Opinion
KNLCV186035542S
11-14-2018
Thomas KULIC v. LANSDOWNE PUB-MS, LLC et al.
UNPUBLISHED OPINION
OPINION
Murphy, J.
This dram shop action arises from a dispute between the plaintiff, Thomas Kulic, and the defendants, Lansdowne Pub-MS, LLC (Lansdowne), Patrick Lyons, and Lyons Group, LTD (Lyons Group), regarding a motor vehicle accident that occurred on July 9, 2017, in Norwich, Connecticut. As the plaintiff was crossing Washington Street in Norwich, he was struck by a motor vehicle driven by Aaron Drake. The defendants are permittees and/or backers of the Landsdowne Pub located at the Mohegan Sun Casino in Uncasville, Connecticut. The plaintiff brings this action pursuant to the Dram Shop Act (act), General Statutes § 30-102. The plaintiff alleges that the defendants, their agents, servants and/or employees continued to serve Drake alcoholic drinks even though he was in an intoxicated condition. The defendants move to dismiss the present action for lack of subject matter jurisdiction. The defendants argue that they are immune from suits of this nature in the courts of this state pursuant to the doctrine of sovereign immunity.
Hereafter, Lansdowne, Lyons, and Lyons Group are referred to, collectively, as the defendants, and individually by name where appropriate.
Aaron Drake is not a party to the present action.
General Statutes § 30-102 provides in relevant part: "If any person, by such person or such person’s agent, sells any alcoholic liquor to an intoxicated person, and such purchaser, in consequence of such intoxication, thereafter injures the person or property of another, such seller shall pay just damages to the person injured, up to the amount of two hundred fifty thousand dollars, or to persons injured in consequence of such intoxication up to an aggregate amount of two hundred fifty thousand dollars, to be recovered in an action under this section, provided the aggrieved person or persons shall give written notice to such seller of such person’s or persons’ intention to bring an action under this section ..."
STANDARD
"A motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009). A motion to dismiss is the proper vehicle for challenging a plaintiff’s standing to sue. Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402, 413, 35 A.3d 188 (2012). "When a ... court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 211, 897 A.2d 71 (2006).
"[A] court lacks discretion to consider the merits of a case over which it is without jurisdiction." (Internal quotation marks omitted.) Machado v. Taylor, 326 Conn. 396, 404, 163 A.3d 558 (2017). "The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings ..." (Internal quotation marks omitted.) Keller v. Beckenstein, 305 Conn. 523, 531-32, 46 A.3d 102 (2012). "[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn. 93, 99, 680 A.2d 1321 (1996).
DISCUSSION
The defendants claim that the Superior Court has no subject matter jurisdiction to adjudicate this dram shop action because the defendants are Mohegan Tribal entities and are, therefore, entitled to tribal sovereign immunity. The defendants assert that no suit may be brought against the Mohegan Tribe or a Mohegan Tribal entity unless it has waived its sovereign immunity or consented to suit in a particular forum.
The plaintiff argues that, to the contrary, the Superior Court does have subject matter jurisdiction over this matter on the grounds that this action has been brought against an individual and two nontribal business entities in their individual capacities to recover damages under the act for personal injuries and losses sustained off tribal property on or about July 9, 2017, as a result of being struck by a motor vehicle operated by an intoxicated driver who had been sold alcohol at the Lansdowne Pub located within the Mohegan Sun Casino.
The following legal principles guide the court’s analysis. "Tribal sovereign immunity is governed by federal law ... Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers ... Indian tribes are domestic dependent nations which exercise inherent sovereign authority over their members and territories ... Tribal sovereign immunity is dependent upon neither the location nor the nature of the tribal activities." (Citations omitted; internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134-35, 918 A.2d 880 (2007). "Where applicable, tribal sovereign immunity ... serves to bar a court’s subject matter jurisdiction." State v. Velky, 263 Conn. 602, 611, 821 A.2d 752 (2003).
"[A]s a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity ... and the tribe itself has consented to suit in a specific forum ... Absent a clear and unequivocal waiver by the tribe or congressional abrogation, the doctrine of sovereign immunity bars suits for damages against a tribe ... Although tribal immunity does not extend to individual members of a tribe ... [t]he doctrine of tribal immunity ... extends to individual tribal officials acting in their representative capacity and within the scope of their authority ... The doctrine does not extend to tribal officials when acting outside their authority in violation of state law ... Tribal immunity also extends to all tribal employees acting within their representative capacity and within the scope of their official authority." (Citations omitted; internal quotation marks omitted.) Chayoon v. Sherlock, 89 Conn.App. 821, 826-27, 877 A.2d 4, cert. denied, 276 Conn. 913, 888 A.2d 83 (2005), cert. denied, 547 U.S. 1138, 126 S.Ct. 2042, 164 L.Ed.2d 797 (2006).
In the present case, neither the Mohegan Tribe nor its members or employees are defendants. The defendants are Lansdowne Pub-MS, LLC, a limited liability company established under the laws of the state of Connecticut, Lyons is a resident of the town of Brookline, commonwealth of Massachusetts, and Lyons Group is a corporation established under the laws of the commonwealth of Massachusetts. The defendants were permittees/backers of the Lansdowne Pub.
The court first notes that, although the defendants cite multiple Superior Court cases in furtherance of their argument, the facts of these cases are distinguishable from the facts of the present case. Portella v. Spaziante, Superior Court, judicial district of New London, Docket No. CV-10-6004105-S (November 1, 2011, Cosgrove, J.) (52 Conn.L.Rptr. 813) (bar was owned or backed by the Mohegan Tribe Gaming Authority); Richards v. Champion, Superior Court, judicial district of New London, Docket No. CV-07-5004614-S (July 11, 2008, Abrams, J.) (defendant was Mohegan Tribal Gaming Authority); Greenidge v. Volvo Car Finance, Inc., Superior Court, judicial district of New London at Norwich, Complex Litigation Docket, Docket No. X04-CV-96-0119475-S (August 25, 2000, Koletsky, J.) (28 Conn.L.Rptr. 2) (defendants were Mashantucket Pequot Tribe, Mashantucket Pequot Gaming Enterprise, and individual tribal officials who were liquor permittees of Foxwoods Resort). The court also notes that, in addition to the Superior Court cases cited by defendants, the court is aware of the decision in Durante v. Mohegan Tribal Gaming Authority, Superior Court, judicial district of Hartford, Complex Litigation Docket, Docket No. X04-CV-11-6022130-S (March 30, 2012, Bright, J.) (53 Conn.L.Rptr. 811). There, the court, Bright, J., granted a motion to dismiss in a case involving a factual scenario that is very similar to the facts of the present case. Durante involved a wrongful death action that stemmed from a motor vehicle accident, which was caused by a tortfeasor who was traveling the wrong way on Interstate 395. The allegations of the complaint included recklessness claims against defendants in serving alcohol to the tortfeasor while a patron at the Ultra 88 Nightclub at the Mohegan Sun Casino.
It is important to note, however, that, in Durante, the defendants that moved to dismiss on the basis of sovereign immunity were collectively referred to by the court as the "Mohegan Defendants" and, unlike the present case, were limited to the fError!aming Authority; Gary Crowder, a permittee of the Ultra 88 Nightclub pursuant to a Casino Liquor Permit in which the Mohegan Tribal Gaming Authority was the backer; Mitchell Etess who was the Chief Executive Officer of Mohegan Tribal Gaming Authority; and Bruce Bozsum, who was the Chairman of the Mohegan Tribal Counsel. Footnote 1 of the decision indicates that "[t]he motion to dismiss did not concern Plan "B," Lyons or Lyons Group, LTD."
In furtherance of their argument, the defendants also cite our Supreme Court’s decision in Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 794 A.2d 498 (2002), and the United States Supreme Court’s decision in Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998) (Kiowa). Here, the court is unpersuaded by the defendants’ reliance on both decisions.
In Kiowa, the plaintiff sought to recover on a promissory note executed by an Indian tribe. The United States Supreme Court held that Indian tribes enjoy sovereign immunity from civil suits on contracts, whether those contracts involve governmental or commercial activities and whether they were made on or off a reservation. Unlike the facts of Kiowa, the defendants here are not a tribe, tribal member, or employee. The present case, moreover, does not involve a contract claim.
In Kizis, the defendants were the director of facilities operation, who were employed by the tribal gaming authority, and a building official, who was employed by the tribe. Although the defendants argue in this case that the defendants are "Mohegan tribal entities," nowhere in their argument do they claim that they are members, employees, or officials of the tribe. Further distinguishing this case from Kizis is the fact that, here, the plaintiff’s claims arise under the act and are not the type of tort over which the Tribe maintained jurisdiction pursuant to the Mohegan Torts Code. In Kizis, our Supreme Court found in favor of the motion to dismiss at issue, reasoning that "the Mohegan Gaming Disputes Court is the exclusive forum for the adjudication and settlement of tort claims against the tribe and its employees because it is the forum in which the sovereign has consented to being sued, as set forth in Ordinance No. 98-1 amending the Mohegan Torts Code." (Emphasis added.) Kizis v. Morse Diesel International, Inc., supra, 260 Conn. 58-59.
"[T]he Mohegan Torts Code ... contains a limited waiver of the tribe’s sovereign immunity so that the Gaming Disputes Court may adjudicate liability for (1) [i]njuries proximately caused by the negligent acts or omissions of the Mohegan Tribal Gaming Authority; (2) [i]njuries proximately caused by the condition of any property of the Mohegan Tribal Gaming Authority provided the claimant establishes that the property was in a dangerous condition; [and] (3) [i]njuries caused by the negligent acts or omissions of tribal security officers arising out of the performance of their duties during the course and within the scope of their employment." (Internal quotation marks omitted.) Kizis v. Morse Diesel International, Inc., supra, 260 Conn. 56-57.
In the present case, the claims asserted by the plaintiff do not fall within the purview of the Mohegan Torts Code and, therefore, are not compelled to adjudication in the Mohegan Gaming Disputes Court under Kizis. Further, the defendants are neither the Mohegan Tribal Gaming Authority nor its employees, "and thus, by the plain language of the statute, do not fall under the exclusive jurisdiction of the Mohegan Torts Code." Cappola v. Plan B, LLC, Superior Court, judicial district of New Haven, Docket No. CV-07-5012215-S (August 11, 2008, Holden, J.) (46 Conn.L.Rptr. 198, 199).
The defendants also argue that the plaintiff cannot bring a claim for conduct that allegedly occurred within Mohegan Tribal territory even when the claim is brought against the defendants in their individual capacities. The court disagrees.
The Appellate Court addressed the Kizis holding in Ellis v. Allied Snow Plowing, Removal & Sanding Services Corp., 81 Conn.App. 110, 838 A.2d 237, cert. denied, 268 Conn. 910, 845 A.2d 410 (2004). There, the court rejected the idea that "Kizis stands for the proposition that a properly authorized tribal court with broad tribal authority unfailingly ousts the Superior Court of jurisdiction to hear any case that is in any way related to tribal activities." Id., 114. The Appellate Court, in reaching its conclusion, relied on a decision of the United States Supreme Court in Strate v. A-1 Contractors, 520 U.S. 438, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997). "In Strate, the issue was whether a nonmember of a tribe was entitled to pursue, in federal court, a personal injury claim arising out of a collision between her automobile and a truck driven by a nonmember employee of a nonmember general contractor engaged in performing landscaping services for the tribe ... The United States Supreme Court held that the District Court, rather than the tribal court, had jurisdiction to hear the case. It concluded that tribes generally lack civil authority over the tortious conduct of nonmembers of the tribe unless the underlying activity directly affects the tribe’s political integrity, economic security, health or welfare." Ellis v. Allied Snow Plowing, Removal & Sanding Services Corp., supra, 115. The underlying incident in Strate took place on Tribal grounds. The defendants in this case have not advanced an argument that the underlying activity at issue directly affects the tribe’s political integrity, economic security, health or welfare.
Here, despite the reference to the defendants as "Mohegan tribal entities" in their motion to dismiss, the real parties in interest are private individuals and entities. Lansdowne is a limited liability company established under the laws of the state of Connecticut, Lyons Group is a corporation established under the laws of the commonwealth of Massachusetts, and Lyons is an individual resident of the commonwealth of Massachusetts. Nothing in the plaintiff’s complaint alleges that the Lansdowne Pub was either owned or operated by a tribal member.
In Lewis v. Clarke, 137 S.Ct. 1285, 197 L.Ed.2d 631 (2017), the United States Supreme Court recently addressed the issue of who the real party in interest is for purposes of tribal sovereign immunity. There, the plaintiff brought suit against a Tribal employee in his individual capacity in the Superior Court of Connecticut for injuries sustained in a motor vehicle accident that occurred on a Connecticut highway. The defendant moved to dismiss for lack of subject matter jurisdiction, arguing that, because he was an employee of the Gaming Authority of the Mohegan Tribe, acting within the scope of his employment at the time of the accident, he was entitled to sovereign immunity against suit. Our Supreme Court held that tribal immunity barred the suit because the defendant was acting within the scope of his employment with the Tribe when the accident occurred. However, despite the fact that the defendant was in fact a tribal employee, and was acting within the scope of such employment at the time of the accident, the United States Supreme Court reversed, holding that the suit was brought against the tribal employee in his individual capacity and not the tribe; therefore, the employee was the real party in interest, and the tribe’s sovereign immunity was not implicated. The court further explained that "the Connecticut courts exercise no jurisdiction over the Tribe or Gaming Authority, and their judgments will not bind the Tribe ..."
In applying Lewis to the present case, the court finds that the real parties in interest are Lansdowne, Lyons, and Lyons Group, not the Mohegan Tribe. Accordingly, this court finds that tribal sovereign immunity is not implicated here, and the Superior Court has subject matter jurisdiction over the present action.
CONCLUSION
Wherefore, for the reasons set forth herein, the defendants’ motion to dismiss is denied.