Drabik v. Thomas , 184 Conn. App. 238 ( 2018 )

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JOHN DRABIK v. ELAINE THOMAS ET AL.
(AC 38997)
Lavine, Alvord and Keller, Js.
Syllabus
The plaintiff filed a petition for a bill of discovery, seeking to depose the
defendants T and Q, who were employees of a certain Indian tribe and
officers of the tribe’s historic preservation office, after T and Q failed
to respond to the plaintiff’s repeated requests for information. In seeking
the bill of discovery, the plaintiff claimed to have a potential cause of
action against T, Q, and the defendant tribal council for intentional
interference with a business relationship in connection with certain
actions by T that allegedly caused A Co., a communications company,
to abandon its plan to build a cellular communications tower on the
plaintiff’s property. The plaintiff specifically sought information regard-
ing certain stone groupings located on property adjacent to the plaintiff’s
property. T had communicated to A Co., as A Co. was seeking govern-
mental approval for the tower, that its planned placement of the tower
on the plaintiff’s property could impact the overall integrity of the local
landscape such that it would have an adverse effect on properties of
traditional religious and cultural significance to the tribe. The trial court
granted the defendants’ motion to dismiss on the ground of tribal sover-
eign immunity, and the plaintiff appealed to this court, claiming, inter
alia, that the trial court incorrectly determined that tribal sovereign
immunity applies to petitions for a bill of discovery. Held:
1. The trial court properly granted the defendants’ motion to dismiss on the
ground of tribal sovereign immunity: the plaintiff could not prevail on
his claim that tribal sovereign immunity does not bar a petition for a
bill of discovery because a bill of discovery seeks equitable relief and
is distinct from the filing of a lawsuit, as the act of subjecting a sovereign
to prelitigation discovery in order to uncover information necessary to
establish facts that ultimately could support probable cause to sustain
a cause of action against the sovereign would negate one purpose of
sovereign immunity, which is to prevent the interference that litigation
creates; accordingly, sovereign defendants who are cloaked with immu-
nity from suit also enjoy immunity from bills of discovery that seek to
establish facts necessary to commence such a suit.
2. The trial court correctly concluded that T and Q were entitled to tribal
sovereign immunity; the facts that the plaintiff alleged in his petition
for a bill of discovery did not support his claim that T and Q were
named in their individual capacities or that they acted beyond the scope
of their authority as employees of the tribe and officers of the tribe’s
historic preservation office.
Argued May 30—officially released August 14, 2018
Procedural History
Petition for a bill of discovery seeking to depose the
named defendant et al., brought to the Superior Court
in the judicial district of New London, where the court,
Cole-Chu, J., granted the defendants’ motion to dismiss
and rendered judgment thereon, from which the plain-
tiff appealed to this court. Affirmed.
Victoria S. Mueller, for the appellant (plaintiff).
Andrew L. Houlding, for the appellees (defendants).
Opinion
LAVINE, J. The plaintiff, John Drabik, appeals from
the judgment of the trial court dismissing his petition
for a bill of discovery against the defendants, Elaine
Thomas, a deputy tribal historic preservation officer for
The Mohegan Tribe of Indians of Connecticut (tribe),
James Quinn, the tribal historic preservation officer for
the tribe, and the Tribal Council, the governing body
of the tribe, on the ground of tribal sovereign immunity.
Specifically, the plaintiff claims that the trial court
improperly (1) decided that the petition should be dis-
missed on the ground that tribal sovereign immunity
applies to petitions for a bill of discovery, and (2) deter-
mined that the defendants are entitled to tribal sover-
eign immunity. We affirm the judgment of the trial court.
The following facts, as gleaned from the plaintiff’s
petition for a bill of discovery and the court’s memoran-
dum of decision, and procedural history are relevant
to this appeal. The plaintiff owns property in East Lyme
that is not part of or adjacent to the reservation of
the tribe. AT&T evaluated the plaintiff’s property as a
potential location for a new cellular communications
tower. As part of the application process to the Connect-
icut Siting Council, the agency responsible for utility
facilities’ locations, AT&T submitted an electronic mes-
sage with the proposed site to the Federal Communica-
tions Commission, which notified the tribe of the
proposal. The tribe responded on or about July 1, 2015.
The response, written by Thomas, indicated that a site
walk conducted on June 10, 2015, identified ‘‘substantial
stone groupings’’ on the property adjacent to the plain-
tiff’s property. According to the response, the proposed
tower would ‘‘impact the view shed’’ of these ‘‘cultural
stone features’’ and could ‘‘possibly cause impact to
the overall integrity of the landscape.’’ The response
concluded that, in the opinion of the Mohegan Tribal
Historic Preservation Office, the proposed tower would
cause an adverse effect to ‘‘properties of traditional
religious and cultural significance to the [tribe].’’ After
receiving this response from the tribe, AT&T stopped
considering the plaintiff’s property as a potential site
for the tower.
On multiple occasions, the plaintiff made requests for
clarification from Thomas and Quinn about the stone
groupings, seeking more information about their loca-
tion, substance, and historical and cultural significance,
but no representative of the tribe responded to any
of his repeated requests. On September 23, 2015, the
plaintiff filed a petition for a bill of discovery, alleging
that he may have a cause of action of intentional inter-
ference with a business relationship against the defen-
dants. On October 5, 2015, the defendants filed a motion
to dismiss, citing the doctrine of tribal sovereign immu-
nity. The trial court granted the defendants’ motion to
dismiss the bill of discovery. The plaintiff then filed
the present appeal,1 claiming that the court improperly
found that sovereign immunity applied and that sover-
eign immunity bars a bill of discovery.
Well established principles of law govern our stan-
dard of review. ‘‘[T]he doctrine of sovereign immunity
implicates subject matter jurisdiction and is therefore
a basis for granting a motion to dismiss. . . . In an
appeal from the granting of a motion to dismiss on
the ground of subject matter jurisdiction, this court’s
review is plenary. A determination regarding a trial
court’s subject matter jurisdiction is a question of law.
When . . . the trial court draws conclusions of law,
our review is plenary and we must decide whether its
conclusions are legally and logically correct and find
support in the facts that appear in the record. . . .
The trial court’s role in considering whether to grant a
motion to dismiss is to take the facts to be those alleged
. . . including those facts necessarily implied from the
allegations, construing them in a manner most favorable
to the pleader. . . . A motion to dismiss tests, inter
alia, whether, on the face of the record, the court is
without jurisdiction.’’ (Citation omitted; internal quota-
tion marks omitted.) Davidson v. Mohegan Tribal Gam-
ing Authority, 97 Conn. App. 146, 148, 903 A.2d 228,
cert. denied, 280 Conn. 941, 912 A.2d 475 (2006), cert.
denied, 549 U.S. 1346, 127 S. Ct. 2043, 167 L. Ed. 2d
777 (2007).
I
We begin with a brief discussion of the bill of discov-
ery in light of the plaintiff’s assertion that it should be
exempt from tribal sovereign immunity. ‘‘The bill of
discovery is an independent action in equity for discov-
ery, and is designed to obtain evidence for use in an
action other than the one in which discovery is sought.
. . . [B]ecause a pure bill of discovery is favored in
equity, it should be granted unless there is some well
founded objection against the exercise of the court’s
discretion. . . .
‘‘To sustain the bill, the [plaintiff] must demonstrate
that what he seeks to discover is material and necessary
for proof of, or is needed to aid in proof of or in defense
of, another action already brought or about to be
brought. . . .
‘‘Discovery is confined to facts material to the plain-
tiff’s cause of action and does not afford an open invita-
tion to delve into the defendant’s affairs. . . . A plaintiff
must be able to demonstrate good faith as well as proba-
ble cause that the information sought is both material
and necessary to his action. . . . A plaintiff should
describe with such details as may be reasonably avail-
able the material he seeks . . . and should not be
allowed to indulge a hope that a thorough ransacking
of any information and material which the defendant
may possess would turn up evidence helpful to [his]
case.’’ (Citations omitted; internal quotation marks
omitted.) Berger v. Cuomo, 230 Conn. 1, 5–7, 644 A.2d
333 (1994).
‘‘The plaintiff who brings a bill of discovery must
demonstrate by detailed facts that there is probable
cause to bring a potential cause of action. Probable
cause is the knowledge of facts sufficient to justify a
reasonable man in the belief that he has reasonable
grounds for presenting an action. . . . Its existence or
nonexistence is determined by the court on the facts
found. . . . Moreover, the plaintiff who seeks discov-
ery in equity must demonstrate more than a mere suspi-
cion; he must also show that there is some describable
sense of wrong. . . . Whether particular facts consti-
tute probable cause is a question of law.’’ (Citation
omitted; footnote omitted; internal quotation marks
omitted.) Journal Publishing Co. v. Hartford Courant
Co., 261 Conn. 673, 681–82, 804 A.2d 823 (2002).
The plaintiff acknowledges that ‘‘the [tribe] and its
officers enjoy tribal sovereign immunity that protects
them from most lawsuits in Connecticut Superior
Court,’’2 but he insists, nonetheless, that tribal sovereign
immunity does not bar a bill of discovery, as a bill of
discovery seeks equitable relief and is distinct from the
filing of a lawsuit. We are unpersuaded.
The plaintiff fails to provide legal authority or a per-
suasive logical argument supporting the proposition
that a prelitigation tool such as a bill of discovery can
be differentiated from the act of litigation itself when
sovereign immunity is involved. We are unaware of any
controlling authority on this issue.3 The judges of our
Superior Court who have considered this issue have
dismissed petitions for bills of discovery on the ground
that the tribe’s sovereign would be affected by the
enforcement of such petitions.4 We find the reasoning
of those judges to be persuasive. We agree, therefore,
with the trial court’s conclusion that ‘‘there is no basis
in logic, law, or equity’’ for the plaintiff’s claim that
‘‘tribal sovereign immunity does not apply to a bill of
discovery, even if it bars the lawsuit for which discovery
is sought.’’
‘‘Tribal sovereign immunity predates the birth of the
Republic. . . . The immunity rests on the status of
Indian tribes as autonomous political entities, retaining
their original natural rights with regard to self-gover-
nance.’’ (Citation omitted; internal quotation marks
omitted.) Ninigret Development Corp. v. Narragansett
Indian Wetuomuck Housing Authority, 207 F.3d 21,
29 (1st Cir. 2000).
‘‘The practical and logical basis of the . . . [sover-
eign immunity] doctrine is today recognized to rest on
. . . the hazard that the subjection of the [sovereign]
governments to private litigation might constitute a seri-
ous interference with the performance of their func-
tions and with their control over their respective
instrumentalities, funds, and property.’’ (Internal quota-
tion marks omitted.) Horton v. Meskill, 172 Conn. 615,
624, 376 A.2d 359 (1977). ‘‘Because sovereign immunity
protects a sovereign from the expense, intrusiveness,
and hassle of litigation, a court must be circumspect
in allowing discovery before the plaintiff has estab-
lished that the court has jurisdiction . . . .’’ (Internal
quotation marks omitted.) Arch Trading Corp. v.
Republic of Ecuador, 839 F.3d 193, 206 (2d Cir. 2016).
We conclude that a bill of discovery would constitute
such interference. The act of subjecting a sovereign to
prelitigation discovery in order to uncover information
necessary to establish facts that, ultimately, could sup-
port probable cause to sustain a cause of action against
the sovereign would negate one purpose of sovereign
immunity, which is to prevent the interference that liti-
gation creates. We therefore conclude that the same
overarching concern applies with equal force to a peti-
tion for a bill of discovery. Defendants cloaked with
sovereign immunity are immune from suit and, there-
fore, immune from a bill of discovery to help establish
facts necessary to commence a suit. Accordingly, the
trial court properly dismissed the plaintiff’s petition for
a bill of discovery on the ground of sovereign immunity.
II
The plaintiff also claims that the court improperly
determined that Thomas and Quinn were entitled to
tribal sovereign immunity. Specifically, he argues that
Thomas and Quinn were named, and also acted, in their
individual capacities.5 According to the plaintiff, the bill
of discovery alleges an exception to tribal sovereign
immunity, namely, that Thomas and Quinn were not
acting within the scope of tribal authority. We are unper-
suaded.
‘‘[A]s 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 . . . and the tribe
itself has consented to suit in a specific forum. . . .
Absent a clear and unequivocal waiver by the tribe
or congressional abrogation, the doctrine of sovereign
immunity bars suits for damages against a tribe. . . .
Although tribal immunity does not extend to individual
members of a tribe . . . [t]he doctrine of tribal immu-
nity . . . extends to individual tribal officials acting in
their representative capacity and within the scope of
their authority. . . . The doctrine does not extend to
tribal officials when acting outside their authority in
violation of state law. . . . Tribal immunity also
extends to all tribal employees acting within their repre-
sentative capacity and within the scope of their official
authority.’’ (Citations omitted; internal quotation marks
omitted.) Chayoon v. Sherlock, 89 Conn. App. 821, 826–
27, 877 A.2d 4, cert. denied, 276 Conn. 913, 888 A.2d 83
(2005), cert. denied, 547 U.S. 1138, 126 S. Ct. 2042, 164
L. Ed. 2d 797 (2006).
‘‘[C]ourts should look to whether the sovereign is the
real party in interest to determine whether sovereign
immunity bars the suit. . . . In making this assess-
ment, courts may not simply rely on the characteriza-
tion of the parties in the complaint, but rather must
determine in the first instance whether the remedy
sought is truly against the sovereign. . . . [L]awsuits
brought against employees in their official capacity rep-
resent only another way of pleading an action against
an entity of which an officer is an agent, and they may
also be barred by sovereign immunity. . . .
‘‘The distinction between individual- and official-
capacity suits is paramount here. In an official-capacity
claim, the relief sought is only nominally against the
official and in fact is against the official’s office and
thus the sovereign itself. . . . Personal-capacity suits,
on the other hand, seek to impose individual liability
. . . . [O]fficers sued in their personal capacity come to
court as individuals . . . and the real party in interest
is the individual, not the sovereign.
‘‘The identity of the real party in interest dictates
what immunities may be available. Defendants in an
official-capacity action may assert sovereign immunity.
...
’’There is no reason to depart from these general rules
in the context of tribal sovereign immunity.’’ (Citations
omitted; emphasis in original; internal quotation marks
omitted.) Lewis v. Clarke, U.S. , 137 S. Ct. 1285,
1291–92, 197 L. Ed. 2d 631 (2017).
‘‘In the tribal immunity context, a claim for damages
against a tribal official lies outside the scope of tribal
immunity only where the complaint pleads—and it is
shown—that a tribal official acted beyond the scope of
his authority to act on behalf of the [t]ribe. . . . Claim-
ants may not simply describe their claims against a
tribal official as in his individual capacity in order to
eliminate tribal immunity. . . . [A] tribal official—even
if sued in his individual capacity—is only stripped of
tribal immunity when he acts manifestly or palpably
beyond his authority . . . . [I]n order to overcome sov-
ereign immunity, the [plaintiff] must do more than
allege that the defendants’ conduct was in excess of
their . . . authority; [the plaintiff] also must allege or
otherwise establish facts that reasonably support those
allegations.’’ (Citations omitted; internal quotation
marks omitted.) Chayoon v. Sherlock, supra, 89 Conn.
App. 828.
‘‘It is insufficient for the plaintiff merely to allege that
the defendants violated . . . law or tribal policy in
order to state a claim that they acted beyond the scope
of their authority. . . . Such an interpretation would
eliminate tribal immunity from damages actions
because a plaintiff must always allege a wrong or a
violation of law in order to state a claim for relief. In
order to circumvent tribal immunity, the plaintiff must
have alleged and proven, apart from whether the defen-
dants acted in violation of federal law, that the defen-
dants acted without any colorable claim of authority
. . . .’’ (Citation omitted; internal quotation marks
omitted.) Id., 829–30.
In regard to a petition for a bill of discovery, ‘‘[our
Supreme Court] previously [has] recognized that the
right of a plaintiff to recover is limited by [his] allega-
tions . . . .’’ (Internal quotation marks omitted.) Jour-
nal Publishing Co. v. Hartford Courant Co., supra, 261
Conn. 686. Thus, the plaintiff’s presentation of facts to
establish probable cause is limited to the allegations of
the petition. It necessarily follows that a plaintiff, in
order to demonstrate probable cause to bring an action,
must allege facts outside of the scope of sovereign
immunity.
The plaintiff failed to allege that Thomas and Quinn
acted beyond the scope of their authority. The allega-
tions against Thomas and Quinn are inextricably tied
to the Tribal Council and, more specifically, to the
Mohegan Tribal Historic Preservation Office. Thomas
and Quinn were described as officers of the Mohegan
Tribal Historic Preservation Office numerous times.6
The plaintiff alleges that the notice regarding the stone
groupings originated from the tribe and that the
Mohegan Tribal Historic Preservation Office conducted
the site walk. Additionally, Thomas’ response specifi-
cally conveyed the opinion of the Mohegan Tribal His-
toric Preservation Office, and she signed the notice
with her designation as the tribe’s deputy tribal historic
preservation officer. The plaintiff requested informa-
tion from the Mohegan Tribal Historic Preservation
Office and the Tribal Council. Furthermore, service of
the petition for a bill of discovery was made on Helga
Woods, the attorney general of the tribe.
There are no allegations in the bill of discovery that
Thomas or Quinn conducted the site walk, identified
the stone groupings, failed to respond to the plaintiff’s
requests while acting outside of their official capacity,
or otherwise exceeded the authority given to them by
the tribe. As such, the facts as alleged do not support
the plaintiff’s claim that Thomas and Quinn were named
as defendants in their individual capacities or otherwise
exceeded the scope of their authority. Thus, the court
correctly concluded that the defendants were protected
by sovereign immunity and, therefore, properly granted
the defendants’ motion to dismiss.
The judgment is affirmed.
In this opinion the other judges concurred.
1
After filing the petition for a bill of discovery, the plaintiff brought two
separate actions, one in the Superior Court and another in the Mohegan
Tribal Court.
2
‘‘Absent a clear and unequivocal waiver by the [Indian] tribe or congres-
sional abrogation, the doctrine of sovereign immunity bars suits for damages
against a tribe. . . . However, such waiver may not be implied, but must
be expressed unequivocally.’’ (Citation omitted; internal quotation marks
omitted.) Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 53–54,
794 A.2d 498 (2002).
3
Neither this court nor our Supreme Court has previously decided this
issue. Although one opinion from this court involved a similar set of circum-
stances, it is procedurally distinct and does not shed any light on the precise
issue involved in the present case. See Kelly v. Albertsen, 114 Conn. App. 600,
608 and n.5, 970 A.2d 787 (2009) (plaintiff not entitled to limited discovery
and evidentiary hearing to meet burden of alleging facts that demonstrate
subject matter jurisdiction in civil action against state employee, but this
court suggested that plaintiff could have used bill of discovery).
4
See, e.g., DatabaseUSA.com, LLC v. Dept. of Administrative Services,
Superior Court, judicial district of Hartford, Docket No. CV-XX-XXXXXXX-S
(April 7, 2016) (Elgo, J.) (62 Conn. L. Rptr. 103); see also Estate of Bochicchio
v. Quinn, Superior Court, judicial district of Hartford, Docket No. CV-10-
6011528-S (October 28, 2010) (Domnarski, J.) (50 Conn. L. Rptr. 848), aff’d,
136 Conn. App. 359, 46 A.3d 239 (2012).
5
The plaintiff refers to the defendants collectively in his brief despite
the fact that the defendants in his petition include the Tribal Council. We
understand the plaintiff’s use of the term ‘‘defendants’’ in the portion of his
brief addressing this claim as referring only to Thomas and Quinn.
6
The petition for a bill of discovery alleges in relevant part:
‘‘2. The defendant Elaine Thomas is a Deputy Tribal Historic Preservation
Officer for the Mohegan Indian Tribe . . . .
‘‘3. The defendant James Quinn is the Tribal Historic Preservation Officer
for the Mohegan Indian Tribe . . . .
***
‘‘9. The Notice was sent by Deputy Tribal Historic Preservation Officer
Elaine Thomas of the Mohegan Indian Tribe.
***
‘‘13. Upon receipt of the Notice, [the plaintiff] . . . made several attempts
to contact Elaine Thomas and James Quinn at the Mohegan Indian Tribe
. . . .
***
‘‘d. Phone call to James Quinn, Tribal Historic Preservation Officer . . . .
‘‘e. Letter to Mohegan Indian Tribal Council . . . .
‘‘f. Phone call with James Quinn, Tribal Historic Preservation Officer
. . . .’’