Tassone v. Foxwoods Resort Casino et al
Filing
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MEMORANDUM OF DECISION granting 17 Motion to Dismiss for Lack of Jurisdiction; finding as moot 16 Motion to Compel. Signed by Judge Warren W. Eginton on 5/23/2012. (Candee, D.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
BRUCE E. TASSONE,
Plaintiff,
v.
FOXWOODS RESORT CASINO and
MASHANTUCKET PEQUOT INDIAN
TRIBE,
Defendants.
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3:11cv1718 (WWE)
MEMORANDUM OF DECISION ON MOTION TO DISMISS
In this action, plaintiff, pro se, alleges that he is a pathological gambler and that
defendants Foxwoods Resort Casino (the Gaming Enterprise”) and the Mashantucket
Pequot Indian Tribe (“Tribe”) knowingly and willingly took advantage of his addiction to
gambling.1 He asserts claims for violation of the Racketeer Influenced and Corrupt
Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq., violation of Connecticut General
Statutes § 53-396, tortious breach of duty, premises liability, intentional infliction of
emotional distress, and breach of contract. Plaintiff seeks punitive damages.
Defendants have moved to dismiss the action for lack of subject matter
jurisdiction.
DISCUSSION
A motion to dismiss under Federal Rule of Civil Procedure12(b)(1) "challenges
the court’s statutory or constitutional power to adjudicate the case before it." 2A James
W. Moore et. al., Moore’s Federal Practice, ¶ 12.07, at 12-49 (2d ed. 1994). Once the
The proper defendant is the Mashantucket Pequot Gaming Enterprise d/b/a
Foxwoods Resort Casino.
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question of jurisdiction is raised, the burden of establishing subject matter jurisdiction
rests on the party asserting such jurisdiction. See Thomson v. Gaskill, 315 U.S. 442,
446 (1942).
“As 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.” Kiowa Tribe of Oklahoma
v. Mfr. Tech., Inc., 523 U.S. 751, 754 (1998). Congress must unequivocally express
abrogation of a tribe’s immunity, and similarly, a tribe’s waiver of its immunity must be
clear. C & L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe of Oklahoma,
532 U.S. 411, 418 (2001). Tribal immunity extends to certain commercial activities
occurring beyond a tribe's reservation. Worrall v. Mashantucket Pequot Gaming
Enterprise, 131 F. Supp. 2d 328, 330 (D. Conn. 2001).
An arm of the tribe is treated the same as the tribe for jurisdictional purposes.
Ninigret Dev. Corp. v. Narrangansett Indian Wetuomuck Hous. Auth., 207 F.3d 21, 27
(2d Cir. 2000). The Gaming Enterprise is an arm of the Mashantucket Pequot Tribe and
therefore entitled to immunity. Worrall, 131 F. Supp. 2d at 330.
In this instance, RICO does not contain an abrogation of the tribal immunity.
Buchanan v. Sokaogon Chippewa Tribe, 40 F. Supp. 2d 1043, 1047 (E.D. Wis. 1999).
Plaintiff cites a portion of the Tribe’s Gaming Procedures that do provide the State
gaming agency with a cause of action in federal district court to enforce compliance with
the provisions therein. However, the Tribe has made no clear waiver of its immunity for
claims pursuant to RICO or state common law.
Accordingly, the Court lack subject matter jurisdiction over plaintiff’s claims, and
the motion to dismiss will be granted.
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CONCLUSION
For the foregoing reasons, the motion to dismiss [doc. # 17] is GRANTED. The
Motion to Compel Defendant to Protect and Preserve Discovery Material [doc. # 16] is
MOOT.
The clerk is instructed to close this case.
__________/s/___________________
Warren W. Eginton
Senior United States District Judge
Dated this _23rd__ day of May 2012 at Bridgeport, Connecticut.
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