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(Cite as: Not Reported in A.2d)

Not Reported in A.2d, 2005 WL 1273574

UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.

Superior Court of Connecticut,Judicial District of New Britain.

TRUMP HOTELS AND CASINO RESORTS DEVELOPMENT COMPANY, LLC

v.

David A. ROCOW et al.

No. X03CV034000160S.


May 2, 2005.

Reardon Law Firm PC, New London, for Trump Hotels & Casino Resorts Development Comp. LLC.

Andrews Young & Geraghty P.C. , New London, Edward Reilly Jr. and Leonard Lesser, New York, for David A. Rosow, Eastern Capital Development LLC., and Eastern Capital Funding LLC.

Mintz Levin Cohn Ferris Glovsky & P , Stamford, and PHV Bell Ray Morrow, San Diego, for William I. Koch.

Tobin Carberry Omalley Riley & Seli, New London, for Mark R. Sebastian, Marcia Jones-Flowers, Lynne D. Powers, Ron Jackson, Joseph A. Perry, Katherine H. Sebastian, W. Sebastian, Eastern Pequot Indians of Connecticut Inc., Mary Sebastian, Paucatuck Eastern Pequot Tribal Nation and Lewis E. Randall.

Jeremiah Donovan, Old Saybrook, for Paucatuck Eastern Pequot Tribal Nation, Eugene R. Young, James L. Williams, James A. Cuhna, Frances M. Young, Agnes E. Cuhna, Gina Hogan, Christine C. Meisner, Brenda L. Geer and Raymond A. Geer.

PECK, J.

*1 This action arises out of an alleged breach of contract by the defendants, the Paucatuck Eastern Pequot Tribal Nation (PEPs) and members of its tribal council, including the defendant Eugene R. Young, Jr., who separately filed this motion to dismiss. FN1 The plaintiff, Trump Hotels and Casino Resorts Development Company, LLC (Trump), filed a nine-count complaint on June 24, 2003, alleging violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. (count one), intentional interference with contractual, economic and business relationships (count two), civil conspiracy and fraud (count three), default payment (count four), breach of contract (count five), specific performance (count six) and fraud as against defendant Young  FN2 (count seven). As its remedies, the plaintiff seeks a prohibitive injunction (count eight) and a mandatory injunction (count nine). FN3

FN1. Although David A. Rosow, William I. Koch, Eastern Capital Development, LLC, Eastern Capital Funding, LLC, the Eastern Pequot Indians of Connecticut, Inc. (Easterns), Mark R. Sebastian, Marcia Jones-Flowers, Lynn D. Powers, Ron Jackson, Joseph A. Perry, Jr., Katherine H. Sebastian, William O. Sebastian, Jr., Mary Sebastian, Lewis E. Randall, Sr. (Eastern councilors), James L. Williams, Sr., James A. Cunha, Jr., Frances M. Young, Agnes Cunha, Gina Hogan, Christine C. Meisner, Brenda L. Geer, and Raymond A. Geer (PEP councilors) were also named as defendants, they are not parties to this motion to dismiss. Accordingly, unless otherwise specified, all references herein to the defendant are to Eugene R. Young, Jr.


FN2. Count seven of the complaint refers to “the defendant Ernest R. Young, Jr.,” although that name is not included in the list of defendants on the summons form. The only named party with a similar name is the defendant, Eugene R. Young, Jr. Similarly, the defendant Young entitled his motion, “MOTION TO DISMISS OF THE DEFENDANT EUGENE YOUNG,” yet he refers to himself on page five of his memorandum in support as “Ernest Young.” For the purposes of resolving this motion to dismiss, it is assumed that these are typographical errors, and that the intended references in both count seven and the memorandum in support of the motion to dismiss are to Eugene R. Young, Jr.


FN3. Counts eight and nine are not proper counts because they do not contain separate and distinct claims. See Practice Book § 10-26 (separate and distinct causes of action, as distinguished from separate and distinct claims for relief, shall be pleaded in separate counts). Although count six seeks the remedy of specific performance, the allegations are sufficiently detailed for the court to construe this count as a further claim for breach of contract which seeks specific performance as its remedy. Accordingly, this memorandum addresses Young's motion to dismiss as to counts four, five, six and seven only, counts eight and nine will not be addressed in considering this motion to dismiss because they are more properly addressed by a motion to strike.

The defendant, Eugene R. Young, Jr., has moved to dismiss the complaint against him on the ground that the court lacks subject matter jurisdiction to consider the plaintiff's claims because these claims (1) have not ripened into an actual controversy, (2) are dependent upon a political determination committed to another branch of government and (3) are barred by principles of tribal sovereignty and tribal sovereign immunity. FN4

FN4. Since the defendant Young “moves to dismiss the complaint,” without specifying the counts he views as being directed against him, the court assumes that the motion seeks dismissal of the three counts directed to the other PEP councilors, that is, count four (default payment), count five (breach of contract) and count six (specific performance), and also count seven (fraud) which specifically designates that it is directed to Young only. Although counts one, two and three specifically refer to Eugene R. Young, Jr., they do not contain sufficient allegations to state a claim against him. Accordingly, this memorandum addresses Young's motion to dismiss as to counts four, five, six and seven only.

In the complaint, the plaintiff alleges the following relevant facts: The plaintiff entered into a contract (Trump contract) with the defendant PEPs, whom the state of Connecticut had recognized as an Indian tribe; (Complaint, ¶¶ 6 and 12); to provide funding to assist the PEPs in efforts to seek federal recognition by the Bureau of Indian Affairs of the Department of the Interior (BIA) as an Indian tribe. (Complaint, ¶¶ 17-18.) The PEPs and Trump agreed, among other things, “to use all commercially reasonable efforts” to pursue the project, which was defined by the Trump contract to mean “the joint efforts” of the parties to obtain federal recognition and to secure the legal rights of the PEPs and Trump “to operate a tribal gaming facility in the State of Connecticut” owned by the PEPs “and/or its successors” and managed by Trump.  (Complaint, ¶ 19.) In exchange for its assistance, Trump was to receive “substantial additional fees, payments, revenues and other compensation for a term of seven (7) full years from the opening of the casino gaming facility, with an option to extend the seven-year period by agreement of the parties.”  (Complaint, ¶ 24.)

The plaintiff further alleges that the PEPs agreed, in the Trump contract, that as of August 31, 2002, the plaintiff had advanced an aggregate of $9,192,807 to or on behalf of the PEPs pursuant to the contract terms.  (Complaint, ¶ 22.) The payments made by Trump to the PEPs were to be treated as advances. (Complaint, ¶ 21.) The aggregate amount of these advances, with interest at 8% per annum, was to become immediately “repayable to Trump in the event [the PEPs], or any successor tribe to which [the PEPs are] a constituent part, or any instrumentality of any of the foregoing, shall execute a management agreement (or consulting agreement in lieu thereof) or other agreement with any party other than Trump or an affiliate of Trump with respect to the development or management of a tribal gaming facility ...” (Complaint, ¶ 21.) The PEP councilors represented to the plaintiff that they were the only governing body of the PEPs, that they were authorized to bind the PEPs and any successor tribe and that the PEPs and any successor tribe would be bound by the contract. (Complaint, ¶¶ 25-26.) The contract further provides that the PEPs and any successor tribe “waived its sovereign immunity and consented to being sued and submitted to the jurisdiction of any court of the [s]tate of Connecticut and the Federal District Court for the District of Connecticut, the Federal Court of Appeals for the Second Circuit and the United States Supreme Court with respect to any claim or cause of action arising out of or relating to the Trump [c]ontract and/or [t]he [p]roject and that the governing law shall be Connecticut law.” (Complaint, ¶ 27.)

*2 The plaintiff also alleges that the Easterns are a “splinter group” of the PEPs, which hold itself out to the public as an Indian tribe, but which has not been finally recognized by the federal government or by the state as an Indian tribe. (Complaint, ¶ 7.) In 1978, the Easterns filed a petition for federal recognition with the United States Department of the Interior, Branch of Acknowledgment and Research (BAR). (Complaint, ¶ 13.) In 1989, the PEPs separately sought federal recognition by filing a petition with the BAR.  (Complaint, ¶ 14.) In 1998, the BAR decided to consider the Easterns' and the PEPs' petitions simultaneously. (Complaint, ¶ 14.)

The plaintiff further alleges that on or about June 24, 2002, the BIA “provisionally acknowledged the ‘historical Eastern Pequot Tribe,’ consisting of [the PEPs] and the membership of the [Easterns],” subject to a request for reconsideration or appeal. (Complaint, ¶ 29.) The court notes that, in rendering its decision, the BIA determined that both groups “had derived in recent times from the historical Eastern Pequot Tribe which had existed continuously since first sustained contact with Europeans ... This determination does not merge two tribes, but determines that only a single tribe exists which is represented by two petitioners.” Final Determination to Acknowledge the historical Eastern Pequot Tribe, 67 Fed.Reg. 44, 234, 44, 235 (Bureau of Indian Affairs July 1, 2002). The BIA's determination was to become final after ninety days from the date of publication, unless a request for reconsideration was filed. 67 Fed.Reg. 44, 240;  25 C.F.R. § 83.11. In September 2002, the state of Connecticut and certain towns in the state allegedly filed such a request, which is still pending before the BIA.  (Complaint, ¶ 30.)

The plaintiff alleges that after the BIA issued its determination, the defendant Eastern Capital Development, LLC (ECD) and the defendant Eastern Capital Funding, LLC (ECF), which were both managed and controlled by defendants David A. Rosow and William I. Koch, sought to orchestrate the repudiation of the Trump contract and to usurp Trump's business opportunity by recruiting Eastern councilors to act as their agents in an effort to “manipulate a reconstitution of the [t]ribal [c]ouncil so as to severely disadvantage the [PEPs].” (Complaint, ¶¶ 32-33.) As a result of the coercive tactics of ECD and ECF, representatives of the PEPs and the Easterns drafted an “Interim Constitution,” which would change the PEPs' tribal name from the “Paucatuck Eastern Pequot Tribal Nation” to “Eastern Pequot Tribal Nation,” provide for an “Interim Tribal Council” consisting of five members of the PEPs' tribal council and nine members of the Easterns' tribal council and require a quorum of ten councilors at a tribal council meeting to conduct business.  (Complaint ¶ 34; Interim const., art. I  and art. X.)

The plaintiff alleges that in January 2003, the historical Eastern Pequot Tribal Nation (Historics), which consists of all members of the Easterns and the PEPs, adopted the “Interim Constitution of the Eastern Pequot Tribal Nation,” which acknowledged that it was “the same [t]ribe referred to in Connecticut General Statutes, Chapter 824, Section 47-59a  FN5 and 47-59b  FN6 (1971) as the Paucatuck Eastern Pequot Tribe and the same Tribe acknowledged by the Secretary of the Interior as the [historical] Eastern Pequot Tribe ...” (Complaint,¶ 35; Interim const., art. I, p. 1.)

FN5. General Statutes § 47-59a provides in relevant part, “(a) The state of Connecticut further recognizes that the indigenous tribes, the Schaghticoke, the Paucatuck Eastern Pequot, the Mashantucket Pequot, the Mohegan and the Golden Hill Paugussett are self-governing entities possessing powers and duties over tribal members and reservations. Such powers and duties include the power to; (1) Determine tribal membership and residency on reservation land; (2) determine the tribal form of government; (3) regulate trade and commerce on the reservation; (4) make contracts, and (5) determine tribal leadership in accordance with tribal practice and usage.”

FN6. General Statutes § 47-59b provides in relevant part “(b) There shall continue to be an Indian Affairs Council, consisting of one representative from each of the following Indian tribes: The Schaghticoke, the Paucatuck Eastern Pequot, the Mashantucket Pequot, the Mohegan and the Golden Hill Paugnssett; to be appointed by the respective tribes ...”

*3 The plaintiff further alleges that in April 2003, defendant PEP councilor Eugene R. Young, Jr. “demanded a monetary payment in order to remain loyal to the desires of [the PEPs] to honor the terms of the Trump [c]ontract,” which Trump refused to pay. (Complaint, ¶ 36.) Defendants Mark R. Sebastian and Rosow became aware of this demand and “employed financial enticements and other unlawful methods to induce defendant Young to support the effort of [defendants ECD and ECF] to cause the [t]ribe to repudiate the Trump [c]ontract in favor of a new contract with [ECD and ECF].” (Complaint, ¶ 37.)

The plaintiff also alleges that on April 15, 2003, the Historics' tribal council held a meeting, attended by all nine Eastern councilors and the defendant Young. (Complaint, ¶ 8.) Young was the only PEP councilor to attend the meeting. (Complaint, ¶ 38.) Although he abstained from voting, his presence provided the council with a quorum to conduct business. (Complaint ¶ 38.) At this meeting, the Historics' tribal council voted to approve a tribal resolution to execute a development contract with the defendants ECD and/or ECF, Rosow and Koch “to acquire and develop tribal land, and build and operate, a casino gaming facility and related entertainment sites, all to the exclusion of Trump ...” (Complaint, ¶ 38.) Defendant Young attended this meeting knowing that the purpose of the meeting was to pass this resolution and that his presence would establish a quorum to conduct business. (Complaint, ¶ 39.) Some or all of the defendants also knew of the purpose of the meeting before it occurred and “conspired and colluded to arrange for Young to attend so that his presence would ensure a ‘quorum’ under the ‘Interim Constitution’ “ to allow the resolution to pass. (Complaint, ¶ 40.) On May 5, 2003, the Historics notified Trump that it intended to negotiate a new development agreement with defendants ECD and/or ECF, Rosow and Koch.

As to count seven (fraud as against Young), the complaint also alleges that Young participated in a fraudulent scheme with Rosow and members of the Easterns to achieve “his goal of personal benefit” (Complaint, Count Seven, ¶ 46d) and “[a]ccepted gifts, money, gratuities or other benefits or promises of the same from Rosow, Koch, ECD and/or ECF as compensation for carrying out his fraudulent scheme.” (Complaint, Count Seven, ¶ 46e.)

The plaintiff commenced this suit by service of process on the various defendants between May 28, 2003 and June 23, 2003. (Marshal's return.) On May 24, 2004, the defendant Young filed a motion to dismiss the complaint against him. Counts four (default payment), five (breach of contract) and six (specific performance) are directed at the defendant PEPs and PEP councilors, including Young. Count seven (fraud) is directed only against Young. For the reasons stated in the court's memorandum of decision on the motion to dismiss the claims against the other PEP councilors, the defendant Young's motion to dismiss is denied on the ground that the issues raised in the counts against him are nonjusticiable, that is, that they concern a political question or are not ripe for adjudication. Nevertheless, the motion to dismiss counts four, five and six  FN7 is granted on the ground of sovereign immunity for the reasons stated in the court's memorandum of decision on the motion to dismiss of the individual PEP councilors. For the reasons stated in the remainder of this memorandum, Young's motion to dismiss count seven on the ground of sovereign immunity is denied.

FN7. While there is some authority for the proposition that sovereign immunity does not extend to actions for prospective injunctive relief against individual tribal members; see, e.g., Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 516, 111 S.Ct 905, 112 L.Ed.2d 1112 (1991) (Stevens, J., concurring) (tribe's sovereign immunity from actions seeking money damages does not necessarily extend to actions seeking equitable relief); the court finds no authority to apply that exception in the context of a breach of contract claim, particularly when that claim alleges no specific acts outside the scope of the defendant's authority as a tribal council member. See Niagara Mohawk Power Corp. v. Tonawanda Band of Seneca Indians, 862 F.Sup. 995, 1003 (W.D.N.Y 994) (breach of contract claim against individual members of tribal council does not invoke ultra vires exception to sovereign immunity doctrine). That exception has typically been applied in the context of tribal members acting outside the scope of their authority as tribal council members, in violation of state or federal law. See, e.g., Puyallup Tribe, Inc. v. Department of Game of Washington, 433 U.S. 165, 171-72, 97 S.Ct. 2616, 53 L.Ed.2d 667 (1977) (“a suit to enjoin violations of state law by individual tribal members is permissible. The doctrine of sovereign immunity ... does not immunize the individual members of the [t]ribe.”).


I


STANDARD OF REVIEW

*4 As noted in the memorandum of decision concerning the PEP councilors' motion to dismiss, “[t]he standard of review of a motion to dismiss is ... well established. In ruling upon whether a complaint survives a motion to dismiss, 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 ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.) Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 773, 826 A.2d 138 (2003). “When a [trial] 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.) Martin v. Brady, 261 Conn. 372, 376, 802 A.2d 814 (2002).

“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.” (Internal quotation marks omitted .) New England Pipe Corp. v. Northeast Corridor Foundation, 271 Conn. 329, 334, 857 A.2d 348. “[A] reviewing court should indulge every presumption in favor of the trial court's subject matter jurisdiction.” (Internal quotation marks omitted.) Amore v. Frankel, 228 Conn. 358, 374, 636 A.2d 786 (1994). “[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.” Gordon v. H.N.S. Management Co., 272 Conn 81, 92, 861 A.2d 1160 (2004).

“[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.) St. George v. Gordon, 264 Conn. 538, 544-45, 825 A.2d 90 (2003).  “The plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.” Fink v. Golenbock, 238 Conn. 183, 199 n. 13, 680 A.2d 1243 (1996).

II


TRIBAL SOVEREIGN IMMUNITY

The defendant Young argues that the court should dismiss the plaintiff's claims against him because the sovereign immunity of the individual tribal councilors, recognized and preserved in the Trump contract, deprives the court of jurisdiction. He argues that his actions, as alleged by the plaintiff, are the actions of a tribal official acting in his representative capacity as a tribal councilor, which are protected by sovereign immunity. He argues that the plaintiff failed to allege that the defendant acted beyond his authority as tribal councilor and that merely describing claims against a tribal officer as in his individual capacity is insufficient to eliminate tribal sovereign immunity.

The defendant also adopts the arguments of the defendant PEP councilors relating to sovereign immunity. The defendant PEP councilors argue that suits against an Indian tribe are barred by tribal sovereign immunity unless Congress has authorized the suit or the tribe has clearly and unequivocally waived its immunity and consented to suit in a specific forum. They further argue that federal recognition is not a prerequisite for a tribe to invoke sovereign immunity. Moreover, they contend that the doctrine of sovereign immunity extends to individual tribal officials acting in their representative capacities and within the scope of their authority.

*5 Relying on Fletcher v. United States, 116 F.3d 1315, 1324 (10th Cir.1997), the plaintiff argues that the defendant PEP councilors, including the defendant Young, are not immune from suit in their official capacities because the defendant PEPs clearly and unequivocally waived the tribe's sovereign immunity in the Trump contract. Relying primarily on Puyallup Tribe, Inc. v. Department of Game of Washington, 433 U.S. 165, 97 S.Ct. 2616, 53 L.Ed.2d 667 (1977), it further argues that the defendants may be sued in their individual capacities because tribal members, including tribal officials, are amenable to suit if the subject of the suit is not related to the officials' performance of official duties.

The defendant PEP councilors concede that the defendant PEPs agreed to limited waivers of sovereign immunity in the Trump contract and in subsequent amendments, but they argue that these waivers do not allow the plaintiff to sue the defendant PEP councilors. They contend that in the original agreement, the PEPs waived their sovereign immunity only with respect to compelling arbitration of disputes that might arise out of the Trump contract and the enforcement of arbitration decisions. They further argue that, in the second amendment to the Trump contract, the original waiver provision was deleted and replaced with another waiver, which, they maintain, explicitly preserves the tribal sovereign immunity applicable to the defendant PEP councilors.

The plaintiff argues that the waiver in the Trump contract “does not limit the causes of action” that the plaintiff has brought against the defendants. It argues that the waiver limits only “the personal liability of the individual [PEP councilor] defendants for their official actions on the Tribal Council or as a member of the Tribe,” but does not limit the defendants' personal liability for their “personal actions that exceed the scope of their official authority as alleged.” (Emphasis in original.) (Plaintiff's memorandum, p. 22.) The plaintiff argues that the PEP councilors, including the defendant Young, therefore, may be sued in theft official capacities because the PEPs waived their sovereign immunity in the Trump contract and that they may be sued in their individual capacities because their actions exceeded the scope of their authority as tribal councilors. It argues that the limiting provision in the PEPs' waiver is inapplicable to its claims against the defendants.

“[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.” (Citations omitted; internal quotation marks omitted.) Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 53-54, 794 A.2d 498 (2002).

*6 “Several cases have established that tribal sovereign immunity does not extend to individual members of a tribe and that the tribe itself must assert immunity. A state court does have the authority to adjudicate actions against tribal members when it properly obtains personal jurisdiction. See, e.g., Puyallup Tribe, Inc. v. Washington Game Dept., [supra, 433 U.S. at 165];  United States v. James, 980 F.2d 1314, 1319 (9th Cir.1992), cert. denied, 510 U.S. 838, 114 S.Ct 119, 126 L.Ed.2d 84 (1993) ; State v. Sebastian, [243 Conn. 115, 160, 701 A.2d 13 (1997) ]. The doctrine of tribal immunity [however] extends to individual tribal officials acting in their representative capacity and within the scope of their authority ... Romanella v. Hayward, 933 F.Sup. 163, 167 (D.Conn.1996). The doctrine does not extend to tribal officials when acting outside their authority in violation of state law. See Puyallup Tribe, Inc. v. Washington Game Dept., supra, at 171-72.” (Internal quotation marks omitted.) Kizis v. Morse Diesel International, Inc., supra, 260 Conn. at 51 n. 7. The defendant Young, therefore, would be entitled to sovereign immunity only if he was acting in his official capacity as a tribal councilor and if the tribe's sovereign immunity has not been waived.

In the second amendment to the Trump contract, entered into on September 30, 2002, the defendant PEPs agreed to a provision entitled “Limited Waiver of Sovereign Immunity ” which provides in relevant part, “The Tribe hereby waives its sovereign immunity, consents to be sued and submits to the jurisdiction of any court of the State of Connecticut and of the Federal District Court for the District of Connecticut, the Federal Court of Appeals for the Second Circuit and the United States Supreme Court with respect to any claim or cause of action arising under or relating to this Agreement and/or the Project ... Developer acknowledges that no member of the Tribal Council or other representative of the Tribe shall have personal liability for the obligations of the Tribe under this agreement by reason of his or her status as a member of the Tribal Council or representative of the Tribe.” (Emphasis in original.)  (Complaint, Exhibit A, Second Amendment to Agreement, ¶ 2(g).) While this provision effectively waived the defendant PEPs' sovereign immunity for the purposes of this suit, it explicitly preserved that immunity as to the defendant PEP councilors as to acts within the scope of their official duties as members of the PEPs' tribal council. The court has previously rejected the plaintiff's argument, that none of its claims were brought against the defendant PEP councilors because of their status as PEPs' council members, as unpersuasive. Moreover, even if this waiver is somewhat ambiguous as it relates to the PEP councilors, the court cannot find that the defendant PEP councilors, including Young, have waived their sovereign immunity as to the plaintiff's claims because, to be effective, any waiver of tribal sovereign immunity must be clear and unequivocal. However, unlike the other PEPs' tribal councilors, the complaint alleges specific acts as to the defendant Young beyond the scope of his official duties as a tribal council member. (Complaint, Count Seven, ¶ 46a-e.)

*7 The defendant Young argues that allegations that he attended a tribal council meeting and abstained from voting, while allegedly influenced by enticements provided by defendants Mark Sebastian and Rosow, are not sufficient to overcome sovereign immunity because attendance at a meeting and abstention from voting are not beyond the authority of a tribal councilor.

The plaintiff counters that the complaint supports its claims that Young acted outside the scope of his authority. It argues that the allegation that in April 2003, Young demanded a monetary payment in order to remain loyal to the desires of the PEPs to honor the Trump contract; (see Complaint, ¶ 36); and the allegations in count seven in their entirety, including allegations that Young accepted bribes and acted with “outlandish fraud,” show that he acted outside the scope of his authority as tribal councilor.

“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 ...” (Emphasis in original; 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.”  (Internal quotation marks omitted.) Hultman v. Blumenthal, 67 Conn.App. 613, 624, 787 A.2d 666, cert. denied, 259 Conn. 929, 793 A.2d 253 (2002); see also Chayoon v. Sherlock, Superior Court, judicial district of New London at Norwich, Docket No. CV 03 0128101 (April 23, 2004, Martin, J.).

The allegations in counts four, five and six are insufficient to support the plaintiff's argument that the defendant acted outside the scope of his authority as a member of the PEPs' tribal council. In Puyallup Tribe, Inc. v. Department of Game of Washington, supra, 433 U.S. at 171-72, the United States Supreme Court held that “a suit to enjoin violations of state law by individual tribal members is permissible. The doctrine of sovereign immunity ... does not immunize the individual members of the Tribe.” In that case, the state of Washington sought to enjoin the fishing activities of tribal members that were in violation of state law. The defendants in Puyallup were not acting as tribal council members, but as fishermen. Only in count seven does the plaintiff allege that the defendant Young engaged in any activity clearly outside the scope of his authority as a tribal councilor. Only count seven relates Young to activities beyond tribal decision making and tribal council meetings and “ ‘without any colorable claim of authority,’ apart from whether [he] acted in violation of federal or state law.” See Basset v. Mashantucket Pequot Museum and Research Center, Inc., supra, 221 F.Sup.2d at 281. The plaintiff has neither pleaded nor proved such conduct with regard to the other counts.

*8 In its memorandum, the plaintiff argues that discovery and a hearing are necessary prior to the resolution of the motion to dismiss because the motion raises issues of fact. The plaintiff contends that the defendant PEPs' claim of sovereign immunity depends on a factual determination by the court of “factual issues involving the conduct of the individual tribal members and whether, with regard to the actions alleged in the complaint, the individual defendants were acting within or outside the scope of their official duties as tribal councilors.”

“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.” (Internal quotation marks omitted.) Unisys Corp. v. Department of Labor, 220 Conn. 689, 695-96, 600 A.2d 1019 (1991). “A motion to dismiss may ... raise issues of fact and would, therefore, require a ... hearing [to determine the facts] ... In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.” (Citation omitted; internal quotation marks omitted.) Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983).

As previously noted, it is the burden of the party seeking the exercise of the court's jurisdiction to allege facts clearly establishing subject matter jurisdiction. In counts four, five and six, the plaintiff has failed to allege any facts which would strip Young or the other PEP councilors of their tribal immunity. Moreover, the plaintiff was unable to articulate either in its papers or oral argument the facts it claimed needed to be resolved by way of an evidentiary hearing. Nor has it referred the court to any written evidence that raises a genuine issue of material fact concerning its claims against Young or the other PEP councilors as to those counts. Therefore, the court may base its determinations on the allegations in the complaint, without additional discovery or a hearing.

Further, a close examination of the allegations of the complaint reveals that the plaintiff alleges it was the PEPs, not the PEP councilors, who entered into the contract with the plaintiff on March 11, 1997, “which was subsequently amended on March 7, 2002, and September 30, 2002.” (Complaint, ¶¶ 16 and 17.) Although the contract and its two amendments were authorized by resolutions of the Paucatuck Tribal Council, the PEP councilors were not themselves parties to the contract. (Complaint, ¶ 18; Exhibits A & B.) Therefore, although counts four, five and six appear to be directed against the PEPs and the PEP councilors, for claims arising out of or relating to the alleged breach of contract by the tribe, based on the complaint, there is no practical relief that can obtained as to these defendants.

For all the foregoing reasons, the court finds that the defendant Young is entitled to the protections of tribal sovereign immunity with regard to counts four, five and six because the waiver in the Trump contract explicitly preserves that immunity with regard to his official conduct as a tribal councilor and the plaintiff has neither alleged nor proved that Young acted outside the scope of his authority in those counts. Accordingly, the court grants Young's motion to dismiss as to those counts.

*9 Nevertheless, the court finds that the defendant Young is not entitled to the protections of sovereign immunity with regard to count seven because the plaintiff has alleged sufficient facts in that count showing that Young acted outside the scope of his authority as a member of the PEP tribal council. Young's motion to dismiss, therefore, is denied as to count seven.

IV


CONCLUSION

For the foregoing reasons, the defendant Eugene R. Young, Jr.'s motion to dismiss is granted as to counts four, five and six, and is denied as to count seven.

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