Opinion
No. KNLCV 044001587
October 31, 2005
DEFENDANTS' MOTION TO DISMISS BASED UPON TRIBAL IMMUNITY
I. Procedural and Factual Background
On November 30, 2004, the plaintiff, Matthew Van Etten, filed a complaint against defendants Mashantucket Pequot Gaming Enterprise (Gaming Enterprise), Mashantucket Pequot Tribal Nation (Tribe), Foxwoods Resort Casino (Foxwoods), Ronald LaDuca and Richard Tessler. The individual defendants, Ronald LaDuca and Richard Tessler, are employees of the Gaming Enterprise.
The complaint alleges that the plaintiff was seriously injured in an automobile accident occurring on December 17, 2002 after a holiday celebration which was held for the benefit of Foxwoods' employees. Count one of the complaint asserts a claim of negligence against the Gaming Enterprise. Among the grounds for the plaintiff's claim, are allegations that the Gaming Enterprise "allowed its agents to use buildings and chattels in their control or possession without reasonable care to control the conduct of others from harming others"; "failed to exercise reasonable care to control, through their managers, third persons whom they [k]new or should have known to be likely to cause bodily harm to others if not so controlled"; and "failed to realize or should have realized the activity carried on by their managers involved an unreasonable risk of physical harm away from the location of the celebration because of the activity carried on by the managers in the location of the Christmas celebration." (Complaint.) The plaintiff asserts the same allegations against the Tribe and against Foxwoods in counts two and three, respectively.
It is not clear from the complaint whether the plaintiff attended the celebration or whether he alleges to have been injured by an attendee of the celebration. Neither does the complaint set forth the location of the automobile accident in which the plaintiff alleges to have been injured.
In count four of the complaint the plaintiff alleges negligence as to the individual defendant Ronald LaDuca. In count five of the complaint, the plaintiff alleges negligence as to the individual defendant Richard Tessler. The plaintiff asserts the same allegations against Mr. LaDuca CT Page 13938-ce and Mr. Tessler. The plaintiff alleges that each of these individuals participated in organizing the holiday celebration, posting invitational materials and collecting funds from fellow employees to defray the cost of the celebration. The plaintiff claims that Mr. LaDuca and Mr. Tessler were negligent in that they, among other things: "used buildings and chattels in [their] control or possession without reasonable care to control the conduct of others from harming others"; "failed to exercise reasonable care to control third persons whom [they] [k]new or should have known to be likely to cause bodily harm to others if not so controlled"; and "failed to realize or should have realized the activity carried on involved an unreasonable risk of physical harm away from the location of the celebration . . ."
The defendants have filed a motion to dismiss together with a memorandum of law in support. In the memorandum of law in support of the motion to dismiss, the defendants argue that the Tribe and the Gaming Enterprise, as "an arm of the tribal government," are immune from suit because of the doctrine of tribal sovereign immunity.
As to the defendant "Foxwoods," the defendants assert that it "is not a legal entity separate from the Gaming Enterprise or the Tribe . . . Rather, the Gaming Enterprise does business as Foxwoods Resort Casino and the name of the gaming facility is Foxwoods Resort Casino." In essence, defendants argue that Foxwoods and the Gaming Enterprise are one in the same.
Finally, as to the individual defendants, Ronald LaDuca and Richard Tessler, the argument is that because the complaint alleges negligence in performing job duties for and on behalf of the Tribe, the Gaming Enterprise and/or Foxwoods, the claim is essentially against the sovereign. Therefore, defendants argue, the doctrine of tribal sovereign immunity extends to the claims against the individual defendants.
In a memorandum in opposition to the motion to dismiss as to the individual defendants, the plaintiff essentially asserts that the individual defendants' negligent acts were outside the scope of their employment with the Tribe and/or the Gaming Enterprise. The plaintiff also argues that the defendants cannot raise the defense of sovereign immunity where the alleged injuries occur outside the boundaries of the tribal reservation.
II. Issue
Thus, the issue is whether the doctrine of tribal sovereign immunity deprives the court of subject matter jurisdiction as to each count of the CT Page 13938-cf plaintiff's complaint?
III. Legal Principles
Practice Book § 10-31 sets forth the grounds for a motion to dismiss. Section 10-31 provides that: "The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process." "Jurisdiction of the subject-matter is the power of the court to hear and determine cases of the general class to which the proceedings in question belong." Case v. Bush, 93 Conn. 550, 552, 106 A. 822 (1919). "[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." Amore v. Frankel, 228 Conn. 358, 364, 636 A.2d 786 (1994).
The United States Supreme Court has stated that "[I]ndian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers." Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978). Further, the Court has recognized that a waiver of sovereign immunity from suit "cannot be implied but must be unequivocally expressed." United States v. King, 395 U.S. 1, 4, 23 L.Ed.2d 52 (1969). Likewise, our own Supreme Court has acknowledged that Indian tribes enjoy sovereign immunity from suit absent an unequivocally expressed waiver of immunity. Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 52-54, 794 A.2d 498 (2002).
Congress has extended federal recognition to the defendant Tribe. 25 U.S.C. §§ 1752, 1758. Our State legislature also recognizes the defendant as an Indian tribe. Conn. Gen. Stat. § 47-63. Thus, the Tribe is entitled to sovereign immunity from the plaintiff's suit absent an express waiver. The plaintiff does not identify any such waiver and, in fact, none exists. See Greenidge v. Volvo Car Finance, Inc., 2000 Conn.Super. LEXIS 2240, No. X04-CV-960119475S, 28 Conn. L. Rptr. 2 at *8 (August 25, 2000).
225 U.S.C. § 1752 defines the term "Tribe," for purposes of that subchapter of the Code, as: "the Mashantucket Pequot (also known as the Western Pequot Tribe) as identified by chapter 832 of the Connecticut General Statutes and all its predecessors and successors in interest."
25 U.S.C. § 1758 provides in pertinent part: "Extension of Federal recognition and privileges (a) Applicability of United States laws and regulations. Notwithstanding any other provision of law, Federal recognition is extended to the Tribe. Except as otherwise provided in this subchapter, all laws and regulations of the United States of general application to Indians or Indian nations, tribes or bands of Indians which are not inconsistent with any specific provision of this subchapter shall be applicable to the Tribe."
Section 47-63 defines "Indian" to include a person who is a member of the Mashantucket Pequot tribe.
The plaintiff cites to Justice Stevens' dissenting opinion in City of Sherrill v. Oneida Indian Nation, No. 03-855, 125 S.Ct. 1478, 161 L.Ed2d 386 (2005) in support of the argument that the doctrine of sovereign immunity should extend no further than the boundary of the Tribe's reservation. The cited case involved the Oneida Tribe's attempt to avoid the payment of property taxes assessed by the City of Sherrill on recently-acquired land, which was once a part of the tribe's reservation, but over which the tribe had not asserted sovereign control for nearly two hundred years. Id. City of Sherrill was decided pursuant to the doctrine of CT Page 13938-cg laches and does not resolve the issue of subject-matter jurisdiction raised in the defendants' motion to dismiss the instant case.
In an unreported decision, which is analogous to the instant case, the superior court, Koletsky, J., dismissed a third-party complaint against the Mashantucket Tribe and Gaming Enterprise for injuries sustained in a motor vehicle accident which occurred outside the Tribe's reservation. Greenidge, supra. The third-party complaint alleged that the driver of the vehicle, who was said to have caused the accident, was impaired by an excessive amount of alcoholic beverages served to him at Foxwoods Casino. Id. The court dismissed the claims against the tribe for lack of subject matter jurisdiction pursuant to the doctrine of tribal sovereign immunity. Id., *8. The court explained:
From the fact that a state may regulate the use and distribution of alcohol on a reservation, the leap to the conclusion that a tribe's immunity does not apply when a private party brings a private cause of action against a tribe in any situation involving the use or consumption of alcohol on a reservation is a leap which this court is unwilling to take, particularly in view of the recent reaffirmation of the existence (if not the logical basis) of tribal immunity from suit. Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751, 140 L.Ed.2d 981, 118 S.Ct. 1700 (1998). N2
In Greenidge, the court acknowledged, but respectfully disagreed with, the superior court's decision in Schram v. Ohar, 1998 Conn.Super. LEXIS 3263, No. CV-98-0114403-S, 23 Conn. L. Rptr. 407 (November 16, 1998). In Schram, the court held that tribal immunity did not bar a cause of action arising from the sale of alcohol at the Tribe's casino. Applicable case law supports both the reasoning and the result reached in Greenidge.
In accordance with the decisions in Greenidge, and Kizis, supra, this court finds that it lacks subject matter jurisdiction over the plaintiff's claim against the defendant Tribe. Therefore, count two of the complaint must be dismissed.
The plaintiff's claims are addressed out of numerical order so as to facilitate discussion of the legal principals at issue.
The plaintiff's claim of negligence as to the Gaming Enterprise, as set forth in count one of the complaint, is also barred by the doctrine of tribal sovereign immunity. The Gaming Enterprise has been found to be "an arm of the Mashantucket Pequot Tribe." Worrall v. Mashantucket Pequot Gaming Enterprise d/b/a Foxwoods Resort Casino, 131 F.Sup.2d 328 (D.Conn. 2001); Greenidge, supra. Therefore, like the Tribe, the Gaming Enterprise enjoys tribal sovereign immunity from suit. Id. Because the court lacks subject matter jurisdiction as to count one of the complaint, it must be dismissed.
Count three of the complaint, asserts a claim of negligence against CT Page 13938-ch "Foxwood's Resort Casino." In the affidavit of Jackson T. King, Jr., which is annexed to the defendants' memorandum in support of its motion to dismiss, Mr. King explains that "Foxwoods" is the name under which the Gaming Enterprise does business and is not a legal entity separate from the Gaming Enterprise. The plaintiff does not dispute the defendants' assertion that "Foxwoods" and the Gaming Enterprise are one in the same. For the reasons discussed above, the court lacks subject matter jurisdiction over the plaintiff's claim against the Gaming Enterprise. Therefore, count three of the complaint must be dismissed.
Counts four and five of the complaint assert claims of negligence against the individual defendants Ronald LaDuca and Richard Tessler, who are employees of the Gaming Enterprise. Tribal immunity has been held to extend, not only to tribal officials, but also to tribal employees acting in a representative capacity and within the scope of their authority. Kizis, supra at 58; Bassett v. Mashantucket Pequot Museum and Research Center, 221 F.Sup.2d 271, 278 (D.Conn. 2002); Romanella v. Hayward, 933 F.Sup. 163, 167 (D.Conn. 1996).
The plaintiff asserts in opposition to the individual defendants' motion to dismiss, that the defendant employees were acting outside the scope of their employment with the Gaming Enterprise. The "vital inquiry" in determining if an individual acted within his scope of employment is whether the employee acted, at least in part, to serve the employer or, alternatively, whether his conduct was "disobedient or unfaithful" to the employer's business. A-G Foods v. Pepperidge Farm, 216 Conn. 200, 210, 579 A.2d 69 (1990) (citing Butler v. Hyperion Theatre Co., 100 Conn. 551, 556, 124 A. 220 (1924) and Myers v. National Detective Agency, Inc., 281 A.2d 435, 437 (D.C.C.A. 1971)). In Shay v. Rossi, 253 Conn. 134, 174, 749 A.2d 1147 (2000), the court stated: "In order to overcome sovereign immunity, the [plaintiff] must do more than allege that the defendants' conduct was in excess of their . . . authority; they must also allege or otherwise establish facts that reasonably support those allegations."
Here, the acts complained of as to the defendant employees include organizing a holiday party for the benefit of Gaming Enterprise employees, posting invitational materials for said party, and failing to control third persons in attendance at the celebration. The complaint asserts in counts one through three against the Tribe, the Gaming Enterprise and Foxwoods, respectively, that these entities were negligent in that they: "permitted managers to post invitational material" on the premises; "permitted, among others, manager Ron LaDuca and Rick Tessler (the named individual defendants), and other managers, to collect funds from employees/invitees to defray the cost of said annual Christmas celebration"; and "failed to exercise reasonable control, through their CT Page 13938-ci managers, third persons likely to cause bodily harm to others if not so controlled." According to the facts alleged in the complaint, the individual defendants' conduct was in furtherance of the Gaming Enterprise as opposed to being disobedient or unfaithful to the business of the Gaming Enterprise. Because the individual defendants were acting in a representative capacity and within the scope of their authority, pursuant to Kizis, supra, and Bassett, supra, this court finds that tribal immunity deprives it of subject matter jurisdiction. Therefore, counts four and five of the complaint must be dismissed.
Inasmuch as the doctrine of tribal sovereign immunity deprives the court of subject matter jurisdiction as to each count of the plaintiff's complaint, the defendants' motion to dismiss must be and hereby is granted.
Although the court finds it lacks subject matter jurisdiction over the plaintiff's claims, the plaintiff is not without redress. The Tribe has consented to suit for certain tort claims in the Mashantucket Disputes Court.