous at best and thus
fails to demonstrate the necessary clarity, it does not waive the
Tribe’s immunity from suit.
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IV. CONCLUSION
For the foregoing reasons, the district court is AFFIRMED.
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