Opinion
CV 00-949-BR.
February 6, 2002
MICHAEL E. ROSE, STEENSON, SCHUMAN, TEWKSBURY ROSE, Portland, OR., Attorneys for Plaintiff.
HARDY MYERS, Attorney General, DAVID L. KRAMER, JOHN CLINTON GEIL, Assistant Attorneys General, Department of Justice, Portland, OR., Attorneys for State of Oregon.
THOMAS SPONSLER, County Attorney, SUSAN M. DUNAWAY, Assistant County Attorney, Office of the Multnomah County Attorney, Portland, OR., Attorneys for Multnomah County and Bob Vanderbeck.
PAUL SILVER, NIKOLA L. JONES, Lindsay, Hart, Neil Weigler, LLP, Portland, OR., Attorneys for Donald J. Watt and Randall Vogt.
OPINION AND ORDER
This matter comes before the Court on Defendant State of Oregon's Motion for Summary Judgment on False Imprisonment and Negligence Claims (#57). On January 29, 2002, the Court heard oral argument on this and other motions. At the hearing, the Court resolved all other pending motions on the record and took the State's Motion for Summary Judgment under advisement. For the reasons that follow, the Court now DENIES the State's Motion.
BACKGROUND
Plaintiff originally filed his Complaint in Multnomah County Circuit Court and alleged a claim under 42 U.S.C. § 1983 and state law claims for negligence and false imprisonment. Defendant Multnomah County removed the case to this Court based on federal question jurisdiction. Defendant State of Oregon agreed to the removal. In its Answer to Plaintiff's Complaint, the State asserted Eleventh Amendment immunity as an affirmative defense. Subsequent to filing its Answer, the State filed a Motion for Judgment on the Pleadings, various motions for extensions of time, a Third-Party Complaint, and the Motion for Summary Judgment.
STANDARDS
Under Fed.R.Civ.P. 56:
Summary judgment should be granted if "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." If the moving party shows that there are no genuine issues of material fact, the non-moving party must go beyond the pleadings and designate facts showing an issue for trial. A scintilla of evidence or evidence that is merely colorable or not significantly probative does not present a genuine issue of material fact. The underlying substantive law governing the claims determines whether or not it is material. Reasonable doubts as to the existence of material factual issue[s] are resolved against the moving parties and inferences are drawn in the light most favorable to the non-moving party. There must be enough doubt for a "reasonable trier of fact" to find for plaintiffs in order to defeat the summary judgment motion.Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000) (citations omitted).
ANALYSIS
The State moves for summary judgment on the basis that it is immune under the Eleventh Amendment from Plaintiff's negligence and false imprisonment claims. Plaintiff does not dispute the State is immune from damage claims under the Eleventh Amendment, but argues the State waived its immunity when it consented to removal of the case to this Court and litigated on the merits. Under the Eleventh Amendment, "an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State." Edelman v. Jordan, 415 U.S. 651, 663 (1974). The Eleventh Amendment "is not a true limitation on the court's subject matter jurisdiction, but rather a personal privilege that a state may waive." Hill v. Blind Industries and Services of Maryland, 179 F.3d 754, 760 (9th Cir. 1999). "A waiver of Eleventh Amendment immunity must unequivocally evidence the state's intention to subject itself to the jurisdiction of the federal court." Id. at 758. "[A] state may waive its Eleventh Amendment immunity by conduct that is incompatible with an intent to preserve that immunity." Id. In Hill v. Blind Industries, the Ninth Circuit held the defendant waived its Eleventh Amendment immunity because it failed to raise the issue until the day before trial. The court found the state defendant's conduct constituted a waiver of immunity because the state defendant participated in extensive pre-trial activities and waited until the first day of trial before objecting to the federal court's jurisdiction on Eleventh Amendment grounds. Id. at 763.
The Eleventh Amendment provides: "The 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 by Citizens of another State, or by citizens or Subjects of any Foreign State." U.S. Const. amend. XI.
The State argues Hill does not apply because, unlike the defendant in Hill, the State first raised the immunity defense in its Answer. The Hill court, however, did not establish a rule that prevents a finding of waiver when the State has raised immunity as an affirmative defense.
The State relies on two district court opinions from California to support its argument that its consent to removal was not a waiver of immunity under the Eleventh Amendment. Both cases, however, are distinguishable. In Watkins v. California Dep't of Corrections, 100 F. Supp.2d 1227 (2000), the state defendant's first substantive motion was to dismiss based in part on Eleventh Amendment immunity. In Spingola v. Regents of the University of California, No. C 99-1076 CRB, 2000 WL 1780260, *7 (N.D.Cal. Nov. 21, 2000), the state defendant also raised its Eleventh Amendment defense in "the first proceeding involving the merits of the plaintiff's case." The Spingola court held when "the state has raised its sovereign immunity from the beginning of the litigation and before other proceedings on the merits . . . the state cannot be deemed as having waived its Eleventh Amendment immunity by its conduct." Id. at *6 (emphasis added).
In contrast, the State in this case did not raise Eleventh Amendment immunity in the first proceeding on the merits. Although it raised immunity as an affirmative defense in its Answer, the State thereafter filed a Motion for Judgment on the Pleadings in which it sought dismissal of Plaintiff's claims on statute of limitations grounds only. The State did not raise its Eleventh Amendment immunity in that motion.
In addition, other courts have held a state waives its Eleventh Amendment immunity when it removes a case from state to federal court. See, e.g., Sutton v. Utah State School for the Deaf and Blind, 173 F.3d 1226 (10th Cir. 1999); Newfield House, Inc. v. Massachusetts Dep't of Public Welfare, 651 F.2d 32, 36 n. 3 (1st Cir. 1981) (en banc). As the Tenth Circuit noted in Sutton, "an unequivocal intent to waive immunity seems clear when a state, facing suit in its own courts, purposefully seeks a federal forum." Id. at 1234. See also Wisconsin Dep't of Corrections v. Schacht, 524 U.S. 381, 393-98 (1998) (Kennedy, J., concurring).
In Schacht, Justice Kennedy discussed at length whether a state waives its Eleventh Amendment immunity when it expressly consents to removal of a case from state court. The state defendant in Schacht "consented to removal but then registered a prompt objection to the jurisdiction of the United States District Court over the claim against it." 524 U.S. at 393. Justice Kennedy noted:
Since a State which is made a defendant to a state court action is under no compulsion to appear in federal court and, like any other defendant, has the unilateral right to block removal of the case, any appearance the State makes in federal court may well be regarded as voluntary . . . .Id. at 395-96. The issue of waiver of immunity, however, was not before the Court; therefore, Justice Kennedy's statements are dicta. Nevertheless, this Court finds Justice Kennedy's analysis persuasive.
Here Plaintiff filed an action in state court. Defendant Multnomah County removed the case to federal court, and the State agreed to that removal. The case could not have been removed to federal court without the State's agreement. See Prize Frize, Inc. v. Matrix (U.S.) Inc., 167 F.3d 1261, 1266 (9th Cir. 1999) ( 28 U.S.C. § 1446 requires all proper defendants to join or to consent to the removal notice). It would be manifestly unfair in these circumstances to permit the State to preclude Plaintiff from pursuing his claims against the State in the only forum where the State could be held accountable and to force Plaintiff into this federal forum where the State's Eleventh Amendment immunity defense could be fatal. The State must bear the consequences of its own selection of this forum.
This Court, therefore, concludes the State's conduct "is incompatible with an intent to preserve" immunity. Hill, 170 F.3d at 758. Accordingly, the Court finds the State's consent to removal of this case to federal court, together with its subsequent litigation on the merits on grounds other than immunity, constitutes an unequivocal waiver of immunity under the Eleventh Amendment.
CONCLUSION
For the above reasons, Defendant State of Oregon's Motion for Summary Judgment (#57) is DENIED.
IT IS SO ORDERED.