12-2436-cv

Tassone v. Foxwoods Resort Casino

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY

ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE

OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY

ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL

APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY

CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY

COUNSEL. 

At a stated term of the United States Court of Appeals for the Second Circuit, held at the

Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the

4th day of June, two thousand thirteen.

Present:

ROSEMARY S. POOLER,

DEBRA ANN LIVINGSTON,

Circuit Judge.

RICHARD W. GOLDBERG,*

Judge.

_____________________________________

BRUCE E. TASSONE,

Plaintiff-Appellant,

v. 12-2436-cv

FOXWOODS RESORT CASINO, MASHANTUCKET PEQUOT

INDIAN TRIBE OF CONNECTICUT,

Defendants-Appellees.

_____________________________________

Appearing for Plaintiff-Appellant: Bruce E. Tassone, pro se, North Adams, MA.

*Judge Richard W. Goldberg, of the United States Court of International Trade, sitting by

designation.
Appearing for Defendants-Appellees: Elizabeth Conway, Esq., Mashantucket Pequot

Tribal Nation Office of Legal Counsel,

Mashantucket, CT.

David S. Williams, Esq., and Cassie N. Jameson,

Esq., Brown Jacobson P.C., Norwich, CT.

Appeal from a judgment of the United States District Court for the District of

Connecticut (Eginton, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED. 

Appellant Bruce E. Tassone, pro se, appeals from the judgment of the district court

granting Appellees’ motion to dismiss for lack of jurisdiction, pursuant to Federal Rule of Civil

Procedure 12(b)(1), Appellant’s complaint asserting, inter alia, violations of Connecticut

General Statutes § 53-396, tortious breach of duty, premises liability, intentional infliction of

emotional distress, breach of contract, and violations of the Racketeer Influenced and Corrupt

Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq. We assume the parties’ familiarity with

the underlying facts, the procedural history of the case, and the issues on appeal.

We review de novo a district court decision dismissing a complaint pursuant to Rule

12(b)(1). See Jaghory v. N.Y. State Dep’t of Educ., 131 F.3d 326, 329 (2d Cir. 1997). Dismissal

of a case for lack of subject matter jurisdiction under Rule 12(b)(1) is proper “when the district

court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States,

201 F.3d 110, 113 (2d Cir. 2000). 

It is well-settled that Indian tribes “possess the common-law immunity from suit

traditionally enjoyed by sovereign powers.” Bassett v. Mashantucket Pequot Tribe, 204 F.3d

343 356 (2d Cir. 2000). 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 Okla. v.

Mfg. Techs., Inc., 523 U.S. 751, 754 (1998). The Supreme Court has explained that, “[t]o

abrogate tribal immunity, Congress must unequivocally express that purpose,” and “to relinquish

its immunity, a tribe’s waiver must be clear.” C&L Enters., Inc. v. Citizen Band Potawatomi

Indian Tribe of Okla., 532 U.S. 411, 418 (2001) (internal citations and quotation marks omitted). 

Tribal immunity also applies to entities, such as Foxwoods Resort Casino, that are arms,

agencies or subdivisions of the tribe. See Chayoon v. Chao, 355 F.3d 141, 143 (2d Cir. 2004);

see also Bassett, 204 F.3d at 357-58; Worall v. Mashantucket Pequot Gaming Enter., 131 F.

Supp. 2d 328, 331 (D. Conn. 2001). 

After an independent review of the record and relevant case law, we conclude that the

district court properly held that it lacked subject matter jurisdiction due to Defendants’ sovereign

immunity. Tassone has not identified any express abrogation nor waiver of Defendants’

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sovereign immunity with respect to individual citizens. Likewise, the Supreme Court’s decision

in Nevada v. Hicks, 533 U.S. 353 (2001), and Strate v. A-1 Contractors, 520 U.S. 438 (1997),

which Tassone cites in support of his argument, concern the ability of tribal courts to assert

jurisdiction over defendants who are not tribal members, not the ability of non-members to sue

Indian tribes in state or federal court.

We have considered all of Tassone’s remaining arguments and find them to be without

merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk

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