United States District Court, E.D. Louisiana
ORDER & REASONS
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. R. Doc. 258. The motion
has not been opposed by Plaintiff 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 sued, among
others, 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 without prejudice for insufficient
service of process. R. Doc. 159. Subsequently, Plaintiff
filed a First Supplemental and Amended Complaint, R. Doc.
212, which was properly served on Nicholls State, R. Doc.
in response to Plaintiff's Petition, Avondale and JPSB
filed Answers, Affirmative Defenses, and Cross-Claims in
which they named all of the other defendants as cross-claim
defendants, including Nicholls State. R. Docs. 17-1, 62. On
November 26, 2019, Nicholls State filed a 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. Subsequently, on December 13, 2019, after having
received no opposition from JPSB, the Court granted Nicholls
State's Motion to Dismiss Cross-Claims on the grounds
that Nicholls State is an “arm of the state, ”
and so “it is entitled to immunity under the Eleventh
Amendment, which the State of Louisiana has not waived in
this matter.” R. Doc. 263 at 4.
State now files this Motion to Dismiss Plaintiff's claims
against it. R. Doc. 258. Similar to its reasoning in the
previous Motion to Dismiss Cross-Claims, R. Doc. 251,
Nicholls State argues it is entitled to a dismissal of
Plaintiff's 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. 258 at 1. The
State of Louisiana has declined to waive this immunity, so
Plaintiff's claims against Nicholls State should be
dismissed. R. Doc. 258 at 1.
has not timely 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.
258-1 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.
258-1 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
Plaintiffs claims against Nicholls State should be properly
dismissed because it is entitled to immunity under the
Eleventh Amendment. R. Doc. 258-1 at 3.
Court concludes that Nicholls State is an “arm of the
state, ” and is therefore entitled to immunity under
the Eleventh Amendment, which the State of Louisiana has not
waived in this matter. Plaintiff has not filed an opposition
to this Motion explaining why Nicholls State would not be
entitled to this immunity.