Opinion
3:18-cv-00300-YY
05-27-2021
WENDY NELSON-BACA, Plaintiff, v. THE STATE OF OREGON, by and through the DEPARTMENT OF HUMAN SERVICES; CLYDE SAIKI, an individual; REBECCA DANIELS, an individual; BROCK WALLACE, an individual; and, DON ERICKSON, an individual, Defendants.
FINDINGS AND RECOMMENDATIONS
Youlee Yim You, United States Magistrate Judge.
FINDINGS
Defendants have filed a Motion for Leave to File a Jurisdictional Motion (ECF 106) to dismiss based on Eleventh Amendment sovereign immunity. The deadline for filing dispositive motions elapsed on February 21, 2020. Scheduling Order, ECF 63. Despite this, defendants claim that “an Eleventh Amendment immunity defense may be raised at any time, even for the first time on appeal.” Mot. Leave 2, ECF 106.
The Eleventh Amendment provides that “[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. The Eleventh Amendment “enacts a sovereign immunity from suit, rather than a nonwaivable limit on the Federal Judiciary's subject-matter jurisdiction.” Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 267 (1997).
Defendants' argument is foreclosed by Supreme Court and Ninth Circuit precedent. The Supreme Court has “long recognized that a State's sovereign immunity is ‘a personal privilege which it may waive at pleasure.'” Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 675 (1999) (quoting Clark v. Barnard, 108 U.S., 436, 447 (1883)); see also Lapides v. Bd. of Regents of Univ. Sys. of Georgia, 535 U.S. 613, 618 (2002). “A state waives its Eleventh Amendment immunity if it ‘unequivocally evidences its intention to subject itself to the jurisdiction of the federal court.'” Johnson v. Rancho Santiago Cmty. Coll. Dist., 623 F.3d 1011, 1021 (9th Cir. 2010) (quoting Hill v. Blind Indus. & Servs. of Maryland, 179 F.3d 754, 758 (9th Cir.), opinion amended on denial of reh'g, 201 F.3d 1186 (9th Cir. 1999)) (simplified); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 (1984) (requiring state's consent be “unequivocally expressed”). “A state may waive its sovereign immunity through ‘conduct that is incompatible with an intent to preserve that immunity.'” Johnson, 623 F.3d at 1021 (quoting Hill, 179 F.3d at 758).
Eleventh Amendment immunity may be waived in additional ways not at issue here, for example, by Congress' abrogation or a state's voluntary invocation of federal jurisdiction. See Coll. Sav. Bank, 527 U.S. at 675.
The Ninth Circuit has thrice “found that state defendants engaged in conduct ‘incompatible with' an intent to preserve sovereign immunity when they raised a sovereign immunity defense only belatedly, after extensive proceedings on the merits.” Id. In Hill, the Ninth Circuit
determined that the state waived sovereign immunity when the state did not raise the defense until the opening day of trial, after it had filed two motions to dismiss and an answer that did not assert the defense, consented to have a magistrate judge try the case, conducted discovery, moved to compel discovery and for sanctions, participated in a pre-trial conference, and filed trial materials.Johnson, 623 F.3d at 1021-22 (citing Hill, 179 F.3d at 756). In re Bliemeister, 296 F.3d 858 (9th Cir. 2002), presented a similar scenario. There, the Ninth Circuit “found that the state waived immunity when it filed a limited response, an answer, and a motion for summary judgment; attended an oral hearing and argued the merits; and heard the court announce its preliminary leanings, all without raising the sovereign immunity defense.” Johnson, 623 F.3d at 1022 (citing Bliemeister, 296 F.3d at 858). In Johnson, the Ninth Circuit determined the state had waived Eleventh Amendment immunity because it “engaged in extensive proceedings in the district court without seeking dismissal on sovereign immunity grounds.” Id. Although the state raised sovereign immunity in its answer, the state “litigated the suit on the merits, participated in discovery, and filed a motion to dismiss and a summary judgment motion without pressing a sovereign immunity defense.” Id.
In circumstances like those presented in Hill, Bliemeister, and Johnson, the Ninth Circuit deems the state “to have made a tactical decision to delay asserting the sovereign immunity defense.” Id. (citing Bliemeister, 296 F.3d at 862). “Such tactical delay undermines the integrity of the judicial system, wastes judicial resources, burdens jurors and witnesses, and imposes substantial costs upon the litigants. Having chosen to defend on the merits in federal court, the [state] will be held to that choice.” Id. (quoting Hill, 179 F.3d at 756, 758) (simplified).
Here, defendants have actively litigated this case in federal court since 2018. They have filed numerous motions, including a motion to compel discovery (ECF 29), a motion for limited judgment of dismissal (ECF 44), a second motion for limited judgment of dismissal (ECF 69), a renewed motion for limited judgment of dismissal (ECF 74), and a motion for partial summary judgment (ECF 76). Despite filing these motions, defendants have not sought dismissal on Eleventh Amendment sovereign immunity grounds until now, after Findings and Recommendations were issued in April 2021. See ECF 102. The Findings and Recommendations weigh in defendants' favor. Nevertheless, at this point, “the parties and the court have invested substantial resources in the case, ” and by waiting to file their Eleventh Amendment motion until such a late date, defendants have failed to “provide[] fair warning to the plaintiff.” Hill, 179 F.3d at 758. As plaintiff explains, if defendants' motion to dismiss based on sovereign immunity is granted, it will “force Plaintiff to split her claims for adjudication in two forums, ” “force witnesses to testify twice, in two different trials regarding the same set of facts, ” “likely double the litigation costs for Plaintiff and the State of Oregon, ” and “set the stage for inconsistent jury verdicts.” Resp. 7, ECF 111. This is the type of outcome that the Ninth Circuit sought to avoid with its decisions in Hill, Bliemeister, and Johnson.
In support of their motion, defendants represent that discovery is “ongoing.” Mot. 3, ECF 106. To the contrary, discovery closed on January 21, 2020. Scheduling Order, ECF 63. Save for a couple of minor discovery disputes pertaining to plaintiff's requests for a site visit and electronic “discovery-on-discovery, ” after the court issues its final ruling on the Findings and Recommendations, the next step in this case will be to set a trial date.
Defendants' lead counsel also stated during oral argument that she did not have the authority to waive the state's immunity. That argument is foreclosed by operation of O.R.S. 180.140(1). Lead counsel is a senior assistant attorney general with actual or apparent authority to waive the state's Eleventh Amendment immunity. See Oracle Am., Inc. v. Oregon Health Ins. Exch. Corp., 145 F.Supp.3d 1018, 1036-38 (D. Or. 2015) (concluding assistant attorney general “had either actual or apparent authority to waive Oregon's Eleventh Amendment immunity as to Oracle's copyright-infringement claim”).
O.R.S. 180.140(1) states:
Finally, defendants have otherwise failed to show good cause to deviate from the scheduling order in this case. Federal Rule of Civil Procedure 16(b)(4) provides that “[a] schedule may be modified only for good cause and with the judge's consent.” Good cause “is an inquiry that focuses on the reasonable diligence of the moving party.” Noyes v. Kelly Servs., 488 F.3d 1163, 1174 n. 6 (9th Cir. 2007) (citing Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992)). “[T]he focus of the Rule 16(b) inquiry is upon the moving party's reasons for seeking modification.” Johnson, 975 F.2d at 609. “If that party was not diligent, the inquiry should end.” Id.
At oral argument, when pressed to explain why there was good cause to extend the scheduling order, defendants failed to offer any explanation other than to argue that the issue is “jurisdictional.” As the Ninth Circuit has held, however, “[t]he Eleventh Amendment does not automatically deprive the federal court of subject matter jurisdiction.” Hill, 179 F.3d at 762; see also Coll. Sav. Bank, 527 U.S. at 675. Because defendants have failed to show good cause to justify the late filing of a dispositive motion, their motion for leave to file such a motion should be denied.
RECOMMENDATION
Defendants' Motion for Leave to File a Jurisdictional Motion (ECF 106) should be DENIED.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Thursday, June 10, 2021. If no objections are filed, then the Findings and Recommendations will go under advisement on that date. Alternatively, plaintiff may file a complaint with the Oregon Employment Relations Board to seek a ruling that she was in management service when terminated and move to stay these proceedings pending the outcome of that determination.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.
The Attorney General shall appoint the other assistants the Attorney General deems necessary to transact the business of the office, each to serve at the pleasure of the Attorney General and perform such duties as the Attorney General may designate and for whose acts the Attorney General shall be responsible. Each assistant shall have full authority under the direction of the Attorney General to perform any duty required by law to be performed by the Attorney General.