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(Cite as: 2004 WL 2222399 (Conn.Super.))

UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.

Superior Court of Connecticut,

Judicial District of Middlesex.

Richard HORN, Administrator Estate of John Horn

v.

LEWIS EQUIPMENT CO., LLC et al.

No. X04CV030104509S.

Sept. 3, 2004.

Jacobs & Jacobs PC, New Haven, for Richard Horn.

Donahue Durham & Noonan PC, Guilford, for Lewis Equipment Co., LLC.

Morrison Mahoney LLP, Hartford, for Rock Island Rigging LLC.

Halloran & Sage, Hartford, for Rexnord Corporation Stearns Division.

Clark & Deakin LLC, Shelton, for M V Farinola Inc.

BARBARA M. QUINN, Judge.

*1 In this wrongful death action, the defendant Lewis Equipment Company, LLC, hereafter Lewis, on January 23, 2004 filed an apportionment complaint against M.V. Farinola, Inc., hereafter Farinola. The main case concerns the operation and maintenance of a personnel and materials hoist at the Mohegan Sun Hotel, from which the plaintiff's decedent, John Horn, fell to his death. The apportionment defendant Farinola inspected the hoist prior to the fall. In the apportionment complaint, Lewis alleges that if the hoist was unsafe, Farinola may be liable to it for Farinola's failure to inspect the hoist adequately.

Farinola, a foreign corporation, filed a motion to dismiss, claiming it is not subject to service pursuant to the Longarm Statute, Connecticut General Statutes § 33-929(f), because its conduct occurred on the Mohegan Sun Reservation, not within the State of Connecticut. For purposes of this case and because the Mohegan Tribe's sovereignty is not implicated, the court concludes that Connecticut may exercise jurisdiction. The court finds that the Mohegan Sun Hotel is located within the boundaries of the State of Connecticut and denies the motion to dismiss.

DISCUSSION

1. Applicable Law re Motions to Dismiss

"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. at 766, 773, 826 A.2d 138 (2003). "[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. at 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.) Pitruzello v. Muro, 70 Conn.App. at 309, 312, 798 A.2d 469 (2002).

In addition, "[i]t is fundamental that jurisdiction over a person can be obtained by waiver. Although the filing of an appearance on behalf of a party, in and of itself does not waive that party's personal jurisdiction claims, [a]ny plaintiff, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance." Connor v. Statewide Grievance Committee, 260 Conn. at 435, 445, 797 A.2d 1081 (2002), quoting Practice Book § 10-30. "Thus, thirty-one days after the filing of an appearance or the failure to adhere to the requisite sequence, a party is deemed to have submitted to the jurisdiction of the court. Any claim of insufficiency of process is waived if not sooner raised." Pitchell v. Hartford, 247 Conn. at 422, 433, 722 A.2d 797 (1999). In this instance, the apportionment defendant Farinola entered its appearance on February 13, 2004 and filed the motion to dismiss on March 10, 2004, bringing it within the 30- day requirement, and no waiver could be claimed.

*2 Turning now to the applicable longarm statute, pursuant to which Farinola, a foreign corporation, was served, Connecticut General Statutes § 33-929(f) provides that

(f) Every foreign corporation shall be subject to suit in this state, by a resident of this state or by a person having a usual place of business in this state, whether or not such foreign corporation is transacting or has transacted business in this state and whether or not it is engaged exclusively in interstate or foreign commerce, on any cause of action arising as follows: (1) Out of any contract made in this state or to be performed in this state; (2) out of any business solicited in this state by mail or otherwise if the corporation has repeatedly so solicited business, whether the orders or offers relating thereto were accepted within or without the state; (3) out of the production, manufacture or distribution of goods by such corporation with the reasonable expectation that such goods are to be used or consumed in this state and are so used or consumed, regardless of how or where the goods were produced, manufactured, marketed or sold or whether or not through the medium of independent contractors or dealers; or (4) out of tortious conduct in this state, whether arising out of repeated activity or single acts, and whether arising out of misfeasance or nonfeasance.

The central tenet of the statute is that some conduct must have occurred within the boundaries of the state for personal jurisdiction to be exercised and so the issue is squarely raised. Is the Mohegan Sun Hotel located within the boundaries of the State of Connecticut? Farinola claims that it is not and that the Mohegan reservation is distinct and separate from the State of Connecticut.

2. Mohegan Reservation and State of Connecticut

The United States Supreme Court has long held that tribes are "domestic dependent nations." See Cherokee Nation v. Georgia, 5 Pet. at 1, 17 (1831). An Indian reservation, while semi-independent, is not a separate state. See White Mountain Apache Tribe v. Bracker, 448 U.S. at 136, 143; 100 S.Ct. at 2578 (1962). "An Indian reservation is considered part of the territory of the state." Organized Village of Kake v. Egan, 369 U.S. at 60, 72, 82 S.Ct. at 562, 7 L.Ed.2d 583 (1962). Typically, state laws have applicability within an Indian reservation unless such laws interfere with tribal self-government or would damage a right under federal law. See Mescalero Apache Tribe v. Jones, 411 U.S. at 145, 148, 93 S.Ct. at 1267 (1973). In addition to these doctrines, the U.S. Supreme Court has held that a state may serve process on an Indian reservation. Nevada v. Hicks, 533 U.S. at 353, 364, 121 S.Ct. at 2304 (2001).

In the case of Drumm v. Brown, 245 Conn. at 657, 716 A.2d 50 (1998), the Connecticut Supreme Court concluded that these doctrines were applicable to Connecticut state courts, finding them based upon respect for federal policy supporting tribal self-government and self-determination, and the related notion of comity. And "[a]s 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 ... If the exercise of state court jurisdiction is compatible with tribal autonomy ... judicial action not only is permitted, but may be required." Golden Hill Paugussett Tribe of Indians v. Southbury, 231 Conn. at 563, 575-76, 651 A.2d 1246 (1995).

*3 In Fournier Irrigation v. Jay's Landscaping, LLC, Superior Court, judicial district of Hartford at Hartford, Docket No. CV-02-081369 S (July 19, 2002, Wagner, J.) (32 Conn. L. Rptr. 551), on the issue of subject matter jurisdiction, the court stated that "[o]ur superior court has held that absent express authorization by federal statute or treaty, tribal jurisdiction over the conduct of nonmembers exists only in limited circumstances and that absent statute or treaty authorizing jurisdiction in this case, or a compelling nexus between the Tribe and the underlying action, the state court has jurisdiction to hear this matter." See Cuprak v. Sun International Hotels Ltd., Superior Court, judicial district of New London at Norwich, Docket No. CV 97 01124045S (October 9, 1997, Handy, J.) (20 Conn. L. Rptr. 625). [FN1]

FN1. Lewis cites the case of Conroy v. Foxwoods Dealers' Casino Toke Committee, Superior Court, judicial district of New London at Norwich, Docket No. 114947 (March 8, 1999, Hurley, J.) (24 Conn. L. Rptr. 169), for the proposition that the state's Indian reservations are located within the boundaries of the state. In that case, the court concluded that because all members of the defendant voluntary association resided within the State of Connecticut, nor were any resident on the reservation, that the association, albeit active only on the reservation, was subject to suit in state court. While one implication which could be drawn from the case is that the Mashantacket Pequot Tribal Reservation is within the State of Connecticut, the case itself does not squarely stand for such a proposition.

Farinola, the apportionment defendant, did not raise these claims in its motion to dismiss. Nonetheless, the court concludes, they do not apply in the instant case. The court in Fournier noted that

The Indian Gaming Regulation Act, 25 U.S.C. § 2701(5), provides that Indian tribes have the exclusive right to regulate gaming activity on Indian lands and further provides that the tribe and the state may form a compact relating to "(i) the application of the criminal and civil laws and regulations of the Indian tribe or the State that are directly related to, and necessary for, the licensing and regulation of such activity; (ii) the allocation of criminal and civil jurisdiction between the State and the Indian tribe necessary for the enforcement of such laws and regulations." 25 U.S.C. § 2710(d)(3)(C). While the Indian Gaming Regulation Act grants the Mohegan Tribe the authority to regulate gaming on its lands, the act is inapplicable in the present case because this cause of action is unrelated to any gaming activity on the Mohegan reservation and it involves parties that are nonmembers of the tribe ... While, pursuant to the contract, the defendant installed an irrigation system on the Mohegan reservation, its actions on the reservation were wholly unrelated to gaming. Moreover, although the Mohegan Tribe and the State of Connecticut did form a Gaming Compact on May 17, 1994, as authorized by 25 U.S.C. § 2710, nothing in the Gaming Compact prohibits this court from exercising jurisdiction in this case. Similarly, there is nothing in the Settlement Act nor its legislative history that would grant the tribal court exclusive jurisdiction over this case. Since defendant has failed to provide the court with any federal statute or treaty that grants the tribal court jurisdiction in this case, it is concluded that this court is not preempted from exercising jurisdiction over this cause of action.

Upon review, the court concludes that the circumstances of this case are no different than those existing in Fournier. The court adopts the reasoning set forth therein. The dispute in question concerns itself between two corporations, none of them Tribal corporations or associations. No individual, including plaintiff's decedent, is a tribal member. While the contract in question concerns itself with activity at the Mohegan Sun Hotel, it relates neither to gaming nor to any specific tribal activity. Defendant has presented no argument or evidence that there is any tribal self-government issue at stake, since the Mohegan Tribe is not a party to this action. Neither has Farinola presented any claim of any federal law, which might preempt the state's right to proceed.

*4 The Connecticut Longarm Statute permits the exercise of personal jurisdiction over a nonresident corporate defendant for tortious conduct on a state Indian reservation, if, as in this case, there is no other prohibition to the exercise of jurisdiction on the reservation. For these purposes, the court concludes that the Mohegan reservation is within the boundaries of the State of Connecticut. Farinola, the apportionment defendant, as a foreign corporation conducting business in Connecticut and engaging in allegedly tortious conduct within the boundaries of the state, is subject to being summoned before the court of the state to answer for its conduct. For all of the foregoing reasons, the court denies the apportionment defendant Farinola's motion to dismiss.

Based on the same grounds and reasons, the apportionment defendant has objected to a request to amend the complaint in the main wrongful death action, the amendment to add a cross-claim alleging negligence on the part of the apportionment defendant Farinola. Because the court has concluded that Farinola is subject to suit in Connecticut, the court overrules the objection and the amendment may be granted.