Summary
In Vanstaen-Holland v. LaVigne, supra, 47 Conn. L. Rptr. 306, the court found that the tribe had not waived its sovereign immunity pursuant to the gaming compact because "[a]n agreement to be subject to the state's regulations on the sale and distribution of alcohol does not constitute an unequivocal waiver of tribal sovereign immunity for all actions brought by private citizens related to alcohol use and consumption," and further, "Section 14(b) does not provide where the tribe may be sued for such actions."
Summary of this case from Ross v. SpazianteOpinion
No. CV-08-5007659
February 26, 2009
MEMORANDUM OF DECISION RE MOTION TO DISMISS [#105]
FACTS
On October 15, 2008, the plaintiffs, Susan Holland, ppa, Emily Vanstaen-Holland and Susan Holland, individually, filed a ten-count revised complaint against the defendants, Glenn R. LaVigne, Jane E. Nelson, Gary S. Crowder, Bruce Bozsum, Mitchell Etess, James Maloney and the Mohegan Tribal Gaming Authority (MGTA), seeking damages for personal injuries allegedly sustained by Vanstaen-Holland, the minor child, when she was struck by a motor vehicle operated by either LaVigne or Nelson on October 13, 2002 in Quaker Hill, Connecticut. The plaintiffs' complaint alleges the following facts. Prior to the accident, LaVigne or Nelson was a patron of Sachem's Lounge, an establishment in the Mohegan Sun Casino Resorts in Uncasville, Connecticut, where he or she was recklessly served alcohol by the defendants. Crowder is the "duly licensed permittee" of Sachem's Lounge, Bozsum, Etess and the MGTA are the "duly licensed backers and/or owners" of Sachem's Lounge and Maloney is the "agent and/or employee of one or all of the defendants." Counts seven, eight, nine and ten of the plaintiffs' complaint are directed toward the defendants. Counts seven and eight seek recovery pursuant to the Dram Shop Act, General Statutes § 30-102, for the reckless service of alcohol to LaVigne or Nelson, respectively. Counts nine and ten seek recovery pursuant to common-law liability for the reckless service of alcohol to LaVigne or Nelson, respectively.
LaVigne and Nelson are not parties to this motion. Hereinafter, the term "the defendants" refers to Crowder, Bozsum, Etess, Maloney and the MGTA, collectively.
On September 24, 2008, the defendants filed a motion to dismiss counts seven, eight, nine and ten of the plaintiffs' complaint on the ground that the court lacked subject matter jurisdiction pursuant to the doctrine of tribal sovereign immunity. The defendants submitted a memorandum of law in support of the motion. The plaintiffs filed a memorandum of law in opposition on October 21, 2008. On October 30, 2008, the defendants filed a reply memorandum of law in further support of their motion. The matter was argued on short calendar on November 3, 2008. Subsequent to the short calendar hearing, the plaintiffs filed a sur-reply on November 17, 2008. On November 24, 2008, the defendants filed a reply to the plaintiffs' sur-reply.
DISCUSSION
"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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007). "Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). "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 . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).
"[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.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007). "[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003). "The burden rests with the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." (Internal quotation marks omitted.) Goodyear v. Discala, 269 Conn. 507, 511, 849 A.2d 791 (2004).
The defendants argue that the court lacks subject matter jurisdiction over both the plaintiffs' statutory and common-law claims for reckless service of alcohol pursuant to the doctrine of tribal sovereign immunity. The defendants claim that the MGTA is immune as a federally recognized Indian tribal entity and that tribal sovereign immunity extends to the individual defendants in their capacity as tribal representatives. The plaintiffs counter that tribal sovereign immunity has been both congressionally abrogated and explicitly waived for their claims. The plaintiffs also claim that tribal sovereign immunity does not extend to the individual defendants. The plaintiffs further argue that the court should permit additional discovery before determining the motion to dismiss for the individual defendants.
"The Mohegan Tribe is a federally recognized Indian tribe." Paszkowski v. Chapman, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 01 0072786S (August 30, 2001, Arnold, J.). "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 . . . We begin with the premise that 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 . . . [ Beecher v. Mohegan Tribe of Indians of Connecticut, supra, 282 Conn. 130, 134-35]." (Internal quotation marks omitted.) Terry v. Mohegan Tribal Gaming Authority, Superior Court, judicial district of New London at Norwich, Docket No. 4107163 (May 16, 2008, Peck, J.) (45 Conn. L. Rptr. 502, 503).
"[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 . . . However, such waiver may not be implied, but must be expressed unequivocally." (Internal quotation marks omitted.) Chayoon v. Sherlock, 89 Conn.App. 821, 826, 877 A.2d 4 (2005).
The plaintiffs argue that tribal sovereign immunity for both statutory and common-law actions for reckless service of alcohol is waived pursuant to the state's police power to regulate the reservation's alcohol sales. The defendants counter that the state's ability to govern the tribe's alcohol distribution does not constitute a waiver of tribal sovereign immunity to all alcohol-related actions brought by private individuals.
Our appellate courts have not yet addressed this issue and there exists a split of authority among other courts. The view promoted by the plaintiffs argues that Congress implicitly waived tribal sovereign immunity for alcohol-related claims in its passage of 18 U.S.C. § 1161. In Rice v. Rehner, 463 U.S. 713, 103 S.Ct. 3291, 77 L.Ed.2d 961 (1983), the United States Supreme Court held that a tribal entity that sold alcohol for off-premises consumption must obtain a state liquor license pursuant to 18 U.S.C. § 1161. The court in Schram v. Ohar, Superior Court, judicial district of New London at Norwich, Docket No. 0114403 (November 16, 1998, Hurley, J.T.R.) (23 Conn. L. Rptr. 407), extended the holding in Rice v. Rehner, supra, 463 U.S. 713, to conclude that the plaintiff's claims, which included actions pursuant to the Dram Shop Act and common-law recklessness, were not barred by tribal sovereign immunity pursuant to 18 U.S.C. § 1161 because such actions further the legitimate purpose of the state's liquor regulations. See also Bittle v. Bahe, 2008 OK 10, 192 P.3d 810 (2008) (finding 18 U.S.C. § 1161 constituted implicit waiver of tribal sovereign immunity for actions brought pursuant to Oklahoma's Dram Shop Act).
18 U.S.C. § 1161 provides in relevant part: "The provisions of . . . this title shall not apply within any area that is not Indian country, nor to any act or transaction within any area of Indian country provided such act or transaction is in conformity both with the laws of the State in which such act or transaction occurs and with an ordinance duly adopted by the tribe having jurisdiction over such area of Indian country . . ."
Other courts, however, have refused to extend the waiver of tribal sovereign immunity to include additional alcohol-related claims brought by private citizens. In Greenidge v. Volvo Car Finance, Inc., Superior Court, complex litigation docket of New London at Norwich, Docket No. X04 CV 96 0119475 (August 25, 2000, Koletsky, J.) (28 Conn. L. Rptr. 2, 3), the court dismissed a reckless service of alcohol claim, stating that, "[f]rom 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 affirmation 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 (1998)." (Emphasis in original.) Further, the court acknowledged that it was "aware of the superior court decision Schram v. Ohar, [ supra, Docket No. CV 98 0114403], in which the court denied a motion to dismiss a cause of action at the casino, but respectfully disagree[d] with the conclusion reached therein." Id. See also Van Etten v. Mashantucket Pequot Gaming Enterprise, Superior Court, judicial district of New London, Docket No. KNL CV 04 4001587 (October 31, 2005, Jones, J.) (finding case law supported result reached in Greenidge in court's dismissal of plaintiff's alcohol-related negligence claims pursuant to tribal sovereign immunity).
Most recently, in Richards v. Champion, Superior Court, judicial district of New London, Docket No. CV 07 5004614 (July 11, 2008, Abrams, J.), the plaintiffs sought recovery against the MGTA after they were struck by a motor vehicle operated by a driver who had allegedly been served alcohol at the Mohegan Sun Resorts Casino prior to the accident. After acknowledging a split in authority, the court aligned with Greenidge v. Volvo Car Finance, Inc., supra, 28 Conn. L. Rptr. 2, in finding that, "the relationship between state regulation of the sale and distribution of alcohol on tribal lands and dram shop actions brought by private parties is simply too attenuated to support a finding that § 1161 serves as a Congressional declaration of the waiver of tribal sovereign immunity as it relates to dram shop actions." Id.
Additionally, the majority of appellate courts in other states have found that private individuals cannot bring an action against a tribe pursuant to either the Dram Shop Act or common law theories of liability. See Foxworthy v. Puyallup Tribe of Indians Ass'n., 141 Wash.App. 221, 169 P.3d 53 (2007), cert. granted, 164 Wash.2d 1019, 95 P.3d 89 (2008), Filer v. Tohono O'Odham Nation Gaming Enterprise, 212 Ariz. 167, 129 P.3d 78, cert. denied, 2006 Ariz. LEXIS 117 (2006), Holguin v. Ysleta Del Sur Pueblo, 954 S.W.2d 843 (Tex.App.-El Paso 1997, petition denied). This court joins the latter group of decisions in finding that the state's police power to regulate the sale and distribution of alcohol is not tantamount to an authorization by Congress to waive tribal sovereign immunity for dram shop actions or common-law recklessness actions brought by private individuals.
The plaintiffs further argue that tribal sovereign immunity should not extend to their claims against the defendants because the state has a strong interest in keeping its roadways safe for travel. The plaintiffs note that unlike the Mashantucket Pequot Tribal Nation, the MTGA has not taken steps to address the issue. The United States Supreme Court, however, has indicated that the decision to abrogate tribal sovereign immunity is properly left to Congress. "[T]he [United States] Supreme Court has refused to find a waiver of tribal immunity based on policy concerns, perceived inequities arising from the assertion of immunity, or the unique context of a case . . . The Supreme Court has stated that there are reasons to doubt the wisdom of tribal sovereign immunity, for example, the fact that it can harm those who are unaware that they are dealing with a tribe, who do not know of tribal immunity, or who have no choice in the matter, as in the case of tort victims . . . To the extent, however, that [t]hese considerations might suggest a need to abrogate tribal immunity, courts must defer to the role Congress may wish to exercise in this important judgment [ Beecher v. Mohegan Tribe of Indians, 282 Conn. 130, 136-38, 918 A.2d 880 (2007)]." (Internal quotation marks omitted.) Terry v. Mohegan Tribal Gaining Authority, Superior Court, supra, 45 Conn. L. Rptr. 503. Moreover, while the court in Richards v. Champion, supra, Docket No. CV 07 5004614, expressed trepidation at the public policy impact of allowing the defendants to escape liability for the plaintiffs' dram shop action after finding no evidence that the MGTA had taken any action to address such claims, it acknowledged that the resolution rests with the legislature, not the judiciary. Therefore, the defendants' tribal sovereign immunity defense against the plaintiffs' claims has not been congressionally abrogated.
The plaintiffs also argue that the Mohegan Tribe waived its tribal sovereign immunity to alcohol-related actions in the Mohegan Tribe-State of Connecticut Gaming Compact (gaming compact), an agreement with the state regarding the tribe's sale and distribution of alcohol. Specifically, the plaintiffs allege that Section 14(b) of the gaming compact constitutes an explicit waiver of immunity. The defendants counter that this section does not provide an explicit waiver.
"[C]ourts consistently have applied two complementary principles to waivers: (1) a sovereign's waiver must be unambiguous, and (2) a sovereign's interest encompasses not merely whether it may be sued, but where it may be sued." (Internal quotation marks omitted.) Chayoon v. Sherlock, supra, 89 Conn.App. 827.
"The Indian Gaming Regulatory Act (gaming act); 25 U.S.C. § 2701 et seq. (1994); regulates gaming operations on tribal land. The gaming act permits a recognized tribe to conduct `Class III' gaming only when the gaming operation is conducted in accordance with a gaming compact with a state and approved by the United States Secretary of the Interior. See 25 U.S.C. § 2710(d)(1)(c) and (8) (1004). The [Mohegan] tribe has been recognized by an act of Congress and by the State of Connecticut. In accordance with the gaming act, the tribe and the state of Connecticut entered into the Mohegan Tribe-State of Connecticut Gaming Compact (gaming compact), which governs gaming operations on the tribe's reservation. The gaming compact was approved by the Secretary of the Interior and was incorporated by reference into federal law. See 25 U.S.C. § 1775 (1994). General Statutes § 47-65b allows `[t]he state of Connecticut [to assume] . . . civil regulatory jurisdiction pursuant to the May 17, 1994, Agreement and the May 17, 1994, Gaming Compact between the state of Connecticut and the Mohegan Tribe of Indians of Connecticut and Public Law 103-377.'" Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 54-55, 794 A.2d 498 (2002).
Section 14(b) of the gaming compact provides in relevant part: "Service of alcoholic beverages within any gaming facility shall be subject to the laws and regulations of the State applicable to sale or distribution of alcoholic beverages." The defendants argue that this language does not constitute an explicit waiver by identifying Section 13(c), which discusses the consequences of a gaming compact violation, as an example of an explicit waiver. Section 13(c) provides in relevant part: "The Tribe hereby waives any defense which it may have by virtue of its sovereign immunity from suit with respect to any such action in the United States District Courts to enforce the provisions of this Compact, and consents to the exercise of jurisdiction over such action and over the Tribe by the United States District Courts with respect to such actions to enforce the provisions of this Compact." Unlike Section 13(c), Section 14(b) does not unambiguously waive the tribe's sovereign immunity. An agreement to be subject to the state's regulations on the sale and distribution of alcohol does not constitute an unequivocal waiver of tribal sovereign immunity for all actions brought by private citizens related to alcohol use and consumption. Moreover, Section 14(b) does not provide where the tribe may be sued for such actions. Therefore, the court finds that the defendants' tribal sovereign immunity has not been explicitly waived for the plaintiffs' claims in the gaming compact.
The plaintiffs also argue that even if the MGTA is immune from liability for their claims, tribal sovereign immunity does not extend to the individual defendants. Our Supreme Court stated that, "[t]he doctrine of tribal immunity extends to individual tribal officials acting in their representative capacity and within the scope of their authority." (Internal quotation marks omitted.) Kizis v. Morse Diesel International, Inc., supra, 260 Conn. 54. "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." Van Etten v. Mashantucket Pequot Gaming Enterprise, supra, Docket No. KNL CV 044001587.
"In the tribal immunity context, a claim for damages against a tribal official lies outside the scope of tribal immunity only where the complaint pleads — and it is shown that a tribal official acted beyond the scope of his authority to act on behalf of the Tribe." Basset v. Mashantucket Pequot Museum Research Center, Inc., 221 F.Sup.2d 271, 280 (D.Conn. 2002). "Claimants may not simply describe their claims against a tribal official as in his `individual capacity' in order to eliminate tribal immunity." Id. A court should "examine the actions of the individual tribal defendants . . . [A] tribal official even if sued in his individual capacity is only stripped of tribal immunity when he acts manifestly or palpably beyond his authority . . ." (Internal quotation marks omitted.) Id.; see Oneida Indian Nation of New York v. Sherrill, 337 F.3d 139, 169 (2d Cir. 2003). Further, "[i]n order to overcome sovereign immunity, the [plaintiff] must do more than allege that the defendants' conduct was in excess of their . . . authority; they also must allege or otherwise establish facts that reasonably support those allegations." Hultman v. Blumenthal, 67 Conn.App. 613, 624, 787 A.2d 666, cert. denied, 259 Conn. 929, 793 A.2d 253 (2002).
As previously noted, it is the party seeking the exercise of the court's jurisdiction to allege facts clearly establishing subject matter jurisdiction. In the present case, the plaintiffs identify Crowder as the licensed permittee of Sachem's Lounge, and Bozsum and Etess as the licensed owners of the establishment. The plaintiffs made no allegations that Crowder, Bozsum or Etess were not acting in their representative capacities. Therefore, as tribal members, they are immune from the plaintiffs' claims pursuant to tribal sovereign immunity. Additionally, in their complaint, the plaintiffs allege that Maloney "was in the course and scope of his agency and/or employment at [Sachem's Lounge]." Therefore, according to the facts alleged by the plaintiffs, Maloney's conduct was within the scope of his employment. Because the plaintiffs have failed to plead that the individual defendants were not acting in a representative capacity and outside the scope of their authority, this court finds that tribal sovereign immunity extends to the individual defendants.
The plaintiffs further argue that the court should hold an evidentiary hearing before dismissing the plaintiffs' claims against the individual defendants. "When issues of fact are necessary to the determination of a court's jurisdiction due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses." Golodner v. Women's Center of Southeastern Connecticut, Inc., 281 Conn. 819, 826, 917 A.2d 959 (2007). On the other hand, "the due process requirement of a hearing is required only when issues of facts are disputed." (Emphasis in original.) Weihing v. Dodsworth, 100 Conn.App. 29, 38, 917 A.2d 53 (2007). The plaintiffs argue that Maloney was not acting within the scope of his employment by serving alcohol to an intoxicated individual. The plaintiffs also argue that the arrest warrant will show that Maloney refused to discuss the events leading up to the accident with the police because LaVigne was a tribal member and he did not want to risk losing his employment. According to the plaintiffs, this additional information would prove that Maloney was acting on behalf of his own self-interest on the evening of the accident.
"In order to circumvent tribal immunity, the plaintiff must have alleged and proven . . . that the defendants acted `without any colorable claim of authority.'" Chayoon v. Sherlock, supra, 89 Conn.App. 830. "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)." (Internal quotation marks omitted.) Van Etten v. Mashantucket Pequot Gaming Enterprise, supra, Docket No. KNL CV 04 4001587. "In determining whether an employee has acted within the scope of employment, courts look to whether the employee's conduct: (1) occurs primarily within the employer's authorized time and space limits; (2) is of the type that the employee is employed to perform; and (3) is motivated, at least in part, by a purpose to serve the employer." Harp v. King, 266 Conn. 747, 782-83, 835 A.2d 953 (2003).
"In Puyallup Tribe, Inc. v. Dept. of Game of Washington, [ 433 U.S. 165, 97 S.Ct. 2616], the United States Supreme Court determined that, when engaged in the conduct of fishing, tribal officials were acting as fisherman rather than as tribal officials and were acting outside the scope of their authority. The court concluded, therefore, the tribal sovereign immunity did not reach tribal officials while they were fishing. Id., 173. In that instance, the tribal officials' conduct was unrelated to the performance of the official duties for the tribe." (Citation removed.) Chayoon v. Sherlock, supra, 89 Conn. 829.
By contrast, in the present case, even taking into consideration the additional information alleged by the plaintiffs, the plaintiffs have failed to show that Maloney was acting without any colorable claim of authority on the night of the accident. Maloney's alleged conduct was not disobedient or unfaithful to Sachem's Lounge. His alleged actions occurred while he was working at the lounge, involved the type of conduct that he is employed to perform and were motivated by a purpose to serve the establishment. As a result, the plaintiffs have failed to establish that Maloney's conduct was unrelated to the performance of his official duties. Therefore, the court may base its determinations on the allegations in the complaint, without additional discovery or a hearing.
CONCLUSION
Based on the foregoing, the court hereby grants the defendants' motion to dismiss counts seven, eight, nine and ten of the plaintiffs' complaint.