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(Cite as: 2004 WL 2222374 (Conn.Super.))

UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.

Superior Court of Connecticut,

Judicial District of New London.

Luis FRAGOZA

v.

Barbara CLARK et al.

No. 567985.

Sept. 2, 2004.

Traystman Coric & Keramidas, New London, for Luis Fragoza.

Brown Jacobson, P.C., Norwich, for Barbara Clark.

Brown Jacobson, P.C., Norwich, for Auto Rental Corporation.

D. MICHAEL HURLEY, J.T.R.

*1 Before the court is the defendants' motion to dismiss on the ground that the plaintiff's cause of action is barred by the doctrine of sovereign immunity. For the reasons discussed herein, the motion to dismiss must be denied.

On December 17, 2003, the plaintiff, Luis Fragoza, filed a one-count complaint asserting negligence and vicarious liability against the defendants, Barbara Clark and Auto Rental Corporation (Auto Rental). The plaintiff alleges that on December 13, 2001, the vehicle in which he was driving was struck by a vehicle owned by Auto Rental and operated by Clark. The plaintiff alleges that Clark was an employee of Auto Rental and was operating Auto Rental's vehicle at the time of the accident. The accident occurred on the Mashantucket Pequot Indian Reservation.

On March 12, 2004, the defendants filed a motion to dismiss, with supporting affidavits and a memorandum of law in support, on the ground that the court lacks subject matter jurisdiction. The defendant Clark has filed an affidavit stating that she was an employee of the Mashantucket Pequot Gaming Enterprise (Gaming Enterprise), and not of Auto Rental. The Gaming Enterprise has also filed an affidavit stating that Clark was their employee at the time of the accident and that she was acting within the scope of her employment at the time of the accident. In their motion to dismiss, the defendants argue that tribal immunity bars the exercise of state jurisdiction over the plaintiff's claim, relying on, among other cases, Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 794 A.2d 498 (2002) (Mohegan Gaming Disputes Court is the exclusive jurisdiction for tort claims against the tribe and its employees).

"A motion to dismiss shall be used to assert lack of jurisdiction over the subject matter ..." Kizis v. Morse Diesel International, Inc., supra, 260 Conn. at 51. "[I]n 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." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 504, 815 A.2d 1188 (2003). "A motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts ... A ruling on a motion to dismiss is neither a ruling on the merits of the action ... nor a test of whether the complaint states a cause of action ... Motions to dismiss are granted solely on jurisdictional grounds." (Internal quotation marks omitted.) Pitruzezzo v. Muro, 70 Conn.App. 309, 312, 798 A.2d 469 (2002).

In their motion to dismiss, the defendants assert that since the accident occurred on the property of the Mashantucket Pequot tribe, and that since Clark is an employee of the Gaming Enterprise, the doctrine of sovereign immunity bars the present suit. The plaintiff, in his memorandum of law in opposition to the motion to dismiss, argues that Clark was acting outside of the scope of her employment at the time of the car accident, and thus sovereign immunity should not apply.

*2 This court finds that although the defendant's assertions that the doctrine of sovereign immunity should apply in this case, the court, in considering a motion to dismiss, must construe the complaint in the manner most favorable to the plaintiff, and must admit as true their allegations with respect to the defendant Clark's employment situation. The supporting affidavits filed by Clark address disputed facts, and as such they cannot be considered by the court. The motion to dismiss speaks solely to the question of whether the complaint, as it is written, has been filed in the proper court. Since the complaint purports to state a claim against parties that are not employed by nor officials of the Gaming Enterprise, jurisdiction in the Superior Court is proper. Until the complaint is amended to reflect the correct employment affiliation and relationships between and among the relevant parties to this action, this court must retain jurisdiction of this case. Accordingly, the motion to dismiss is denied.

2004 WL 2222374 (Conn.Super.)