Opinion
No. CV-F-05-1444 REC DLB.
March 27, 2006
On Monday, March 20, 2006, the Court heard Defendant State of California, Department of Transportation's (the "State") Motion to Dismiss for Lack of Subject Matter Jurisdiction and Failure to State a Claim upon Which Relief Can Be Granted (the "Motion"). Upon due consideration of the written and oral arguments of the parties and the record herein, the Court DENIES the Motion and REMANDS all claims against the State, as set forth herein.
I. Background
The facts of the case, as alleged in the Complaint, are as follows. Deondrae Marcquise Mullin ("Decedent") was a student at Fresno City College ("FCC"). On September 2, 2004, at approximately 9:20 a.m., he was walking west on the north sidewalk of Weldon Avenue west of Glenn Avenue. Weldon Avenue forms the north border of the FCC campus. Train tracks that traverse the Fresno City College campus cross Weldon Avenue and the sidewalk on which Decedent was walking. As he crossed the tracks, an Amtrak train struck and killed him.
On October 14, 2005, Plaintiff Georgina Shantell Thomas, Decedent's mother, filed her Complaint in Fresno County Superior Court, seeking damages against the State and other defendants. On November 15, 2005, before the State had been served, the defendants who had been served removed the case to this Court. On February 8, 2006, the State filed this Motion, along with supporting declarations and a request for judicial notice. On February 22, 2006, Plaintiff filed an ex parte motion to continue proceedings on this motion to allow her to conduct further discovery prior to the Court deciding a motion for summary judgment. On March 1, 2006, the Court denied the continuance based on the State's representations that it was not moving for summary judgment. On March 3, 2006, Plaintiff filed her Opposition, along with her own supporting declarations. On March 13, 2006, the State filed its Reply.
The other defendants listed in the Complaint are Burlington Northern Santa Fe Corporation, Burlington Northern and Santa Fe Railway Company, BNSF Railway Company, National Railroad Passenger Corporation, Ernest Martinez, Fresno City College, State Center Community College District, County of Fresno, City Of Fresno, and Clardy Lee Mullin, Jr.
II. Eleventh Amendment Immunity
The State moves to dismiss on the basis of Eleventh Amendment immunity. Under the Eleventh Amendment, "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States." U.S. Const. amend. XI. As a result, a state enjoys immunity from suit in federal court by citizens of other states and by its own citizens. Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 616, 122 S. Ct. 1640, 152 L. Ed. 2d 806 (2002).
Plaintiff does not dispute that Eleventh Amendment immunity bars her claims against the State. She admits that the State's contention that it is immune "appears to be well taken." Opp'n 2:7-9. She requests that the Court remand her action against the State to state court, rather than dismissing it. The reason she prefers remand to dismissal is that the statute of limitations for her claims against the State has run. Opp'n 4:27-5:2. The State opposes remand, arguing that it would be futile because Plaintiff cannot state a claim against the State for which relief may be granted.
A. Waiver of Eleventh Amendment Immunity
Plaintiff contended for the first time at oral argument that the State has waived its Eleventh Amendment immunity. A State may waive its Eleventh Amendment immunity where it voluntary invokes the federal court's jurisdiction through its litigation conduct. Lapides, 535 U.S. at 620; Embury v. King, 361 F.3d 562, 566 (9th Cir. 2004). For instance, a defendant who removes a case to federal court waives its Eleventh Amendment immunity.Lapides, 535 U.S. at 620; Embury, 361 F.3d at 566. A defendant may also evince its consent to federal jurisdiction through its litigation conduct once in federal court. Hill v. Blind Indus. and Servs. of Md., 179 F.3d 754, 759 (9th Cir. 1999) (state defendant who participated in extensive pretrial activities and waited until the first day of trial to assert its Eleventh Amendment argument had waived its immunity); see also Skelton v. Henry, 390 F.3d 614, 618 (8th Cir. 2004) (holding that state's counterclaim and third party claim did not waive Eleventh Amendment immunity by voluntarily invoking the jurisdiction of the federal courts). Courts also may find a waiver where the state makes a "clear declaration" that it intends to submit itself to federal jurisdiction. Coll. Sav. Bank v. Fla. Prepaidpostsecondary Ed. Expense Bd., 527 U.S. 666, 676, 119 S. Ct. 2219, 144 L. Ed. 2d 605 (1999). The purpose of the waiver rule is to avoid the inconsistency and unfairness that would accompany a state's right to invoke immunity at will.Lapides, 535 U.S. at 623; see generally Wis. Dep't of Corr. v. Schacht, 524 U.S. 381, 394-98, 118 S. Ct. 2047, 141 L. Ed. 2d 364 (1998) (Kennedy, J., concurring).
At oral argument, Counsel for Defendants City of Fresno, Fresno City College, and State Center Community College District also contended that a finding of waiver was appropriate. He cited in support practical problems that might accompany proceeding with this case in two separate actions. Counsel did not cite, and the Court is unaware of, any authority for basing a finding of waiver of Eleventh Amendment immunity on the practical benefits of maintaining a single lawsuit.
Plaintiff argues that the state has waived its Eleventh Amendment immunity by asking the Court to dismiss the case on the merits while claiming that the Court lacks jurisdiction. The State in its briefs on this Motion asks the Court not to remand the action and to decide Plaintiff's claims on the merits:
Therefore, to remand to the state court would be an idle act since it is clear that Plaintiff cannot maintain an action against Defendant State in state court due to lack of ownership, maintenance or control of the site of the incident. . . . Consequently, in the interest of judicial economy, it would seem more logical for the court to exercise its pendent jurisdiction and dismiss this action against Defendant State.
Reply 2:19-21 (citations omitted). This language expresses the State's position that federal jurisdiction is permissible. It also evinces the State's intent to use the federal court to its advantage, that is, by asking the Court to enter judgment in its favor on the merits.
The State's argument that the Court retain the claims and dismiss them on the merits does not evince voluntary invocation of the federal forum from which the Court can imply a waiver of Eleventh Amendment immunity. See Skelton, 390 F.3d at 618. Nor has the State expressly waived its immunity by making a "clear declaration" that it submits to the jurisdiction of a federal court. See Coll. Sav. Bank, 527 U.S. at 676. The State appears to have brought its Eleventh Amendment immunity motion at the earliest possible opportunity. The State was served on December 1, 2005. It participated in the scheduling conference and served its initial disclosures, after giving Plaintiff notice that it would challenge its presence in federal court. Opp'n 3:25-28. Plaintiff agrees that the State's participation in those activities is not likely to represent a waiver of the State's Eleventh Amendment immunity claim. Id. The State requested dismissal under the Eleventh Amendment in its first filing in this case when it filed this Motion on February 8, 2006. Accordingly, the Court finds that the State has not waived its Eleventh Amendment immunity.
B. Dismissal Versus Remand
Plaintiff asks the Court to remand because dismissal of the claims agains