2022 WL 3536113
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UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.
Superior Court of Connecticut,
J.D. OF NEW LONDON AT NEW LONDON.
FASHION OUTLETS AT FOXWOODS, LLC
v.
BC FOX, LLC
DOCKET NO. KNL-CV22-6056621S
|
AUGUST 18, 2022

MEMORANDUM OF DECISION RE: DEFENDANT’S MOTION TO DISMISS, ENTRY #104.00
Jacobs, J.

The defendant, a Connecticut limited liability corporation, is the owner and operator of a bakery located in the Tanger Outlets at Foxwoods. By writ, summons and complaint dated May 5, 2022, the plaintiff, a Delaware limited liability corporation, brought this action to evict the defendant, the tenant in possession of the premises located at 455 Trolley Line Boulevard, Suite 902 in “Mashantucket, CT,” for non-payment of rent. Complaint ¶1, Exhibit A. The demised premises is owned by the Mashantucket Pequot Holding Corporation, a wholly owned subsidiary of the Mashantucket Pequot Tribal Nation, and had been leased to the plaintiff pursuant to a ground lease dated November 3, 2011. Service of the Notice to Quit was made in-hand on “Store Manager William Liang” for “BC Fox, LLC, Bake Culture, Tanger Outlets, 455 Trolley Line Boulevard, Suite 902, Mashantucket, CT 06338” on April 25, 2022 by Nicholas A. Poppiti, State Marshal, New London County. Entry No. 100.34. Service of the complaint was made on the defendant’s agent for service Geoffery Yao at “455 Trolley Line Boulevard, Suite 902, Mashantucket, CT 06338” on May 9, 2022 by Marshal Poppiti. Entry No. 100.33. The defendant has moved to dismiss this action on grounds that this court “(1) lacks jurisdiction over the subject matter; and (2) for insufficiency of service.” For the reasons set forth below, the motion is denied.

Discussion

I. Motion to Dismiss.
Practice Book § 10–30(a) provides: “A motion to dismiss shall be used to assert: (1) lack of jurisdiction over the subject matter ...” “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). “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. Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007). 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. Id. The motion to dismiss ... admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone.” (Citations omitted; internal quotation marks omitted.) Id. “A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy.” Southern N.E. Telephone Co. v. Dept. of Public Utility Control, 261 Conn. 1, 21, 803 A.2d 879 (2002). When determining whether the court has jurisdiction over any controversy, “every presumption favoring jurisdiction should be indulged.” (Internal quotation marks omitted.) Keller v. Beckenstein, 305 Conn. 523, 531, 46 A.3d 102 (2012). Still, “the 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).

II. Subject matter jurisdiction is properly in this court.
The state of Connecticut has recognized that the Mashantucket Pequot Tribe, among other indigenous tribes, is a self-governing entity “possessing powers and duties over tribal members and reservations [and that] [s]uch 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.” Conn. Gen. Stat. § 47-59a(b). To that end, the Mashantucket Pequots adopted a Constitution prescribing, among other things, the powers and jurisdiction of the Tribe (“The powers and jurisdiction of the Mashantucket (Western) Pequot Tribe include all of the sovereign rights and powers of the Tribe which are not inconsistent with applicable federal law ...” Article II), tribal territory (“The jurisdiction of the Mashantucket (Western) Pequot Tribe shall extend to the restricted land within the confines of the Mashantucket (Western) Pequot Reservation boundaries ...” Article III) and the establishment of a Tribal Council charged with controlling and managing the property and affairs of the Mashantucket (Western) Pequot Tribe and establishing “rules and regulations for their own government and for the transaction of their business, property and funds ...” Constitution and By-Laws of the Mashantucket (Western) Pequot Tribe, Article X. A code of tribal law and rules of court have been adopted. A tribal court with subject matter jurisdiction over civil causes of action and criminal matters “as expressly conferred upon it by the Tribal Council through enactment of tribal laws” was established. 1 M.P.T.L. Ch. 1 §§ 1, 2(a). When the Tribal Council has determined that the Tribal Court should have exclusive jurisdiction over certain matters affecting the Tribe and its members, it has expressly said so; e.g., residential evictions1, false claims2. Otherwise, it has not made such a Declaration; e.g., commercial foreclosure3, civil actions.4

“Like all instrumentalities of the state of Connecticut, our courts are powerless to intervene in the exercise of tribal self-government. Federal statute, federal common law and state statute all require us to treat bona fide Indian tribes as sovereign nations and to protect tribal rights to self-determination.” Schaghticoke Indians of Kent, Connecticut, Inc. v. Potter, 217 Conn. 612, 626–29, 587 A.2d 139 (1991), as cited in Golden Hill Paugussett Tribe of Indians v. Town of Southbury, 231 Conn. 563, 574, 651 A.2d 1246 (1995). Because of the continuing inherent sovereignty of Indian tribes, for example, federal common law forbids states from “unlawfully infring[ing] on the right of reservation Indians to make their own laws and be ruled by them.” (Internal quotation marks omitted.) White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142, 100 S.Ct. 2578, 2583, 65 L.Ed.2d 665 (1980); Williams v. Lee, 358 U.S. 217, 220, 79 S.Ct. 269, 270, 3 L.Ed.2d 251 (1959), as cited in Golden Hill Paugussett Tribe of Indians v. Town of Southbury, supra at 575. Similarly, state statutes explicitly provide that “the indigenous tribes ... are self-governing entities possessing powers and duties over tribal members and reservations. Such powers and duties include the power to ... (2) determine the tribal form of government ... and (5) determine tribal leadership in accordance with tribal practice and usage.” General Statutes § 47–59a(b). Any action by a state court that infringes on tribal sovereignty or interfered in tribal self-government would therefore be improper. Id. at 575. Recognition of tribal sovereignty does not, however, render all matters touching upon tribal decisions nonjusticiable. As the United States Supreme Court has made clear, tribal sovereignty does not impede state court jurisdiction unless “the exercise of state-court jurisdiction in [the] case would interfere with the right of tribal Indians to govern themselves under their own laws.” Three Affiliated Tribes of the Fort Berthold Reservation v. World Engineering, P. C., 467 U.S. 138, 148, 104 S.Ct. 2267, 2274, 81 L.Ed.2d 113 (1984), as cited in Golden Hill Paugussett Tribe of Indians v. Town of Southbury, supra at 576. If the exercise of state court jurisdiction is “compatible with tribal autonomy,” judicial action not only is permitted, but may be required. Three Affiliated Tribes of the Fort Berthold Reservation v. World Engineering, P.C., supra at 149, as cited in Golden Hill Paugussett Tribe of Indians v. Town of Southbury, Id.

In other words, while the Mashantucket Tribal Nation may be absolutely sovereign, the jurisdiction of its courts is not absolutely exclusive. And where, as here, there is a commercial eviction – albeit one which concerns a suite in the Tanger Outlets in Mashantucket, thus touching upon tribal decisions - between two corporate entities – one organized under Delaware law and the other under Connecticut law; Mashantucket tribal law does not assert exclusive jurisdiction of the tribal court over such matters; the subject lease provides that “it will be governed by and will be construed and enforced in accordance with the laws of the state in which the Premises is located” (emphasis added); the “Tribal Standard Sublease Provisions” do not state otherwise; the defendant has not cited a provision in the Prime Lease which states otherwise; the exercise of state court jurisdiction over this matter will not interfere with the right of the Mashantucket Pequot Tribe to govern itself under its own laws; and there is no parallel case pending in the tribal court as would require this court to abstain from considering this case pending the outcome of that one, jurisdiction over this matter is properly in this court, and consideration of this case by this court at this time is proper. Plaintiff’s Exhibit A, Id. at 576, cf. Drumm v. Brown, 245 Conn. 657, 694, 716 A.2d 50 (1998).

III. Service of process was proper.
A “state marshal has ... authority to provide legal execution and service of process in the counties in this state pursuant to section 6-38 ...” Conn. Gen. Stat. Ann. § 6-38a. The Mashantucket Pequot Reservation is located in New London County. Service of the writ, summons and complaint was made in this case by Nicholas A. Poppiti, a state marshal for New London County. There is no state or federal statute or regulation which expressly prevents a state marshal for New London County from serving process within the Mashantucket Pequot Reservation or which places the Reservation outside of Marshal Poppiti’s precinct. At the same time, Rule 4(c) of the Mashantucket Pequot Rules of Court allows service of a summons and complaint to be made by, among other people, “a marshal or a deputy within the marshal’s county.” Clearly: if the Mashantucket Pequot tribe, itself, allows for an action to be filed in its tribal court to be commenced by service by a state marshal of process on tribal members or others situated within the boundaries of its reservation, it would be anomalous, if not absurd, to hold that a state marshal for the County of New London cannot do the same for matters to be filed in the state court.

IV. Conclusion.
For the foregoing reasons, the defendant’s Motion to Dismiss is DENIED.

All Citations
Not Reported in Atl. Rptr., 2022 WL 3536113

Footnotes
1	Section 2. Jurisdiction. (a) The Tribal Court shall have exclusive jurisdiction to hear an action to determine the rights of any party arising under an Occupancy Agreement that relate to a Residential Real Property Interest or otherwise relating in any way to a Dwelling. Such Actions shall be tried to the Tribal Court without any right to a trial by jury. b. The Tribal Court shall have exclusive jurisdiction to hear an eviction action as herein provided. Such Actions shall be tried to the Tribal Court without any right to a trial by jury. 25 M.P.T.L. ch. 5 § 3
2	Section 5. Jurisdiction. (a) The Mashantucket Pequot Tribal Court (the “Court”) shall have exclusive jurisdiction to hear matters arising under this law. 12 M.P.T.L. h. 2 § 6.
3	The Mashantucket Pequot Tribal Court has jurisdiction over foreclosure and eviction (i) where so provided and in conformity with the consent to jurisdiction provisions of a Mortgage; or (ii) where a state or federal court has in a final order declined jurisdiction over such foreclosure proceeding; or (iii) where a Borrower and a Commercial Lender have expressly agreed in writing to such jurisdiction for a foreclosure proceeding. 42 M.P.T.L. ch. 4 § 3.
4	b. Jurisdiction. Except as may be limited by tribal or federal law, the tribal court shall have jurisdiction over all civil causes of action ...” 12 M.P.T.L. ch. 1 § 1.