                     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.           *
                                   ___________
                                 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


                                          -2-
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.




                                           -3-
       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

                                           -4-
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

                                           -5-
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.



      1
         The Tribe also argues the appeal was untimely because it was not filed within
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).
                                          -6-
       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.2 In
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.


       2
       On this basis we distinguish cases in which the principal issue on appeal was
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).
                                            -7-
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



      3
        On the other hand, we have held that a district court retains jurisdiction over
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).
                                           -8-
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).



                                           -9-
        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

                                          -10-
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




      4
       The Tribe’s contention that the district court has jurisdiction under the “artful
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).
                                           -11-
       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.




      5
        See AT&T Corp. v. Coeur d’Alene Tribe, No. CV97-392-N-EJL (D. Idaho
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).
                                         -12-
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).6 The state then appealed.
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



      1
       Rule 41(a)(1)(i) reads in relevant part as follows:

             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).
                                          -13-
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

                                           -14-
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


       2
        Judge Loken relies on Martin v. Sargent, 780 F.2d 1334, 1336-37 (8th Cir.
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.
                                            -15-
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.




                                          -16-
