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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Sea Hawk Seafoods, Inc. v. State (09/11/2009) sp-6412
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| SEA HAWK SEAFOODS, INC., | ) |
| ) Supreme Court No. S- 13107 | |
| Appellant, | ) |
| ) Superior Court Nos. | |
| v. | ) 3AN-95-03500 CI |
| ) | |
| STATE OF ALASKA, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6412 September 11, 2009 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Sen K. Tan, Judge.
Appearances: John G. Young, Young
deNormandie, and Michael T. Schein and Kevin
P. Sullivan, Sullivan & Thoreson, Seattle,
Washington, for Appellant. Mary Ellen
Beardsley, Assistant Attorney General,
Anchorage, and Talis J. Colberg, Attorney
General, Juneau, for Appellee.
Before: Fabe, Chief Justice, Eastaugh, and
Carpeneti, Justices. [Matthews and Winfree,
Justices, not participating.]
FABE, Chief Justice.
I. INTRODUCTION
This appeal raises the question whether the State can
waive its sovereign immunity through litigation conduct. After
Sea Hawk Seafoods, Inc. obtained a final judgment against Valdez
Fisheries Development Association, it alleged that Valdez
Fisheries fraudulently conveyed millions of dollars to the State.
The State litigated the case for almost ten years before it
raised the defense of sovereign immunity. Although Sea Hawk
maintained that the defense had been waived, the superior court
dismissed Sea Hawks fraudulent conveyance and conspiracy claims
against the State, concluding that the State cannot waive its
claim of sovereign immunity by failing to raise the issue in a
timely manner because only the Alaska Legislature can waive the
States immunity from suit. Because we conclude that the State
can waive the affirmative defense of sovereign immunity through
its litigation conduct and because the proper test for
determining whether the State waived this defense has not been
applied to the facts of this case, we reverse and remand for the
superior court to apply the correct test for waiver.
II. FACTS AND PROCEEDINGS
In July 1997 a jury awarded Sea Hawk Seafoods, Inc.
just over $1.5 million against Valdez Fisheries. The superior
court entered final judgment against Valdez Fisheries for more
than $2.1 million in compensatory damages, costs, and attorneys
fees in August 1997. Apparently the State was concerned that
the jury verdict would jeopardize Valdez Fisheries ability to
make its loan payments to the State, and the State demanded in
August 1997 that Valdez Fisheries pay approximately $7.7 million
in principal, which it owed to the State. Two months later, the
State approved a new loan to Valdez Fisheries for just over $1
million in operating expenses.
Sea Hawk filed a post-judgment petition for avoidance
of fraudulent conveyance in October 1997, claiming that the loan
transactions between the State and Valdez Fisheries constituted a
fraudulent conveyance and seeking that the State return all of
the money it had received from Valdez Fisheries. The State filed
its answer to Sea Hawks petition in October 1997. In addition to
reserv[ing] the right to assert additional defenses as they may
become known, the State asserted that Sea Hawk failed to state a
claim upon which relief can be granted and maintained that the
State is not liable for punitive damages under AS 09.50.280. In
late October the State filed a motion to dismiss the petition
under Alaska Civil Rule 12(c), which was converted by the trial
court to a motion for summary judgment.1
Sea Hawk filed a cross-motion for summary judgment on
its fraudulent conveyance petition in November 1997. Later that
month Sea Hawk filed a motion to amend the petition to add the
tort claim of conspiracy against the State for participating in
the alleged fraudulent conveyance and it attached the proposed
amended petition to its motion. The State and Valdez Fisheries
opposed the motion. According to the State, the superior court
never issued a ruling on Sea Hawks motion to amend the petition.2
In March 1998 Valdez Fisheries filed for chapter 11
bankruptcy protection in federal bankruptcy court, resulting in a
notice of automatic stay in the superior court. After the
bankruptcy court approved the settlement agreement executed by
Sea Hawk and Valdez Fisheries, it dismissed the bankruptcy
proceedings in April 1999. That month Sea Hawk filed a motion in
the superior court that renewed its requests for rulings on its
claims against the State and sought about $1 million in damages
to cover the shortfall that it had failed to obtain in its
settlement with Valdez Fisheries. The superior court ruled in
February 2000 that the bankruptcy court retained jurisdiction to
interpret whether any of Sea Hawks claims against the State were
eliminated by its settlement with Valdez Fisheries, and the court
directed the parties to submit the issue to the bankruptcy court.
Following decisions by the bankruptcy court and the federal
district court, the United States Court of Appeals for the Ninth
Circuit ruled in February 2006 that the bankruptcy court lacked
jurisdiction to interpret the settlement agreement.3
Sea Hawk filed a motion in May 2006, asking the
superior court to reopen its case against Valdez Fisheries and
the State as well as to rule on the pending cross-motions for
summary judgment. The State opposed the motion, requesting that
the superior court determine whether Sea Hawks claims against the
State were barred by the settlement agreement before it
considered the pending motions. In October 2006 the superior
court denied both summary judgment motions.
Sea Hawk and the State again filed cross-motions for
summary judgment in 2007. In its opposition to Sea Hawks summary
judgment motion and reply to its own summary judgment motion, the
State for the first time claimed that it was immune from Sea
Hawks suit. Sea Hawk moved to strike the States sovereign
immunity defense, contending that the State had waived this
defense by failing to assert it as an affirmative defense in its
answer. In October 2007 the superior court denied Sea Hawks
motion to strike the States sovereign immunity defense and
granted the States motion for summary judgment on sovereign
immunity grounds. The superior court reasoned that only the
legislature, by statute, can waive sovereign immunity and found
that [t]here is no such statutory waiver here. The superior
court remarked that [i]f conduct can serve as an implied or
constructive waiver, then the State has waived its sovereign
immunity by failing to raise the issue after over ten years of
litigation.4 But the superior court went on to conclude that
waiver of the sovereign immunity defense cannot be implied by
failing to raise the issue in a timely manner.
The superior court awarded the State twenty percent of
its attorneys fees under Alaska Rule of Civil Procedure 82(a).
Addressing the question whether the late assertion of the
sovereign immunity defense caused Sea Hawk to expend unnecessary
attorneys fees, the superior court found that the State did not
act in bad faith or in a vexatious manner and that even if [a
motion asserting the sovereign immunity defense] had been filed
much earlier, it is doubtful that it would have been decided
earlier, or that it would have impacted the many layers of
litigation that followed. The superior court also denied Sea
Hawks request for attorneys fees, reasoning that Alaska Appellate
Rule 508(e) was inapplicable and that use of its equitable powers
to override Civil Rule 82 was not warranted.
Sea Hawk appeals the superior courts rulings on
sovereign immunity and attorneys fees.
III. STANDARD OF REVIEW
This appeal involves a grant of summary judgment and
presents questions of law concerning waiver of sovereign immunity
through litigation conduct. We therefore apply a de novo
standard of review, adopting the rule of law that is most
persuasive in light of precedent, reason, and policy.5 We will
affirm a grant of summary judgment if the evidence in the record
fails to disclose a genuine issue of material fact and the moving
party is entitled to judgment as a matter of law.6
IV. DISCUSSION
The doctrine of sovereign immunity originates from the
ancient maxim that the king can do no wrong, and it has
historically barred parties from bringing claims against the
government.7 But sovereign immunity has been criticized as an
anachronism, without rational basis, that has existed only by the
force of inertia.8 As the doctrine evolved in the United States,
individual states began consenting to be sued under certain
conditions.9 The State of Alaska consents to suits against it in
article II, section 21 of the Alaska Constitution: The
legislature shall establish procedures for suits against the
State. Presently, the general rule in Alaska is that the
government is liable for its wrongs.10
Pursuant to article II, section 21 of the Alaska
Constitution, AS 09.50.250 establishes that contract,
quasi-contract, or tort claim[s] may be brought against the
State, but it places some limitations on the States liability for
these claims. Among the exceptions to the general rule of
liability are claims aris[ing] out of . . . misrepresentation,
deceit, or interference with contract rights.11 The applicability
of this exception to liability in this case is not disputed.
Instead, Sea Hawk argues that the State waived its claim of
sovereign immunity by raising the defense after almost ten years
of litigation.
As the parties recognize, the first question raised in
this appeal is whether a waiver of sovereign immunity is a
jurisdictional requirement. In other words, does the defense of
sovereign immunity affect a courts authority to hear the case?
Although some courts have held that a states sovereign immunity
relates to a courts jurisdiction over the subject matter of the
case and therefore the government can raise its immunity at any
time,12 most courts do not take this approach.13 For example, the
Supreme Court of South Carolina overrule[d] the antiquated rule
that sovereign immunity is a jurisdictional bar and, accordingly,
cannot be waived to join those jurisdictions which hold that
sovereign immunity is an affirmative defense that must be
[pleaded].14 New Jersey15 and Utah16 are among the states that have
concluded that sovereign immunity is an affirmative defense, and
sovereign immunity is an affirmative defense by statute in other
states, including Michigan,17 Pennsylvania,18 and South Dakota.19
And even some courts have treated sovereign immunity as an
affirmative defense in decisions that have not directly addressed
whether sovereign immunity relates to the courts jurisdiction
over the subject matter of the case.20
We have recognized that a court has subject-matter
jurisdiction over a case when it has the legal authority . . .
to hear and decide [that] particular type of case. 21 Under
article IV, section 1 of the Alaska Constitution, [t]he
jurisdiction of courts shall be prescribed by law. Accordingly,
AS 22.10.020(a) provides that the superior court has jurisdiction
in all civil and criminal matters. In recognition of this
provision, the State does not deny that the superior court had
the legal authority to hear the civil claims brought by Sea Hawk
against private parties such as Valdez Fisheries.
Instead, the State contends that AS 09.50.250 limits
the superior courts authority to hear Sea Hawks claims to the
extent that they are asserted against the State. Yet the
language of AS 09.50.250 indicates that the States consent to be
liable for certain activities is independent of a courts
authority to hear such claims for recovery. Alaska
Statute 09.50.250 provides that all civil claims22 may be brought
against the State in a state court if the court has subject-
matter jurisdiction: A person or corporation having a contract,
quasi-contract, or tort claim against the state may bring an
action against the state in a state court that has jurisdiction
over the claim. This statute was enacted pursuant to article II,
section 21 of the Alaska Constitution,23 which authorizes the
Alaska Legislature to prescribe the terms and conditions under
which the State consents to be sued, and not under the
constitutional provision that authorizes the legislature to
establish the courts jurisdiction.24 Thus, the language of
AS 09.50.250 does not suggest that the statute serves as a
limitation on a state courts authority to hear particular types
of cases.25
Moreover, our prior treatment of the defense of
sovereign immunity confirms that it is a defense that does not
affect a courts subject-matter jurisdiction. Many courts have
concluded that sovereign immunity is an affirmative defense that
must be pleaded to avoid waiver.26 This conclusion is implicit in
our decision in University of Alaska v. Simpson Building Supply.27
There, the University of Alaska first asserted that sovereign
immunity could bar a materialmans lien against its property at a
hearing on a summary judgment motion that was held almost two
years after the university had filed its answer.28 On appeal the
university argued that the superior courts lien judgment was
erroneous because its property was immune from lien attachment.29
We noted that there is considerable merit in Simpson Buildings
contention that immunity is an affirmative defense which must be
specifically pleaded because even though immunity is not
specifically denominated in Civil Rule 8(c) as an affirmative
defense, immunity from liens is an avoidance and thus can be
characterized as an affirmative defense.30 Despite this, we
remanded the matter to develop the facts and law on whether the
property was immune from liens because of our reservations about
endorsing a potentially null judgment.31
We clarify now what we implied in Simpson: the States
claim of sovereign immunity is properly characterized as an
affirmative defense because it is an avoidance under Civil Rule
8(c). This rule requires that a litigant set forth certain
specific defenses as well as any other matter constituting an
avoidance or affirmative defense. We have explained that an
avoidance is a matter that avoids the action and that the
plaintiff does not have to prove at the outset in support of the
action.32 Sovereign immunity satisfies this definition because it
bars a person from bringing a claim against the State33 and
plaintiffs are not required to show that they may sue the State
in order to proceed with their claims.34
Our determination that sovereign immunity is an
affirmative defense leads us to the question whether it must be
pleaded to avoid waiver. Alaska Civil Rule 8(c) provides that a
party shall set forth affirmative defenses [i]n pleading to a
preceding pleading. This requirement aims to give litigants
sufficient notice of their opponents defenses to adequately
prepare for trial.35 But failing to plead an affirmative defense
does not necessarily result in waiver of the defense because
Alaska follows the widely-used approach which, if undue prejudice
would not be visited upon the opposing party, allows a litigant
to raise new affirmative defenses at any time through a motion
for summary judgment.36 This approach stems from the policy that
decisions should be based on the merits rather than on pleading
technicalities37 and from Civil Rule 15s intention that requests
for leave to amend pleadings be liberally granted.38 Thus, we
agree with the courts that have concluded that whether the
government waived its sovereign immunity by failing to
affirmatively plead the defense in the answer turns on whether
the adverse party is prejudiced by the moving partys delay in
raising the defense.39
We have previously determined that [w]hether a litigant
is unduly prejudiced by an opponents post-answer attempt to
obtain summary judgment on the basis of an affirmative defense
not set forth in the pleadings is an inquiry invoking virtually
the same concerns as a motion to amend the pleadings with leave
of court.40 Accordingly, we have applied the same factors to
determine whether a party would be prejudiced if the opposing
party were permitted to raise a new affirmative defense at the
summary judgment stage as to decide whether a party would be
prejudiced if the opposing party were permitted to amend its
pleadings.41 These factors include added expense and delay, a
longer or more burdensome trial, or if the issues being raised in
the amendment are remote from the scope of the original case.42 A
finding of prejudice, however, is not necessarily fatal. Before
resolving whether the State has waived its sovereign immunity
defense through litigation conduct, the trial court must consider
whether additional time or money can remedy the prejudicial
effect of the States late assertion of the defense.43
In the present case, the trial court remarked that [i]f
conduct can serve as an implied or constructive waiver, then the
State has waived its sovereign immunity by failing to raise the
issue after over ten years of litigation. But the trial court
did not provide any explanation for this conclusion nor did it
determine whether Sea Hawk had been prejudiced. Moreover, the
courts comments regarding its award of attorneys fees to the
State appear to cut against its waiver conclusion. In addressing
whether the late assertion of the sovereign immunity defense
caused Sea Hawk to expend unnecessary attorneys fees, the trial
court remarked that because the case had been delayed by
bankruptcy proceedings and several appeals, even if [a motion
asserting the sovereign immunity defense] had been filed much
earlier, it is doubtful that it would have been decided earlier,
or that it would have impacted the many layers of litigation that
followed. The trial court also noted that [i]t appears that in
the intervening years there were concerns as to whether this
court had jurisdiction to deal with issues including the
sovereign immunity claim. Thus, we remand so that the trial
court may apply the proper waiver analysis to determine whether
the State waived its sovereign immunity defense.44
V. CONCLUSION
The State can waive its claim of sovereign immunity by
failing to raise the affirmative defense in a timely manner.
Whether the State waived the defense turns on whether the
plaintiff is prejudiced by the States late assertion of the
defense. To make a determination on the prejudice issue, a court
must consider factors including added expense and delay, a longer
or more burdensome trial, and if the issues being raised in the
amendment are remote from the scope of the original case, as well
as whether additional time or money can remedy the prejudicial
effect of the States delay in raising the defense. If the trial
court determines that the State waived its claim of sovereign
immunity, the court will need to rule on Sea Hawks outstanding
motion to amend its petition to include the conspiracy claim.
Because it was error to conclude that the State cannot waive its
sovereign immunity defense through litigation conduct and to fail
to apply the correct test for determining waiver of the States
sovereign immunity, we REVERSE and REMAND for further proceedings
consistent with this opinion.
_______________________________
1 Although the State asserted that its motion was for
judgment on the pleadings under Alaska Civil Rule 12(c), it
supported its motion with documents on file with the trial court,
attached an exhibit to its supporting memorandum, and
acknowledged that the trial court might decide to treat its
motion as a motion for summary judgment. See Alaska R. Civ. P.
12(c) (If, on a motion for judgment on the pleadings, matters
outside the pleadings are presented to and not excluded by the
court, the motion shall be treated as one for summary judgment
and disposed as provided in Rule 56 . . . .).
2 Sea Hawk maintains that its complaint has been amended
by implied consent under Alaska Civil Rule 15.
3 In re Valdez Fisheries Dev. Assn, Inc., 439 F.3d 545
(9th Cir. 2006).
4 Sea Hawk added the State to its lawsuit against Valdez
Fisheries on October 3, 1997, and the State for the first time
claimed sovereign immunity on July 20, 2007, about nine years and
ten months after the State was added.
5 State Farm Mut. Auto. Ins. Co. v. Dowdy, 192 P.3d 994,
998 (Alaska 2008) (internal quotation marks omitted).
6 Ware v. Ware, 161 P.3d 1188, 1192 (Alaska 2007)
(internal quotation marks omitted).
7 State v. Zia, Inc., 556 P.2d 1257, 1260 (Alaska 1976).
8 State v. Abbott, 498 P.2d 712, 717 (Alaska 1972)
(alteration and internal quotation marks omitted).
9 Zia, 556 P.2d at 1260.
10 See Kinegak v. State, Dept of Corr., 129 P.3d 887, 889
(Alaska 2006) ([L]iability is the rule, immunity the exception in
claims against the state. (internal quotation marks omitted));
Adams v. State, 555 P.2d 235, 244 (Alaska 1976) (The law of
sovereign immunity has evolved from the early common law that the
King can do no wrong through a stage where . . . the King can do
only little wrongs to its present posture, where liability is the
rule, immunity the exception. (footnote, alteration, and internal
quotation marks omitted)).
11 AS 09.50.250(3).
12 See, e.g., Kirk v. Kennedy, 231 So. 2d 246, 248 (Fla.
Dist. App. 1970) (holding that because the defense of sovereign
immunity relates solely to the jurisdiction of the court over the
subject matter of the cause, a defendant may move to dismiss a
complaint on the ground of sovereign immunity at any time under
the Florida civil procedure rules); Henderson v. Dept of Corr.
Servs., 589 N.W.2d 520, 522 (Neb. 1999) (holding that [a]bsent
legislative action waiving sovereign immunity, a trial court
lacks subject matter jurisdiction over an action against the
state and that [l]itigants cannot confer subject matter
jurisdiction on a judicial tribunal by either acquiescence or
consent and the states immunity from suit cannot be waived by a
voluntary general appearance by the Attorney General); see also
57 Am. Jur. 2d Municipal, County, School, and State Tort
Liability 605 (2001) (citing decisions holding that a states
sovereign immunity can be raised at any time because the defense
goes to a courts subject-matter jurisdiction).
13 See, e.g., Gauvin v. City of New Haven, 445 A.2d 1, 3
(Conn. 1982) (Governmental immunity is essentially a defense of
confession and avoidance similar to other defenses required to be
affirmatively pleaded.); Cross v. City of Kansas City, 638 P.2d
933, 937 (Kan. 1982) (holding that governmental immunity has
[t]raditionally . . . been raised as a failure to state a claim
upon which relief can be granted[] or failure to state facts
sufficient to constitute a cause of action (citation and internal
quotation marks omitted)); Hern v. Crist, 735 P.2d 1151, 1154
(N.M. App. 1987) (ruling that it [is] preferable practice for the
immunity defense to be specifically raised as an affirmative
defense or by way of a motion to dismiss). Cf. Wendelken v. JENK
LLC, 661 S.E.2d 152, 155 (Ga. App. 2008) (applying the rule that
the party seeking to benefit from a waiver of sovereign immunity
must establish that the governments sovereign immunity has been
waived because immunity from suit is a privilege and not an
affirmative defense); Drake v. Smith, 390 A.2d 541, 543 (Me.
1978) (declining to address whether jurisdictional grounds were
the basis of its holding that in the absence of specific
authority conferred by [a legislative enactment], the sovereigns
immunity from suit cannot be waived through the imposition of
procedural requirements or be deemed forfeited by procedural
defaults). For examples of decisions by other states that treat
sovereign immunity as an affirmative defense, see infra notes 14-
20. See also 57 Am. Jur. 2d Municipal, County, School, and State
Tort Liability 621 (listing decisions holding that sovereign
immunity is an affirmative defense that is waived if not
affirmatively pleaded).
14 Washington v. Whitaker, 451 S.E.2d 894, 898 (S.C.
1994).
15 Kolitch v. Lindedahl, 497 A.2d 183, 189 (N.J. 1985) (It
is well established that the burden is on the public entity both
to plead and prove its immunity under our Act . . . .).
16 Ferree v. State, 784 P.2d 149, 152-53 (Utah 1989)
(Sovereign immunity . . . is an affirmative defense . . . .).
17 See Mich. Civ. R. 2.111(F)(3)(a).
18 See Pa. R. Civ. P. 1030(a).
19 See S.D. Codified Laws 21-32A-3 (1987).
20 See Sierra v. Assoc. Marine Insts., Inc., 850 So. 2d
582, 590 (Fla. Dist. App. 2003) (noting sovereign immunity
generally is an affirmative defense that may justify granting a
motion to dismiss only when the complaint itself conclusively
establishes its applicability in addressing the lower courts
holdings that the defendants were immune from the alleged
intentional torts and that the second amended complaint alleged
conduct that constituted planning-level activity for which
sovereign immunity was not waived), superseded by statute on
other grounds, 2003 Fla. Sess. Law Serv. ch. 2003-412, 14, as
recognized in Cabrera v. T.J. Pavement Corp., 2 So. 3d 996, 999
n.4 (Fla. Dist. App. 2008); Goad v. Cuyahoga County Bd. of
Commrs, 607 N.E.2d 878, 879-80 (Ohio App. 1992) (explaining that
pleading the affirmative defense of failure to state claim upon
which relief can be granted is sufficient to raise the
affirmative defense of sovereign immunity as long as the
complaint itself bore conclusive evidence that the action was
barred by sovereign immunity).
21 Nw. Med. Imaging, Inc. v. State, Dept of Revenue, 151
P.3d 434, 438 (Alaska 2006) (quoting Erwin Chemerinsky, Federal
Jurisdiction 257 (3d ed. 1999)).
22 See Wright Truck & Tractor Serv., Inc. v. State, 398
P.2d 216, 220 (Alaska 1965) (holding that AS 09.50.250 includes
all civil claims), superseded by statute on other grounds, ch.
30, 2, SLA 1965, as recognized in State v. Phillips, 470 P.2d
266, 272 (Alaska 1970).
23 See State v. Haley, 687 P.2d 305, 318 (Alaska 1984) (By
enacting section 250, the legislature has exercised its
authority, pursuant to Alaska Const. art. II, 21, to waive the
States immunity to suits asserting contract claims against it.).
24 Alaska Const. art. IV, 1.
25 In State v. Zia, Inc., 556 P.2d 1257, 1263 (Alaska
1976), where we held that AS 09.50.250 establishes an
administrative procedure that is a condition precedent to
recovery against the State, we noted that we did not find AS
09.50.250 to be of the jurisdictional nature, but rather was
founded on a policy whereby a court refrains from exercising its
existing jurisdiction.
26 See, e.g., Kolitch v. Lindedahl, 497 A.2d 183, 189
(N.J. 1985) (It is well established that the burden is on the
public entity both to plead and prove its immunity under our Act
. . . .); Washington v. Whitaker, 451 S.E.2d 894, 898 (S.C. 1994)
([W]e overrule the antiquated rule that sovereign immunity is a
jurisdictional bar and, accordingly, cannot be waived. We join
those jurisdictions which hold that sovereign immunity is an
affirmative defense that must be pled. (citations omitted));
Ferree v. State, 784 P.2d 149, 152-53 (Utah 1989) (Sovereign
immunity . . . is an affirmative defense and conceptually arises
subsequent to the question of whether there is tort liability in
the first instance.); see also 57 Am. Jur. 2d Municipal, County,
School, and State Tort Liability 621 (2001) (listing decisions
holding that sovereign immunity is an affirmative defense that is
waived if not affirmatively pleaded).
27 530 P.2d 1317 (Alaska 1975).
28 Id. at 1323.
29 Id. at 1322.
30 Id. at 1323. Similarly, in State, Commercial Fisheries
Entry Commission v. Carlson (Carlson III), 65 P.3d 851, 873
(Alaska 2003), we rejected the States argument that had sovereign
immunity overtones, reasoning that [t]he States failure to raise
its immunity argument before the superior court and before this
court at the time this issue was being litigated precludes the
State from raising this defense now.
31 Simpson, 530 P.2d at 1324.
32 Rollins v. Leibold, 512 P.2d 937, 941 (Alaska 1973)
(citing 2A J. Moore, Federal Practice 8.27(3) (2d ed. 1972); 5
C. Wright & A. Miller, Federal Practice & Procedure 1271
(1969)).
33 See AS 09.50.250 (listing limitations to the States
consent to be sued). See generally State v. Zia, Inc., 556 P.2d
1257, 1260 (Alaska 1976) (explaining that historically the
doctrine of sovereign immunity operated as a bar to claims
brought against the state but that states began to permit suits
against themselves as long as they were brought in a manner and
in the courts prescribed by law).
34 See AS 09.50.250 (waiving the States immunity from
contract, quasi-contract, and tort suits without requiring
plaintiffs to prove waiver before suing the State); see also,
e.g., Carlson III, 65 P.3d at 873-74 (rejecting the States
argument that it was immune from class actions for fee refunds
because the argument was waived and outside the scope of the
remand without requiring the class members to have shown that the
State had waived its immunity before proceeding with the suit);
Simpson, 530 P.2d at 1324 (remanding the immunity issue to
develop the requisite facts and law regarding whether the
universitys property was immune from liens without imposing a
requirement that the plaintiff show that the State had waived its
immunity in order to proceed with the suit).
35 Gamble v. Northstore Pship, 907 P.2d 477, 481 (Alaska
1995).
36 Id. at 483 (quoting Blake v. Gilbert, 702 P.2d 631, 639
(Alaska 1985), overruled on other grounds by Bibo v. Jeffreys
Rest., 770 P.2d 290, 296 n.9 (Alaska 1989)).
37 Id.
38 Id.; see also Alaska R. Civ. P. 15(a) (providing that
leave to amend a pleading shall be freely given when justice so
requires).
39 Pickle v. Bd. of County Commrs of County of Platte, 764
P.2d 262, 264 (Wyo. 1988); accord Morris v. City of Chicago, 474
N.E.2d 1274, 1278-79 (Ill. App. 1985).
40 Gamble, 907 P.2d at 484. We reasoned that a motion to
amend the pleadings with leave of court in combination with a
standard summary judgment motion is functionally equivalent to a
summary judgment motion that raises a new affirmative defense.
Id. at 484 n.4. Similarly, a motion to amend the pleadings with
leave of court in combination with a standard response to a
summary judgment motion is functionally equivalent to a response
to a summary judgment motion that raises a new affirmative
defense.
41 See, e.g., id. at 484; Rutledge v. Alyeska Pipeline
Serv. Co., 727 P.2d 1050, 1054-55 (Alaska 1986).
42 OCallaghan v. Rue, 996 P.2d 88, 101 (Alaska 2000)
(internal quotation marks omitted). Another possible factor that
may be relevant to the trial courts prejudice determination is
the plaintiffs ability to amend the complaint to name state
officials in their individual capacities. See generally State,
Dept of Health & Social Servs., Div. of Family & Youth Servs. v.
Native Village of Curyung, 151 P.3d 388, 404 (Alaska 2006)
(explaining that even if the government is immune from suit, the
plaintiff may seek to enjoin the actions of state officials or to
obtain a declaratory judgment that the state officials actions
violate federal statutory or constitutional rights and noting
that as a practical matter, either remedy . . . is functionally
the same as an injunction prohibiting the state itself from doing
those acts).
43 Cf. DeNardo v. ABC Inc. RVs Motorhomes, 51 P.3d 919,
926-27 (Alaska 2002) (explaining that before a trial court
dismisses an action under Civil Rule 37, the court must consider
alternative remedies to cure the prejudicial effect of the
discovery violations and to deter further violations, such as
monetary sanctions); Gamble, 907 P.2d at 484 ([T]he remedy for
inadequate time to prepare on a new theory is a continuance, not
preventing a trial on the merits of the new theory. (internal
quotation marks omitted)); Zeller v. Poor, 577 P.2d 695, 697-98
(Alaska 1978) (noting that the inconvenience and additional legal
fees associated with a litigants delay may be remedied by
assessing costs and attorneys fees in a discussion of dismissals
for want of prosecution under Civil Rule 41(e)).
44 As alternative grounds for reversing the trial courts
dismissal of its claims, Sea Hawk argues that the States
sovereign immunity defense was not properly before the trial
court because the State first raised its claim of sovereign
immunity in a reply memorandum for its summary judgment motion.
The trial court appropriately considered and addressed the
parties arguments concerning whether the States claim of
sovereign immunity had been waived, as we do here. Because we
decide this case on the merits and instruct the trial court on
remand to determine whether the States sovereign immunity defense
has been waived, we need not address Sea Hawks procedural
argument. See Hughes v. Bobich, 875 P.2d 749, 756 n.11 (Alaska
1994) (Our reversal of the trial courts decision on these grounds
makes it unnecessary for us to decide the various alternative
grounds advanced by the [plaintiffs] in challenging the trial
courts orders of dismissal and summary judgment.). Finally, our
disposition moots Sea Hawks argument that the superior court
abused its discretion in awarding the State attorneys fees. See
Cikan v. ARCO Alaska, Inc., 125 P.3d 335, 342 n.22 (Alaska 2005)
(Our reversal of the summary judgment order necessarily vacates
the superior courts award of attorneys fees to ARCO, making
Cikans separate challenge to the fee award moot.).
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