Opinion
Civil Action No: 99-3051 Section: "R"(5)
May 1, 2000
ORDER AND REASONS
Before the Court is the motion of defendant, the State of Louisiana through the Department of Transportation and Development ("DOTD"), to dismiss plaintiff's claims against it pursuant to Federal Rule of Civil Procedure 12(b)(6), on the grounds that is immune from suit in federal court under the Eleventh Amendment. Also before the Court is plaintiff's motion to remand this case to state court, pursuant to 28 U.S.C. § 1447(e), on the grounds that her addition of the DOTD destroyed this Court's subject matter jurisdiction over the case. For the following reasons, the Court denies defendant's 12(b)(6) motion and grants plaintiff's motion to remand.
I. Background
On February 5, 1999, plaintiff, a Louisiana resident, was allegedly injured when, returning from a Mardi Gras parade, she tripped and fell into a ditch located on Judge Perez Drive in St. Bernard Parish, Louisiana. The ditch was located adjacent to a refinery plant owned by defendant Murphy Oil Company, a Delaware corporation. On September 9, 1999, plaintiff sued Murphy in the Thirty-Fourth Judicial District for the Parish of St. Bernard, alleging that Murphy negligently failed to monitor the water runoff from its refinery, which allegedly eroded the land and created the ditch. She claims that she injured her leg, back, head and neck, and seeks damages for pain and suffering, mental anguish, as well as past and future medical expenses. Murphy removed the case to this Court on October 6, 1999, on the basis of diversity of citizenship.
On January 20, 2000, plaintiff filed an amended complaint, adding as a defendant the State of Louisiana, through the DOTD. She alleges that the DOTD is jointly and severally liable (with Murphy) for her injuries; and alternatively that the ditch was under the care, custody and control of the DOTD, and that it negligently caused her injuries by, inter alia, failing to maintain the land and failing to warn of the ditch.
The DOTD now seeks to dismiss plaintiff's claims against it for failure to state a claim upon which relief can be granted, under Rule 12(b)(6). Although plaintiff concedes that the DOTD is immune from suit in this Court under the Eleventh Amendment, she opposes this motion and asserts that the appropriate remedy is for this Court to remand the entire case to state court for lack of subject matter jurisdiction, pursuant to 28 U.S.C. § 1447(e)
II. Discussion
A. Eleventh Amendment
Defendant asserts that plaintiff's claims against it are barred by the Eleventh Amendment, which precludes actions brought against a state in federal court by its own citizens or citizens of another state, absent consent, waiver or abrogation of the state's sovereign immunity. See U.S. CONST. amend. XI; Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 1355 (1974); Hans v. Louisiana, 134 U.S. 1, 13-16, 10 S.Ct. 504, 506-07 (1890) Because a state agency such as the Louisiana DOTD is in essence the alter ego of the State of Louisiana, it is also immune from suit in this Court. See Tillman v. CSX Transp., Inc., 929 F.2d 1023, 1025 n. 1 (5th Cir. 1991), citing Fireman's Fund Ins. Co. v. DOTD, 792 F.2d 1373 (5th Cir. 1986). Plaintiff does not dispute this. Therefore, the only remaining inquiry is whether the State's presence mandates dismissal of plaintiff's claims against it or remand of the entire case.
Defendant argues that this Court must dismiss plaintiff's claim against it with prejudice under Rule 12(b)(6). Plaintiff contends that the proper remedy is to remand the entire case to state court under 28 U.S.C. 1447(e). After reviewing the parties' memoranda and the relevant case law, this Court finds that remand is the appropriate remedy.
B. 12(b)(6) vs. Remand
Although the United States Supreme Court has yet to rule on this issue, the Fifth Circuit has repeatedly referred to Eleventh Amendment immunity as a matter of subject matter jurisdiction. See United States v. Texas Tech University, 171 F.3d 279, 286 n. 9 (5th Cir. 1999), citing Warnock v. Pecos County, Tex., 88 F.3d 341, 343 (5th Cir. 1996); but see Wisconsin Dept. of Corrections v. Schacht, 524 U.S. 381, 391, 118 S.Ct. 2047, 2054 (1998) (noting that Supreme Court has not resolved this question). Thus, although defendant is correct that this Court has no subject matter jurisdiction over plaintiff's claims against it, this Court's jurisdiction is defective for another reason. When plaintiff, a Louisiana resident, amended her complaint to add claims against the State of Louisiana, she destroyed the requisite complete diversity. See Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806). This occurred even before defendant asserted Eleventh Amendment immunity in its 12(b)(6) motion.
The Court notes that, even if the parties had remained diverse, in this circuit, claims barred by sovereign immunity are properly dismissedwithout prejudice for want of subject matter jurisdiction under Rule 12(b)(1), rather than with prejudice for failure to state a claim under Rule 12(b)(6). See Warnock, 88 F.3d at 343.
Defendant does not allege that plaintiff fraudulently joined it, and the Court finds no evidence of improper motive. Title 28 U.S.C. § 1447(e), which governs the addition of nondiverse parties, provides: "If after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder an remand the action to the State court." 28 U.S.C. § 1447(e). Because the Court permitted plaintiff to join as co-defendant the State of Louisiana, the proper course of action is to remand this case in its entirety to the state court in which it was filed.
III. Conclusion
For the reasons stated above, defendant's motion to dismiss is denied, and plaintiff's motion to remand is granted. Accordingly, this case is hereby remanded to the Thirty-Fourth Judicial District for the Parish of St. Bernard, State of Louisiana, pursuant to 28 U.S.C. § 1447(e).