A question about the interplay between 28 U.S.C. 1367(a) and governmental immunity
Now I really feel stupid. I am sorry for hitting the wrong key - I have to remember that in Word Alt+S = §, but in Outlook Alt+S = send. Duh!
Here is my fact situation:
Plaintiff sued City alleging claims for relief for violating 28 U.S.C. § 1983 and a state law claim for relief for violating a state whistleblower statute. The whistleblower statute has a provision waiving the City's immunity from suit but only for suits brought in state court.
I filed a rule 12(b)(1) motion asking the court to dismiss the state law claim because it did not have subject-matter jurisdiction. The basis for the argument that the Court does not have subject-matter jurisdiction is because the Legislature did not waive the City's immunity from being sued in federal court. I asked the Court to stay discovery pending resolution of the motion. (Discovery is already stayed on the 1983 cause of action pending resolution of a separate 12(b)(6) motion.) Today, the Court granted the discovery stay.
I am trying to anticipate how the plaintiff will respond to the 12(b)(1) motion to dismiss. There are four cases (one out of the Fifth Circuit and one each out of the Southern, Western and Northern Districts) finding that my argument is correct. I have attached the Southern District case. I know of no case law going the other way. If I were arguing against my motion, however, I would argue that when Congress enacted 28 U.S.C. § 1367(a) (supplemental jurisdiction) it abrogated the City's immunity from suit in federal court. None of the four cases I previously mentioned address this issue.
There are an abundance of cases which stand for the proposition that nothing in § 1367(a) shows a clear and unequivocal intent by Congress to abrogate a state's sovereign immunity and, therefore, if a state is sued in federal court for a § 1983 claim for relief and a state law claim for relief the court must dismiss the state law claim for relief because the court has no subject-matter jurisdiction over that claim.
Even though a state's immunity from suit in federal court arises out of the Eleventh Amendment, it seems to me the same reasoning should apply to my situation. I can, however, find no case law discussing this issue.
Can any of you point me in the right direction?
M. Michael Meyer
Assistant City Attorney
City of Corpus Christi
P.O. Box 9277
Corpus Christi, TX 78469-9277
361.826.3362 (Direct)
281.635.5551 (Cell)
361.826.3239 (Fax)
MichaelM4@cctexas.commailto:MichaelM4@cctexas.com
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I wish I could help, but I'm at a loss. It's a very interesting issue, and you make great arguments for both sides. I wish I could add to your thoughts.
I have a colleague in my office who is knee deep in a Whistleblower case right now; I'll pass this along to him to see if he has any input.
Good Luck!
John
John L. Wilkerson
Staff Attorney
Arkanas Municipal League
Office: (501) 978-6136
Cell: (501) 554-6315
From: Federal [mailto:federal-bounces@lists.imla.org] On Behalf Of Michael Meyer
Sent: Wednesday, April 13, 2016 5:58 PM
To: Federal Law List Serve federal@lists.imla.org
Subject: [Federal] A question about the interplay between 28 U.S.C. 1367(a) and governmental immunity
Now I really feel stupid. I am sorry for hitting the wrong key - I have to remember that in Word Alt+S = §, but in Outlook Alt+S = send. Duh!
Here is my fact situation:
Plaintiff sued City alleging claims for relief for violating 28 U.S.C. § 1983 and a state law claim for relief for violating a state whistleblower statute. The whistleblower statute has a provision waiving the City's immunity from suit but only for suits brought in state court.
I filed a rule 12(b)(1) motion asking the court to dismiss the state law claim because it did not have subject-matter jurisdiction. The basis for the argument that the Court does not have subject-matter jurisdiction is because the Legislature did not waive the City's immunity from being sued in federal court. I asked the Court to stay discovery pending resolution of the motion. (Discovery is already stayed on the 1983 cause of action pending resolution of a separate 12(b)(6) motion.) Today, the Court granted the discovery stay.
I am trying to anticipate how the plaintiff will respond to the 12(b)(1) motion to dismiss. There are four cases (one out of the Fifth Circuit and one each out of the Southern, Western and Northern Districts) finding that my argument is correct. I have attached the Southern District case. I know of no case law going the other way. If I were arguing against my motion, however, I would argue that when Congress enacted 28 U.S.C. § 1367(a) (supplemental jurisdiction) it abrogated the City's immunity from suit in federal court. None of the four cases I previously mentioned address this issue.
There are an abundance of cases which stand for the proposition that nothing in § 1367(a) shows a clear and unequivocal intent by Congress to abrogate a state's sovereign immunity and, therefore, if a state is sued in federal court for a § 1983 claim for relief and a state law claim for relief the court must dismiss the state law claim for relief because the court has no subject-matter jurisdiction over that claim.
Even though a state's immunity from suit in federal court arises out of the Eleventh Amendment, it seems to me the same reasoning should apply to my situation. I can, however, find no case law discussing this issue.
Can any of you point me in the right direction?
M. Michael Meyer
Assistant City Attorney
City of Corpus Christi
P.O. Box 9277
Corpus Christi, TX 78469-9277
361.826.3362 (Direct)
281.635.5551 (Cell)
361.826.3239 (Fax)
MichaelM4@cctexas.commailto:MichaelM4@cctexas.com
NOTE: THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL, AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. If the reader of this message is not the intended recipient or the employee or agent responsible for delivering this message to the intended recipient, you are hereby notified that any dissemination, distribution, or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by telephone and return the original message to us at the above address. Thank you.
In compliance with regulations issued by the Internal Revenue Service, we inform you that any federal tax advice contained in this communication including any attachments was not written to be used and may not be used by any person to avoid any penalties under the Internal Revenue Code.
