Opinion
No. CIV 01-0774 PK/JHG-ACE
September 7, 2001
ORDER
THIS MATTER comes on for consideration of Plaintiffs Motion to Remand filed August 13, 2001 (Doc. 12). Upon consideration whereof, (1) Plaintiff asserts several New Mexico Tort Claims Act claims against the Defendant Board of Regents of the University of New Mexico (Regents). Doc. 1, Ex. A. Counts 5, 6, 7 (second amended complaint). The federal claims providing the basis for federal jurisdiction are asserted against other Defendants. Id. Counts 8, 9 10. Plaintiff is concerned that Defendant Regents, having participated in removal of the case, will assert Eleventh Amendment immunity after the proceedings have advanced. Doc. 12 at 3. But see Neinast v. Texas, 217 F.3d 275, 279 (5th Cir. 2000) ([T]he state cannot simultaneously proceed past the motion and answer stage to the merits and hold back an immunity defense.), cert. denied, 121 S.Ct. 1188 ( 2001 ).
Plaintiff urges the court to remand the entire case, or just the state-law claims against the Regents, or give the Regents a short time in which to declare intentions concerning waiver of Eleventh Amendment immunity. Doc. 23 at 4.
Plaintiff also seeks attorneys fees. Doc. 12 at 3. (2) The New Mexico Tort Claims Act provides for exclusive original jurisdiction for claims under it in state district courts and expressly does not waive Eleventh Amendment immunity. N.M. Stat. Ann. §§ 41-4-18(A); 41-4-4(F) (Michie 1996); Bishop v. John Doe 1, 902 F.2d 809, 810 (10th Cir. 1990). The potential for an Eleventh Amendment immunity defense does not bar removal of the case. See Wisconsin Dept of Corr. v. Schacht, 524 U.S. 381, 392, 93 (1998). At the same time, the Tenth Circuit has adopted Justice Kennedys concurring opinion in Schacht, and twice held that a removing State Defendant waives Eleventh Amendment immunity. McLaughlin v. Board of Trustees of State Colleges of Co., 215 F.3d 1168, 1172 (10th Cir. 2000); Sutton v. Utah State Sch. for the Deaf and Blind, 173 F.3d 1226, 1233-34 (10th Cir. 1999). While the court understands the Plaintiffs position, see Cisneros v. Wilson, 226 F.3d 1113, 1136-37 (10th Cir. 2000) (Kelly, J., concurring in part and dissenting in part), majority holding overruled on other grounds, Board of Trustees of the Univ. of Ala. v. Garrett, 121 S.Ct. 955 ( 2001 ), none of the relief requested in the motion by the Plaintiff is well supported by the admittedly developing law. NOW, THEREFORE, IT IS ORDERED, ADJUDGED, AND DECREED that Plaintiffs Motion to Remand filed August 13, 2001 (Doc. 12), is denied.
DATED this 7th day of September 2001 , at Santa Fe, New Mexico.