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(Cite as: Not Reported in A.2d)

Not Reported in A.2d, 2005 WL 1273926


Superior Court of Connecticut,Judicial District of New Britain.



David A. ROSOW et al.

No. X03CV034000160S.

May 2, 2005.

Reardon Law Firm PC, New London, for Trump Hotels And Casino Resorts Development Com., LLC.

Andrews Young & Geraghty P.C. , New London, Edward Reilly Jr. , Leonard Lesser, New York, NY, for David A. Rosow, Eastern Capital Development LLC.

Mintz, Levin, Cohn, Ferris, Glovsky & P , Stamford, PHV Bell Ray Morrow, San Diego, CA, for William I. Koch.

Tobin Carberry Omalley Riley & Seli, New London, for Mark R. Sebastian, Marcia Jones-Flowers, Lynne D. Powers, Ron Jackson, Joseph A. Perry, Katherine H. Sebastian, W. Sebastian, Eastern Pequot Indians of Connecticut Inc., Mary Sebastian, Paucatuck Eastern Pequot Tribal Nation, Lewis E. Randall.

Jeremiah Donovan, Old Saybrook, for Paucatuck Eastern Pequot Tribal Nation, Lewis E. Randall, Eugene R. Young, James L. Williams, James A. Cuhna, Frances M. Young, Agnes E. Cuhna, Gina Hogan, Christine C. Meisner, Brenda L. Geer, Raymond A. Geer.


*1 The defendant Paucatuck Eastern Pequot Nation (PEPs) has moved to dismiss the complaint against it by joining the motion to dismiss of the defendant Eastern Pequot Indians of Connecticut, Inc. (Easterns) . FN1 The Easterns moved to dismiss counts one, two, thee, eight and nine on the ground that the court lacks subject matter jurisdiction to consider the plaintiff's claims because these claims (1) have not ripened into an actual controversy, (2) are dependent upon a political determination committed to another branch of government and (3) are barred by principles of tribal sovereignty and tribal sovereign immunity. Since the only counts that appear to be directed to the PEPs are counts four (default payment), five (breach of contract) and six (specific performance), the court interprets the PEPs' motion as a motion to dismiss those counts. In addition, although the court is not convinced that the ripeness and political question grounds set forth in support of the Eastern's motion to dismiss applies equally to the counts against the PEPs, to the extent that they may, the court adopts the statement of the case, recitation of facts, reasoning and decision contained in its memorandum of decision denying the Easterns' motion to dismiss on these grounds.

FN1. The entire text of the PEPs motion reads as follows: ?The defendant Paucatuck Eastern Pequot Nation moves to join the motion to dismiss of the Eastern Pequots of Connecticut, Inc.?

The court also denies the motion to dismiss on the ground of sovereign immunity for the reason that the PEPs clearly and unequivocally waived any claim they may have as to tribal sovereign immunity in the second amendment to the Trump contract. ?[A]s 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 ... and the tribe itself has consented to suit in a specific forum ... Absent a clear and unequivocal waiver by the tribe or congressional abrogation, the doctrine of sovereign immunity bars suits for damages against a tribe ... However, such waiver may not be implied, but must be expressed unequivocally.?  (Citations omitted; internal quotation marks omitted.) Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 53-54, 794 A.2d 498 (2002). In the second amendment to the Trump contract entered into on September 30, 2002, the defendant PEPs agreed to a provision entitled ?Limited Waiver of Sovereign Immunity,? which provides in relevant part, ?The Tribe hereby waives its sovereign immunity, consents to be sued and submits to the jurisdiction of any court of the State of Connecticut and of the Federal District Court for the District of Connecticut, the Federal Court of Appeals for the Second Circuit and the United States Supreme Court with respect to any claim or cause of action arising under or relating to this Agreement and/or the Project.?  (Emphasis in original.) (Complaint, Exhibit A, Second Amendment to Agreement, ¶ 2(g).) This provision clearly and unequivocally waived the defendant PEPs' sovereign immunity for the purposes of this suit. Since the court otherwise has subject matter jurisdiction over counts four, five and six of the plaintiff's complaint, the PEPs' motion to dismiss is hereby denied.