Opinion
Case No. 4:01cv 13
April 20, 2001
ORDER OF REMAND
In accordance with the memorandum opinion issued this date:
IT IS ORDERED that the captioned case be and hereby is REMANDED to the Court of Claims for the State of Michigan.
IT IS FURTHER ORDERED that plaintiff's request for imposition of attorney's fees and costs as sanctions be and hereby is DENIED.
MEMORANDUM OPINION
This is an employment action brought by a former employee of Western Michigan University. Plaintiff initiated the action in the Michigan Court of Claims, naming the University as the sole defendant. Counts I and III of the complaint allege state-law claims arising under contract and tort theories. Count II alleges that the university abridged plaintiff's right to substantive and procedural due process under both the federal and state constitutions. Count II seeks both monetary and injunctive relief.
By notice of removal filed February 1, 2001, defendant removed the action to this court, alleging that some of plaintiff's claims arise under the Constitution and laws of the United States and therefore fall within the district court's original jurisdiction. 28 U.S.C. § 1331. Defendant invoked the court's supplemental jurisdiction, 28 U.S.C. § 1367, with regard to plaintiff's state-law claims. The matter came before the court for a Rule 16 scheduling conference on March 19, 2001. The magistrate judge conducting the conference raised the possible application of Eleventh Amendment immunity. The magistrate judge allowed the parties an opportunity to file briefs addressing the issue. Plaintiff's brief (docket # 10) expresses plaintiff's willingness to litigate this matter in either the state Court of Claims or this court. The brief goes on, however, to assert that the State of Michigan has waived any Eleventh Amendment immunity that might otherwise protect Western Michigan University. Defendant's brief (docket # 11) asserts that the Eleventh Amendment bars this court from entertaining plaintiff's action. Because plaintiff has contested the applicability of the Eleventh Amendment, the court is required to resolve the issue. For the reasons set forth below, the court determines that the Eleventh Amendment applies to this action. The case will therefore be remanded to the Michigan Court of Claims.
Discussion
A state's Eleventh Amendment immunity from suit in the federal courts is in the nature of a jurisdictional defense. See Edelman v. Jordan, 415 U.S. 651, 678 (1974). The court therefore must consider whether the Eleventh Amendment bars this action before proceeding further. See Estate of Ritter v. University of Mich., 851 F.2d 846, 851 (6th Cir. 1988) ( Eleventh Amendment may be raised on court's own motion); see also Howard v. Commonwealth of Virginia, No. 00-3709, 2001 WL 278535, at * 2 (6th Cir. Mar. 15, 2001) ("court had authority to dismiss the case with or without a motion by defendant, because federal courts may consider the issue of Eleventh Amendment immunity sua sponte").
The Eleventh Amendment provides that:
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 of Subjects of any Foreign State.
U.S. CONST. amend. XI. Although the amendment by its terms prohibits only suits against a state by citizens of another state or by aliens, the Supreme Court has held that the amendment's fundamental principles of sovereign immunity negate federal exercise of jurisdiction over suits by citizens against their own states as well. Board of Trustees of Univ. of Ala. v. Garrett, 121 S.Ct. 955, 962 (2001); Hans v. Louisiana, 134 U.S. 1 (1890); see Pennhurst State School Hospital v. Halderman, 465 U.S. 89, 98 (1984); Mumford v. Basinski, 105 F.3d 264, 267 n. 3 (6th Cir. 1997). The Eleventh Amendment bars any suit, absent consent, against the state regardless of the form of relief requested. Pennhurst, 465 U.S. at 100-01.
The Sixth Circuit Court of Appeals has frequently faced the question whether a public university is an arm of the state and thus entitled to Eleventh Amendment immunity. See, e.g., Sims v. University of Cincinnati, 219 F.3d 559, 560 (6th Cir. 2000); Hutsell v. Sayre, 5 F.3d 996 (6th Cir. 1993) (University of Kentucky); Estate of Ritter v. University of Mich., 851 F.2d 846 (6th Cir. 1988); see also Maisel v. Ohio State Univ., No. 99-3403, 2001 WL 223863, at * (6th Cir. Feb. 28, 2001); Weisbord v. Michigan State Univ., 495 F. Supp. 1347, 1355 (W.D.Mich. 1980). Whether a particular university is a state instrumentality for Eleventh Amendment purposes must be determined by considering the particular characteristics of the university. See Regents of Univ. of Calif v. Doe, 519 U.S. 425, 429-30 (1997); Ritter, 851 F.2d at 849. Relevant factors include whether the institution was created by statute or the state constitution, to what extent the institution is supported by state funds, and whether payment of a judgment would be out of state funds. Clearly, the most important factor among these is whether a money judgment would be paid out of the state treasury. Regents of Univ. of Calif., 519 U.S. at 430; Ritter, 851 F.2d at 849 (citing Ford Motor Co. v. Dep't of Treasury of Ind., 323 U.S. 459, 464 (1985)).
In general, the statutes governing state colleges and universities are found in Chapter 390 of Michigan Compiled Laws. Having been established at different times during the history of the state, each college and university is governed by separate provisions of Chapter 390. Basic to virtually every state college and university is a section conferring powers and duties upon a controlling board (whether called a board of trustees, board of regents, or board of governors). In each, the legislature has included among the powers of the controlling board the right to "sue and be sued." See, e.g., MICH. COMP. LAWS § 390.4 (University of Michigan Board of Regents); MICH. COMP. LAWS § 390.641 (Wayne State University Board of Governors). Defendant Western Michigan University is one of four regional universities governed by Mich. Comp. Laws § 390.551. Such regional universities are governed by a board of control which, by statute, is granted the power to "sue and be sued, plead and be impleaded in all the courts of this state." MICH. COMP. LAWS § 390.555.
On the critical issue concerning the source of funds for payment of any judgment, Michigan statutory law does not differentiate among state colleges and universities. Pursuant to Mich. Comp. Laws § 600.6095, when a judgment is obtained against any corporate body "now or hereafter having charge or control of any state institution, the amount shall be included and collected in the state tax and paid to the person entitled thereto." Consequently, a judgment in this case in federal court against the Board of Control of Western Michigan University would be paid out of the state treasury.
In applying these concepts to Eleventh Amendment immunity, the most important decision for this court is Estate of Ritter v. University of Michigan, 851 F.2d 846 (6th Cir. 1988). In that case, the Court of Appeals decided that the Board of Regents of the University of Michigan was protected by Eleventh Amendment immunity from suit in the federal courts. The Sixth Circuit relied most heavily on the provisions of Michigan statutory law, including Mich. Comp. Laws § 600.6095, that require a judgment to be paid from the state treasury. 851 F.2d at 849. The present case is not distinguishable from Ritter, as Western Michigan University is governed by virtually identical statutes with regard to its structure and organization. More to the point, the same state statutes governing payment of judgments against the University of Michigan Board of Regents govern judgments against the other state universities, including Western Michigan University. On the same analysis, the federal courts have recognized the Eleventh Amendment immunity of Michigan State University, see Weisbord v. Michigan State Univ., 495 F. Supp. 1347 (W.D.Mich. 1980), and Michigan Technological University, see An-ti Chai v. Michigan Technological Univ., 493 F. Supp. 1137 (W.D.Mich. 1980). And, although the holding appears only in an unpublished decision, the Sixth Circuit Court of Appeals has recently applied the bar of the Eleventh Amendment in favor of Western Michigan University itself. Pomeroy v. Western Michigan Univ., No. 97-1751, 2001 WL 223868 (6th Cir. Feb. 28, 2001).
Despite this imposing body of authority, plaintiff asserts that the Michigan Legislature has waived immunity under the Eleventh Amendment by passage of Mich. Comp. Laws § 390.555. That statute provides that boards of control of the regional universities, including Western Michigan University, "may sue and be sued, plead and be impleaded in all courts in this state." Plaintiff's argument does not pass scrutiny, for three reasons. First, the statutory language, on its face, does not purport to consent to suit in the federal courts. The Supreme Court has held that when a public instrumentality is created with the right to "sue and be sued," the ensuing waiver of immunity is restricted to proceedings in the state, and not the federal courts, in the absence of clear language to the contrary. See Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275, 277 (1959). Second, the courts of the State of Michigan have not read this statute to create a grant of jurisdiction beyond the state Court of Claims. In Paquin v. Northern Michigan University, 262 N.W.2d 672 (Mich.Ct.App. 1978), plaintiff brought suit against Northern Michigan University (another regional university) in the state circuit court, relying upon the language in section 390.555 purporting to allow suit "in all the courts in this state." The Michigan Court of Appeals held that suit was only proper in the Court of Claims, which has exclusive subject-matter jurisdiction over a money damage claim against instrumentalities of this state. The court rejected a reading of the statute in a way that would confer jurisdiction in any court beyond the Court of Claims: "The clear thrust of the statue is to confer power on the boards to sue and be sued and not to confer power or jurisdiction on the courts of this state." 262 N.W.2d at 674. Finally, the language of section 390.555 is indistinguishable from that governing suits against the Regents of the University of Michigan, which the Sixth Circuit has authoritatively held to be immune from suit under the Eleventh Amendment.
Plaintiff's reliance on Soni v. Board of Trustees of the University of Tennessee, 513 F.2d 347 (6th Cir. 1975), is also misplaced. In Soni, the Sixth Circuit relied upon unique historical circumstances surrounding the creation of the University of Tennessee to hold that the legislature had waived Eleventh Amendment immunity. The court relied on, among other things, a provision in Tennessee law that the university could be sued "in any court of law or equity." Unlike the statutory provision in Soni, the Michigan statute governing suits against Western Michigan University is not unqualified, but is limited to "all courts in this state." Soni is not controlling.
For the foregoing reasons, the court concludes that defendant is entitled to Eleventh Amendment immunity against suit on any claim raised by plaintiff. This matter will therefore be remanded to the Michigan Court of Claims, the only court with subject-matter jurisdiction to entertain plaintiff's claims. The court will deny plaintiff's request for the imposition of attorney's fees, which plaintiff has supported with neither an affidavit nor citation to relevant authority. Assessment of fees and costs for improper removal is discretionary under 28 U.S.C. § 1447 (c). See Stallworth v. Greater Cleveland Reg'l Transit Auth., 105 F.3d 252, 258 (6th Cir. 1997). Where, as here, a plaintiff takes an active role in attempting to persuade the court to retain jurisdiction over an improperly removed case, imposition of fees and costs is not equitable. See Avitts v. Amoco Prod. Co., 111 F.3d 30, 32-33 (5th Cir. 1997); Mermelstein v. Maki, 830 F. Supp. 184, 186-87 (S.D.N.Y. 1993).
Conclusion
This matter will be remanded to the Michigan Court of Claims, and plaintiff's request for sanctions will be denied.