Jeffrey Cooper v. LLC (2010)

MEMORANDUM OF DECISION RE MOTION TO DISMISS, No. 104

FACTS

On June 1, 2010, the plaintiff, Jeffrey Cooper, filed a one-count complaint sounding in negligence against the defendant, Discount Scooters, LLC, after the plaintiff was allegedly injured while renting one of the defendant's scooters at Foxwoods Resort and Casino.   After the alleged incident, and before filing this complaint in the Superior Court, the plaintiff asserted a negligence claim against the Mashantucket Pequot Gaming Enterprise in the Mashantucket Pequot Tribal Court.   The defendant in this case was not a party to the tribal court action.

On August 27, 2010, the defendant filed a motion to dismiss this action on the grounds that the court lacks subject matter jurisdiction and that the plaintiff's claim is barred by the doctrines of collateral estoppel and res judicata.   The motion is accompanied by a memorandum of law.   On November 3, 2010, the plaintiff filed an objection to the defendant's motion to dismiss, supported by a memorandum of law in opposition to the motion.

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.)  Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008).  “The grounds which may be asserted in [a motion to dismiss] are:  (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.”  Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 10-31.  “[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.”  (Internal quotation marks omitted.)   Connor v. Statewide Grievance Committee, 260 Conn. 435, 443, 797 A.2d 1081 (2002).

In the present case, the defendant argues that this court is without subject matter jurisdiction.   Specifically, it contends that the Mashantucket Pequot Tribal Court has exclusive jurisdiction over this matter because the action arose on tribal lands.   In addition, the defendant argues that this case should be dismissed on the grounds of res judicata and collateral estoppel because the plaintiff is currently pursuing an action arising from the same incident against the Mashantucket Pequot Gaming Enterprise in tribal court.   The plaintiff counters that Connecticut appellate authority has held that a tribal court does not have exclusive jurisdiction over actions between nonmembers of a tribe and that res judicata and collateral estoppel are not appropriate grounds for a motion to dismiss.

A.

“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).   The Mashantucket Pequot Tribal Nation has established a tribal court with jurisdiction over “actions founded upon a tort of the Tribe or its agents, servants, or employees acting within the scope of their employment.”   Mashantucket Pequot Tribal Laws, title XII, chapter 1, § 2(a).  “[A]bsent express authorization by federal statute or treaty, tribal jurisdiction over the conduct of nonmembers exists only in limited circumstances.”  Strate v. A-1 Contractors, 520 U.S. 438, 445, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997).  “[T]ribes 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.”  (Emphasis in original.)  Ellis v. Allied Snow Plowing, Removal and Sanding Services Corp., 81 Conn.App. 110, 115, 838 A.2d 237, cert. denied, 268 Conn. 910, 845 A.2d 410 (2004), citing Strate v. A-1 Contractors, supra, 459.

The Appellate Court has rejected 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.”  Ellis v. Allied Snow Plowing, Removal and Sanding Services Corp., supra, 81 Conn.App. 114.   Further, it held that “the tribal court does not have exclusive jurisdiction to adjudicate [a] ‘run of the mill’ slip and fall accident.   Although the plaintiff might have pursued her claim in the tribal court, she was not obligated to do so.”  Id., 115.

In the present case, the plaintiff and defendants are both nonmembers of the Mashantucket Pequot Tribal Nation.   Although the act giving rise to this claim occurred on tribal lands, there is no indication that the tribe's political integrity, economic security, health or welfare will be adversely affected if the plaintiff's suit is heard by the Superior Court.   According to binding Appellate Court precedent, the tribal court does not have exclusive jurisdiction over a “run of the mill” tort case, where neither the tribe nor any of its members are parties to the suit.   Thus, the Superior Court has subject matter jurisdiction over this action and the defendant's motion to dismiss on the ground of lack of subject matter jurisdiction is denied.

B.

“Res judicata does not provide the basis for a judgment of dismissal;  it is a special defense that is considered after any jurisdictional thresholds are passed.”  Labbe v. Pension Commission, 229 Conn. 801, 816, 643 A.2d 1268 (1994).  “[T]he doctrine of res judicata must be raised as a special defense and may not be raised by a motion to dismiss, which is the appropriate vehicle to assert a lack of jurisdiction.”  (Internal quotation marks omitted.)   Tuchman v. State, 89 Conn.App. 745, 763 n.7, 878 A.2d 384, cert. denied, 275 Conn. 920, 883 A.2d 1252 (2005).   Further, where “the issue of collateral estoppel [is] raised in the defendants' ․ motion to dismiss ․ [it is] not properly raised.”  Id. Because res judicata and collateral estoppel are not permissible grounds for seeking dismissal, the court will not consider the defendant's second ground in its motion to dismiss.

CONCLUSION

For the foregoing reasons, the court hereby denies the defendant's motion to dismiss.

Martin, J.

Martin, Robert A., J.