2022 WL 3098099
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UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.
Superior Court of Connecticut,
JUDICIAL DISTRICT OF NEW LONDON AT NEW LONDON.
John DRABIK, et al.
v.
Elaine THOMAS
DOCKET NO. KNL-CV17-6030617-S
|
AUGUST 4, 2022

MEMORANDUM OF DECISION RE MOTION TO DISMISS (#125)

GOODROW, J.
*1 The defendant filed a Motion to Dismiss the complaint on the grounds that (1) the Court does not have subject matter jurisdiction because of tribal sovereign immunity, and (2) the principles of comity prevent litigation of the same claims previously litigated in the Mohegan Tribal Courts (MTC). For the reasons set forth below, the Court grants the Motion to Dismiss.

 

I. Alleged Facts:
The plaintiffs, John Drabik and Ancient Highway Towers, LLC, filed a three-count complaint of June 30, 2017. In count One, plaintiffs allege that Defendant. Elaine Thomas, tortiously interfered with plaintiffs’ business relationship. Plaintiffs allege the following: that they entered a business relationship in “early 2015” with AT&T to “construct, own, operate and maintain” a cell tower on plaintiffs’ property. In preparing the application to the Connecticut Siting Council proposing the placement of a new cell tower, AT&T evaluated two potential sites in East Lyme. AT&T signed a lease for the subject Drabik property for the construction of a cell tower. As part of the application process, AT&T utilized the Federal Communication Commission’s Tower Construction Notification System (“TCNS”) to submit an electronic message to the FCC of AT&T’s proposed tower construction. The Commission subsequently provides this information to Indian Tribes and other historical and cultural organizations that have expressed an interest in the relevant geographic area. AT&T received through the TCNS a reply from the Mohegan Indian Tribe in response to its proposed tower on the Drabik property.

The response from the Tribe was sent by the defendant, Elaine Thomas. Plaintiff alleges the response indicates no archaeological sites and/or National Register of Historic Places have been identified within .08 miles of the proposed tower location. It is further alleged that defendant conducted a site walk and no visible cultural features were identified, however, that there existed substantial stone groupings on property adjacent to the Drabik property, and that the proposed tower would impact a view shed on the adjacent property, as well as the overall integrity of the landscape. It is further alleged that no view shed of cultural stone features exist, and that the statements made by the defendant “were false because no such features or landscapes existed or exist in the area and therefore were outside the scope of her employment.” The allegations contain no further facts to support the claim of falsity. It is further alleged that defendant made no response and/or raised no objection to the seventeen communications towers and power mounts located within four miles of the Drabik property.

Plaintiffs further allege that upon receipt of the response by the defendant, plaintiffs through counsel made several attempts to contact the defendant to discuss her findings as related to properties of traditional religious and cultural significance to the Mohegan Tribe, but that defendant was non-responsive. Due to the lack of response, the plaintiff filed a petition for a bill of discovery which was ultimately dismissed based on tribal sovereign immunity. [See Drabik v. Thomas, et al., 184 Conn. App. 238 (2018).] Plaintiffs allege defendant’s failure to notify plaintiffs of the site walk, and to respond to their inquiries has implicated plaintiff Drabik’s property rights. It is further alleged that defendant had actual knowledge of the business relationship between the plaintiffs and AT&T, and that the defendant was acting outside her scope of employment when she allegedly interfered with said business relationship, and that defendant was ultimately responsible for the cell tower not being built on the Drabik property. It is alleged that defendant’s interference with the business relationship and her misrepresentation about the existence of historically and culturally significant features on the property adjacent to the Drabik property caused financial loss to the plaintiffs.

*2 The plaintiffs allege identical facts in Count Two in which they claim defendant acted negligently in misrepresenting that the view shed on the adjacent property of cultural stone features, cultural landscapes, or properties of traditional religious or cultural significance to the Mohegan Tribe which would be impacted by the proposed cell tower.

In Count Three, plaintiff Drabik alleges that the defendant trespassed upon his land located on Ancient Highway in East Lyme on June 10, 2016, when she entered upon the land without plaintiff’s consent, and that plaintiff suffered a loss because of said trespass.

 

II. Discussion:

A. This Court lacks subject matter jurisdiction due to tribal sovereign immunity.
“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. ... [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. v. Commissioner of Revenue Services, 301 Conn. 268, 274 (2011), citing C.R. Klewin Northeast, LLC v. State, 299 Conn. 167, 174-75 (2010). “The modern rationale for sovereign immunity rests on the practical ground that subjecting ‘the state and federal governments to private litigation might constitute a serious interference with the performance of their functions and with their control over their respective instrumentalities, funds and property.’ ” (Internal quotation marks omitted.) Graham v. Friedlander, 334 Conn. 564, 590 (2020). “[A] court lacks discretion to consider the merits of a case over which it is without jurisdiction.” Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 429 (2003). “[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.” (Internal quotation marks omitted.) Id. at 430 n. 12.

The defendant contends that she was acting in her official capacity as a Tribal member at all relevant times alleged in the complaint, and therefore, the court lacks subject matter jurisdiction because of tribal sovereign immunity. The plaintiffs contend that the defendant was acting outside of her authority, and therefore, tribal sovereign immunity does not apply.

“Tribal sovereign immunity predates the birth of the Republic.... The immunity rests on the status of Indian tribes as autonomous political entities, retaining their original natural rights with regard to self-governance.” (Citation omitted; internal quotation marks omitted.) Drabik v. Thomas, et al., 184 Conn. App. 238 (2018), citing Ninigret Development Corp. v. Narragansett Indian Wetuomuck Housing Authority, 207 F.3d 21, 29 (1st Cir. 2000). “The practical and logical basis of the ... [sovereign immunity] doctrine is today recognized to rest on ... the hazard that the subjection of the [sovereign] governments to private litigation might constitute a serious interference with the performance of their functions and with their control over their respective instrumentalities, funds and property.” (Internal quotation marks omitted.) Drabik v. Thomas, et al. at 244, citing Horton v. Meskill, 172 Conn. 615, 624 (1977). “Although tribal immunity does not extend to individual members of a tribe ... [t]he doctrine of tribal immunity ... extends to individual tribal officials acting in their representative capacity and within the scope of their authority.... The doctrine does not extend to tribal officials when acting outside their authority in violation of state law.... Tribal immunity also extends to all tribal employees acting within their representative capacity and within the scope of their official authority.” (Citations omitted; internal quotation marks omitted.) Drabik v. Thomas, et al. at 246.

*3 “[C]ourts should look to whether the sovereign is the real party in interest to determine whether sovereign immunity bars the suit.... In making this assessment, courts may not simply rely on the characterization of the parties in the complaint, but rather must determine in the first instance whether the remedy sought is truly against the sovereign.... [L]awsuits brought against employees in their official capacity represent only another way of pleading an action against an entity of which an officer is an agent, and they may also be barred by sovereign immunity.... The distinction between individual- and official-capacity suits is paramount here. In an official-capacity claim, the relief sought is only nominally against the official and in fact is against the officials office and thus the sovereign itself.... Personal-capacity suits, on the other hand, seek to impose individual liability ... [O]fficers sued in their personal capacity come to court as individuals ... and the real party in interest is the individual, not the sovereign. The identity of the real party in interest dictates what immunities may be available. Defendants in an official-capacity action may assert sovereign immunity.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Drabik v. Thomas, et al. at 246, citing Lewis, et al. v. Clarke, ––– U.S. ––––, 137 S.Ct. 1285, 1291-92 (2017). “Claimants may not simply describe their claims against a tribal official as in his individual capacity in order to eliminate tribal immunity.... [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.... [I]n order to overcome sovereign immunity, the [plaintiff] must do more than allege that the [defendant’s] conduct was in excess of their ... authority; [the plaintiff] also must allege or otherwise establish facts that reasonably support those allegations.” (Citations omitted; internal quotation marks omitted.) Drabik v. Thomas, et al. at 247, citing Chayoon v. Sherlock, 89 Conn. App. 821, 828, cert. denied, 276 Conn. 913 (2005), cert. denied, 547 U.S. 1138 (2006).

In this case, the complaint alleges that the defendant acted outside the scope of her employment and has, in essence, intentionally interfered with the plaintiffs’ business relationship with AT&T. The complaint alleges that as part of AT&T’s application process for a proposed cell tower on plaintiffs’ property, it utilized the TCNS to submit an electronic message to the Federal Communication Commission (FCC) of AT&T’s proposed tower construction. It alleges that the FCC provides this information to Indian Tribes and other historical and cultural organizations that have expressed an interest in the relevant geographic area. It further alleges that on July 1, 2015, AT&T received through the TCNS a reply from the Mohegan Indian Tribe in response to the proposed tower on the subject property. The reply from the Tribe was from the defendant. The defendant received the notice and replied in her official capacity. The complaint alleges that part of the reply contained statements by the defendant which were false, and that defendant knew the statements were false. The complaint does not allege facts that would reasonably support the allegations of falsity or intentional, tortious interference with the business relationship between plaintiffs and AT&T. Moreover, the real party in interest in this case is the Tribe, not the individual defendant. The defendant is entitled to the protection of tribal sovereign immunity, therefore, the Motion to Dismiss is granted.

 

B. Principles of comity prevent litigation in the Superior Court of the same issues previously litigated in the Mohegan Tribal Court (MTC).
The exhaustion doctrine requires the plaintiffs to exhaust their remedies in the MTC before seeking resolution in the Superior Court. “[T]he exhaustion doctrine ... is based primarily upon respect for a federal policy supporting tribal self-government and self-determination, and the related notion of comity.” Drumm, et al. v. Brown, et al., 245 Conn. 657, 673 (1998). “The federal policy of promoting tribal self-government encompasses the development of the entire tribal court system, including appellate courts.... ‘Unless a federal court determines that the Tribal Court lacked jurisdiction ... proper deference to the tribal court system precludes [re-litigation] of issues raised by the [plaintiffs’] ... claim and resolved in the Tribal Courts.’ ... [E]fficiency is served by having tribal courts, in the first instance, apply their expertise to the complicated question of tribal court jurisdiction, and develop a record thereon, before that issue is addressed by a nontribal court.” (Internal citations omitted; internal quotation marks omitted.) Id. at 671. The Connecticut Supreme Court held in the Drumm case that the doctrine of exhaustion of tribal remedies is binding on the courts of this state, superseding the general obligation upon our courts to exercise their jurisdiction. Litigants are required to exhaust their remedies in tribal courts for three reasons articulated by the United States Supreme Court: to promote tribal self-governance and self-determination; to allow a record to be developed in the Tribal Court; and to encourage Tribal Courts to explain to the parties and other courts the basis for the Tribal Court’s determination regarding jurisdiction. (Internal citations omitted; internal quotation marks omitted.) Id. at 666-67, citing National Farmers Union Ins. Cos. V. Crow Tribe of Indians, 471 U.S. 845, 855-57 (1985).

*4 “After the tribal court system, including any tribal appellate courts, has adjudicated the issue of its jurisdiction, a nontribal court can review the jurisdictional issue as a federal question. Whether the tribal court system adjudicates the merits of the dispute before the jurisdictional question can be reviewed in a nontribal court depends on the tribal court procedural rules pertaining to the relative timing of adjudication of jurisdictional and substantive questions, at both the trial and appellate levels. If, subsequent to the tribal court system’s adjudication of the jurisdictional questions a nontribal court determines that the tribal court exceeded its jurisdiction, the abstaining nontribal court’s obligation to abstain dissolves. The merits of the controversy then potentially can be litigated in that court; if the tribal court already has adjudicated those merits, but was subsequently determined to have exceeded its jurisdiction in doing so, the merits can be re litigated in the nontribal court. On the other hand, if it is determined that the tribal court did not exceed its jurisdiction, the tribal court’s determinations on the merits will receive no review.” (Emphasis in original.) Drumm, et al. v. Brown, et al. at 677.

The MTC properly exercised jurisdiction over this matter and did not exceed its jurisdiction. The MTC exercised personal and subject matter jurisdiction over the parties and determined the case on the merits. The issues before the MTC were essentially identical to those in the pending matter and arose from the same set of facts. The plaintiffs litigated an unsuccessful appeal in the Tribal Courts. This Court is without any basis to review the MTC’s decision. Principles of comity require that the Motion to Dismiss be granted.

 

III. Order:
The Motion to Dismiss is granted because this Court lacks jurisdiction based on tribal sovereign immunity and based on principles of comity.

All Citations
Not Reported in Atl. Rptr., 2022 WL 3098099