
USCA1 Opinion

	




          March 24, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1622                             NARRAGANSETT TRIBE, ET AL.,                               Plaintiffs, Appellants,                                          v.                                  PAUL E. GUILBERT,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Brown,* Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Mark B. Morse for appellants.            _____________            Bruce N. Goodsell for appellee.            _________________                                 ____________________                                 ____________________        _____________________        *Of  the  Fifth Circuit,  sitting by  designation.   Judge  Brown (now        deceased)  heard oral argument in this matter, and participated in the        semble, but did not participate in the drafting or the issuance of the        panel's  opinion.   The remaining  two panelists therefore  issue this        opinion pursuant to 28 U.S.C.   46(d).                                          1                       BREYER, Chief  Judge.   The sole question  on this                               ____________             appeal  is  whether  the   Narragansett  Indian  Tribe   has             sovereign  immunity  from claims  against  it  for abuse  of             process  and slander of title.   We have  recently held that             the  Tribe  does possess  sovereign  immunity.   Maynard  v.                                                              _______             Narragansett Indian Tribe, No. 92-2106, slip. op. at  4 (1st             _________________________             Cir. January 27, 1993).   And, that decision requires  us to             reverse a default judgment entered against the Tribe.                                          I                                      Background                                      __________                       On December 6, 1990, the Narragansett Indian Tribe             brought a lawsuit in Rhode Island federal court against Paul             Guilbert, an adjacent landowner.  The Tribe alleged that  it             held title to  Guilbert's property, and it  sought to enjoin             Guilbert's planned  sale of that  property.  The  Tribe also             filed  a  lis pendens  (or  notice  of  pendency)  with  the             Charlestown, Rhode  Island,  Land Evidence  Records  Office.             That  filing effectively  clouded  Guilbert's  title to  the             property and frustrated  his efforts to  sell it.   Guilbert             filed an answer to the federal court complaint.  That answer             included counterclaims  for abuse of process  and slander of             title.                         The  district court issued a temporary restraining             order,  prohibiting  the  sale,  but, after  a  hearing,  it             vacated  the  TRO  and  denied  the  Tribe's  motion  for  a             preliminary injunction.   Thereafter, counsel for  the Tribe             moved  to withdraw  from  the case  because  the Tribe  "has             insisted  upon a  course  of action  that counsel  considers             imprudent."    The  district  court granted  the  motion  to             withdraw.    It  gave the  Tribe  one  month  to secure  new             counsel.   Five  months  later, the  Tribe  had not  secured             counsel.  Guilbert  then  asked  the court  to  dismiss  the             Tribe's  claims,  to vacate  the  lis  pendens  in the  land             office, and to enter a default judgment against the Tribe on             Guilbert's   counterclaims.    The  district  court  granted             Guilbert's motions and, after a hearing on damages (at which             the  Tribe was  represented  by new  counsel), it  entered a             default judgment against the  Tribe for about $50,000 (which             represented  lost profit  on  a frustrated  land sale,  some             financing costs  related to that failed sale, and legal fees             incurred in defending against the Tribe's  suit).  The Tribe             appeals  the default judgment.  It claims that its sovereign             immunity renders the default judgment void.                                          II                                 The Default Judgment                                 ____________________                                         -3-                                          3                       Our  recent  decision in  Maynard  v. Narragansett                                                 _______     ____________             Indian  Tribe,  No. 92-2106  (1st  Cir.  January 27,  1993),             _____________             determines the outcome of  this appeal.  We there  held that             the  Narragansett Indian Tribe possesses sovereign immunity,             despite  Congress's  enactment of  the  Rhode  Island Indian             Claims  Settlement Act.  Id. at 3 (explaining that the Rhode                                      __             Island Indian  Claims Settlement Act  subjected the  Tribe's             lands,  but not the Tribe itself, "to the civil and criminal             _____             laws and  jurisdiction of  the State  of  Rhode Island,"  25             U.S.C.    1708).  Controlling case law also makes clear that             the  Tribe, by  filing its  suit  against Guilbert,  did not             waive  its  immunity   in  respect  to  the   counterclaims.             Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe,             ___________________    ____________________________________             111 S.Ct.  905, 909 (1991);  United States v.  United States                                          _____________     _____________             Fidelity & Guar. Co., 309 U.S. 506, 510-12  (1940) (allowing             ____________________             counterclaims only to offset  amounts owed under a principal             claim, but not  to result  in a money  judgment against  the             immune entity); cf. Wichita  and Affiliated Tribes v. Hodel,                             ___ ______________________________    _____             788 F.2d 765, 773-74 (D.C. Cir. 1986) (no waiver of immunity             from cross-claims either).  Consequently, the district court             lacked  jurisdiction  over  Guilbert's  counterclaims,  see,                                                                     ___             e.g., J.C.  Driskill, Inc. v. Abdnor, 901 F.2d 383, 385 n. 4             ____  ____________________    ______             (4th Cir. 1990), and its default  judgment is void.  Fed. R.                                         -4-                                          4             Civ. P. 60(b)(4); 11  Charles A. Wright & Arthur  R. Miller,             Federal Practice and Procedure   2862 at 198-200 (1973).             ______________________________                       We   add  that   we   have   not  considered   the             relationship  of sovereign  immunity to  Rule 11  sanctions,             which  the district  court  mentioned but  did not  address.             Whether  the bringing  of  a suit  in  federal court  waives             immunity   from   such  sanctions   raises   very  different             considerations not now before us.   See, e.g., Mattingly  v.                                                 ___  ____  _________             United States, 939 F.2d 816, 818-19 (9th Cir. 1991) (Federal             _____________             Rules  of Civil  Procedure  waive  the Federal  Government's             sovereign  immunity  from  Rule 11  sanctions);  Adamson  v.                                                              _______             Bowen, 855 F.2d  668, 670-71 (10th Cir.  1988) (Equal Access             _____             to  Justice  Act,  28   U.S.C.     2412(b),  waives  Federal             Government's sovereign  immunity  from Rule  11  sanctions);             United States v. Gavilan  Joint Community College Dist., 849             _____________    ______________________________________             F.2d 1246, 1251 (9th Cir. 1988).                        The judgment of the district court is                       Reversed.                       _________                                         -5-                                          5
