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rejecting the defendant's claim that she is not amenable to the jurisdiction of the court based on her status as an "Aboriginal Moorish American"
Summary of this case from In re Wallace-ElOpinion
No. CV-09-6004583S
January 21, 2010
MEMORANDUM OF DECISION RE DEFENDANT FABIOLA DERISME'S MOTION TO DISMISS (#104)
Plaintiff brought this action seeking a finding of liability under a note and foreclosure of a mortgage against defendant Fabiola Derisme by complaint dated July 22, 2009. Ms. Derisme filed an appearance July 24, 2009 under the name of Fabiola Is Re El: Bey for the purposes of contesting the court's jurisdiction over this matter. Defendant filed an Objection dated August 12, 2009 and an "Affidavit of Facts" dated August 24, 2009. The parties presented oral argument before the court on October 5, 2009 and defendant filed a supplemental "Affidavit of Facts" dated the same day. While defendant has raised a myriad of fact-based issues in her filings, at oral argument and in her supplemental "Affidavit of Facts," she limited her focus to the issue of whether the court had jurisdiction over her based on her status as an "Aboriginal Moorish American." Defendant's 10/5/09 Affidavit of Facts.
In order to resolve the issues raised by defendant, the court must answer the following questions: 1) Do defendant's fact-based claims regarding plaintiff's allegedly unscrupulous behavior support dismissal of this action; and 2) Do defendant's claims regarding her status as an "Aboriginal Moorish American" support dismissal of this action?
I Motion to Dismiss Standards
"The standard of review for a court's decision on a motion to dismiss is well settled. A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction . . . When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." (Citations omitted; internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516 (2007).
II Defendant's Fact-Based Claims
Defendant alleges that a series of "frauds, misrepresentations, irregularities, etc." perpetrated by plaintiff serve to rob the court of jurisdiction in this matter. While defendant's allegations could arguably serve as valid special defenses to plaintiff's claim that defendant is in default, her allegations do not appear to support the argument that the court has no jurisdiction over this matter. Should facts be revealed during discovery or at trial that affect the court's subject matter jurisdiction, defendant will be permitted to assert them: "When the jurisdictional facts are intertwined with the merits of the case, the court may in its discretion choose to postpone resolution of the jurisdictional question until the parties complete further discovery or, if necessary, a full trial on the merits has occurred." Conboy v. State, 292 Conn. 642, 653 n. 16 (2009). "Because the defendants' claim implicates the trial court's subject mailer jurisdiction, it may be raised at any time during the proceedings." Gerardi v. City of Bridgeport, 294 Conn. 461, 462 (2010).
As a result, the court finds, based on the evidence before it, that defendant's claims relating to plaintiff's alleged nefarious activities do not serve to rob the court of jurisdiction over this matter.
III Defendant's Status-Based Claims
Defendant argues that the court does not have jurisdiction over her based on her status as an "Aboriginal Moorish American." Essentially, defendant appears to claim that since she is not a United States citizen, she is not amenable to the jurisdiction of the court. The United States Supreme Court has rejected foreign citizenship as a legitimate basis for state restrictions on non-citizens' right to own property or to otherwise engage in the social and commercial community. See, e.g., Truax v. Raich, 239 U.S. 33, 39, 36 S.Ct. 7, 60 L.Ed. 131 (1915); Takahashi v. Fish Game Commission, 334 U.S. 410, 419, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948). As a result, resident aliens are subject to civil liability, can be sued in both federal and state courts, 3C Am.Jur.2d, Aliens and Citizens § 2101 (2006), and whether or not one is a United States citizen has no bearing upon whether one can properly be a defendant in a foreclosure action. See, e.g., Federal Land Bank v. Deatherage, 739 P.2d 905, 906 (Colo.App. 1987).
"Moorish-Americans say they are the descendants of ancient Moabites who inhabited the northwestern and southwestern shores of Africa, according to the Moorish Science Temple of America. Traces have also been made to the Muslim conquerors of Spain. They say they are indigenous and aboriginal to North America and were enslaved by European colonists." Asbury Park Press (NJ), September 1, 2005. It is unclear, and ultimately irrelevant to the resolution of this Motion, whether defendant was born a citizen of Morocco, was naturalized as one, or has proclaimed herself such.
In addition, defendant argues that this action violates the Moroccan-American Treaty of Peace and Friendship, which was ratified by President Andrew Jackson on January 28, 1837. Pitt-Bey v. District of Columbia, 942 A.2d 1132, 1135 (D.C.App. 2008). "As its title indicates, the treaty is one of `Peace and Friendship' between the sovereign states of Morocco and the United States, and it provides that subjects or citizens of each country will be held safe by the other, as well as a protocol for any confrontations that might arise between the two countries while at sea, during trade or battle. It does not contain any language suggesting that the United States, or any state or territory therein, does not have jurisdiction over a person violating the law within its jurisdiction." Id. Nor is there any language that serves to protect the citizens of either country from civil liability in the other.
IV Conclusion
Based on the foregoing, defendant's Motion to Dismiss is hereby denied.