Opinion
Civil No. 07-cv-348-JL, Opinion No. 2008 DNH 201.
November 20, 2008
ORDER
This action arises out of an accident on Interstate 93 that injured the plaintiff and killed her six-year old son. A tractor trailer driven by defendant Francis Hammond, while in the employ of defendant Fidéle Tremblay, Inc., jack-knifed into the plaintiff's vehicle in the wake of a snowstorm. The defendants have filed a third-party complaint against the New Hampshire Department of Transportation ("DOT"), alleging that its lack of effort "to remove the snow or the resulting ice from the highway" caused or contributed to the accident.
The Department of Transportation, equating itself with the State of New Hampshire, has moved to dismiss the third-party complaint, arguing (1) the court lacks subject-matter jurisdiction over the defendants' claims, (2) the DOT is immune from those claims in this court under the Eleventh Amendment, and (3) the third-party complaint fails to state a claim for relief. The court heard oral argument on the motion on November 19, 2008. For the foregoing reasons, the court grants the motion to dismiss on the basis of Eleventh Amendment immunity.
I. Subject-Matter Jurisdiction
II. Eleventh Amendment Immunity A. Applicable Law
28 U.S.C. § 1332Univ. of R.I. v. A.W. Chesterton Co.2 F.3d 1200120228 U.S.C. § 1367See e.g. State Nat'l Ins. Co. v. Yates391 F.3d 577579-80 See Raygor v. Regents of Univ. of Minn.534 U.S. 533541-42Pennhurst State Sch. Hosp. v. Halderman465 U.S. 89100Metcalf Eddy, Inc. v. P.R. Aqueduct Sewer Auth.991 F.2d 935939 Fresenius Med. Care Cardiovascular Res., Inc. v. P.R. the Caribbean Cardiovascular Ctr. Corp. 322 F.3d 56 68 Id. See id. id. See id. id. id.
This test thus "incorporates the twin interests served by the Eleventh Amendment: protecting the state's dignitary interest in avoiding being haled into federal court, and protecting the public fisc." Pastrana-Torres v. Corporación De P.R. Para La Difusión Pública, 460 F.3d 124, 126 (1st Cir. 2006) (citations omitted).
Furthermore, the DOT's expenses are funded by the statewide biennial state budget and the six-year state capital expenditure fund, both of which are ultimately controlled by the General Court. See id. §§ 9:3, 3-a. To this end, the commissioner must, like the commissioners of all other state departments, "[b]ienially compile a comprehensive program budget which reflects all fiscal matters related to the operation of the department and each program and activity of the department." Id. § 21-G:9, II(a); see also id. § 9:4, I. Moreover, even after funds are appropriated to the DOT by the General Court, their expenditure remains subject to the approval of the governor and the Executive Council. See id. § 4:15. The totality of this statutory scheme leaves no doubt that New Hampshire has structured the DOT to share the state's Eleventh Amendment immunity. See Breneman v. United States ex rel. FAA, 381 F.3d 33, 39 (1st Cir. 2004) (relying on nearly identical set of considerations to conclude that the Massachusetts Aeronautic Commission enjoyed Eleventh Amendment immunity).
The DOT also receives monies from a state highway fund, but those, too, are allocated by the General Court. See RSA 9:9-b.
The defendants' sole argument to the contrary relies on what they characterize as the DOT's ability to "sue and be sued" under RSA 230:81. That statute provides, in relevant part, that
At oral argument, the defendants suggested that, by (presumably) accepting federal highway funds, the DOT has consented to suit in federal court. But "the mere receipt of federal funds cannot establish that a State has consented to suit in federal court," even when those funds are received under the same federal legislation that gives rise to the suit at issue (which is not the case here anyway, where the defendants have brought a common-law claim against the DOT). Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 246-47 (1985). The defendants' argument is untimely and incorrect.
the department of transportation shall not be held liable for damages arising from insufficiencies or hazards on public highways .^.^. even if it has actual notice or knowledge of them, when such hazards are caused by snow, ice, or other inclement weather, and the department of transportation's failure or delay in removing such hazards is the result of its implementation, absent gross negligence or reckless disregard of the hazard, of a winter or inclement weather policy or set of priorities adopted in good faith by the officials responsible for such policy[.]
The ability of a state agency to "sue and be sued in its own name" factors into the Eleventh Amendment calculus because "the power to sue in the entity's own name, when coupled with other powers of self-determination typically held by distinct juridical entities (power to contract, power to buy, hold, and sell property), undeniably affords some additional independence from the State, since the entity need not seek the State's consent to bring, defend, or settle a lawsuit." A.W. Chesterton, 2 F.3d at 1207 n. 11. But RSA 230:81 does not confer any such powers on the DOT. It merely provides for a limited exception to the DOT's immunity from claims for "personal injury or property damages arising out of its construction, maintenance, or repair of public highways," RSA 230:80, insofar as those claims arose from weather-related hazards that the DOT did not remove due to gross negligence or recklessness.
The defendants do not argue that RSA 230:81, by waiving the DOT's immunity against this narrow class of claims, amounts to a waiver of its Eleventh Amendment immunity, but any such argument would be unavailing. "[I]n order for a state statute .^.^. to constitute a waiver of Eleventh Amendment immunity, it must specify the state's intention to subject itself to suit infederal court." Atascadero State Hosp., 473 U.S. at 241. RSA 230:81 does no such thing.
The DOT's amenability to private suit in one narrow set of circumstances says next to nothing about its power "to sue and be sued" in general, and even less about its "independence from the State" as a "distinct juridical entity," which, again, is the only relevance of that power to the Eleventh Amendment inquiry in the first place. A.W. Chesterton, 2 F.3d at 1207 n. 11. The statutory scheme governing the DOT's existence conclusively demonstrates that it is a mere agency of the State of New Hampshire, with operations tightly controlled by the governor and the General Court by the power of the purse and otherwise. The DOT is therefore entitled to share in the State's Eleventh Amendment immunity. Its motion to dismiss the third-party complaint (document no. 17) is GRANTED on that basis.
The court therefore does not reach the DOT's argument that the third-party complaint fails to state a claim for relief.