Opinion
No. KNL CV 106004105
November 1, 2011
MEMORANDUM OF DECISION RE MOTION TO DISMISS [#118]
On April 23, 2010, the plaintiffs, Richard Portella, Maureen Wolf and Leslie Legan, filed a fifty-four-count complaint against the defendants, Joseph A. Spaziante, Matthew Spaziante, Gary S. Crowder, Mohegan Tribal Gaming Authority (MTGA), Patrick T. Lyons, Plan "B," LLC (Plan "B"), Kantilal D. Patel and Fourty-Four Hersha Norwich Associates, LLC (Fourty-Four Hersha), seeking damages for personal injuries allegedly sustained by the defendants as the result of a motor vehicle accident. The plaintiffs' complaint alleges that prior to the accident, Joseph was a patron of several establishments, including Leffingwells Martini Bar at Wombi Rock (Leffingwells), a bar in the Mohegan Sun Casino Resorts in Uncasville, Connecticut, where the defendants recklessly served him alcohol. The plaintiffs' complaint further alleges that Crowder is the "duly licensed permittee" and the MTGA is the "duly licensed backer and/or owner" of Leffingwells.
Joseph, Michael, Lyons, Plan "B," Patel and Fourty-Four Hersha are not parties to the present motion. Hereinafter, the term the defendants refers to Crowder and the MTGA, collectively.
Counts six, seven, thirteen, fourteen, twenty-four, twenty-five, thirty-one, thirty-two, forty-two, forty-three, forty-nine and fifty of the plaintiffs' complaint are directed toward the defendants. Counts six and seven brought by Richard, counts twenty-four and twenty-five brought by Maureen, and counts forty-two and forty-three brought by Leslie, seek recovery pursuant to the Dram Shop Act, General Statutes § 30-102, for the reckless service of alcohol to Joseph by Crowder and by the MTGA, respectively. Counts thirteen and fourteen brought by Richard, counts thirty-one and thirty-two brought by Maureen, and counts forty-nine and fifty brought by Leslie, seek recovery pursuant to common-law liability for the reckless service of alcohol to Joseph by Crowder and by the MTGA, respectively.
On June 16, 2010, the defendants filed a motion to dismiss the claims against them 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 their motion. The plaintiffs filed an objection to the defendants' motion, accompanied by a memorandum in support of their motion, on August 11, 2011. On August 12, 2011, the defendants filed a reply memorandum of law in further support of their motion. On August 15, 2011, the matter was argued on short calendar. Subsequent to the short calendar hearing, the plaintiffs filed a sur-reply on August 31, 2011. On September 2, 2011, the defendants filed a memorandum of law in 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.) Gold v. Rowland, 296 Conn. 186, 200-01, 994 A.2d 106 (2010).
"[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.) Housatonic Railroad Co., Inc. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011). "[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). "[I]t is the burden of 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.) The St. Paul Travelers Companies, Inc. v. Kuehl, 299 Conn. 800, 808, 12 A.3d 852 (2011).
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 MTGA is immune as a federally recognized Indian tribal entity, and that tribal sovereign immunity extends to Crowder in his capacity as a tribal representative. The plaintiffs counter that the Mohegan Tribe has no sovereign authority over alcohol in Connecticut as evidenced by its annual submission to the state for a liquor permit. The plaintiffs further counter that, if it exists, tribal sovereign immunity for both statutory and common-law actions for reckless service of alcohol is waived pursuant to 18 U.S.C. § 1161 and the tribe's agreement to be bound by the state's liquor laws.
"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." (Citations omitted, internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, supra, 282 Conn. 134-35.
"[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 Mohegan Tribe is a federally recognized Indian tribe whose sovereignty renders it immune from suit, absent authorization from Congress, unless the Mohegan Tribe explicitly waives its sovereign immunity." Paszkowski v. Chapman, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 01 0072786S (August 30, 2001, Arnold, J.).
The court in Vanstaen-Holland v. LaVigne, Superior Court, judicial district of New London, Docket No. CV 08 5007659 (February 26, 2009, Martin, J.) ( 47 Conn. L. Rptr. 306), recently provided the following comprehensive analysis addressing whether tribal sovereign immunity for statutory and common-law reckless service of alcohol claims have been waived by the Mohegan Tribe pursuant to the liquor license requirements set forth in 18 U.S.C. § 1161.
"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).' . . . 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 [ 40 Conn. L. Rptr. 221] (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 MTGA 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 Assn., 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)." Vanstaen-Holland v. LaVigne, supra, 47 Conn. L. Rptr. 308.
Pursuant to the foregoing case law and analysis, 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." Vanstaen-Holland v. LaVigne, supra, 47 Conn. L. Rptr. 308.
The plaintiffs further argue that the defendants have acknowledged that they have no sovereign authority over alcohol related claims pursuant to the provisions of the Mohegan Tribe-State of Connecticut Gaming Compact (gaming compact), an agreement with the state regarding the tribe's sale and distribution of alcohol. 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."
"Courts 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. 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." Id., 309. This court agrees with the Vanstaen-Holland court's analysis, and therefore finds that the gaming compact does not impact the tribe's sovereign immunity over dram shop claims and reckless service of alcohol claims.
Pursuant to the foregoing, the court holds that the MTGA is immune from liability as to the plaintiffs' claims pursuant to tribal sovereign immunity. Furthermore, as "[t]he doctrine of tribal immunity extends to individual tribal officials acting in their representative capacity and within the scope of their authority," and the plaintiffs have not alleged any facts indicating that Crowder, as the licensed permittee of Leffingwells, acted beyond the scope of his authority, Crowder is also immune from the plaintiffs' claims pursuant to tribal sovereign immunity. (Internal quotation marks omitted.) Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 54, 794 A.2d 498 (2002). As a result, the defendants' motion to dismiss the plaintiffs' claims against them must be granted.
CONCLUSION
Based on the foregoing, the court hereby grants the defendants' motion to dismiss counts six, seven, thirteen, fourteen, twenty-four, twenty-five, thirty-one, thirty-two, forty-two, forty-three, forty-nine and fifty of the plaintiffs' complaint.