Opinion
CIVIL ACTION NO. 1:19-CV-00527
2020-02-10
Perry BONIN, Ace Chandler, Michael Manuel, et al., Plaintiffs, v. SABINE RIVER AUTHORITY OF TEXAS, Sabine River Authority, State of Louisiana, Tobin Holbrook, Defendants.
John Gerard Werner, Christopher David Mahfouz, Glen W. Morgan, Reaud Morgan & Quinn LLP, Beaumont, TX, for Plaintiffs. Robert Acreman, pro se. Jacqueline Acreman, pro se. Larry Addison, pro se. Ricky Alexander, pro se. Linda Alfred, pro se. Charles W. Goehringer, Jr., Kelli Burris Smith, Germer PLLC, Beaumont, TX, Shane L. Kotlarsky, Lewis Brisbois, Houston, TX, John Powers Wolff, III, Keogh, Cox & Wilson, Ltd., Baton Rouge, LA, for Defendants.
John Gerard Werner, Christopher David Mahfouz, Glen W. Morgan, Reaud Morgan & Quinn LLP, Beaumont, TX, for Plaintiffs.
Robert Acreman, pro se.
Jacqueline Acreman, pro se.
Larry Addison, pro se.
Ricky Alexander, pro se.
Linda Alfred, pro se.
Charles W. Goehringer, Jr., Kelli Burris Smith, Germer PLLC, Beaumont, TX, Shane L. Kotlarsky, Lewis Brisbois, Houston, TX, John Powers Wolff, III, Keogh, Cox & Wilson, Ltd., Baton Rouge, LA, for Defendants.
OPINION AND ORDER
Michael J. Truncale, United States District Judge Before the Court is Defendant Sabine River Authority, State of Louisiana ("SRA-L")'s Motion to Dismiss Plaintiffs' Complaint. [Dkt. 7]. SRA-L seeks dismissal of this case with prejudice pursuant to Federal Rule of Civil Procedure 12(b)(1). Id. The Court has considered the motion, all other relevant filings, and the applicable law. For the reasons stated below, the Court finds that dismissal is not warranted.
I. BACKGROUND
The Plaintiffs are Texas and Louisiana property owners who allege that SRA-L and Sabine River Authority of Texas ("SRA-T") (collectively "Defendants") "took, damaged, or destroyed" their property by causing or contributing to a Sabine River flood that damaged their property. [Dkt. 1, p. 6]. The Plaintiffs allege that the Defendants caused a "deliberate release of water from the Toledo Bend spillway gates into the Sabine River" in March of 2016. Id. at 1–2. The Defendants opened "nine spillway gates" over a twenty-four-hour period "in response to the fact that the water level had surpassed 172.5 feet." Id. at 2. However, Plaintiffs claim that "the opening of the spillway gates was merely the ‘last straw’ in a series of deliberate actions which Defendants had taken in the days, months and years prior to the flooding." Id. Plaintiffs alleged that homes, businesses, churches, and other properties along the Sabine River were flooded, "burial vaults were disinterred and scattered, and animals and livestock were killed, in the name of and by the authority of the Defendants...deliberately acting in the exercise of the powers granted [to them] by [their] respective State[s]." Id. at 6.
Plaintiffs allege three specific types of deliberate actions:
a. Defendants deliberately chose to re-apply for and accept a renewal license to operate the facility in questions, knowing that there was a substantial certainty that downstream flooding would occur;
b. Defendants, notwithstanding clear authority from the Federal Energy Commission ("FERC") to operate the reservoir with a water level anywhere between 168.0 and 172.0 feet, chose to allow the water level to remain very close to this upper bound throughout the month of February 2016, despite their ability and authority to release water through the spillway gates at amounts greater than the 144cfs that Defendants caused to be released each day during February 2016; and
c. Defendants, notwithstanding clear authority from FERC to operate the reservoir with a water level anywhere between 168.0 and 172.0 feet, went from approximately August 2015 through and including the flooding at issue in March 2016 with only one of the two hydroelectric generators operational; having the other hydroelectric generator operating would have caused an addition 7,000-10,000 cfs of water to be released
and thereby lower the water level.
Id. at 2.
II. LEGAL STANDARD
Federal courts are courts of limited jurisdiction, and absent jurisdiction conferred by statute or the Constitution, lack the power to adjudicate claims. See Kokkonen v. Guardian Life Ins. Co. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) ; Howery v. Allstate Ins. Co. , 243 F.3d 912, 916 (5th Cir. 2001) ; Stockman v. Fed. Election Comm'n , 138 F.3d 144, 151 (5th Cir. 1998). A motion to dismiss filed under Federal Rule of Civil Procedure 12(b)(1) challenges the subject matter jurisdiction of the federal district court. See FED. R. CIV. P. 12(b)(1). Rule 12(b)(1) authorizes dismissal of a case for lack of subject matter jurisdiction when the district court lacks statutory and constitutional power to adjudicate the case. FED. R. CIV. P. 12(b)(1) ; Home Builders Ass'n of Miss., Inc. v. City of Madison , 143 F.3d 1006, 1010 (5th Cir. 1998).
Once a defendant files a motion to dismiss under Rule 12(b)(1) and challenges jurisdiction, the party invoking jurisdiction has the burden to establish subject matter jurisdiction. See Menchaca v. Chrysler Credit Corp. , 613 F.2d 507, 511 (5th Cir. 1980) ; McDaniel v. United States , 899 F. Supp. 305, 307 (E.D. Tex. 1995). The Court may only grant a motion to dismiss for lack of subject matter jurisdiction if it is certain that the claimant cannot prove any plausible set of facts that would entitle the claimant to relief. Lane v. Halliburton , 529 F.3d 548, 557 (5th Cir. 2008).
When deciding Defendant SRA-L's motion, the Court may consider "(1) the complaint alone; (2) the complaint supplemented by the undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Lane , 529 F.3d at 557 (5th Cir. 2008) (quoting Barrera-Montenegro v. United States , 74 F.3d 657, 659 (5th Cir. 1996) ). The Court must accept as true all well-pleaded allegations set forth in the complaint and construe those allegations in the light most favorable to the plaintiff. Truman v. United States , 26 F.3d 592, 594 (5th Cir. 1994).
III. DISCUSSION
A. Sovereign Immunity
It is widely understood that a federal court's jurisdiction is "limited by the Eleventh Amendment and the principle of sovereign immunity that it embodies." Vogt v. Bd. of Comm'rs of Orleans Levee Dist. , 294 F.3d 684, 688 (5th Cir.), cert. denied , 537 U.S. 1088, 123 S.Ct. 700, 154 L.Ed.2d 632 (2002) ; see Seminole Tribe of Fla. v. Florida , 517 U.S. 44, 54, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) ; Union Pac. R. Co. v. La. Pub. Serv. Comm'n , 662 F.3d 336, 340 (5th Cir. 2011) ; Bowens v. Fed. Bureau of Prisons , No. CIV.A. 1:04CV688, 2005 WL 3133475, at *4 (E.D. Tex. Nov. 23, 2005) (Crone, J.). According to 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 by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. CONST. amend. XI. In fact, the U.S. Supreme Court has "made clear that the Constitution does not provide for federal jurisdiction over suits against nonconsenting States." Kimel v. Fla. Bd. of Regents , 528 U.S. 62, 73, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000) ; accord Welch v. Tex. Dept. of Highways & Pub. Transp. , 483 U.S. 468, 472, 107 S.Ct. 2941, 97 L.Ed.2d 389 (1987).
There are three exceptions to the general rule that a state may not be haled into federal court under the Eleventh Amendment. Port Auth. Trans-Hudson Corp. v. Feeney , 495 U.S. 299, 304, 110 S.Ct. 1868, 109 L.Ed.2d 264 (1990) ; Sabine Pipe Line, LLC v. A Permanent Easement of 4.25 +/- Acres of Land in Orange City, Texas , 327 F.R.D. 131, 139 (E.D. Tex. 2017) (Crone, J.). The first exception is when a state consents to suit in federal court. Pace v. Bogalusa City Sch. Bd. , 403 F.3d 272, 277 (5th Cir. 2005). Second, Congress may abrogate the state's sovereign immunity through an action under § 5 of the Fourteenth Amendment. Pace , 403 F.3d at 277. Finally, suits may be brought against state officers for prospective injunctive relief based on an ongoing constitutional violation. Ex parte Young , 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908) ; see K.P. v. LeBlanc , 729 F.3d 427, 439 (5th Cir. 2013).
Sovereign immunity under the Eleventh Amendment extends not only to "actions in which a State is actually named as the defendant, but also certain actions against state agents and state instrumentalities." Sw. Bell Tel. Co. v. City of El Paso , 243 F.3d 936, 937 (5th Cir. 2001) (citing Regents of the Univ. of Cal. v. Doe , 519 U.S. 425, 429, 117 S.Ct. 900, 137 L.Ed.2d 55 (1997) ). As such, even when the State is not a named defendant, "the State's Eleventh Amendment immunity will extend to any state agency or other political entity that is deemed the ‘alter ego’ or an ‘arm’ of the State." Vogt v. Bd. of Comm'rs of Orleans Levee Dist. , 294 F.3d 684, 688–89 (5th Cir.), cert. denied , 537 U.S. 1088, 123 S.Ct. 700, 154 L.Ed.2d 632 (2002) (citing Doe , 519 U.S. at 429, 117 S.Ct. 900 )); see Raj v. La. State Univ. , 714 F.3d 322, 328–29 (5th Cir. 2013). Therefore, "the Eleventh Amendment will bar a suit if the defendant state agency is so closely connected to the State that the State itself is ‘the real, substantial party in interest.’ " Vogt , 294 F.3d at 689 ; Fairley v. Louisiana , 254 F. App'x 275, 277 (5th Cir. 2007).
However, "[t]here is no bright-line test for determining whether a political entity is an ‘arm of the State’ for the purposes of Eleventh Amendment immunity." Vogt , 294 F.3d at 689. Instead, "the matter is determined by reasoned judgment about whether the lawsuit is one which, despite the presence of a state agency as the nominal defendant, is effectively against the sovereign state." Earles v. State Bd. of Certified Public Accountants of La. , 139 F.3d 1033, 1037 (5th Cir. 1998). In making that inquiry, the Fifth Circuit has traditionally considered six factors, often referred to as the Clark factors: (1) whether the state statutes and case law characterize the agency as an arm of the state; (2) the source of funds for the entity; (3) the degree of local autonomy the entity enjoys; (4) whether the entity is concerned primarily with local, as opposed to statewide, problems; (5) whether the entity has authority to sue and be sued in its own name; and (6) whether the entity has the right to hold and use property. See, e.g., Cozzo v. Tangipahoa Par. Council–President Govt. , 279 F.3d 273, 281 (5th Cir. 2002) ; Vogt , 294 F.3d at 689 ; Anderson v. Red River Waterway Comm'n , 231 F.3d 211, 214 (5th Cir. 2000) ; Clark v. Tarrant County , 798 F.2d 736, 745 (5th Cir. 1986) (creating what is known as the Clark factors). "[T]he most significant factor in assessing an entity's status is whether a judgment against it will be paid with state funds." Delahoussaye v. City of New Iberia , 937 F.2d 144, 147–48 (5th Cir. 1991).
"The U.S. Supreme Court applied a different six-factor test in a case involving a multi-state entity created pursuant to the Compact Clause." Vogt , 294 F.3d at 689 n. 2 (5th Cir. 2002) (citing Lake Country Estates, Inc. v. Tahoe Reg'l Plan. Agency , 440 U.S. 391, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979) ). The Fifth Circuit has largely ignored Lake Country Estates and has instead used a six-factor balancing test used for determining whether a state agency is a "citizen" for purposes of diversity jurisdiction. See Richardson v. Southern Univ. , 118 F.3d 450, 452 n. 8 (5th Cir. 1997). Moreover, the Fifth Circuit has held that Lake Country Estates is not applicable where the defendant is a single-state entity (as opposed to a multi-state entity created pursuant to the Compact Clause). Vogt , 294 F.3d at 689 n. 2 (5th Cir. 2002) ; Pillsbury Co. v. Port of Corpus Christi Auth. , 66 F.3d 103, 104–05 (5th Cir. 1995). Other circuits that have squarely addressed the issue have concluded that Lake Country Estates is "no less applicable" in cases involving single-state entities created by state law. Vogt , 294 F.3d at 689 n. 2 (citing Gray v. Laws , 51 F.3d 426, 432–33 (4th Cir. 1995) ); see also Mancuso v. N.Y. State Thruway Auth. , 86 F.3d 289, 293 (2d Cir. 1996). Although the Fifth Circuit has distinguished between single-state as opposed to multi-state entities, the Simmons court applied the multi-state analysis to SRA-L, a single-state entity. See infra note 4 and accompanying text.
"[T]he rule has evolved that a suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment." Edelman v. Jordan , 415 U.S. 651, 663, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). Thus, when it is apparent that the state is the real party in interest to a suit and that any monetary award against a state official or entity would be satisfied by state funds, the suit is foreclosed by the Eleventh Amendment. See Quern v. Jordan , 440 U.S. 332, 337, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979) ; Edelman , 415 U.S. at 663, 94 S.Ct. 1347 ; United States ex rel. Barron v. Deloitte & Touche, L.L.P. , 381 F.3d 438, 440 (5th Cir. 2004) ; Laje v. R.E. Thomason Gen. Hosp. , 665 F.2d 724, 727 (5th Cir. 1982).
SRA-L claims that it is an arm of the state and therefore is entitled to immunity under the Eleventh Amendment. The Plaintiffs disagree, contending that SRA-L should not be given Eleventh Amendment immunity. The Court will now apply the Clark factors.
1. Characterization under state law
The first factor is characterization under state statutes and case law. Defendant SRA-L contends that the Court should adopt the Simmons court's analysis. See Simmons v. Sabine River Authority of La. , 823 F. Supp. 2d 420, 435 (W.D. La. 2011) (applying caselaw concerning bistate entities). However, the Court is cautious to accept the Simmons analysis in its entirety because that district court applied precedent from the Second Circuit, instead of binding Fifth Circuit law. See id. at 434–35 (citing Mancuso v. N.Y. State Thruway Authority , 86 F.3d 289, 293 (2d Cir. 1996) ). Nonetheless, the Court recognizes that Simmons found that SRA-L was an arm of the state based on two state statutes. Simmons , 823 F. Supp. 2d at 435 (citing La. Stat. Ann. §§ 38:2321 ; 2324).
As Plaintiffs point out, the Simmons court failed to apply the Fifth Circuit's "arm of the state" analysis. See Simmons , 823 F. Supp. at 434–35 ; see supra note 2 and accompanying text. Although the Fifth Circuit has repeatedly applied their own six factor balancing factors, the Simmons court opted to apply the Second Circuit's analysis. See supra note 2 and accompanying text; see also Simmons , 823 F. Supp. at 434–35. This Court declines to apply the Second Circuit's analysis because those factors concern entities created pursuant to the Interstate Compact Clause. Moreover, neither party argues that SRA-L is a bistate entity created under the Interstate Compact Clause.
Section 38:2321 refers to the entity as "Sabine River Authority, State of Louisiana." La. Stat. Ann. § 38:2321. The statute also states that SRA-L is "hereby declared to be an agency and instrumentality of the state of Louisiana...for the carrying out of the functions of the state." Id. at § 38:2324. "[H]owever, calling [SRA-L] a ‘creature or agency of the state’ does not necessarily mean that it is an ‘arm of the state’ within the meaning of the Eleventh Amendment jurisprudence." Vogt , 294 F.3d at 690 (5th Cir. 2002) ; see, e.g., Sw. Bell Tel. Co. v. City of El Paso , 243 F.3d 936, 939 (5th Cir. 2001) ("An entity is not an arm of the State for Eleventh Amendment purposes simply because it is a creature of state law and a political subdivision of a state"); Earles , 139 F.3d at 1036 ; Richardson v. Southern Univ. , 118 F.3d 450, 454 (5th Cir. 1997) ; McDonald v. Bd. of Miss. Levee Commissioners , 832 F.2d 901, 906–07 (5th Cir. 1987) (holding that a reference to an entity as an ‘agency’ of the state by state courts does not amount to the characterization of the entity as an arm of the state); Minton v. St. Bernard Par. Sch. Bd. , 803 F.2d 129, 131 (5th Cir. 1986).
Unfortunately, there is scarce caselaw determining whether SRA-L is an arm of the state or merely a political subdivision. Based on the lack of caselaw, the Court gives greater weight to the above state statutes. Therefore, the Court finds that the first factor weighs in favor of finding that SRA-L is an arm of the state. However, such designation does not mean that SRA-L is an arm of the state within the meaning of the Eleventh Amendment.
2. Source of Funding
The second factor is source of funding. Source of funding "is given the greatest weight because one of the principle purposes of the Eleventh Amendment is to protect state treasuries." Vogt , 294 F.3d at 693 (internal citations omitted). Although the Fifth Circuit broadly looks at an entity's "source of funding," the inquiry is more specific: "In assessing this second factor, we conduct inquiries into, first and most importantly, the state's liability in the event there is a judgment against the defendant, and second, the state liability for the defendant's general debts and obligations ." Id. (emphasis added) (citing Hudson v. City of New Orleans , 174 F.3d 677, 687 (5th Cir. 1999) ). "The state's liability for a judgment is often measurable by a state's statutes regarding indemnification and assumption of debts." Id.
At first glance, it seems that SRA-L is financially independent from the state. See La. Stat. Ann. § 38:2324(B)(1). According to Section 38:2324, SRA-L "shall operate from self-generated revenues and shall not be a budget unit of the state." Id. (emphasis added). However, the statute also provides that SRA-L may "receive state appropriations at any time it is deemed advisable by the legislature." Id. Nevertheless, the Fifth Circuit has held that voluntary/optional funds are not enough to show that an entity is an arm of the state. United Disaster Response, LLC v. Omni Pinnacle, LLC , 511 F.3d 476, 480 (5th Cir. 2007) ("There is no formal requirement for Louisiana to pay a judgment...[t]he state may choose to reimburse the parish, but that is not enough."); Pendergrass v. Greater New Orleans Expressway Com'n , 144 F.3d 342, 346 (5th Cir. 1998) (holding that an entity with self-supporting finances that received money from the state to service bonded debt was not an arm of the state). Likewise, SRA-L generates an independent budget and may only receive optional financial appropriations.
The Fifth Circuit has "left open the possibility that a state entity could show that the legislature–even where it is not obliged to do so–regularly appropriates money to pay judgments against the entity." Vogt , 294 F.3d at 693. One should note that the Fifth Circuit does not consider a state's voluntary, after-the-fact payment of a judgment to be a liability against the state's treasury. Id. Furthermore, SRA-L has not pointed to any prior appropriations by the legislature to support this position. Nor has SRA-L argued that there is a regular practice of the state paying their judgments, thus the Court need not consider that issue. See, e.g., United Disaster , 511 F.3d at 480, n. 5.
Section 38:2325 also provides that SRA-L may "incur debts and borrow money, but no debt so incurred shall be payable from any source other than the revenues to be derived by the authority from sources other than taxation." La. Stat. Ann. § 38:2325(A)(5). Moreover, the Fifth Circuit held that debts held by entities, such as SRA-L, "are not backed by the state" according to the Louisiana Constitution. La. Const. art. 7, § 6 ; Vogt v. Bd. of Comm'rs of Orleans Levee Dist. , 294 F.3d 684, 693–94 (5th Cir.), cert. denied , 537 U.S. 1088, 123 S.Ct. 700, 154 L.Ed.2d 632 (2002) ("Although the legislature has the authority to appropriate funds to pay a judgment against a levee district, the legislature certainly has no legal obligation to do so"); see also Pendergrass , 144 F.3d at 345–46. As such, "no legal liability arises against the state in the event of a judgment against" SRA-L. Vogt , 294 F.3d at 693. Conversely, "judgments against state agencies or departments within the executive branch are treated as liabilities of the state itself." Id.
Therefore, the most important factor—source of funding—weighs heavily in favor of finding that SRA-L is not an arm of the state for purposes of Eleventh Amendment indemnity.
3. Degree of Local Autonomy
The third element is whether the entity has significant local autonomy. To determine an agency's local autonomy, the Court must determine the extent of the entity's independent management authority, "as well as the independence of the individual commissioners who govern the entity." Vogt , 294 F.3d at 694 (citing Jacintoport Corp. v. Greater Baton Rouge Port Com'n , 762 F.2d 435, 442 (5th Cir. 1985) ) (internal citations omitted).
SRA-L has considerable management authority, as that term has been applied in Fifth Circuit caselaw. See, e.g., Vogt , 294 F.3d at 694. Among other powers vested in SRA-L by the legislature, SRA-L has the power to "do all things necessary or convenient to carry out its functions." La. Stat. Ann. § 38:2325(A)(9). As such, SRA-L can "make and enter into contracts." Id. at (3). In fact, SRA-L can "acquire by purchase, gift, devise, lease, expropriation or other mode of acquisition, to hold, pledge, encumber, lease and dispose of real and personal property..." Id. at (2). Although the statute points to a finding of local autonomy, SRA-L correctly points out that all thirteen board members of SRA-L are appointed by the Governor. Id. at § 38:2322(A).
While the board members are vulnerable as they have to serve at the governor's pleasure, which weighs against a finding of local autonomy; in this case, the governor's discretion is limited by statutory requirements that a commissioner must be a resident of a certain parish. Vogt , 294 F.3d at 695 (citing Jacintoport Corp. v. Greater Baton Rouge Port Com'n , 762 F.2d 435, 442 (5th Cir. 1985) ). In Pendergrass , the Fifth Circuit stated that residency requirements and local nominations "tug[ged] strongly" in favor of a finding of local autonomy, in spite of the governor's role in the appointment process. Pendergrass v. Greater New Orleans Expressway Com'n , 144 F.3d 342, 347 (5th Cir. 1998). "Moreover, Jacintoport suggests that the appointment process is given less weight than the scope of the entity's authority over its day-to-day activities." Vogt , 294 F.3d at 695 (citing Jacintoport , 762 F.2d at 442 ). On balance, then, SRA-L's considerable degree of local autonomy supports a finding of no Eleventh Amendment immunity. Id.
Under Section 2322, four members shall be residents of Sabine Parish, two members shall be residents of Calcasieu Parish, two members shall be residents of Vernon Parish, two members shall be residents of DeSoto Parish, two members shall be residents of Beauregard Parish, and one member shall be a resident of Cameron Parish. La. Stat. Ann. § 38:2322(A)(1).
4. Local Versus Statewide Problems
This factor focuses on whether the entity acts for the benefit and welfare of the state as a whole or for the special advantage of local inhabitants. Williams v. Dallas Area Rapid Transit , 242 F.3d 315, 321 (5th Cir. 2001) (quoting Pendergrass , 144 F.3d at 347 ). Limited territorial boundaries suggest that an agency is not an arm of the state. See, e.g., Cozzo v. Tangipahoa Par. Council–President Gov't , 279 F.3d 273, 282 (5th Cir. 2002) (noting that a sheriff's duties are usually within one parish); Hudson v. City of New Orleans , 174 F.3d 677, 690–91 (5th Cir. 1999) (looking at the geographic reach of the district attorney's prosecutorial powers). Although SRA-L's powers are immense, they may be exercised only within clearly defined territorial limits. La. Stat. Ann. § 38:2321. Unlike most other entities that are entitled to Eleventh Amendment immunity, SRA-L does not have statewide jurisdiction. See Vogt , 294 F.3d at 695 (citing Earles v. State Bd. of Certified Public Accountants of La. , 139 F.3d 1033, 1038 (5th Cir. 1998) ).
While it is clear that the six parishes within SRA-L's territory are the parishes that lie within the watershed of the Sabine River, they are just that – a local concern, rather than statewide.
SRA-L's counter-argument is that the entity addresses a statewide problem because of the broad reach of the Sabine River and the hydroelectric power, water conservation, irrigation, and recreational uses that result from Toledo Bend. "However, primary education and law enforcement are also statewide concerns, yet school boards and sheriffs are not arms of the state." Vogt , 294 F.3d at 695 ; accord Minton v. St. Bernard Par. Sch. Bd. , 803 F.2d 129, 131–32 (5th Cir. 1986) ; Cozzo , 279 F.3d at 282 ; McDonald v. Bd. of Miss. Levee Commissioners , 832 F.2d 901, 908 (5th Cir. 1987) ("While flood control along the Mississippi River is undoubtedly important to the State of Mississippi, the problem of immediate and primary concern to the Levee Board is the maintenance of the levee within its district."). As such, the fourth factor cuts against SRA-L's entitlement to Eleventh Amendment immunity.
5. Authority to Sue
The fifth factor is whether the entity can sue and be sued. Under the applicable statute, SRA-L "shall have and possess the authority to sue and be sued." La. Stat. Ann. § 38:2324(B)(2). SRA-L acknowledges this statute, but insists that the fifth and sixth factors are accorded significantly less weight than the others. See e.g., Vogt , 294 F.3d at 695. While this factor may not be dispositive, it clearly weighs in favor of finding that SRA-L is not an arm of the state.
6. Right to Hold Property
The final factor looks at whether the entity can hold property. Section 2325 provides that SRA-L may "purchase, gift, devise, lease, expropriation or other mode of acquisition, to hold, pledge, encumber, lease and dispose of real and personal property..." La. Stat. Ann. § 38:2325(A)(2). SRA-L contends that § 38:2325(B) negates SRA-L's ability to hold property, because that section of the statute provides that: "all property acquired by the Authority shall be taken in its corporate name and shall be held by it as an instrumentality of the State of Louisiana..." La. Stat. Ann. § 38:2325(B). But, this argument misses the point; the relevant question is whether SRA-L has the right to hold property in its own name, and it clearly does. See Vogt , 294 F.3d at 696 (declining to side with a board that argued that all of its property ultimately belongs to the state and that the board was merely exercising a delegated power). This final factor points away from Eleventh Amendment immunity.
In sum, consideration of the six factors leads to the conclusion that SRA-L is not an arm of the State of Louisiana for purposes of Eleventh Amendment immunity. Thus, SRA-L should not be awarded Eleventh Amendment immunity.
B. Judicial Estoppel
The Plaintiffs also argue that SRA-L should be estopped from arguing that they have Eleventh Amendment immunity because it argued the opposite in a prior proceeding. Judicial estoppel "prevents a party from asserting a position in a legal proceeding that is contrary to a position previously taken in the same or some earlier proceeding." Hall v. GE Plastic Pacific PTE Ltd. , 327 F.3d 391, 396 (5th Cir. 2003) (citing Ergo Science, Inc. v. Martin , 73 F.3d 595, 598 (5th Cir. 1996) ). The purpose of the judicial estoppel doctrine is "to prevent litigants from playing fast and loose with the courts..." Id. (citing Ergo Science , 73 F.3d at 598 ) (internal quotations omitted). Judicial estoppel is an equitable doctrine "invoked by a court at its discretion" to "protect the integrity of the judicial process." Reed v. City of Arlington , 650 F.3d 571, 573 (5th Cir. 2011) (quoting New Hampshire v. Maine , 532 U.S. 742, 749–50, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001). While the Supreme Court has enumerated several factors that a court may look to when determining whether to apply judicial estoppel, the court has refused to "establish inflexible prerequisites or an exhaustive formula for determining the applicability of judicial estoppel." Reed , 650 F.3d at 574.
Although judicial estoppel is an equitable doctrine that defies "inflexible prerequisites or an exhaustive formula," the Fifth Circuit has repeatedly held that there are two elements that must be met before a party may be estopped under the judicial estoppel doctrine. Gabarick v. Lauren Mar. (Am.) Inc. , 753 F.3d 550, 553 (5th Cir. 2014) (quoting New Hampshire v. Maine , 532 U.S. 742, 743, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001) ). "First, the estopped party's position must be ‘clearly inconsistent with its previous one,’ and second, ‘that party must have convinced the court to accept that previous position.’ " New Hampshire v. Maine , 532 U.S. 742, 749–50, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001) (quoting Hall v. GE Plastic Pac. PTE Ltd. , 327 F.3d 391, 396 (5th Cir. 2003) ).
The Court need not determine whether SRA-L is estopped from claiming sovereign immunity because the Court has already found that SRA-L is not an arm of the state and as a result not entitled to Eleventh Amendment immunity. Additionally, as the Plaintiffs concede, judicial estoppel is not sufficient to waive Louisiana's Eleventh Amendment Immunity. Port Auth. Trans-Hudson Corp. v. Feeney , 495 U.S. 299, 304, 110 S.Ct. 1868, 109 L.Ed.2d 264 (1990) (listing the only three ways that sovereign immunity may be waived).
See also supra note 1 and accompanying text.
IV. CONCLUSION
IT IS THEREFORE ORDERED that SRA-L's motion to dismiss for lack of subject matter jurisdiction [Dkt. 7] is DENIED.