Opinion
CIVIL ACTION NO: 09-4129, SECTION: R(1).
July 19, 2010
ORDER AND REASONS
Before the Court is defendant New Orleans Center for Creative Arts/Riverfront (NOCCA)'s partial motion for judgment on the pleadings. For the following reasons, the Court GRANTS NOCCA's motion on Encalarde's federal claims, and remands Encalarde's state law claims.
I. BACKGROUND
Plaintiff Leonor Encalarde alleges that she was subject to racial discrimination in the terms and conditions of her employment and ultimately forced to resign her employment with NOCCA in violation of the United States Constitution, 42 U.S.C. §§ 1981 and 1983, and Louisiana state law. Encalarde sued NOCCA for damages in Orleans Parish Civil District Court on February 19, 2009, and NOCCA removed the action to this Court on June 17, 2009. Encalarde's original complaint stated claims against only NOCCA; it did not name any employees. On August 30, 2009, Encalarde moved to amend her complaint to state claims against four NOCCA employees in their official capacities. On August 31, 2009, NOCCA opposed the motion as futile on grounds of state sovereign immunity. The same day, Encalarde moved to "correct" her motion to amend to state claims against the four NOCCA employees in their individual capacities. Encalarde's motions to amend were heard by a Magistrate Judge, who issued a report and recommendation denying the motions because Encalarde's proposed claims had prescribed and did not relate back to her original complaint. The court adopted the Magistrate Judge's report and recommendation on November 30, 2009.
(R. 1.)
( Id.)
( Id.)
(R. 13.)
(R. 14.)
(R. 16.)
(R. 29.)
NOCCA now moves for partial judgment on the pleadings with respect to Encalarde's federal claims.
II. STANDARD
III. DISCUSSION A. Federal Claims
Doe v. MySpace, Inc., 528 F.3 413, 418 (5th Cir. 2008).
Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007)).
Iqbal, 129 S.Ct. at 1949.
Twombly, 550 U.S. at 556.
In re S. Scrap Material Co., LLC, 541 F.3d 584, 587 (2008).
Iqbal, 129 S.Ct. at 1949-50.
Scanlan v. Tex. A M Univ., 343 F.3d 533, 536 (5th Cir. 2003).
Id. at 536.
Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 617 (2002) (same; citing Will v. Mich. Dep't of State Police, 491 U.S. 58, 66 (1989)).
Cheramie v. Tucker, 493 F.2d 586, 587-88 (5th Cir. 1974), cert. denied, 419 U.S. 868 (1974).
Oden v. Oktibbeha County, Miss., 246 F.3d 458, 462-63 (5th Cir. 2001) (expressly rejecting argument that 1991 amendments to § 1981 created independent cause of action against state actors); Washington v. City of Gulfport, Miss., 351 F. App'x 916, 918-19 (5th Cir. 2009) (interpreting Oden: "§ 1981 implicitly created an independent cause of action against private actors because no other statute created such a remedy," but "Section 1983 remains the only provision to expressly create a remedy against persons acting under color of state law").
In determining whether NOCCA is an arm of the State of Louisiana, the Court considers six factors: (1) whether Louisiana statutes and case law view NOCCA as an arm of the state; (2) the source of NOCCA's funding; (3) the degree of NOCCA's local autonomy; (4) whether NOCCA is concerned primarily with local as opposed to statewide problems; (5) whether NOCCA has the authority to sue and be sued in its own name; and (6) whether NOCCA has the right to hold and use property. No one factor is dispositive, but the second factor is particularly important. The purpose of the factors is to "balance the equities and determine if the suit is really one against the state itself." Furthermore, although these factors generally are used to determine the scope of state sovereign immunity under the Eleventh Amendment, they are also relevant in determining the scope of a "person" subject to § 1983. Because the Court finds that NOCCA is not a "person" within the meaning of § 1983, and because NOCCA does not now raise sovereign immunity as a separate ground for dismissal, the Court need not determine the extent to which NOCCA has waived its sovereign immunity to Encalarde's federal claims by removing them to federal court.
Clark v. Tarrant County, Tex., 798 F.2d 736, 744 (5th Cir. 1986).
Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 327 (5th Cir. 2002).
Id.; see also Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 279 (1977) ("The issue here thus turns on whether the Mt. Healthy Board of Education is to be treated as an arm of the State partaking of the State's Eleventh Amendment immunity, or is instead to be treated as a municipal corporation or other political subdivision to which the Eleventh Amendment does not extend."); Monnell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, (1978) (holding that "Congress did intend municipalities and other local government units to be included among those persons to whom § 1983 applies").
See Will, 491 U.S. at 66 (stating that "in deciphering congressional intent as to the scope of § 1983, the scope of the Eleventh Amendment is a consideration, and we decline to adopt a reading of § 1983 that disregards it"); Stotter v. Univ. of Tex. at San Antonio, 508 F.3d 812, 821 (5th Cir. 2007) (recognizing that "arms of the state are not 'persons' under § 1983").
See Meyers ex rel. Benzing v. Texas, 410 F.3d 236, 248, 255 (5th Cir. 2005) (holding that removal by state waives sovereign immunity from suits based on federal law claims in federal court, but also concluding that whether state retains separate immunity from liability must be determined according to state law); Carter v. State of Louisiana ex rel. State Bd. of Dentistry, Civ. A. No. 02-1244, 2002 WL 1359640, at *1 (E.D. La. June 17, 2002) (observing that "the issue posed by the instant motion is not whether the State is entitled to sovereign immunity by virtue of the Eleventh Amendment, but whether the State is a person for the purpose of the § 1983 claims").
NOCCA is an arm of the State of Louisiana, and Encalarde does not contend otherwise. First, Louisiana law views NOCCA as an arm of the state. NOCCA was expressly established as "an agency of state government in the state Department of Education." The Fifth Circuit has recognized that the Department of Education is part of the State of Louisiana for purposes of the Eleventh Amendment. NOCCA is exempted from the control of local education boards.
La.Rev.Stat. Ann. § 17:1970.23(A).
See Pace v. Bogalusa City Sch. Bd., 403 F.3d 272, 274 (5th Cir. 2005) (finding that Department of Education waived sovereign immunity); see also Perez, 307 F.3d at 327-28 (finding that administrative subdivision of Texas Education Agency arm of State of Texas).
La.Rev.Stat. Ann. § 17:1970.23(A).
Second, NOCCA receives its operational funding from the State of Louisiana. Under state law, funding for NOCCA's operations and programs "shall come from monies appropriated therefor by the legislature." In 2010, the Louisiana legislature in fact appropriated $4,889,705 for NOCCA's operations. NOCCA is operated in a facility owned by the state on land leased to the state, and NOCCA's employees are "employees of the state." Although NOCCA is permitted to raise funds from federal or private sources, fluctuating local funds do not overcome the fact that NOCCA depends on "base funding" from the state for its operational expenses. Moreover, because NOCCA was created as an "agency" of the State of Louisiana, a judgment rendered against NOCCA would be payable from funds appropriated by the Louisiana legislature.
La.Rev.Stat. Ann. § 17:1970.27(A).
See House Bill No. 1, Regular Session, 2010, Schedule 19 — Special Schools and Commissions (available at http://www.legis.state.la.us (click "Session Info"; then "2010 Regular Legislative Session"; then search "HB_1"; then click "Text-Current"; then see pages 229, 279)).
La.Rev.Stat. Ann. § 17:1970.23(A).
La.Rev.Stat. Ann. § 17:1970.26(A)(1).
La.Rev.Stat. Ann. § 17:1970.27(B).
Perez, 307 F.3d at 329
Richardson v. Southern Univ., 118 F.3d 450, 455 (5th Cir. 1997) (citing La.Const. art. 12, § 10(C) (providing that "[n]o judgment against the state [or] a state agency . . . shall be exigible, payable, or paid except from funds appropriated therefor by the legislature. . . .")).
Third, NOCCA has limited local autonomy. NOCCA is not subject to the control of local education boards. NOCCA is instead governed and managed by a thirteen-member board of directors, nine of whom are appointed by the governor of Louisiana and two of whom serve in the Louisiana state legislature. Although six of the directors are appointed from among nominees submitted by local authorities, they are nonetheless ultimately selected by the governor. Moreover, if local governing authorities do not submit nominees on a timely basis, the governor may make an appointment of his choice. That two of thirteen directors are appointed by the Orleans Parish School Board is insufficient to make NOCCA autonomous from the State of Louisiana.
La.Rev.Stat. Ann. § 17:1970.23(A).
La.Rev.Stat. Ann. § 17:1970.24(B)(1)(b)-(e).
La.Rev.Stat. Ann. § 17:1970.24(B)(1)(c).
La.Rev.Stat. Ann. § 17:1970.24(B)(2)(b)(i).
La.Rev.Stat. Ann. § 17:1970.24(B)(1)(a).
See Perez, 307 F.3d at 329 (finding that locally selected board of directors not autonomous because they were "subject to significant supervision" by state department of education); Richardson, 118 F.3d at 455 (finding that Southern University's Board of Supervisors has limited autonomy because its members are appointed by governor and approved by Louisiana senate).
Fourth, NOCCA has state-wide concerns. Although NOCCA is physically located in New Orleans, NOCCA is required by statute to operate "primarily as a regional facility" for qualified students from ten different Louisiana parishes. In creating NOCCA, the Louisiana legislature intended "to enrich the cultural life of Louisiana" and "to honor the history and past contribution of the state to the creative and performing arts." Although NOCCA's only physical location is in New Orleans, this fact is insufficient to overcome NOCCA's state-wide concerns and benefits.
La.Rev.Stat. Ann. § 17:1970.23(A).
La.Rev.Stat. Ann. § 17:1970.21 (emphasis added).
See Richardson, 118 F.3d at 456 ("That [state school] is only one of many state-funded schools does not deprive it of Eleventh Amendment immunity.").
Fifth, there is no indication in NOCCA's enabling legislation that NOCCA is authorized to sue or be sued in its own name. The Court observes that the State of Louisiana is conducting NOCCA's defense in this matter.
Lastly, although NOCCA's board of directors has authority to purchase property for NOCCA's use, the board's ability to lease NOCCA's property is "subject to approval of the commissioner of administration," and the board may sell NOCCA's property "only when specifically authorized by law and then only in accordance with the approval of the commissioner of administration." Thus, NOCCA's ability to use and dispose of property is subject to oversight by the Louisiana Division of Administration. The Division of Administration is "a division of the office of the governor" that provides an array of administrative and supervisory services to departments of the State of Louisiana. In any event, even if NOCCA had unrestricted authority to sue and be sued and to use and dispose of property, which it does not, this would not prevent the Court from finding that NOCCA is an arm of the State of Louisiana.
La.Rev.Stat. Ann. § 17:1970.24(E)(2)(b)-(d).
La.Rev.Stat. Ann. § 17:1970.24(E)(2)
See Perez, 307 F.3d at 329, 331 (observing that education service center's right to hold and use property is subject to approval by Texas Commissioner of Education).
La.Rev.Stat. Ann. § 39:1.
La.Rev.Stat. Ann. § 39:4(A).
See Richardson, 118 F.3d at 456 (finding that "just because Southern's Board can be sued and can hold and use property does not mean that these final two factors weigh against a finding of sovereign immunity").
The Fifth Circuit has repeatedly held that a state university is an arm of the state in which it operates. For the reasons discussed, the Court finds that NOCCA is analogous to the state university found to be an arm of the State of Louisiana in Richardson v. Southern University. Like Southern University, NOCCA is considered an agency of the state under state law; NOCCA receives funding directly from the State of Louisiana, and any judgment against NOCCA is likely to be payable from funds appropriated by the Louisiana legislature; NOCCA has limited autonomy because its board of directors is almost entirely appointed by the governor; and NOCCA's educational activities attract students from across Louisiana and "benefit all citizens of Louisiana." Moreover, unlike Southern University, NOCCA does not have express authority to sue and be sued, nor does it have unrestricted authority to use and dispose of property. Thus, like Southern University, NOCCA is an arm of the State of Louisiana.
See, e.g., id. at 454 (observing that "the majority of decisions concerning the Eleventh Amendment status of state universities have concluded the institutions were arms of the state"); cf. Stotter, 508 F.3d at 821 ("This court has also recognized that state universities as arms of the state are not 'persons' under § 1983.");
See Richardson, 118 F.3d at 454 (observing that "although Louisiana courts have held that Southern's Board is a separate and distinct legal entity from the State of Louisiana, Southern nonetheless is considered an agency of the State") (citations and quotations omitted).
See id.
See id. at 455.
See id. at 456.
It is true that Louisiana parish school boards are not considered arms of the State of Louisiana. NOCCA is not, however, analogous to Louisiana parish school boards. Unlike parish school boards, NOCCA does not receive funding from local ad valorem taxation, and NOCCA's leadership is not selected in local elections. Further, NOCCA draws students from ten different parishes and thus addresses more than "innately local concerns." Finally, NOCCA does not have express statutory authorization to sue or be sued in its own capacity, and NOCCA does not have unsupervised authority to use and dispose of property.
See Minton v. St. Bernard Parish Sch. Bd., 803 F.2d 129, 131-32 (5th Cir. 1986).
See La.Const. art. 8, § 13(C) (providing that local funds for the support of elementary and secondary schools shall be derived from local ad valorem taxation).
See La.Rev.Stat. Ann. § 17:52(A) (providing that parish school board "shall be elected by the qualified voters of each parish police jury ward").
See Minton, 803 F.2d at 131-32.
See La.Rev.Stat. Ann. §§ 17:51 (providing that parish school boards may sue and be sued); 17:81(H) (providing that parish school boards may "recover for any damage that may be done to the property in their charge").
See La.Rev.Stat. Ann. § 17:81(G), (H) (providing that parish school boards may sell or dispose of property "which for any reason can no longer be used or which is unused and unnecessary or unsuitable as such").
Because a suit against NOCCA is in reality a suit against the State of Louisiana, NOCCA is not a "person" subject to suit under § 1983. Encalarde's federal claims against NOCCA must be DISMISSED.
B. State Claims
IV. CONCLUSION
28 U.S.C. § 1367(c)(3); Lapides, 535 U.S. at 618 ("It has also become clear that, in the absence of any viable federal claim, the Federal District Court might well remand [plaintiff's] state-law tort claims against the State to state court.").
Parker Parsley Petroleum Co. v. Dresser Indus., 972 F.2d 580, 587 (5th Cir. 1992).
New Orleans, Louisiana.