United States District Court, E.D. Louisiana
E. FALLON UNITED STATES DISTRICT JUDGE
the Court is the Board of Supervisors for the Louisiana
University System through Nicholls State University at
Thibodaux's Motion to Dismiss Cross-Claims of Huntington
Ingalls Incorporated and the Jefferson Parish School Board.
R. Doc. 251. Huntington Ingalls Incorporated has dismissed
its cross-claims against the Board of Supervisors for the
Louisiana University System through Nicholls State University
at Thibodaux, R. Doc. 261, and the motion has not been
opposed by the Jefferson Parish School Board by the mandated
filing deadline. Accordingly, the Court now rules as follows.
Carey Gomez filed this suit on March 7, 2018, alleging severe
asbestos exposure from a number of sources throughout his
life. R. Doc. 1-2. Plaintiff claims he was exposed to
asbestos first as a consequence of his father's
employment at Avondale Shipyards in the 1960s, and later as a
result of Plaintiff's work as a plumber for Aardvark
Contractors, Inc. (“Aardvark”) from 1988-2011. As
a result of his repeated exposure to asbestos, Plaintiff was
allegedly diagnosed with malignant pleural mesothelioma. In
his original Petition for Damages, Plaintiff included
Defendants Huntington Ingalls Incorporated
(“Avondale”), Jefferson Parish School Board
(“JPSB), and the Board of Supervisors for the Louisiana
University System through Nicholls State University at
Thibodaux (“Nicholls State”). R. Doc. 1-2.
Plaintiff's claims against Nicholls State were
subsequently dismissed. R. Doc. 159.
in response to Plaintiff's Petition, Avondale filed an
Answer, Affirmative Defenses, Cross-Claims, Third-Party
Demands, and Request for Jury Trial (“Avondale's
Cross-Claim”), naming all of the original defendants as
cross-claim defendants, including Nicholls State. R. Doc.
17-1. Thereafter, on June 1, 2018, JPSB filed its Answer,
Affirmative Defenses, Cross-Claims and Request for Trial by
Jury naming all of the defendants as cross-claim defendants,
including Nicholls State. R. Doc. 62. On November 26, 2019,
Nicholls State filed this Motion to Dismiss Cross-Claims with
respect to Avondale and JPSB's cross-claims against it.
R. Doc. 251. On December 10, 2019, Avondale filed an Ex-Parte
Motion to Dismiss its Cross-Claims against Nicholls State, R.
Doc. 256, which the Court granted. R. Doc. 261.
State filed a Motion to Dismiss Avondale and JPSB's
Cross-Claims. R. Doc. 251. Because Avondale has since
dismissed its cross-claims against Nicholls State, R. Doc.
256, this Motion is only applicable to JPSB. Nicholls State
argues it is entitled to a dismissal of these cross-claims
because it is protected by the Eleventh Amendment to the
United States Constitution, which bars suits against
individual states in federal court unless the state has
waived its immunity. R. Doc. 251 at 1. The State of Louisiana
has declined to waive this immunity, so the cross-claim
against Nicholls State by JPSB should be dismissed. R. Doc.
251 at 1.
has not filed an opposition to this Motion.
LAW AND ANALYSIS
case is properly dismissed for lack of subject matter
jurisdiction when the court lacks the statutory or
constitutional power to adjudicate the case.” Home
Builders Ass'n of Miss., Inc. v. City of Madison,
143 F.3d 1006, 1010 (5th Cir. 1998) (quoting Nowak v.
Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d
Cir. 1996)). “The Eleventh Amendment bars a state's
citizens from filing suit against the state or its agencies
in federal courts.” Cozzo v. Tangipahoa Par.
Council-President Gov't, 279 F.3d 273, 280 (5th Cir.
2002) (citing Williams v. Dallas Area Rapid Transit,
242 F.3d 315, 318 (5th Cir. 2001)). So, “[a]bsent a
waiver or consent by the state or an express negation of
immunity by act of Congress, the [E]leventh [A]mendment
prohibits a federal court from awarding either legal or
equitable relief against the state.” Neuwirth v.
Louisiana State Bd. of Dentistry, 845 F.2d 553, 555 (5th
Cir. 1988) (citing Papasan v. Allain, 478 U.S. 265,
statute, Louisiana has refused any such waiver of its
Eleventh Amendment sovereign immunity regarding suits in
federal courts.” Cozzo, 279 F.3d at 281.
Therefore, “[n]o suit against the state or a state
agency or political subdivision shall be instituted in any
court other than a Louisiana state court.” La. Rev.
Stat. § 13:5106(A)). Suits against the State of
Louisiana, a state agency, or a political subdivision must be
brought pursuant to the Louisiana Governmental Claims Act
(“the Act”). See La. Rev. Stat. §
13:5101 et seq. Under the Act, a “state
agency” includes departments of a state agency and
“suit” means civil actions instituted by either
principal or incidental demand. La. Rev. Stat. §
case, in support of its argument that it is entitled to
immunity under the Eleventh Amendment, Nicholls State points
to the fact that this Court has previously ruled,
“Nicholls State is an arm of the state.” R. Doc.
251-1 at 3 (citing R. Doc. 159). Moreover, the Fifth Circuit
has previously affirmed the dismissal of claims against
Nicholls State as barred by the Eleventh Amendment. R. Doc.
251-1 at 3 (citing Kooros v. Nicholls State Univ.,
379 Fed.Appx. 377, 379 (5th Cir. 2010) (“This court has
previously recognized that the Board of Trustees is an arm of
the State of Louisiana and thus entitled to Eleventh
Amendment immunity from suit. The claims against Nicholls
State are thus subject to dismissal under Eleventh Amendment
immunity.”)). Nicholls State thus contends that the
remaining cross-claim of JPSB against Nicholls State should
be properly dismissed because it is entitled to immunity
under the Eleventh Amendment. R. Doc. 25-1 at 4.
Court agrees with Nicholls State that as an “arm of the
state, ” it is entitled to immunity under the Eleventh
Amendment, which the State of Louisiana has not waived in
this matter. JPSB has not filed an opposition to this Motion