Opinion
HHDCV156060965
04-07-2016
Databaseusa.com, LLC v. Connecticut Department of Administrative Services
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Nina F. Elgo, J.
Before this court is a motion filed by the respondent, Connecticut Department of Administrative Services (DAS), seeking to dismiss the petition for Bill of Discovery filed by the petitioner, Databaseusa.com, LLC. The respondent asserts that the petition should be dismissed based on the following three grounds: (1) sovereign immunity; (2) failure to exhaust administrative remedies; and (3) the petition is not in aid of an existing or about to be commenced cause of action. This court grants the motion to dismiss.
In the present case, the petitioner is a database services provider who has not initiated a civil cause of action before the Superior Court. Instead, in a hearing before the State Contracting Standards Board (Board), it is contesting the DAS's award of a $2,400,000 contract to InfoGroup, another competing database provider. Pursuant to its hearing before the State Contracting Standards Board, the petitioner has made several requests under Connecticut's Freedom of Information Act (FOIA), General Statutes § 1-200, for documents from DAS relating to the process and basis upon which DAS awarded the contract. Although it has received some documents to its satisfaction, the petitioner asserts that it has not received all that it is entitled to receive from DAS and that relief from FOIA " may not be adequate."
The petitioner alleges that it has probable cause to bring a bid contest before the Board pursuant to General Statutes § 4e-36 and alleges that DAS has violated state bidding laws asserting that the petitioner was the lowest responsible qualified bidder, that DAS did not conduct competitive negotiations, that its award was arbitrary and capricious, and that DAS improperly accepted Infogroup's expired bid.
" A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006).
" The grounds which may be asserted in [a motion to dismiss] are: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; and (5) insufficiency of service of process." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 10-30. " Claims involving the doctrines of common-law sovereign immunity and statutory immunity, pursuant to [General Statutes] § 4-165, implicate the court's subject matter jurisdiction." Manifold v. Ragaglia, 94 Conn.App. 103, 113-14, 891 A.2d 106 (2006). " When . . . 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." (Internal quotation marks omitted.) Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501, 876 A.2d 1148 (2005).
" The principle that the state cannot be sued without its consent, or sovereign immunity, is well established under our case law . . . It has deep roots in this state and our legal system in general, finding its origin in ancient common law . . . Not only have we recognized the state's immunity as an entity, but [w]e have also recognized that because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state . . . Exceptions to this doctrine are few and narrowly construed under our jurisprudence." (Internal quotation marks omitted.) Columbia Air Servs. v. DOT, 293 Conn. 342, 349, 977 A.2d 636 (2009). " The practical and logical basis of the doctrine [of sovereign immunity] is today recognized to rest . . . on the hazard that the subjection of the state and federal governments to private litigation might constitute a serious interference with the performance of their functions and with their control over their respective instrumentalities, funds, and property." Estate of Banks-Dobson v. Calderon, Superior Court, judicial district of Hartford, Docket No. CV-12-6034891-S, (April 15, 2013, Dubay, J.).
In considering motions to dismiss petitions for a bill of discovery, the superior court has not been persuaded by claims that the state is unaffected by such petitions, as is claimed by the petitioner here. On one hand, our court has recognized that bills of discovery are an equitable tool whose use should ordinarily be favored. " 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 . . . As a power to enforce discovery, the bill is within the inherent power of a court of equity that has been a procedural tool in use for centuries . . . The bill is well recognized and may be entertained notwithstanding the statutes and rules of court relative to discovery . . . Furthermore, because 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." (Internal quotation marks omitted.) Journal Publishing Co. v. Hartford Courant Co., 261 Conn. 673, 680-81, 804 A.2d 823 (2002).
While our appellate courts, have not addressed the issue, the superior court has dismissed petitions for bills of discovery based on sovereign immunity, holding that the enforcement of such bills would necessarily impact the state. See 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 on other grounds, 136 Conn.App. 359, 46 A.3d 239 (2012) (the Appellate Court determined that the plaintiff failed to exhaust administrative remedies and therefore did not reach the sovereign immunity analysis). In Estate of Bochicchio, the plaintiff sought through a petition for a bill of discovery deposition testimony of superior court judges. The deposition testimony would have been used in the petitioner's request for permission to sue in a pending claims commission proceeding, therefore giving rise to a potential cause of action against the state. In light of that potentiality, the court observed that " to conclude that the state is not affected by the requested discovery proceedings would be to blink at reality." Estate of Bochicchio v. Quinn, supra, 50 Conn. L. Rptr. 849.
The court in Estate of Banks-Dobson v. Calderon, supra, Superior Court, Docket No. CV-12-6034891-S, reached the same conclusion in considering the petitioners' bill of discovery which sought probation records from the office of adult probation. In that case, the petitioner claimed that the probation officers had failed to protect the decedent in the supervision of a probationer. Since the petitioner's ultimate goal was to institute a civil suit against the state, the court concluded that the information sought via a bill of discovery would eventually be used against it, thereby impacting the state's resources in violation of its sovereign immunity.
Notwithstanding these decisions, the petitioner argues that its request would not affect or impact the resources of the state. Ignoring the concern in those decisions that discovery would lead to a civil action, the petitioner instead focuses on language in the Estate of Bank-Dobson v. Calderon decision which considered that the " extraordinarily large amount of information" sought was yet another factor impacting the state. In comparison argues the petitioner, the discovery it demands is a relatively " limited amount of documents." This court, however, is not persuaded that the amount of discovery requested is limited and in any event, the petitioner essentially admits that the discovery process here could lead to a civil cause of action against the state.
In this respect, the petitioner propounds two inherently conflicting positions. First of all, in order to avoid the bar of sovereign immunity, the petitioner argues that the discovery sought would not " affect" the state, incorrectly citing for support Estate of Bochicchio v. Quinn, supra, 136 Conn.App. at 367, which does not stand for that proposition. At the same time, and due to the petitioner's need to satisfy the requirements of a bill for discovery, the petitioner argues that the petition is in aid of a " future legal action" suggesting that this requirement encompasses administrative proceedings such as the hearing that the petitioner has before Board. The defendant, however, rightly notes that the plaintiff cites no authority to support that claim. Moreover, and ultimately, the petitioner admits in its brief that " if [it] does not get the relief it seeks from the [subcommittee of the Board], it may commence litigation against DAS in Superior Court."
As previously noted and contrary to the petitioner's claims, the Bochicchio court did not reach the issue of sovereign immunity, because it found instead that the plaintiff failed to exhaust its administrative remedies before the claims commissioner. See Estate of Bochicchio v. Quinn, supra, 136 Conn.App. at 368.
" To sustain a pure bill of discovery, a party must show that the matter he seeks to discover is material and necessary to the proof of, or is needed to aid in the proof of, another action, already brought or about to be brought, and that he has no other adequate means of enforcing discovery of the matter." Pottetti v. Clifford, 146 Conn. 252, 258, 150 A.2d 207 (1959).
The fact that the petitioner admits that it may commence litigation if it does not get the relief it wants both strongly supports the defendant's position that sovereign immunity bars this petition and undercuts the petitioner's claim that the state would not be affected by allowing additional discovery via this petition.
Moreover, by availing itself of § 4e-36(a) in order to contest the DAS award, the petitioner is limited to a determination of " whether such solicitation or award was in compliance with the statutes and regulations concerning procurement, and whether allegations of an unauthorized or unwarranted, noncompetitive selection process have been demonstrated." By limiting the parameters of review, the plain language of the statute indicates that the Board's focus is on whether DAS complied with appropriate rules and regulatory processes as opposed to an inquiry into the substantive deliberations involved in making an award.
General Statutes § 4e-37 provides in relevant part:
(d) The State Contracting Standards Board shall create a three-member appeals review subcommittee, one of whom shall be a legislative appointment, which shall review any request filed pursuant to subsection (b) of this section and decide whether such solicitation or award was in compliance with the statutes and regulations concerning procurement, and whether allegations of an unauthorized or unwarranted, noncompetitive selection process have been demonstrated. A unanimous vote of such subcommittee shall be dispositive of any such appeal. A split vote of such subcommittee shall result in a review of the appeal by the full membership of the board which, by a vote of two-thirds of its members present and voting for such purpose, shall decide whether the solicitation or award of such contract was in compliance with the statutes and regulations concerning procurement and whether allegations of an unauthorized or unwarranted, noncompetitive selection process have been demonstrated. (e) Such appeals review subcommittee shall issue a written decision or take other appropriate action on each appeal not later than ninety days after the filing of such appeal. A written copy of any such decision shall be provided to such bidder. (f) In the event of an appeal review by the full board, the board shall issue a written decision or take other appropriate action on such appeal not later than ninety days after receipt of the appeal from the appeals review subcommittee. A written copy of any such decision shall be provided to such bidder or proposer. (g) In the event that the appeals review subcommittee or the board determines that a procedural violation occurred, or that allegations of an unauthorized or unwarranted, noncompetitive selection process have been substantiated, the board shall direct the state contracting agency to ake corrective action not later than thirty days after the date of the subcommittee's or board's decision, as applicable. (h) In the event such appeal is found to be frivolous by the appeals review subcommittee or the full board, such frivolous appeal may serve as a basis for disqualification pursuant to section 4e-34. (i) Any three members of the board may request a full board review of any contract deliberation or award process of a state contracting agency. (j) A decision issued by the board or appeals review subcommittee under this section shall be final and not subject to appeal under sections 4-180 and 4-183.
It is in this context that the court considers the relevance of petitioner's request for documents and its participation in hearings pursuant to General Statutes § 1-200 et seq., Freedom of Information Action (FOIA). The petitioner argues that FOIA is inadequate for purposes of its discovery requests, in part, because conversations and oral communications between DAS and members participating in the evaluation of these bids are not encompassed by FOIA. The court concludes, however, that to the extent that the petitioner complains that it has not received all information to which it is entitled under the FOIA, it must exhaust its administrative remedies under General Statutes § 1-206. Stepney, LLC v. Town of Fairfield, 263 Conn. 558, 564, 821 A.2d 725 (2003) (the requirement of exhaustion may arise from explicit statutory language or from an administrative scheme providing for agency relief).
To the extent that the petitioner seeks information beyond FOIA's reach, this court questions how discovery of oral communications, for example, are appropriately encompassed by the limited review available to it pursuant to the Board mandate under § 4e-36. Given the petitioner's intention to sue the state if it does not get the relief it seeks from the Board, given the Board's statutorily limited and defined review of the process of awarding contracts which suggests limits on how much discovery is appropriate from the state, and given the extent to which the petitioner has sought significant discovery from the state through FOIA requests and proceedings whose remedies the petitioner does not appear to have exhausted, the court finds that sovereign immunity bars the petitioner's bill of discovery. To conclude otherwise would, beyond what has already been statutorily provided for pursuant to both FOIA and § 4e-36, subject the state " to private litigation [which] might constitute a serious interference with the performance of [its] functions and with [its] control over [its] respective instrumentalities, funds, and property." Estate of Banks-Dobson v. Calderon, supra, Superior Court, Docket No. CV-12-6034891-S.
Considering all of the above, this court concludes that the bill of discovery is barred by sovereign immunity and grants the motion to dismiss. The court further finds that the other claims raised by the state, including the petitioner's failure to exhaust administrative remedies, are moot.