United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 98-1520

___________

State of Missouri ex rel. Jeremiah W. *

(Jay) Nixon, Attorney General, *

*

Plaintiff - Appellant, *

*

v. *

* Appeal from the United States

Coeur D’Alene Tribe, a federally * District Court for the

recognized Indian Tribe; * Western District of Missouri.

*

Defendant - Appellee, *

___________

No. 98-1554

___________

State of Missouri ex rel. Jeremiah W. * 

(Jay) Nixon, Attorney General, *

*

Plaintiff - Appellant, * Appeal from the United States

* District Court for the

v. * Eastern District of Missouri.

*

UniStar Entertainment, Inc.; Executone *

Information Systems, Inc.; Ernest *

Stensgar; David Matheson, *

*

Defendants - Appellees. *

___________
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Submitted: September 21, 1998

Filed: January 6, 1999

___________

Before LOKEN, LAY, and HANSEN, Circuit Judges.

___________

LOKEN, Circuit Judge.

The State of Missouri filed two cases in state court seeking to enjoin the Coeur

D’Alene Tribe and its contractor, UniStar Entertainment, Inc. (“UniStar”), from

conducting an Internet gambling program known as the National Indian Lottery with

Missouri residents. Defendants removed both cases and persuaded both district courts

that the Indian Gaming Regulatory Act (“IGRA”), 25 U.S.C. §§ 2701-2721,

completely preempts state regulation of tribal gaming. In the first case, the Western

District of Missouri dismissed all claims against the Tribe as barred by the doctrine of

tribal immunity. In the second case, the Eastern District of Missouri transferred venue

to the Western District of Missouri, denying the State’s motion for an immediate

preliminary injunction. The State appeals. In the first case, we reject the Tribe’s

contention that we lack appellate jurisdiction and conclude that the district court

improperly defined the preemptive scope of the IGRA in denying the State’s motion

to remand. We remand that case for reconsideration of subject matter jurisdiction. We

dismiss the second appeal for lack of an appealable order.

I. Background and Issues of Appellate Jurisdiction. 

The Tribe is federally registered and resides on a reservation in Idaho. The

Tribe operates its lottery on the “US Lottery” website pursuant to an IGRA compact

with the State of Idaho. See generally 25 U.S.C. § 2710(d); Seminole Tribe v. Florida,

116 S. Ct. 1114, 1119-20 (1996). Computer users may electronically register to play

from
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their local homes or offices, establish a gambling account funded by charges to their

credit cards, and begin gambling once the account is funded. The Tribe offers the

lottery to residents of thirty six States who have Internet access. At oral argument,

counsel for UniStar argued the US Lottery is lawful nationwide but appellees made the

business decision to lower legal costs during start-up by not offering it in States with

strong policies against gambling. Apparently, appellees misjudged the legal landscape

in Missouri and Wisconsin, two States whose Attorneys General have commenced

litigation. Appellees further explained they want to litigate the merits of these cases

in a court in Idaho, no doubt because that State has approved the lottery by compact

and may stand to profit from its nationwide revenues if non-consenting States like

Missouri can be ignored. 

The State of Missouri first sued the Tribe and UniStar in a state court in the

Western District, seeking to enjoin operation of the lottery because Internet gambling

is illegal in Missouri and therefore the Tribe is violating state law by offering unlawful

services and falsely advertising that the lottery is legal in Missouri. See Mo. Rev. Stat.

§§ 407.020, 407.100. Defendants removed to the Western District, claiming complete

IGRA preemption. The State moved to remand, arguing the US Lottery is not

gambling on “Indian lands” within the meaning of 25 U.S.C. § 2703(4) and therefore

is not within the scope of IGRA preemption. The Tribe and UniStar moved to dismiss

for failure to state a claim, arguing tribal immunity. Relying on our decision in

Gaming Corporation of America v. Dorsey & Whitney, 88 F.3d 536, 543 (8th Cir.

1996), the district court denied the motion to remand, concluding the IGRA completely

preempts the field of Indian gaming regardless of whether the gaming occurs on Indian

lands. The court declined to certify that issue for interlocutory appeal. It then granted

the Tribe’s motion to dismiss all claims against the Tribe as barred by tribal immunity

but denied UniStar’s motion to dismiss, leaving open the question whether tribal

immunity extends to tribal agents such as UniStar.
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In January 1998, the State voluntarily dismissed its claims against UniStar

without prejudice under Rule 41(a)(1)(i) of the Federal Rules of Civil Procedure. The

State then appealed the district court’s orders refusing to remand and dismissing all

claims against the Tribe as now-final orders. Seeking to block the appeal, UniStar

asked the Western District to hold the voluntary dismissal of UniStar “ineffective and

void.” On July 2, 1998, with the State’s appeal pending, the district court granted

UniStar’s motion, concluding the State could not voluntarily dismiss UniStar without

leave of court, which the district court refused to grant. The Tribe immediately moved

this court to amend its pending motion to dismiss the appeal to incorporate this latest

district court ruling. We grant the motion to amend.

Meanwhile, after voluntarily dismissing UniStar in the first case, the State sued

UniStar and two tribal leaders in a state court in the Eastern District, alleging the same

violations of state law. Defendants removed that case to the Eastern District. The

State moved to remand or, alternatively, for a preliminary injunction. Defendants

countered with a motion to transfer the case to a district court in Idaho or to the

Western District of Missouri. In a single order, the district court denied the State’s

motion to remand, transferred the case to the Western District to “preserve judicial

economy,” and denied the State’s motion for a preliminary injunction without further

comment. The State appeals that order. 

This rather tangled procedural history presents us with the following questions

of appellate jurisdiction. In the first case, the order dismissing all claims against the

Tribe was not appealable when entered because UniStar remained in the case, and there

was no Rule 54(b) determination permitting immediate appeal of the order finally

dismissing the Tribe. The issue is whether the State’s unilateral Rule 41(a)(1)(i)

dismissal of UniStar without prejudice made the order dismissing the Tribe (and the

earlier order refusing to remand) immediately appealable. There are two subparts to

that issue -- whether a Rule 41(a)(1)(i) dismissal will normally have this effect, and if

so, whether the district court’s subsequent invalidation of the State’s voluntary
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dismissal divested this court of jurisdiction. In the second case, the issue is whether

the district court’s interlocutory order transferring the case and denying a preliminary

injunction is an appealable order “refusing [an] injunction” under 28 U.S.C. §

1292(a)(1). We will address these issues of appellate jurisdiction and then consider

the question of subject matter jurisdiction under IGRA. 

A. Appellate Jurisdiction in the First Case.

1. The Effect of a Voluntary Dismissal Without Prejudice. The Tribe argues

that a voluntary dismissal without prejudice of a remaining defendant under Rule

41(a)(1)(i) does not render a previous order finally dismissing other defendants

immediately appealable. We disagree. First, we note that this contention presumes the

case has ended in the district court, yet the Tribe offers no suggestion as to when the

order dismissing it would be appealable. In other words, the Tribe seeks the windfall

of complete freedom from appellate review because the State failed to dismiss UniStar

with prejudice. A less equitable position is hard to imagine. 

Second, the Tribe relies primarily upon cases from other circuits holding that a

voluntary dismissal of the claims pending against a defendant must be with prejudice

to render final and appealable a previous order dismissing other claims against the

same defendant. See Chappelle v. Beacon Commun. Corp., 84 F.3d 652, 654 (2d Cir.

1996); Horwitz v. Alloy Automotive Co., 957 F.2d 1431, 1435-36 (7th Cir. 1992). But

see Division 241 Amalgamated Transit Union v. Suscy, 538 F.2d 1264 (7th Cir.), cert.

denied, 429 U.S. 1029 (1976). These cases further the well-entrenched policy that bars

a plaintiff from splitting its claims against a defendant. But this policy does not extend

to requiring a plaintiff to join multiple defendants in a single lawsuit, so the policy is

not violated when a plaintiff “unjoins” multiple defendants through a voluntary

dismissal without prejudice. See 8 MOORE’S FEDERAL PRACTICE ¶ 41.33[8][g][i] (3d

ed. 1998). Moreover, our court has never adopted the rule applied in Chappelle and

Horwitz. Indeed, in Chrysler Motors Corp. v. Thomas Auto Co., 939 F.2d 538 (8th
The Tribe also argues the appeal was untimely because it was not filed within 1

30 days of the order dismissing the Tribe. This contention is without merit. The State

filed its notice of appeal two days after voluntarily dismissing UniStar, the event that

made the prior order final and appealable. See Hicks v. NLO, Inc., 825 F.2d 118, 120

(6th Cir. 1987).

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Cir. 1991), we upheld appellate jurisdiction after the parties agreed to dismiss without

prejudice the only claims remaining against the defendant. 

In Johnston v. Cartwright, 344 F.2d 773, 774 (8th Cir. 1965), plaintiff appealed

the dismissal of one defendant after voluntarily dismissing the remaining two

defendants without prejudice by court order under Rule 41(a)(2). We held the

dismissal order became final and appealable when the other defendants were

voluntarily dismissed from the lawsuit. The Tribe’s contention that Johnston should

not apply equally to voluntary dismissals as of right under Rule 41(a)(1)(i) is

unpersuasive. Either type of voluntary dismissal leaves the action in the same posture

as if suit had never been brought against the dismissed defendant.1

2. Did the District Court’s Order Invalidate the State’s Voluntary Dismissal?

Having concluded a Rule 41(a)(1)(i) dismissal normally makes a prior interlocutory

dismissal order final and appealable, we must determine whether the district court’s

order properly invalidated the State’s voluntary dismissal. A voluntary dismissal under

Rule 41(a)(1)(i) must be filed “before service by the adverse party of an answer or of

a motion for summary judgment.” Here, UniStar’s Rule 12(b)(6) motion papers

included matters outside the State’s pleading, namely, copies of the Tribal Code and

US Lottery Internet pages stating tribal sovereign immunity was not waived. Long

after it ruled on the motion, the district court concluded this automatically converted

the motion to one for summary judgment, and it declared the State’s voluntary

dismissal untimely and invalid. The Tribe argues we have no jurisdiction because the

State’s claims against UniStar are therefore still pending.
On this basis we distinguish cases in which the principal issue on appeal was

2

whether the district court erred in not converting a Rule 12(b)(6) motion and giving the

losing party a reasonable opportunity to develop an adequate summary judgment

record. See, e.g., Gibb v. Scott, 958 F.2d 814, 816 (8th Cir. 1992); Woods v. Dugan,

660 F.2d 379, 380 (8th Cir. 1981).

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The problem with this contention is that the district court took its action after the

State filed its notice of appeal. Once a notice of appeal is filed, the district court is

divested of jurisdiction over matters on appeal. See Griggs v. Provident Consumer

Discount Co., 459 U.S. 56, 58 (1982); Liddell v. Board of Educ., 73 F.3d 819, 822 (8th

Cir. 1996). For example, while an appeal is pending, the district court may not

reexamine or supplement the order being appealed. See 20 MOORE’S FEDERAL

PRACTICE § 303.32[2][a][ii] & n.15. This jurisdictional principle is not absolute. To

prevent parties from using frivolous appeals to delay or interrupt proceedings in the

district court, that court does not normally lose jurisdiction to proceed with the case

when one party appeals a non-appealable order. Id. at § 303.32[2][b][iv][B] & cases

cited. However, appellate jurisdiction is primarily an issue for the appellate court.

Therefore, if an appeal is taken from an interlocutory order and the issue of

appealability is in doubt, the district court should stay its hand until we resolve the

issue of our jurisdiction, or remand for further clarification of that issue. See Johnson

v. Hay, 931 F.2d 456, 459 n.2 (8th Cir. 1991). 

In this case, the district court did not treat the Rule 12(b)(6) motions as motions

for summary judgment nor give both parties the opportunity to present additional

summary judgment materials, as Rule 12(b) requires. On appeal, no party suggests the

district court improperly relied upon disputed factual matters outside the pleadings in

granting the Tribe’s motion to dismiss -- the State challenges the ruling on the merits,

and the Tribe simply wants to recast the ruling so as to deprive us of jurisdiction. In 2

this circuit, Rule 12(b)(6) motions are not automatically converted into motions for

summary judgment simply because one party submits additional matters in support of

or opposition to the motion. See Martin v. Sargent, 780 F.2d 1334, 1336-37 (8th Cir.
On the other hand, we have held that a district court retains jurisdiction over

3

collateral matters, such as attorney’s fees or sanctions, while an appeal is pending. See

Gundacker v. Unisys Corp., 151 F.3d 842, 848 (8th Cir. 1998); Harmon v. United

States, 101 F.3d 574, 587 (8th Cir. 1996).

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1985). Some materials that are part of the public record or do not contradict the

complaint may be considered by a court in deciding a Rule 12(b)(6) motion to dismiss.

See Papsan v. Allain, 478 U.S. 265, 268 n.1 (1986); Hollis v. United States Dep’t of

Army, 856 F.2d 1541, 1543-44 (D.C. Cir. 1988). Thus, when filed, the State’s Rule

41(a)(1)(i) voluntary dismissal of UniStar was facially valid. 

The State’s facially valid voluntary dismissal of UniStar gave this court apparent

jurisdiction over the State’s appeal from the prior orders dismissing the Tribe and

refusing to remand. The question of appellate jurisdiction is fundamental to an appeal.3

If the Tribe or UniStar wished to challenge the validity of the Rule 41(a)(1)(i)

voluntary dismissal, they should have come to this court, not the district court, asking

us to dismiss the appeal, or to remand if they believed that clarification from the

district court would be helpful. Therefore, the district court’s July 1998 order

purporting to recast its prior dismissal order so as to divest this court of appellate

jurisdiction was beyond the district court’s jurisdiction and is void. The Tribe asserts

no other basis for its challenge to our jurisdiction, and the State’s voluntary dismissal

is facially valid. Therefore, the Tribe’s motion and amended motion to dismiss the

State’s appeal in the first case are denied. 

B. Appellate Jurisdiction in the Second Case.

Defendants argue we have no jurisdiction over the second appeal because the

district court did not rule on the merits of the State’s preliminary injunction motion but

simply transferred venue in the case to the Western District. We agree. The merits of

the State’s request for a preliminary injunction were not addressed at the motion
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hearing. Several times during that hearing, the court advised the State it could raise

the preliminary injunction issue after transfer to the Western District. At the end of the

hearing, the court explained, “the transfer is really the basis of everything.” Although

the court’s written order recited that the State’s request for a preliminary injunction

was denied, it contained no findings of fact and conclusions of law supporting the

denial of an injunction, as Rule 52 requires. We conclude the court intended simply

to transfer a pending injunction motion, not to deny an injunction on the merits.

Therefore, its transfer order is not appealable under 28 U.S.C. § 1292(a)(1). See

Liddell v. Board of Educ., 105 F.3d 1208, 1212 (8th Cir. 1997); Rodgers v. United

States Steel Corp., 541 F.2d 365, 372 (3d Cir. 1976). It is well-settled that an

interlocutory order transferring venue is not otherwise appealable. See United States

Fire Ins. Co. v. American Family Life Assur. Co., 787 F.2d 438 (8th Cir. 1986). 

II. Subject Matter Jurisdiction and the IGRA.

The State argues the district court lacks subject matter jurisdiction and therefore

erred in denying the State’s motion to remand. A case may be removed only if it could

be brought in federal court originally. See 28 U.S.C. § 1441(a). “Absent diversity of

citizenship . . . federal jurisdiction exists only when a federal question is presented on

the face of the plaintiff’s properly pleaded complaint.” Caterpillar, Inc. v. Williams,

482 U.S. 386, 392 (1987). Normally, the presence of a federal defense such as IGRA

preemption will not support removal, even if the federal defense is the only contested

issue in the case. However, when a federal statute has “preempt[ed] a field of law so

completely that state law claims are considered to be converted into federal causes of

action,” then an action purporting to plead preempted state law claims is removable.

Dorsey, 88 F.3d at 543. The question here, as in Dorsey, is whether the IGRA has this

“extraordinary preemptive power” to completely preempt the state law claims at issue.

We review these jurisdictional issues de novo. See United States v. Thunder Hawk,

127 F.3d 705, 706 (8th Cir. 1997).
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In Dorsey, casino management companies sued a Twin Cities law firm, asserting

state law claims such as fraud and breach of fiduciary duty arising out of the parties’

conduct during the licensing of a tribal casino on Indian lands in Wisconsin. The law

firm removed, claiming complete IGRA preemption. The district court remanded the

entire case to state court, and we reversed. After reviewing the IGRA’s language and

legislative history under the Supreme Court’s complete preemption precedents, we

concluded that Congress had completely preempted the field of regulating gaming

activities on Indian lands. See 88 F.3d at 542-48. We then examined the specific state

law claims at issue to see whether they fell within the preemptive scope of the IGRA.

We concluded that at least some of the claims were preempted because they potentially

interfered with the Tribe’s casino licensing process, a process mandated and regulated

by the IGRA. The district court had erred in remanding those preempted claims.

In this case, the district court denied the State’s motion to remand without

deciding whether the Tribe’s internet lottery is conducted “on Indian lands.” The court

gave two reasons for this decision -- because the Indian lands issue is a question of

federal law “warranting federal jurisdiction,” and because the court construed our

opinion in Dorsey as extending IGRA complete preemption to include all claims which

may interfere with tribal governance of gaming. We disagree.

As our opinion in Dorsey explained at length, the IGRA established a

comprehensive regulatory regime for tribal gaming activities on Indian lands. Both the

language of the statute and its legislative history refer only to gaming on Indian lands.

See, e.g., 25 U.S.C. § 2701; S. Rep. No. 100-446, reprinted in 1988 U.S.C.C.A.N.

3071, 3071-3083. The Indians’ long-standing rights and interests in controlling

activities on their tribal lands, and the States’ correspondingly limited power to

regulate activities on tribal lands except as authorized by Congress, are core principles

underlying the IGRA that necessarily frame the scope of its preemptive force. See

generally California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987) (the

Supreme Court decision to which Congress responded in IGRA). Our conclusion in
The Tribe’s contention that the district court has jurisdiction under the “artful 4

pleading” exception to the well-pleaded complaint rule is without merit. Under this

exception, federal courts have subject matter jurisdiction over purported state law

claims if the plaintiff failed to plead a federal right or immunity that is an essential

element of the plaintiff’s cause of action. However, the State’s claims against the

Tribe arise solely from state law. The federal question at issue involves the federal

defense of IGRA preemption. See Franchise Tax Bd. v. Construction Laborers

Vacation Trust, 463 U.S. 1, 10-12 (1983). 

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Dorsey that the IGRA preempted claims interfering with tribal gaming must be viewed

in the context of an IGRA-regulated licensing of casino gaming that was indisputably

conducted solely on Indian lands. In our view, the district court’s reasoning simply

proves too much. Once a tribe leaves its own lands and conducts gambling activities

on state lands, nothing in the IGRA suggests that Congress intended to preempt the

State’s historic right to regulate this controversial class of economic activities. For

example, if the State of Missouri sought an injunction against the Tribe conducting an

internet lottery from a Kansas City hotel room, or a floating crap game in the streets

of St. Louis, the IGRA should not completely preempt such a law enforcement action

simply because the injunction might “interfere with tribal governance of gaming.” 

Placed in proper perspective, we think the issue whether the Tribe’s lottery is

conducted “on Indian lands” is critical to whether the State’s claims fall within the

preemptive force of the IGRA, which in turn determines whether the district court has

subject matter jurisdiction over the removed action. The on-Indian-lands question is

one of federal law, but its unresolved presence is not enough to confer federal subject

matter jurisdiction over the entire case. If the Tribe’s lottery is being conducted on its

lands, then the IGRA completely preempts the State’s attempt to regulate or prohibit.

See 25 U.S.C. § 2710(d)(1). But if the lottery is being conducted on Missouri lands,

the IGRA does not preempt the state law claims -- indeed, it does not even appear to

provide a federal defense -- and the case must be remanded to state court.4
See AT&T Corp. v. Coeur d’Alene Tribe, No. CV97-392-N-EJL (D. Idaho

5

Dec. 17, 1998) (IGRA preemption limited to gaming on Indian lands; the Tribe’s

lottery is not on Indian lands when the wager is placed by telephone from off the

reservation). We further note that in the criminal statute prohibiting interstate

wagering by wire, Congress’s limited exemption for lawful gambling requires that the

betting be legal in the State from which the bettor places a call. See 18 U.S.C. §

1084(b). Proposed legislation to expand this statute to include internet gambling has

a similarly limited exemption. See Internet Gambling Prohibition Act, S. 474 and H.R.

2380, § 3(b)(1), 105th Cong. (1997). We also note that Congress in enacting the IGRA

recognized that States have “significant governmental interests” in Indian gaming,

including “the State’s public policy, safety, law and other interests [such as] raising

revenue for its citizens.” S. Rep. No. 100-446, reprinted in 1988 U.S.C.C.A.N. at

3083. For a review of the checkered legal history of lotteries in Missouri and

elsewhere, see Tichenor v. Missouri State Lottery Comm’n, 742 S.W.2d 170, 179-81

(Mo. banc 1988) (Welliver, J., dissenting). 

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Accordingly, in case No. 98-1520, the district court’s orders of September 29,

1997, and November 19, 1997, are vacated, and the case is remanded to the Western

District of Missouri for further proceedings not inconsistent with this opinion. On

remand, the court must initially determine whether the Tribe’s internet lottery is a

gaming activity on Indian lands of the Tribe. See 25 U.S.C. §§ 2702(3), 2710(d). If

the court concludes the lottery is not conducted on Indian lands when a participant

plays from a computer located in Missouri, it must grant the State’s motion to remand,

and the issue of tribal sovereignty will be decided in the first instance by the state

courts.5

In case No. 98-1554, we dismiss the appeal for lack of jurisdiction. The State’s

motion to strike a portion of the defendants’ brief and the defendants’ motions to file

a supplemental appendix and to supplement the record on appeal are denied as moot.
Rule 41(a)(1)(i) reads in relevant part as follows: 1

an action may be dismissed by the plaintiff without order of

court (i) by filing a notice of dismissal at any time before

service by the adverse party of an answer or of a motion for

summary judgment, whichever first occurs. . . . Unless

otherwise stated in the notice of dismissal or stipulation, the

dismissal is without prejudice. . . .

Fed. R. Civ. P. 41(a)(1)(i).

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LAY, Circuit Judge, concurring in part and dissenting in part.

I would hold that this court lacks appellate jurisdiction in both of these cases.

I do so on the ground that there exists no final order in either case. The majority finds

that a final order exists and concludes that the district court erroneously defined the

preemptive scope of IGRA in denying the state’s motion to remand. I respectfully

submit that this case is extremely important in this circuit because of the failure to

follow the rule of finality which governs appeals in federal courts.

In the district court, in the first appeal, the Tribe and Unistar moved to dismiss

for failure to state a claim on the grounds of tribal immunity. The State of Missouri

moved to remand. The district court denied the motion to remand concluding IRGA

provided complete preemption in the field of Indian gaming regardless of whether the

gaming occurs on Indian land. The district court refused to certify that issue for

interlocutory appeal. The district court then granted the Tribe’s motion to dismiss all

claims against the Tribe as barred by trial immunity but denied Unistar’s motion to

dismiss. In January, 1998, the state then voluntarily dismissed all of its claims against

Unistar without prejudice under Fed. R. Civ. P. 41(a)(1)(i). The state then appealed. 6

Thereafter, on July 2, 1998, notwithstanding the state’s pending appeal, the district

court concluded that the state could not voluntarily dismiss Unistar without leave of
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court. The Tribe then moved in this court to amend its pending motion to dismiss this

appeal to incorporate the district court’s ruling.

As the majority points out, after the state voluntarily dismissed Unistar in the

first case, it sued Unistar and two Tribal leaders in a state court in the Eastern District

of Missouri alleging the same violations of state law. This case was then removed to

the Eastern District of Missouri. The district court transferred this case to the Western

District of Missouri and denied the state’s motion to remand. The state has now

appealed that order. I concur with the majority that we lack appellate jurisdiction to

review that case.

In the first case, notwithstanding the fact there was no Federal Rule of Civil

Procedure Rule 54(b) determination permitting immediate appeal of the order

dismissing the Tribe, this court now finds the state’s unilateral dismissal of Unistar

without prejudice made the order dismissing the Tribe immediately appealable. 

In finding that we have appellate jurisdiction over the state’s appeal, the court

creates an anomalous rule under the facts of this case. First, the majority is concerned

that if the Tribe’s dismissal is not immediately appealable, it will create a “windfall of

complete freedom from appellate review.” The majority urges “[a] less equitable

position is hard to imagine.” This reasoning is a complete non sequitur. The situation

with which we deal is no different than any other interlocutory ruling where all orders

must wait until there is a final judgment as to all parties and all claims. In cases where

certification is denied under Rule 54(b), the mere fact that one or more parties is not

affected by a dismissal of a co-defendant does not immunize the case from appellate

review. This case is no different.

The primary issue that we face is whether Unistar’s motion to dismiss on the

ground of tribal immunity constituted a motion for summary judgment. If it did, it

should be clear that a voluntary dismissal of Unistar could not be effected under Rule
Judge Loken relies on Martin v. Sargent, 780 F.2d 1334, 1336-37 (8th Cir.

2

1985), to support his theory that simply because additional materials are filed in

support or opposition to the motion, this does not automatically convert the motion to

one for summary judgment. This case is clearly distinguishable. In Martin the parties

did not even bother to file the additional evidence with its motion. The other cases

cited by Judge Loken are not relevant to the issue involved.

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41(a)(1)(i) without dismissing these claims with prejudice under such terms and

conditions as the court deems proper. The majority opinion deals at length with the

fact that the district court was without jurisdiction to hold that Unistar’s 12(b)(6)

motion papers constituted summary judgment. The majority faults the district court

for lack of jurisdiction in so ruling after the state had filed its notice of appeal. On this

basis, the majority finds the state’s Rule 41(a)(1)(i) voluntary dismissal of Unistar was

facially valid.

I see the belated order of the district court as being a non-issue in this case.

Assuming that the district court had no jurisdiction to act, the fundamental issue of

whether the appeal by the state is a final order is an issue for this court, and whatever

the district court ruled is immaterial to deciding our own appellate jurisdiction. This

court must independently determine whether there is a final order to support our

jurisdiction and such determination must be made whether the parties raised the issue

or not. In the present case, it is clear that Unistar’s 12(b)(6) motion included matters

outside the state’s pleadings. A true test of whether a motion to dismiss involves

matters outside the pleadings so as to convert the motion into a summary judgment is

whether or not extrinsic facts are introduced into the record.7

In the present case, the majority holds that the district court did not treat the

12(b)(6) motion as a motion for summary judgment. Yet, the record contains Judge

Sachs’ statement (albeit belated) that he did consider excerpts attached to Unistar’s

motion from the Coeur D’Alene Tribal Code as well as excerpts from the rules and

regulations of the U.S. Lottery. These exhibits contain factual information outside the
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pleadings. Although Judge Sachs’ order in July is not relevant to our decision, it is

difficult to ignore an experienced judges averment that he did consider these extrinsic

facts when passing on the motion to dismiss.

Rules of finality governing orders on appeal are essential to the judicial

efficiency of appellate jurisdiction. Rule 41(a)(1)(i) is designed to allow voluntary

dismissals where the trial proceedings have not progressed to a stage where a

defendant has answered or filed a motion for summary judgment. Obvious reasons of

judicial efficiency support this rule. However, in addition, the rule serves to avoid

multiplicity of lawsuits against a defendant. Here, the state’s obvious strategy was to

obviate the final judgment rule by filing a voluntary dismissal and then refiling against

the dismissed party the next day. If the majority’s rule becomes precedent, we simply

invite a means to circumvent established rules governing review of final orders.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.