Case 14-2031, Document 43, 11/03/2014, 1361074, Page 1 of 21 14-2031-cv To Be Argued By: PROLOY K. DAS, ESQ. IN THE United States Court of Appeals FOR THE SECOND CIRCUIT ELIZABETH A. TREMBLAY, Plaintiff-Appellant, -vs- MOHEGAN SUN CASINO, Defendant-Appellee, ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT 3:12-CV-00427-RNC BRIEF OF DEFENDANT-APPELLEE MOHEGAN SUN CASINO For the Defendant-Appellee MOHEGAN SUN CASINO PROLOY K. DAS, ESQ. ANDREW L. HOULDING, ESQ. ROME MCGUIGAN, P.C. One State Street Hartford, CT 06103-3101 Tel: 860/549-1000 Fax: 860/724-3921
Case 14-2031, Document 43, 11/03/2014, 1361074, Page 2 of 21 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES... i COUNTERSTATEMENT OF JURISDICTION... 1 I. DISTRICT COURT'S JURISDICTION... 1 II. COURT OF APPEALS FOR THE SECOND CIRCUIT JURISDICTION... 1 COUNTERSTATEMENT OF THE ISSUES PRESENTED FOR REVIEW... 2 COUNTERSTATEMENT OF THE CASE... 3 I. DISTRICT COURT PROCEEDINGS... 3 II. APPELLATE COURT PROCEEDINGS... 4 COUNTERSTATEMENT OF THE FACTS... 4 SUMMARY OF THE ARGUMENT... 6 ARGUMENT... 7 I. THE DISTRICT COURT PROPERLY GRANTED THE DEFENDANT'S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION BECAUSE THE PLAINTIFF'S COMPLAINT ALLEGING EMPLOYMENT DISCRIMINATION AGAINST HER FORMER TRIBAL EMPLOYER WAS BARRED BY SOVEREIGN IMMUNITY... 7 A. Standard of Review... 7 B. The District Court Correctly Determined That The Mohegan Tribe Of Indians Of Connecticut Is A Federally- Recognized Indian Tribe... 8
Case 14-2031, Document 43, 11/03/2014, 1361074, Page 3 of 21 C. The District Court Correctly Determined That The Mohegan Tribe s Sovereign Immunity Applies To The Mohegan Sun Casino... 10 D. The District Court Correctly Determined That Neither Title VII Nor The ADEA Abrogates The Defendant s Sovereign Immunity... 11 E. The Mohegan Tribe Has Enacted Legislation Authorizing The Assertion Of Employment Discrimination Claims, But Only In Tribal Court... 12 F. Plaintiff-Appellant s Brief Fails To Raise Any Cognizable Claims On Appeal... 13 CONCLUSION... 14 CERTIFICATION PER FED. R. APP. P. 32(a)(7)(c)... 15 CERTIFICATION OF SERVICE... 16
Case 14-2031, Document 43, 11/03/2014, 1361074, Page 4 of 21 TABLE OF AUTHORITIES i PAGE Cases Atl. Mut. Ins. Co. v. Balfour Maclaine Int'l, 968 F.2d 196 (2d Cir.1992)... 7 Bassett v. Mashantucket Pequot Tribe, 204 F.3d 343 (2d Cir. 2000)...5, 9 Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 918 A.2d 880 (2007)... 5, 8, 9 California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987)... 9 EEOC v. The Cherokee Nation, 871 F.2d 937 (10th Cir. 1989)...11 Garcia v. Akwesasne Housing Authority, 268 F.3d 76 (2nd Cir. 2001)...4, 12 Kiowa Tribe of Oklahoma v. Mfg. Technologies, Inc., 523 U.S. 751 (1998)... 4, 6, 1 Kizis v. Morse Diesel Intern., Inc., 260 Conn. 46, 794 A.2d 498, (Conn. 2002)... passim Makarova v. United States, 201 F.3d 110 (2d Cir.2000)... 7, 8, 13 Malik v. Meissner, 82 F.3d 560 (2d Cir.1996)... 7 Michigan v. Bay Mills Indian Community Et Al., 572 U.S. (2014)...10 Native American Mohegans v. United States, 184 F.Supp. 2d 198 (D.Conn. 2002)...5, 9 Oklahoma Tax Comm. v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505 (1991)...5, 9 Rzayeva v. U.S., 492 F.Supp.2d 60 (D.Conn. 2007)... 7 Sweet v. Sheehan, 235 F3d 80 (2000)... 8 Three Affiliated Tribes v. Wold Engineering, 476 U.S. 877 (1986)...10 Tilley v. Anixter Inc., 283 F.Supp.2d 729 (D.Conn.2003)... 7
Case 14-2031, Document 43, 11/03/2014, 1361074, Page 5 of 21 United States v. United States Fidelity & Guar. Co., 309 U.S. 506 (1940)...5, 9 Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832)... 9 Statutes 25 U.S.C. 1775... 4 28 U.S.C. 1331... 1 28 U.S.C. 1291... 1 29 U.S.C. 621... 1, 3, 5, 12 42 U.S.C. 2000e... passim Rules Fed. R.Civ. Pro. 12(b)(1)...7, 8 FRCP 12(b)(6)... 8 Other Authorities Article XIII, 1, of the Constitution of the Mohegan Tribe of Indians of Connecticut...10 Felix S. Cohen, Handbook of Federal Indian Law, 324-28 (1982)... 9 Regulations 59 Fed. Reg. 12, 140-41 (1994) as modified by 59 Fed. Reg. 37144...2, 6 ii
Case 14-2031, Document 43, 11/03/2014, 1361074, Page 6 of 21 COUNTERSTATEMENT OF JURISDICTION I. DISTRICT COURT S JURISDICTION Pro se Plaintiff Appellant Elizabeth Tremblay brought a complaint pursuant to 42 U.S.C. 2000e et seq. (Title VII of the Civil Rights Act of 1964) and 29 U.S.C. 621 et seq. (Age Discrimination in Employment Act) against Defendant- Appellee Mohegan Sun Casino. The District Court had federal question jurisdiction pursuant to 28 U.S.C. 1331. However, as the District Court properly concluded, the Court lacked subject matter jurisdiction over the case because the suit was barred by sovereign immunity. II. COURT OF APPEALS FOR THE SECOND CIRCUIT JURISDICTION This Court has appellate jurisdiction over this appeal pursuant to 28 U.S.C. 1291, because the District Court s dismissal of the Plaintiff s case constitutes a final decision of the District Court. 1
Case 14-2031, Document 43, 11/03/2014, 1361074, Page 7 of 21 COUNTERSTATEMENT OF THE ISSUES PRESENTED FOR REVIEW Whether the District Court properly granted the Defendant s Motion to Dismiss for lack of subject matter jurisdiction because the Plaintiff s Complaint alleging employment discrimination against her former tribal employer was barred by sovereign immunity. 2
Case 14-2031, Document 43, 11/03/2014, 1361074, Page 8 of 21 COUNTERSTATEMENT OF THE CASE I. DISTRICT COURT PROCEEDINGS Plaintiff-Appellant Elizabeth Tremblay is pro se and is proceeding in forma pauperis. Plaintiff s complaint was filed in the United States District Court for the District of Connecticut on March 21, 2012. Plaintiff s motion for leave to proceed in forma pauperis was granted April 13, 2012. Plaintiff s complaint was not served until March 21, 2014, approximately two years later. Plaintiff alleged that she was subjected to employment discrimination by the Defendant in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq., and the Age Discrimination in Employment Act, as amended, 29 U.S.C. 621 et seq. She alleged that she was terminated from the Defendant s employment on December 12, 2010. On May 20, 2014, the Court granted the Defendant s Motion to Dismiss based on sovereign immunity. The full text of the decision is as follows: ORDER granting [27] Motion to Dismiss; denying [28] Motion Not to Dismiss. Plaintiff brings this action against her former employer, the Mohegan Sun Casino, alleging employment discrimination in violation of Title VII and the Age Discrimination in Employment Act ("ADEA"). The defendant has filed a motion to dismiss based on sovereign immunity. The motion is granted. The Mohegan Tribe of Indians of Connecticut, which operates the defendant Casino through the Mohegan Tribal Gaming Authority ("MTGA"), is a federally recognized Indian tribe. "As a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe 3
Case 14-2031, Document 43, 11/03/2014, 1361074, Page 9 of 21 has waived its immunity." Kiowa Tribe of Oklahoma v. Mfg. Technologies, Inc., 523 U.S. 751, 754 (1998). Neither has occurred here. The Mohegan Tribe has not waived its immunity from suit in this Court, and the statutes under which plaintiff brings this action do not abrogate the Tribe's immunity. Title VII is expressly inapplicable to Indian tribes, 42 U.S.C. 2000e(b)(1), and nothing in the ADEA revokes tribal sovereign immunity from private lawsuits. Garcia v. Akwesasne Housing Authority, 268 F.3d 76, 86 (2d Cir. 2001). Thus, plaintiff cannot bring claims of employment discrimination against an Indian tribe under Title VII or the ADEA. The Mohegan Tribe has enacted legislation establishing a tribal court system as well as legislation waiving the sovereign immunity of the Tribe and the Gaming Authority for discrimination claims by employees against the MTGA, but only in the Mohegan Gaming Disputes Court. Thus, plaintiff's only remedy is to proceed in that Court. Accordingly, because this Court lacks subject matter jurisdiction over plaintiff's claims, defendant's motion to dismiss [ECF No. 27] is granted and plaintiff's motion not to dismiss [ECF No. 28] is denied. The Clerk is directed to close the case. So ordered. Signed by Judge Robert N. Chatigny on 05/20/2014. (Bialek, T.) II. APPELLATE COURT PROCEEDINGS The Plaintiff filed her Notice of Appeal on June 6, 2014, and her principal appellant brief on September 11, 2014. COUNTERSTATEMENT OF THE FACTS As the District Court correctly found, the Mohegan Tribe of Indians of Connecticut (the Mohegan Tribe ) is a federally recognized Indian tribe. See Mohegan Land Claims Settlement Act, 25 U.S.C. 1775(a) et seq; see also 59 Fed. Reg. 12, 140-41 (1994) as modified by 59 Fed. Reg. 37144 (final determination that the Mohegan Indian Tribe of Connecticut does exist as an Indian Tribe); see also, Kizis v. Morse Diesel Intern., Inc., 260 Conn. 46, 55, 794 4
Case 14-2031, Document 43, 11/03/2014, 1361074, Page 10 of 21 A.2d 498, (Conn. 2002)(Mohegan Tribe is recognized by an act of Congress and by the state of Connecticut); Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 918 A.2d 880 (2007). The Mohegan Tribe, as a federally-recognized tribe, is a sovereign entity and immune from unconsented suit. Kizis, supra; Beecher, supra; Native American Mohegans v. United States, 184 F.Supp. 2d 198 (D.Conn. 2002). It is by now well established that Indian tribes possess the common-law immunity from suit traditionally enjoyed by sovereign powers. See, e.g., Oklahoma Tax Comm. v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 509 (1991); United States v. United States Fidelity & Guar. Co., 309 U.S. 506, 512 (1940). Bassett v. Mashantucket Pequot Tribe, 204 F.3d 343, 356 (2d Cir. 2000). The Plaintiff brought this suit alleging violations of Title VII of the federal Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq. and the Age Discrimination in Employment Act, 29 U.S.C. 621, et seq. However, the Mohegan Tribe has not waived its immunity from suits in federal court, and the statutes under which Plaintiff brought this action do not abrogate tribal sovereign immunity. As the District Court properly found, claims of employment discrimination made under these two statutes against an Indian tribal employer are barred by sovereign immunity. 5
Case 14-2031, Document 43, 11/03/2014, 1361074, Page 11 of 21 SUMMARY OF THE ARGUMENT The Defendant, Mohegan Sun Casino, is operated by the Mohegan Tribe through the Mohegan Tribal Gaming Authority. The Mohegan Tribe is a federallyrecognized Indian tribe and, therefore, is a sovereign entity that is immune from unconsented suit. The recognition of tribal sovereignty promotes and protects the policies of tribal self-determination, economic development, and cultural and political autonomy. The Mohegan Tribe and, through the Mohegan Tribal Gaming Authority, the Mohegan Sun Casino, are not subject to suit unless the United States Congress has unequivocally abrogated tribal sovereign immunity or the Mohegan Tribe itself has clearly expressed a waiver of its immunity in a specific forum. See Kiowa Tribe of Oklahoma v. Mfg. Technologies, Inc., 523 U.S. 751 at 754; Kizis v. Morse Diesel Intern., Inc., 260 Conn. at 55. The Plaintiff, Elizabeth Tremblay, is a former employee of the Defendant tribe. She brought this lawsuit against the Defendant under a theory of employment discrimination. However, rather than bringing her claims in the Mohegan Gaming Disputes Court, where the Defendant s sovereign immunity has been waived for discrimination claims by employees against the Mohegan Tribal Gaming Authority, she filed the instant lawsuit in federal court. The District Court properly recognized that tribal sovereign immunity shielded the Defendant from suit in federal court and deprived the District Court of subject matter jurisdiction to 6
Case 14-2031, Document 43, 11/03/2014, 1361074, Page 12 of 21 adjudicate the Plaintiff s Complaint. The Plaintiff has failed to establish either an abrogation or a waiver of immunity that would permit her suit against the Defendant to be adjudicated in federal court. Accordingly, the District Court properly dismissed the Plaintiff s employment lawsuit for lack of subject matter jurisdiction based on sovereign immunity. ARGUMENT I. THE DISTRICT COURT PROPERLY GRANTED THE DEFENDANT S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION BECAUSE THE PLAINTIFF S COMPLAINT ALLEGING EMPLOYMENT DISCRIMINATION AGAINST HER FORMER TRIBAL EMPLOYER WAS BARRED BY SOVEREIGN IMMUNITY A. Standard of Review Fed. R.Civ. Pro. 12(b)(1) permits a motion to dismiss for lack of subject matter jurisdiction. A case is properly dismissed for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) when the court lacks the statutory or constitutional power to adjudicate it. Fed.R.Civ.P. 12(b)(1); Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000). Plaintiff, as the party asserting subject matter jurisdiction, has the burden of establishing that it exists, Malik v. Meissner, 82 F.3d 560, 562 (2d Cir.1996) (citation omitted), and the Court should not draw argumentative inferences in her favor. Atl. Mut. Ins. Co. v. Balfour Maclaine Int'l, 968 F.2d 196, 198 (2d Cir.1992) (citation omitted). When considering a motion to dismiss for lack of subject matter jurisdiction, the court must determine whether or not the factual predicate for subject matter exists. Tilley v. Anixter Inc., 283 F.Supp.2d 729, 733 (D.Conn.2003) (citation omitted). Rzayeva v. U.S., 492 F.Supp.2d 60, 70 (D.Conn. 2007). 7
Case 14-2031, Document 43, 11/03/2014, 1361074, Page 13 of 21 We review the district court's decision on a motion to dismiss under FRCP 12(b)(6) or 12(b)(1) de novo...when considering a motion to dismiss pursuant to Rule 12(b)(1), the court must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff... Dismissal is inappropriate unless it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him or her to relief. Sweet v. Sheehan, 235 F3d 80, 83 (2000). In adjudicating a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), courts may consider evidence outside the pleadings. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). B. The District Court Correctly Determined That The Mohegan Tribe Of Indians Of Connecticut Is A Federally-Recognized Indian Tribe As the District Court correctly found, the Mohegan Tribe of Indians of Connecticut (the Mohegan Tribe ) is a federally recognized Indian tribe. See Mohegan Land Claims Settlement Act, 25 U.S. C. 1775(a) et seq; see also 59 Fed. Reg. 12, 140-41 (1994) as modified by 59 Fed. Reg. 37144 (final determination that the Mohegan Indian Tribe of Connecticut does exist as an Indian Tribe); see also, Kizis v. Morse Diesel Intern., Inc., 260 Conn. 46, 55, 794 A.2d 498 (Conn. 2002)(Mohegan Tribe is recognized by an act of Congress and by the state of Connecticut); Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 918 A.2d 880 (2007). 8
Case 14-2031, Document 43, 11/03/2014, 1361074, Page 14 of 21 The Mohegan Tribe, as a federally-recognized tribe, is a sovereign entity and immune from unconsented suit. Kizis, supra; Beecher, supra; Native American Mohegans v. United States, 184 F.Supp. 2d 198 (D.Conn. 2002). It is by now well established that Indian tribes possess the common-law immunity from suit traditionally enjoyed by sovereign powers. See, e.g., Oklahoma Tax Comm. v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 509 (1991); United States v. United States Fidelity & Guar. Co., 309 U.S. 506, 512 (1940). Bassett v. Mashantucket Pequot Tribe, 204 F.3d 343, 356 (2d Cir. 2000). This immunity arises from the long-standing recognition of Indian tribes as domestic dependent nations which exercise inherent sovereign authority over their members and territories, Oklahoma Tax Comm. v. Citizen Band Potawatomi Indian Tribe, supra; Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), and has been recognized as predating the United States Constitution. United States v. United States Fidelity & Guaranty Co., supra at 512-13. The continued recognition of tribal sovereignty promotes and protects the federal policies of tribal self-determination, economic development, and cultural and political autonomy. See California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987); see, generally, Felix S. Cohen, Handbook of Federal Indian Law, 324-28 (1982). [I]n the absence of federal authorization, tribal immunity, like all aspects of tribal sovereignty, is privileged from diminution by the states. Three Affiliated Tribes v. 9
Case 14-2031, Document 43, 11/03/2014, 1361074, Page 15 of 21 Wold Engineering, 476 U.S. 877, 890 (1986); see Kiowa Tribe v. Manufacturing Technologies, Inc., 523 U.S. 751, 756 (1998). These principles were recently affirmed in Michigan v. Bay Mills Indian Community Et Al., 572 U.S. (2014)(tribal sovereign immunity barred state suit over tribe s operation of casino off-reservation). point. The Plaintiff-Appellant does not contest the District Court s finding on this C. The District Court Correctly Determined That The Mohegan Tribe s Sovereign Immunity Applies To The Mohegan Sun Casino The District Court also held that the Mohegan Tribe operates the defendant Mohegan Sun Casino through the Mohegan Tribal Gaming Authority (MTGA). This was consistent with the Connecticut Supreme Court s decision in Kizis: The tribe created the authority to facilitate and act as the governmental entity responsible for managing all aspects of the tribe's gaming enterprises. This was accomplished under the authority of Article XIII, 1, of the Constitution of the Mohegan Tribe of Indians of Connecticut, which provides in relevant part: "Creation of Gaming Authority. All governmental and proprietary powers of The Mohegan Tribe over the development, construction, operation, promotion, financing, regulation and licensing of gaming, and any associated hotel, associated resort or associated entertainment facilities, on tribal lands (collectively, 'Gaming') shall be exercised by the Tribal Gaming Authority, provided that such powers shall be within the scope of authority delegated by the Tribal Council to the Tribal Gaming Authority under the ordinance establishing the Tribal Gaming Authority..." Kizis, supra, 260 Conn. at 48, n.1. 10
Case 14-2031, Document 43, 11/03/2014, 1361074, Page 16 of 21 The MTGA is cloaked with the sovereign immunity of the Mohegan Tribe. Id., 260 Conn. at 58. Thus, any claim or process against the MTGA, i.e., Mohegan Sun, is barred to the same extent as if brought against the Mohegan Tribe itself. 1 Again, Plaintiff-Appellant has not challenged this aspect of the District Court decision. D. The District Court Correctly Determined That Neither Title VII Nor The ADEA Abrogates The Defendant s Sovereign Immunity The District Court correctly held that the Mohegan Tribe has not waived its immunity from suits in federal court, and Title VII of the federal Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq., one of the statutes upon which Plaintiff relies, is expressly inapplicable to Indian tribes. See 42 U.S.C. 2000e(b) (excluding Indian tribes from the definition of employers covered by the Act). Accordingly, when a complaint is brought before the Equal Employment Opportunities Commission (EEOC), the entity having jurisdiction over most employment-discrimination claims, if the respondent employer is an Indian Tribe, the EEOC has no jurisdiction over the matter and the action must be dismissed, as the EEOC did here. EEOC v. The Cherokee Nation, 871 F.2d 937 (10th Cir. 1989). 1 The MTGA does business as Mohegan Sun. See Kizis, 260 Conn. at 49-50 (equating Mohegan Sun with the Authority). 11
Case 14-2031, Document 43, 11/03/2014, 1361074, Page 17 of 21 While the Age Discrimination in Employment Act, 29 U.S.C. 621, et seq. does not expressly exclude Indian tribal employers from coverage, the law does not abrogate tribal sovereign immunity from private lawsuits. See, Garcia v. Akwesasne Housing Authority, 268 F.3d 76, 86 (2nd Cir. 2001). Thus, claims against Indian tribal employers under the ADEA are barred by sovereign immunity. The District Court correctly found that Plaintiff-Appellant may not bring claims of employment discrimination against an Indian tribal employer under Title VII or the ADEA in federal court. The Plaintiff does not challenge that decision. E. The Mohegan Tribe Has Enacted Legislation Authorizing The Assertion Of Employment Discrimination Claims, But Only In Tribal Court The District Court also noted that the Mohegan Tribe has adopted legislation establishing a tribal court system, the Gaming Disputes Court and the Gaming Disputes Court of Appeals, and also has enacted legislation waiving the sovereign immunity of the Tribe and the Gaming Authority for the assertion of discrimination claims by employees against the MTGA. However, that waiver only permits employment discrimination claims against the MTGA to be brought in the Gaming Disputes Court. The federal courts lack jurisdiction over Plaintiff- Appellant s claims of employment discrimination. The District Court correctly concluded that the [P]laintiff s only remedy is to proceed in [the Mohegan 12
Case 14-2031, Document 43, 11/03/2014, 1361074, Page 18 of 21 Gaming Disputes Court] and dismissed Plaintiff-Appellant s federal lawsuit for lack of subject matter jurisdiction. The Plaintiff-Appellant s brief does not challenge that decision. F. Plaintiff-Appellant s Brief Fails To Raise Any Cognizable Claims On Appeal As Plaintiff-Appellant is proceeding pro se, considerable leeway may be afforded so that technical defects in her pleadings may be overlooked. See Makarova v. United States, 201 F.3d 110, 113 (2 nd Cir. 2000). However, the Plaintiff-Appellant s principal brief offers absolutely no basis for reversal of the District Court s decision. The Plaintiff s assertions in her brief do not challenge the District Court s essential holding that it lacked subject matter jurisdiction over the case. Instead, she asserts her continued disagreement with the Defendant s termination of her employment in December 2010. She asserts that she was discharged for being rude to a customer, and she disagrees with that assessment. As the District Court properly noted, the forum for raising this claim was in the Mohegan Gaming Disputes Court. Had she brought a timely complaint in that Court, these factual issues might have been subject to adjudication (assuming that her claims adequately alleged a form of employment discrimination cognizable under Mohegan law). However, the Plaintiff s claims cannot be adjudicated in 13
Case 14-2031, Document 43, 11/03/2014, 1361074, Page 19 of 21 federal court because, as the District Court properly concluded, that court lacks subject matter jurisdiction. The District Court properly dismissed Plaintiff-Appellant s lawsuit for lack of subject matter jurisdiction based on sovereign immunity. CONCLUSION For the foregoing reason, the District Court s Judgment of Dismissal should be affirmed. RESPECTFULLY SUBMITTED, DEFENDANT-APPELLEE, THE MOHEGAN SUN CASINO By: /s/ Proloy K. Das PROLOY K. DAS, ESQ. ANDREW L. HOULDING, ESQ. ROME MCGUIGAN, P.C. One State Street Hartford, CT 06103-3101 Tel: 860/549-1000 Fax: 860/724-3921 pdas@rms-law.com 14
Case 14-2031, Document 43, 11/03/2014, 1361074, Page 20 of 21 CERTIFICATION PER FED. R. APP. P. 32(a)(7)(c) Certificate of Compliance with Type-Volume Limitation, Typeface Requirements and Type style Requirements 1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 2,852 words, as calculated by the word processing system used to prepare it, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2010 in 14 point Times New Roman. Dated: November 3, 2014 RESPECTFULLY SUBMITTED, DEFENDANT-APPELLEE, MOHEGAN SUN CASINO By: /s/ Proloy K. Das PROLOY K. DAS, ESQ. ANDREW L. HOULDING, ESQ. ROME MCGUIGAN, P.C. One State Street Hartford, CT 06103-3101 Tel: 860/549-1000 Fax: 860/724-3921 15
Case 14-2031, Document 43, 11/03/2014, 1361074, Page 21 of 21 CERTIFICATION OF SERVICE I hereby certify that two copies of DEFENDANT-APPELLEE, MOHEGAN SUN CASINO S BRIEF was mailed, postage prepaid, this 3 rd day of November, 2014, to all counsel and pro se parties of records as follows: Elizabeth Tremblay, pro se 423 Rixtown Road Griswold, CT 06351 By: /s/ Proloy K. Das PROLOY K. DAS, ESQ. I also certify that the original and five copies were hand-delivered to: Clerk of the Court United States Court of Appeals, Second Circuit United States Courthouse 500 Pearl Street, 3 rd Floor New York, NY 10007 (212) 857-8576 On this 3 rd day of November 2014. By: /s/ Proloy K. Das PROLOY K. DAS, ESQ. 16