Big Bubba Lawsuit Bumped by Mohegan’s Sovereign Immunity

Gale Courey Toensing
6/25/13

 

It didn’t take long for a Connecticut Superior Court judge to dismiss a gaming facility lease dispute case against the Mohegan Tribal Gaming Authority.

Big Bubba’s BBQ filed a lawsuit against the Mohegan Tribal Gaming Authority with a “Verified Lockout Complaint,” applications for a temporary injunction and injunctive relief and a request for a bond waiver on April 8. On May 23 Connecticut Superior Court Judge Leeland Cole-Chu dismissed the case because the Mohegan Tribe had not waived its sovereign immunity from being sued.

Big Bubba’s restaurant has been a tenant at Mohegan Sun casino since March 2001 and holds a lease from that date, according to the complaint. The Mohegan Tribal Gaming Authority locked Big Bubba out of the space last October and has prevented the restaurant from occupying it ever since then. The complaint says Big Bubba has suffered irreparable loss or damage by being deprived of its leased premises and its possessions in the premises. It alleges that it was up to date on all lease payments at the time of the lockout and that the Gaming Authority has “engaged a competitor of the plaintiff to take over the premises and to open a new restaurant.” The complaint does not indicate why Big Bubba was locked out.

When the judge examined the lease he found the following statement: “Landlord expressly waives its immunity from unconsented suit for the purpose of permitting a suit by Tenant in any court of competent jurisdiction for any claims by Tenant for the purpose of enforcing this Lease and any judgment arising out of this Lease. The Landlord's waiver of immunity from suit is specifically limited to the following actions and judicial remedies,” the lease says, then goes on to list the limitations.

It sounds like the tribe waived its sovereign immunity, right?  Big Bubba thought so too and claimed that the Connecticut Supreme Court, therefore, was a court of competent jurisdiction. But a section of the lease called “Governing Law” says, “The rights and obligations of the parties and the interpretation and performance of this Lease shall be governed by the law of the Tribe,” that is, the Mohegan Tribe of which the Mohegan Tribal Gaming Authority is an “instrumentality,” meaning a subsidiary branch of the Mohegan government. The Mohegan Tribal Council established a Gaming Disputes Court in the tribe’s Constitution that has jurisdiction over disputes arising out of, or in connection with, the Mohegan Tribal Gaming Authority’s actions and the contracts it enters into at the Mohegan Sun Casino where Big Bubba’s restaurant was located. So the tribe’s own judicial system has jurisdiction over this dispute.

In reaching his decision, the judge turned to case where he found among other things that the doctrine of sovereign immunity, which protects a sovereign government from being sued without its consent, is a basis for granting a motion; that the plaintiff has the burden of proving a court has jurisdiction; that an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity; and that a waiver of sovereign immunity can’t be implied, it has to be expressed unequivocally.

The judge was sympathetic to Big Bubba’s “implicit claim” that the lease phrase “any court of competent jurisdiction” could exclude the Connecticut courts. “However, interpretation of the Lease is a question of law and the plaintiff's implicit plea of unilateral mistake—that  ‘any’ must mean ‘any’—is unavailing,” he wrote.

Not only did the tribe not consent to being sued, the parties agreed in the Lease that Mohegan Tribal law would apply. “That law, by the Mohegan constitution and ordinance, provides a forum—albeit not the plaintiff's preferred forum—for the plaintiff's claims in contract and equity against the defendant.” Big Bubba now has the option of taking its claim to the Mohegan Gaming Disputes Court.

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