May 30, 2018
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 plaintiff appealed
to this court. Affirmed.
Victoria S. Mueller, for the appellant (plaintiff).
L. Houlding, for the appellees (defendants).
Lavine, Alvord and Keller, Js.
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 dismissed on the ground that tribal sovereign
immunity applies to petitions for a bill of discovery, and
(2) determined that the defendants are entitled to tribal
sovereign immunity. We affirm the judgment of the trial
following facts, as gleaned from the plaintiff's petition
for a bill of discovery and the court's memorandum 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 Connecticut Siting Council,
the agency responsible for utility facilities' locations,
AT&T submitted an electronic message with the proposed
site to the Federal Communications Commission, which notified
the tribe of the proposal. The tribe responded on or about
July 1, 2015.
response, written by Thomas, indicated that a site walk
conducted on June 10, 2015, identified
‘‘substantial stone groupings'' on the
property adjacent to the plaintiff'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.
multiple occasions, the plaintiff made requests for
clarification from Thomas and Quinn about the stone
groupings, seeking more information about their location,
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 interference with a business
relationship against the defendants. On October 5, 2015, the
defendants filed a motion to dismiss, citing the doctrine of
tribal sovereign immunity. The trial court granted the
defendants' motion to dismiss the bill of discovery. The
plaintiff then filed the present appeal,  claiming that the
court improperly found that sovereign immunity applied and
that sovereign immunity bars a bill of discovery.
established principles of law govern our standard 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 quotation marks omitted.) Davidson v.
Mohegan Tribal Gaming 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).
begin with a brief discussion of the bill of discovery 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
discovery, 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. . . .
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. . . .
is confined to facts material to the plaintiff's cause of
action and does not afford an open invitation to delve into
the defendant's affairs. . . . A plaintiff must be able
to demonstrate good faith as well as probable cause that the
information sought is both material and necessary to his
action. . . . A plaintiff should describe with such details
as may be reasonably available 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 ...