Before: Sedwick, District Judge
I. MOTIONS BEFORE THE COURT
At docket 39, defendant Cook Inlet Region, Inc. (“CIRI”) moves for summary judgment or, in the alternative, for judgment on the pleadings. The motion was filed February 28, 2001. Plaintiffs Emil Notti, et al. (“Notti”), have never filed an opposition. CIRI’s motion is therefore ripe. At docket 40, Notti seeks leave to file an interlocutory appeal regarding this court’s previous order denying a motion to remand. CIRI opposes Notti’s motion. At docket 41A, Notti seeks to stay proceedings pending resolution of its motion at docket 40. CIRI opposes this motion, too. The motion at docket 41A is technically not yet ripe. However, for reasons which will become clear further below, there is no reason to delay resolving the motion at docket 41A with the motions at dockets 39 and 40. Oral argument has not been requested and would not assist the court.
CIRI is a corporation organized pursuant to the Alaska Native Claims Settlement Act, 43, U.S.C. §§ 1601 et seq. (“ANCSA”). CIRI instituted an Elders Benefit Program which distributed dividends to shareholders age 65 or older. Notti contends that the Elders Benefit Program violates Alaska state law which prohibits discriminatory dividend distribution among shareholders. 1 CIRI removed to federal court asserting federal question jurisdiction existed because an ANCSA provision, 43 U.S.C. § 1606(r), authorizes the preferential dividend that CIRI granted. Notti sought remand. The Court denied Notti’s Motion. Other facts are noted below.
III. STANDARDS OF REVIEW
A. Motion for Summary Judgment
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment should be granted if there is no genuine dispute as to material facts and if the moving party is entitled to judgment as a matter of law. The moving party has the burden of showing that there is no genuine dispute as to material fact. 2 The moving party need not present evidence; it need only point out the lack of any genuine dispute as to material fact. 3 Once the moving party has met this burden, the non-moving party must set forth evidence of specific facts showing the existence of a genuine issue for trial. 4 All evidence presented by the non-movant must be believed for purposes summary judgment, and all justifiable inferences must be drawn in favor of the non-movant. 5 However, the non-moving party may not rest upon mere allegations or denials, but must show that there is sufficient evidence supporting the claimed factual dispute to require a fact-finer to resolve the parties’ differing versions of the truth at trial. 6
B. Interlocutory Appeal
Certification of an interlocutory appeal under 28 U.S.C. § 1292(b) is only appropriate if the issue presents a controlling question of law, there is a substantial ground for difference of opinion, and an immediate appeal “may materially advance the ultimate termination of the litigation.” 7 Interlocutory appeals are rarely granted and sparingly used in deference to the federal policy disfavoring piecemeal review. 8
Notti’s claims allege violation of the Alaska State Corporation Code, AS 10.06 et seq., for discriminatory dividend distribution. However, Title 10 expressly incorporates ANCSA with respect to its application. In relevant part, Title 10 provides:
Nothwithstanding the other provisions of this chapter, a corporation organized under [ANCSA] is governed by [ANCSA] to the extent [ANCSA] is inconsistent with this chapter, and the corporation may take any action, including amendment of its articles, authorized by [ANCSA]…. 9
ANCSA provides, in part:
The authority of a Native Corporation to provide benefits to its shareholders who are Natives or descendants of Natives or to its shareholders’ immediate family members who are Natives or descendants of Natives to promote the health, education, or welfare of such shareholders or family members is expressly authorized and confirmed. Eligibility for such benefits need not be based on share ownership in the Native Corporation and such benefits may be provided on a basis other than pro rata based on share ownership. 10
Thus, ANCSA permits preferential distributions. In summary, State law authorizes ANCSA corporations to “take any action…authorized by [ANCSA]…. 11 ANCSA permits ANCSA corporations to allot shareholder dividends on a preferential basis. It therefore follows that there is no genuine issue of material fact in dispute, and CIRI is entitled to summary judgment as a matter of law. In light of this disposition, Notti’s motions at dockets 40 and 41A are moot, because Notti may now appeal this court’s final judgment.
For the foregoing reasons:
(1) CIRI’s motion for summary judgment at docket 39 is GRANTED;
(2) Notti’s motion at docket 40 seeking leave to file an interlocutory appeal is DENIED as moot; and
(3) Notti’s motion at docket 41A seeking leave to stay proceeding is DENIED as moot.
DATED at Anchorage, Alaska this 1st day of May, 2001.
/s/ John Sedwick
United States District Judge
Footnote 7 — See 26 U.S.C. § 1292(b); see also 16 Charles Alan Wright, Arthur R. Miller, and Edward H. Cooper, Federal Practice and Procedure, § 3930 at 415-442 (2d ed. 1996) (discussing criteria for permissive interlocutory appeals).