BRIAN LEWIS et al. v. WILLIAM CLARKE et al., SC 19464
Judicial District of New London
Tribal Immunity; Whether Trial Court Properly Applied "Remedy Sought" Doctrine in Denying Tribal Employee's Motion to Dismiss Claims Brought Against him in his Individual Capacity. William Clarke, an employee of the Mohegan Tribe Gaming Authority (authority), was driving patrons of the Mohegan Sun casino to their homes in a limousine owned by the authority when he struck the plaintiffs' car. The plaintiffs were injured in the accident, and they brought this negligence action against Clarke and the authority. The plaintiffs subsequently withdrew their claims against the authority and proceeded solely on negligence claims against Clarke in his individual capacity. Clarke moved to dismiss the claims, asserting that he was entitled to tribal sovereign immunity because he was acting within the scope of his employment at the time of the accident. The plaintiffs opposed the motion, relying on an emerging "remedy-sought" doctrine promulgated by the United States Courts of Appeal for the Ninth and Tenth Circuits for determining whether the sovereign is the real party in interest. Under that analysis, sovereign immunity does not extend to a tribal employee who is sued in his individual capacity in cases where damages are sought from the employee alone and where any judgment would not affect the tribe's ability to govern itself independently. The trial court denied the motion to dismiss. It ruled that, because Clarke was being sued in his individual capacity for an alleged tort occurring off the tribal reservation involving injuries to non-patrons of the authority, the "remedy-sought" analysis should be applied, and that, because the remedy sought here was not against the authority, Clarke was not immune from suit. In so ruling, the court rejected Clarke's claim that, because the authority’s treasury would be affected due to its obligation to defend and indemnify him pursuant to the Mohegan Tribal Code, the authority was the real party in interest. The court reasoned that that obligation was voluntarily undertaken by the tribe and could not be used as a basis to extend sovereign immunity where it did not otherwise exist. Clarke appeals, claiming that the trial court improperly denied his motion to dismiss. He argues that the “remedy-sought” doctrine ignores precedent establishing that tribal employees are immune from suit for acts in the course of their employment, offends public policy and encourages plaintiffs to make an “end run” around tribal immunity by suing a tribal employee only in his individual capacity for actions taken in the scope and course of his employment.