## 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. *

___________-2- Submitted: September 21, 1998 Filed: January 6, 1999

___________ Before LOKEN, LAY, and HANSEN, Circuit Judges.

___________ LOKEN, Circuit Judge.

The State of Missourifiled two cases in state court seeking to enjoin the Coeur D’A lene Tribe and its contractor, UniStar Entertainment, Inc. (“UniStar”), fro m conducting an Internet gambling program known as the National Indian Lottery with Missouri residents. Defendants removed both ca ses and persuaded both district courts tha t the Indian Gaming Regulatory Act (“IGRA”), 25 U.S.C. §§ 2701-2721 , comp letely preempts state regulation of tribal gaming. In the first case, the Wester n District of Missouri dismiss ed 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 Wes tern District of Missouri, denying the State’s motion for an immediat e preliminary injunction. The State appeals. In the first case, we reject the Tribe’ s conte ntionthat we lack appellate jurisdiction and conclude that the district cour t imp roperly defined the preemptive scope of the IGRA in denying the State’s motio n 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. Th e Tribe operates its lottery on the “US Lottery” website pursuant to an IGRA compact with the State of Idaho. See generally25 U.S.C. § 27 10(d); Seminole Tribe v. Florida , 116 S. Ct. 1 114, 1119-20 (1996). Computer users may electronically register to play from-3-

th eir local homes or offices, establish a gambling account funded by charges to thei r credit ca rds, and begin gambling once the account is funded. The Tribe offers th e lottery to residents of thirty six States who have Internet access. At oral argument , counsel for UniStar argued the US Lottery is lawfu l 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 Miss ouri and Wisconsin, two States whose Attorneys General have commence d liti gation. Appellees further explained they want to litigate the merits of these case s 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 lik e Missouri can be ignored.

The State of Missouri first sued the Tribe and UniStar in a state court in th e Western Distri ct, seeking to enjoin operation of the lottery because Internet gambling is illegal in Missouri and therefor e the Tribe is violating state law by offering unlawful services and falsely advertising that the lottery is leg al in Missouri. See Mo. Rev. Stat. §§ 407.020, 407.100. Defendants removed to the Western District, claiming complete IGRA preem ption. The State moved to remand, arguing the US Lottery is no t gambli ng on “Indian lands” within the meaning of 25 U.S.C. § 2703(4) and therefore is not within the scope of IGRA preemptio n. The Tribe and UniStar moved to dismiss for failure to state a claim, arguing tribal immunity. Relying on our decision i n Gam ing Corporation of America v. Dorsey & Whitney , 88 F.3d 536, 543 (8th Cir

. 1996), the district court denied the motion to remand, co ncluding the IGRA completely preempts the field of Indian gaming regardless of whether the gaming occurs on Indian lands. The court declined to certifythat 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 triba l immunity extends to tribal agents such as UniStar.-4-

In January 1998, the State voluntarily dismissed its claims against UniStar without prejudice under Rule 4 1(a)(1)(i) of the Federal Rules of Civil Procedure. The State the n appealed the district court’s orders refusing to remand and dismissing al l claims again st the Tribe as now-final orders. Seeking to block the appeal, UniStar asked the Western Di strict to hold the voluntary dismissal of UniStar “ineffective and void. ” On July 2, 1998, with the State’s appeal pending, the district court grante d UniS tar’s motion, concluding the State could not voluntarily dismiss UniStar without leave of court, which the district court re fused 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 c ourt in the Eastern District, alleging the same violation s of state law. Defendants removed that case to the Eastern District. Th e State mov ed to remand or, alternatively, for a preliminary injunction. Defendant s countere d with a motion to transfer the case to a district court in Idaho or to th e Western District of Missouri. In a single order, the district court denied the State’ s motio n to remand, transferred the case to the Western District to “preserve judicia l

ec onomy,” 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 th e Tribe was not appealable when entered because UniStar remained in the case, and there

wa s no Rule 54(b) determination permitting immediate appeal of the order finall y dis missing 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 th e 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-5-

dismissal divested this court of jurisdiction. In the second case, the issue is whether the distric t court’s interlocutory order transferring the case and denying a preliminary injunct ionis an appealable order “refusing [an] injunction” under 28 U.S.C. § 1292(a )(1). We will address these issues of appellate jurisdiction and then conside r the question of subject matter jurisdiction under IGRA.

A. Appellate Jurisdiction in the First Case.

1. The E ffect of a Voluntary Dismissal Without Prejudice. The Tribe argue s tha t a voluntary dismissal without prejudice of a remaining defendant under Rul e 41 (a)(1)(i) does not render a previous order finally dismissing other defendant s 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 dismiss ing it would be appealable. In other words, the Tribe seeks the windfall of complete freedom from appellate review b ecause the State failed to dismiss UniStar with prejudice. A less equitable position is hard to imagine.

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

v o luntary dismissal of the claims pending against a defendant must be with prejudice to render final and appealable a previous order dismissing other claims against th e same defendant

. See Chappelle v. Beacon Com mun. Corp. , 84 F.3d 652, 654 (2d Cir. 1996); Horwitz v. Alloy Automotive Co. , 957 F.2d 1431, 1435-36 (7t h 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-entrenche d 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 viol ated when a plaintiff “unjoins” multiple defendants through a voluntary dismissal without pr

ejudice. See 8 M OORE ’ S F EDERAL P RACTICE ¶ 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 (8thThe

Tribe also argues the appeal was untimely because it was not filed within 1 30 days of the order dismissing the T ribe. 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).
-6- Cir. 1991), we upheld appella te 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 tw o defendants without prejudice by court order under Rule 41(a)(2). We held th e dism issal order became final and appealable when the other defendants wer e vol untarily dismissed from the lawsuit. The Tribe’s contention that Johnston shoul d not ap ply equally to voluntary dismissals as of right under Rule 41(a)(1)(i) i s unpersuasive. Either type o f 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 co ncluded 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 dismissa l. 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 paper s includedmatters outside the State’s pleading, namely, copies of the Tribal Code and US Lotte ry Internet pages stating tribal sovereign immunity was not waived. Lon g af ter it ruled on the motion, the district court concluded this automatically converte d the mot ion 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 wa s 2 whether the district court erred in not converting a Rule 12(b)(6) motion and giving the losi ng party a reasonable opportunity to develop an adequate summary judgmen t record. See , e.g. , Gibb v. S cott , 958 F.2d 814, 816 (8th Cir. 1992); Woods v. Dugan , 660 F.2d 379, 380 (8th Cir. 1981).
-7- The problem with this contention is that the district co urt took its action after the State fi led its notice of appeal. Once a notice of appeal is filed, the district court i s div ested of jurisdiction over matters on appeal. See Griggs v. Provident Consume r 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 no t
reex amine or supplement the order being appealed. See 20 M OORE ’ S F EDERA L P RACTICE § 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 th e district c ourt, that court does not normally lose jurisdiction to proceed with the cas e when one par

ty appeals a non-appealable order. Id. at § 303.32[2][b][iv][B] & cases cited. H owever, appellate jurisdiction is primarily an issue for the appellate court

. Therefore, if an appeal is taken from an interlocutory order and the issue o f appealability is in doubt, the district court should stay its hand until we resolve th e issue of our jurisdi ction, 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 fo r summary judgment nor give both parties the opportunity to present additiona l summary judgment materials, as Rule 12(b) requires. On appeal, no party suggests the distr ict 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 circu it, Rule 12(b)(6) motions are not automatically converted into motions fo r summary judgment simply because one party submits additional matters in support of or opposition to the mo tion. See Martin v. Sargent , 780 F.2d 1334, 1336-37 (8th Cir.O n

the other hand, we have held that a district court retains jurisdiction ove r 3 collateral matters, such as attorney’s fees or sanctions, while an appeal is pending. See Gundac ker

v. Unisys Corp. , 151 F.3d 842, 848 (8th Cir. 1998); Harmon v. Unite d States , 101 F.3d 574, 587 (8th Cir. 1996).
-8- 1985). Some materials that are part of the public record or do not contradict th e complaint may be considered by a court in deci ding 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 UniSta r gave this court apparent jur isdiction over the State’s appeal from the prior orders dismissing the Tribe an d refusing to remand. The question of appellate jurisdiction i s fundamental to an appeal. 3 If the Tribe or UniStar wished to challenge the validity of the Rule 41(a)(1)(i ) voluntary dismi ssal, they should have come to this court, not the district court, asking

us to dismi ss the appeal, or to remand if they believed that clarification from th e di strict court would be helpful. Therefore, the district court’s July 1998 orde r purporting t o recast its prior dismissal order so as to divest this court of appellat e jurisdiction was be yond the district court’s jurisdiction and is void. The Tribe asserts no other b asis for its challenge to our jurisdiction, and the State’s voluntary dismissal is faci ally valid. Therefore, the Tribe’s motion and amended motion to dismiss th e State’s appeal in the first case are denied.

B. Appellate Jurisdiction in the Second Case.

Defen dants argue we have no jurisdiction over the second appeal because th e 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-9-

hearing. S everal times during that hearing, the court advised the State it could rais e the preliminary injunction issue after transfer to the Western District. At the end of the hearing, the court expl ained, “the transfer is really the basis of everything.” Although the cour t’s written order recited that the State’s request for a preliminary injunctio n
was de nied, it contained no findings of fact and conclusions of law supporting th e denial of an injunction, as Rule 52 requires. We conclude the court intended simpl y to transf er a pending injunction motion, not to deny an injunction on the merits

. Theref ore, its transfer order is not appealable under 28 U.S.C. § 1292(a)(1). Se e Liddell v . Board of Educ. , 105 F.3d 1208, 1212 (8th Cir. 1997); Rodgers v. Unite d States Steel C orp. , 541 F.2d 365, 372 (3d Cir. 1976). It is well-settled that a n interloc utory 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 sub ject matter jurisdiction and therefore erred in denying the State’s motion to remand. A casemay be removed only if it could be brought in federa

l court originally. See 28 U.S.C. § 1441(a). “Absent diversity of citizenship . . . fed eral 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 w ill not support removal, even if the federal defense is the only contested issue in the cas e. 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 complete ly 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).-10-

In Dorsey , casino management companies sued a Twin Cities l aw firm, asserting state law claims such as fraud and breach of fiduciary duty arising out of the parties’ conduct durin g the licensing of a tribal casino on Indian lands in Wisconsin. The law firm remo ved, 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, w e conclud ed that Congress had completely preempted the field of regulating gamin g activities on Indian lands. See88 F.3d at 542-48. We then examined the specific state law claims at iss ue to see whether they fell within the preemptive scope of the IGRA. We concluded that at least some of the claims were preempted be cause they potentially interfered with the Tribe’s casino l icensing process, a process mandated and regulated by the IGRA. The district court had erred in remanding those preempted claims.

Inthis case, the district court denied the State’s motion to remand withou t 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 o f federal law “warranting federal jurisdiction,” and because the court construed ou r opinion in Dorsey as extending IGRA complete preempt ion 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 gam ing activities on Indian lands . Both the language of the stat

ute 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, 307 1-3083. The Indians’ long-standing rights and interests in controllin g activitie s on their tribal lands, and the States’ correspondingly limited power t o 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. Se e ge nerally California v. Cabazon Band of Mission Indians , 480 U.S. 202 (1987) (th e Supreme Court decision to which Congress responded in IGRA). Our conclusion inThe Tribe’s contention that the district court has jurisdiction under the “artful 4 pl eading” exception to the well-pleaded complaint rule is without merit. Under thi s exception , federal courts have subject matter jurisdiction over purported state la w clai ms if the plaintiff failed to plead a federal right or immunity that is an essentia l elem ent of the plaintiff’s cause of action. However, the State’s claims against th e Tribe ari se solely from state law. The federal question at issue involves the federa l defe nse of IGRA preemption. See Franchise Tax Bd. v. Construction Laborer s Vacation Trust , 463 U.S. 1, 10-12 (1983).
-11- Dorseythat the IGRA preempted claims inter fering with tribal gaming must be viewed in the context of an IGRA-regulated licensing of casino gaming that was indisputably cond ucted solely on Indian lands. In our view, the district court’s reasoning simpl y prove s too much. Once a tribe leaves its own lands and conducts gambling activities

on stat e lands, nothing in the IGRA suggests that Congress intended to preempt th e State’ s historic right to regulate this controversial class of economic activities. Fo r example, if the State

of Missouri sought an injunction against the Tribe conducting an inte rnet lottery from a Kansas City hotel room, or a floating crap game in the street s of St. Louis, t

he IGRA should not completely preempt such a law enforcement action simply because the injunction might “interfere with tribal governance of gaming.”

Plac ed in proper perspective, we think the issue whether the Tribe’s lottery i s conducted “o n Indian lands” is critical to whether the State’s claims fall within th e preemptive force of the IG RA, 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 i ts 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. S e e 25 U.S.C. § 2710(d)(1). But if the lottery is being conducted on Missouri lands, th e 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. 4See AT&T Corp. v. Coeur d’Alene Tribe , No. CV97-392-N-EJL (D. Idah o 5 Dec. 17, 1998) (IGRA preemption limited to gaming on Indian lands; the Tribe’ s lott ery is not on Indian lands when the wager is placed by telephone from off th e reservati on). We further note that in the criminal statute prohibiting interstat e wagering by wire, Con gress’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. SeeInternet Gamblin g Prohibition Act, S. 474 and H.R. 2380, § 3(b)(1), 105th Cong. (1997). We also note that Congress in enact ing the IGRA recognized that States have “significant governmental interests” in Indian gaming , inclu ding “the State’s public policy, safety, law and other interests [such as] raisin g rev enue for its citizens.” S. Rep. No. 100-446, reprinted in 1988 U.S.C.C.A.N. a t 3083. For a review of the checkered legal history of lotteries in Missouri an d elsewhere, see Tic henor v. Missouri State Lottery Comm’n , 742 S.W.2d 170, 179-81 (Mo. banc 1988) (Welliver, J., dissenting).
-12- Acc ordingly, 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 Di strict of Missouri for further proceedings not inconsistent with this opinion. O n
rema nd, 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 participan t 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 stat e courts. 5
In case No. 98-1554, we dismiss the appeal for lack of jurisdiction. The State’s

m o tion to strike a portion of the defendants’ brief and the defendants’ motions to file a suppl emental 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 dismi ssed by the plaintiff without order of court (i) by filing a notice of dismissal at any time befor e service by the adverse part y of an answer or of a motion for summary judgment, whichever first occurs. . . . Unles s otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice. . . . Fed. R. Civ. P. 41(a)(1)(i).
-13- 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 th e preemptive scope of IGRA in denying the state’s motion to remand. I respectfull y submitthat this case is extremely important in this circuit because of the failure t o 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 forfailure t o state a claim on the grounds of tribal immunity. The State of Missour i 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 fo r interlocutory appeal. The district court then granted the Tribe’s motion to dismiss all claims a gainst the Tribe as barred by trial immunity but denied Unistar’s motion t o dismiss. In January, 1998, the state then voluntarily dismissed all of its claims against Unistar without prej udice under Fed. R. Civ. P. 41(a)(1)(i). The state then appealed. 6 Thereaf ter, on July 2, 1998, notwithstanding the state’s pending appeal, the distric t court concluded that the state could not voluntarily dismiss Unistar without leave of-14-

court. The Tribe then m oved in this court to amend its pending motion to dismiss this appeal to incorporate the district court’s ruling.

As th e majority points out, after the state voluntarily dismissed Unistar in th e first case, it sued Unistar and two Tribal leaders in a state court in the Eastern District of Miss ouri 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 no w appealed that order. I concur with the majority that we lack appellate jurisdiction to review that case.

In t he first case, notwithstanding the fact there was no Federal Rule of Civi l Proced ure Rule 54(b) determination permitting immediate appeal of the orde r dismissin g the Tribe, this court now finds the state’s unilateral dismissal of Unistar without prejudice made the order dismissing the Tribe immediately appealable.

Infinding 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 dismissa l is not immediately appealable, it will create a “windfall of complete freedom from appellate review.” The majority urges “[a] less equitabl e 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 affec ted by a dismissal of a co-defendant does not immunize the case from appellate review. This case is no different.

The prim ary issue that we face is whether Unistar’s motion to dismiss on th e ground of tribal immunity constituted a motion for summary judgment. If it did, i t should be clea

r that a voluntary dismissal of Unistar could not be effected under RuleJudge Lo ken 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 i n support or oppos ition 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 case s cited by Judge Loken are not relevant to the issue involved.
-15- 41(a) (1)(i) without dismissing these claims with prejudice under such terms an d conditions as the court deems proper. The majority opinion deals at length with th e fact th at 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 t he belated order of the district court as being a non-issue in this case

. Assuming tha t the district court had no jurisdiction to act, the fundamental issue o f whether the app eal 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 ou r jurisdiction a

nd 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 s tate’s pleadings. A true test of whether a motion to dismiss involve s 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 pre sent case, the majority holds that the district court did not treat th e 12(b)(6) motion as a motion for summary judgment. Yet, the record contains Judg e Sachs ’ statement (albeit belated) that he did consider excerpts attached to Unistar’ s motion fro m the Coeur D’Alene Tribal Code as well as excerpts from the rules an d regulations of the U.S. Lotter y. These exhibits contain factual information outside the-16-

pleadings

. Although Judge Sachs’ order in July is not relevant to our decision, it i s 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 judicia l effic iency of appellate jurisdiction. Rule 41(a)(1)(i) is designed to allow voluntar y dismissals where the trial proceedings have not progressed to a stage where a defendant has answered o r filed a motion for summary judgment. Obvious reasons of jud icial efficiency support this rule. However, in addition, the rule serves to avoi d 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 inv ite a means to circumvent established rules governing review of final orders

. A true copy.

Attest:

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