Faghri v. University of CT et al

Filing 116

ORDER denying 92 Plaintiff's Motion to Amend the Complaint; denying 93 Plaintiff's Motion for Preliminary Injunction. See the attached Memorandum of Decision. Signed by Judge Vanessa L. Bryant on 6/3/10. (Engel, J.)

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UNITED STATES DISTRICT COURT D IS T R IC T OF CONNECTICUT AM IR FAGHRI, Plaintiff, v. U N IV E R S IT Y OF CONNECTICUT, P R E S ID E N T PHILIP AUSTIN IN HIS IN D IV ID U AL CAPACITY, AND PROVOST PETER NICHOLLS IN HIS INDIVIDUAL C AP AC I T Y , D e fe n d a n ts . : : : : : : : : : : : : C IV IL ACTION NO. 3 : 0 6 -c v -0 1 9 5 7 (VLB) J u n e 3, 2010 M E M O R AN D U M OF DECISION DENYING PLAINTIFF'S MOTION TO AMEND THE C O M P L AIN T [Doc. #92] AND MOTION FOR PRELIMINARY INJUNCTION [Doc. #93] T h is matter is before the Court on a motion filed by the Plaintiff, Dr. Amir Faghri, a g a in s t the Defendant, the University of Connecticut (hereinafter "UConn"), to amend h is complaint. Through his proposed amendment, the Plaintiff seeks to allege that U C o n n notified him that he was being removed from his position as United T e c h n o lo g ie s Corporation Chair in Thermal Fluids Engineering (hereinafter the "UTC C h a ir" ) on February 8, 2010 in retaliation for his filing a lawsuit on November 16, 2006, in deprivation of his right to free speech made actionable by Connecticut General S ta tu te s 31-51q. In conjunction with his motion to amend, the Plaintiff has also m o v e d for preliminary injunctive relief to bar UConn from removing him from the UTC C h a ir position. I. BACKGROUND At all times relevant to this case, the Plaintiff was and remains a tenured 1 professor in the Mechanical Engineering Department of UConn. Faghri Aff., Doc. #93-2, 2. He served as Dean of UConn's School of Engineering between 1998 and June 2, 2 0 0 6 , when the operative complaint alleges he was removed from that position. In July 2 0 0 4 , while he was still serving as Dean, the Plaintiff was appointed to the UTC Chair p o s itio n . The Plaintiff claims that he was removed from his position as Dean without d u e process in retaliation for having spoken on various issues of public concern. Id. 3. On November 16, 2006, the Plaintiff filed suit against UConn, Provost Peter N ic h o lls and President Phillip Austin in order to seek a remedy for his discharge from th e position of Dean of the School of Engineering. The case was removed to this Court o n December 5, 2006. On January 8, 2007, the Court approved the parties' Fed. R. Civ. P. 26(f) report a n d thereby set a deadline for amending the pleadings of January 16, 2007. Thereafter, th e Plaintiff moved to amend his complaint on January 16, 2007, and again on June 24, 2 0 0 9 . Both motions were granted by the Court. Discovery closed in this matter on July 7 , 2008. After the close of discovery, the Defendants filed a motion for summary ju d g m e n t, which the Court denied by Memorandum of Decision dated March 30, 2009 [D o c . #57]. The individual Defendants filed an interlocutory appeal to the Second C irc u it, which was argued on December 8, 2009. A decision from the Second Circuit is imminent. The Plaintiff contends that, after he filed this lawsuit, UConn subjected him to a p a tte rn of retaliatory actions, including making unfounded accusations, sending threatening letters and emails to him, ignoring his legitimate written requests, giving h im minimal or no merit raises despite distinguished academic achievements, and 2 ignoring his requests for course assignments, office space and appointments to faculty c o m m itte e s . Id. 11. Specifically, he claims that Mun Choi, Dean of the School of E n g in e e rin g , and Baki Cetegen, the Head of the Mechanical Engineering Department, to o k actions which have discouraged him from attending faculty meetings and taking a role in the School and Department, and that they have periodically falsely accused h im of being "uncollegial." Id. The Plaintiff claims that, on or about August 10, 2009, shortly before the his UTC C h a ir review, Dean Choi announced "updated review criteria." Id. 12. The Plaintiff c la im s that these new criteria only applied to him, acknowledging that his was the only c h a ir professorship under review at the time. Dean Choi's new criteria included p rom o tin g "c o lleg ia lity" and meeting "the objectives of the endowment granting entity." Id. These criteria were not in place at the time that the Plaintiff was appointed to the U T C Chair more than six years earlier and before Choi became Dean. The Plaintiff c o n te n d s that the new criteria were intended to justify a negative review of his p e rfo rm a n c e , because otherwise a negative review would be unwarranted given what h e characterizes as his "impeccable academic credentials." In addition to the new c rite ria , Dean Choi also instituted a review process which the Plaintiff claims to be u n p re c e d e n t e d and designed to exclude unbiased knowledgeable opinions from e x p e rts in the relevant field (heat transfer) who were best able to evaluate the Plaintiff's a c a d e m ic credentials. Id. 13. In particular, the Plaintiff alleges that letters of reference w e re requested primarily from UConn professors who worked outside of the Plaintiff's a re a of expertise, contrary to customary practice. Id. F o llo w in g the review process, UConn generated a report dated December 2009 3 which criticized the Plaintiff in the areas of collegiality and leadership and meeting th e objectives of United Technologies. Id. 14. UConn offered to reappoint the Plaintiff o n a trial basis for one year with conditions which he believed violated federal tax law a n d were inappropriate. The Plaintiff communicated his beliefs to Dean Choi, who c o n s tru e d his response as a rejection and, on February 8, 2010, announced that UConn w o u ld begin efforts to appoint a new UTC Chair. Id. Choi's letter was copied to d e fe n d a n t Nicholls. Id. On March 11, 2010, the Plaintiff filed a motion for leave to a m e n d his complaint to assert facts concerning UConn's alleged retaliation against him fo r filing this lawsuit by removing him from the UTC Chair position. UConn objects to th e Plaintiff's motion to amend for the reasons stated below. On the same date, the P la in tiff also filed a motion for preliminary injunction, seeking to bar UConn from re m o v in g him from the UTC Chair position. II. LEGAL STANDARD P u rs u a n t to Federal Rule of Civil Procedure 15(a), leave to amend a complaint a fte r a responsive pleading has been filed should be "freely" given "when justice so re q u ire s ." Fed. R. Civ. P. 15(a). Courts should grant applications to amend unless th e re is good reason to deny the motion such as "futility, bad faith, undue delay, or u n d u e prejudice to the opposing party." Min Jin v. Metro Life Ins. Co.,310 F.3d 184, 101 (2 d Cir. 2002). A separate standard, however, applies for modifications to a scheduling o rd e r under Federal Rule of Civil Procedure 16. That rule provides that such a schedule " m a y be modified only for good cause and with the judge's consent." Fed. R. Civ. P. 1 6 (b ). 4 The more onerous "good cause" standard applies where a scheduling order sets a deadline for amending a complaint. See Parker v. Columbia Pictures Indus., 204 F.3d 3 2 6 , 339-40 (2d Cir. 2000); Grochowski v. Phoenix Constr., 318 F.3d 80, 86 (2d Cir. 2003); L in c o ln v. Potter, 418 F. Supp. 2d 8 443, 453 (S.D.N.Y. 2006) ("When a party moves to a m e n d the pleadings after the deadline to do so in the court's scheduling order has p a s s e d , he must satisfy the good cause requirement of Fed. R. Civ. P. 16(b) . . ."). "`Good cause' requires a greater showing than `excusable neglect.' At a minimum, g o o d cause requires a showing by the moving party of an objectively sufficient reason fo r extending a deadline such that the deadlines cannot reasonably be met despite the d ilig e n c e of the party needing the extension. The inquiry focuses on the moving party's re a s o n for requesting the extension." Pyke v. Cuomo, No. 92CV554(NPM/DRH), 2004 W L 1083244, at *2 (N.D.N.Y. May 12, 2004) (internal citations omitted). The Second C irc u it has emphasized that "the primary consideration" in determining whether good c a u s e has been shown "is whether the moving party can demonstrate diligence." Kassner v. 2nd Avenue Delicatessen Inc., 496 F.3d 229, 244 (2d Cir. 2007). III. DISCUSSION U C o n n objects to the Plaintiff's motion to amend on two grounds. First, UConn a rg u e s that the "good cause" standard under Fed. R. Civ. P. 16(b) should apply here b e c a u s e the deadline for filing amended pleadings in this case has long expired. Under th is standard, UConn claims, denial of leave to amend is justified given the very late s ta g e of the case. Discovery closed on July 7, 2008, the Court has ruled on UConn's s u m m a ry judgment motion, and the Second Circuit heard an interlocutory appeal on 5 that motion on December 8, 2009 and a ruling is imminent. UConn also argues that the p a rtie s have completed discovery and are ready for trial, but that they would have to m o v e to reopen discovery as only limited discovery has been conducted on the P la in tiff's new claim for the limited purpose of defending against his motion for a p re lim in a ry injunction. UConn further argues that permitting the Plaintiff to amend his c o m p la in t for what would be the fifth time would require further dispositive pleading p ra c tic e at such a late time in the litigation process that it will significantly burden and p re ju d ic e UConn. U C o n n cites three cases in support of its position. First it cites McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007). In McCarthy, the defendants filed fo r summary judgment nearly two years after filing of original complaint and after the c lo s e of discovery. The Court held that the inordinate delay justified the district court's d e n ia l of the plaintiff's motion for leave to amend. Next, UConn cites Ruotolo v. City of N e w York, 514 F.3d 184, 191 (2d Cir. 2008), where the Second Circuit noted that the b u rd e n and prejudice to the defendant is a significant factor justifying denial of leave t o amend. In Bradick v Israel, 377 F.2d 262, 263 (2d Cir. 1967), the Second Circuit a ffirm e d the district court's denial of a motion to amend where "substantial delay would re s u lt as the amendment consisted of novel theories of law with new problems of p r o o f." The Second Circuit has also upheld a denial of leave to amend in Daniel v. Am e ric a n Board of Emergency Med., 428 F.3d 408, 442 (2d Cir. 2005) to substitute an " u n te s te d theory of antitrust injury for one that was deficient as a matter of law." Likewise, in Barrows v. Forest Labs, Inc., 742 F.2d 54, 58-59 (2d Cir. 1984), the Second 6 Circuit upheld the district court's denial of leave to amend a complaint to effect "a ra d ic a l shift" in the theory of recovery. Finally, in Min Jin v. Metro Life Ins., 310 F.3d 8 4 , 101 (2d Cir. 2002), the Second Circuit upheld the district court's denial of a motion to amend the complaint filed after summary judgment and years after the original c o m p la in t. U C o n n alternatively argues that, even were the Court to consider the Plaintiff's m o tio n under the more lenient Fed. R. Civ. P. 15 analysis, it should conclude that the p re ju d ic e to the Defendants bars the proposed amendment. See, e.g., Krumme v. W e s tP o in t Stevens Inc., 143 F.3d 71, 88 (2d Cir. 1998); Messier v. Southbury Training S c h ., No. 3:94-CV-1706 (EBB), 1999 WL 20907, at *4 (D. Conn. Jan. 5, 1999) ("The classic s it u a tio n where courts deny leave to amend arises when a party files a Rule 15(a) m o tio n after discovery has been completed or the nonmoving party has filed for s u m m a ry judgment."). UConn also argues that leave to amend should be denied on the basis that the proposed amendment is futile because the Eleventh Amendment bars the claim that the P la in tiff seeks to add. The Plaintiff's newly asserted claim with respect to his alleged d is m is s a l from the UTC Chair position is brought pursuant to Conn. Gen. Stat. 31-51q a g a in s t the University only. The Supreme Court has held that the Eleventh Amendment p ro h ib its a private party from suing a state in federal court unless Congress u n e q u ivo c a lly expresses its intent to abrogate that immunity or a state waives its im m u n ity. See Edelman v. Jordan, 415 U.S. 651 (1974); In re Charter Oak Assocs., 361 F .3 d 760, 765 (2d Cir. 2004). Eleventh Amendment immunity extends to agencies and 7 departments of a state. See Pennhurst State School & Hosp. v. Halderman, 465 .S. 89, 1 0 0 (1984). The State of Connecticut has not waived its Eleventh Amendment immunity to actions brought pursuant to Conn. Gen. Stat. 31-51q in federal court. See Cook v. M c In to s h , No. CIV. 3:97CV773 (AHN), 1998 WL 91066, at *6 (D. Conn. Feb. 20, 1998) (" T h e re is no support for the contention that by the enactment of Conn. Gen. Stat. 315 1 q the state intended to waive its Eleventh Amendment immunity from suit in federal c o u rt." ). UConn contends that, although it waived Eleventh Amendment immunity with re s p e c t to the state law claims set forth in the Plaintiff's Third Amended Complaint by re m o v in g this case to federal court, it has not consented to the Plaintiff's newly a s s e rte d claim under Conn. Gen. Stat. 31- 51q. Therefore, UConn argues, the E le v e n th Amendment bars this Court from hearing the Plaintiff's state law claim against it. See Alabama v. Pugh, 438 U.S. 781 (1978); Henrietta v. Bloomberg, 331 F.3d 261, 2878 8 (2d Cir. 2003); Santiago v. N.Y. State Department of Correctional Services, 945 F.2d 2 5 (2d Cir.1991). In response to UConn's objection to his motion to amend, the Plaintiff makes the fo llo w in g arguments. First, the Plaintiff argues that he should be permitted to amend h is complaint because he satisfies the Fed. R. Civ. P. 16(b) standard. As stated earlier, " th e primary consideration" in determining whether good cause has been shown "is w h e th e r the moving party can demonstrate diligence." Kassner v. 2nd Avenue D e lic a te s s e n Inc., 496 F.3d 229, 244 (2d Cir. 2007). Here, the Plaintiff argues, he acted w ith diligence in seeking to amend his complaint. The events giving rise to his newly a s s e rte d retaliation claim culminated in UConn's announcement on February 8, 2010 8 that the Plaintiff would not continue as the UTC Chair. The Plaintiff moved to amend h is complaint on March 11, 2010, less than 5 weeks later. No amount of diligence could h a v e enabled the Plaintiff to file a motion to amend the complaint appreciably sooner th a n he did. The Plaintiff argues that, in circumstances in which facts giving rise to a c la im of retaliation occur after the deadline to amend pleadings, courts have found g o o d cause to amend. See, e.g., Lincoln v. Potter, 418 F. Supp. 2d 443, 453 (S.D.N.Y. 2 0 0 6 ) (allowing plaintiff to amend complaint to add claims based upon retaliation that o c c u rre d after the deadline because plaintiff could not reasonably have been expected to comply with a deadline that preceded the retaliation); Robinson v. Town of Colonie, N o . 91-CV-1355, 1993 WL 191166, at *3 (N.D.N.Y. June 3, 1993) (finding good cause w h e re the reason to seek amendment occurred after the deadline had passed). N e x t , the Plaintiff argues that UConn would suffer no undue prejudice if the p r o p o s e d amendment is permitted. The Plaintiff claims that UConn has itself invited d e la y on numerous occasions, as it filed seven different motions to extend time in this c a s e . At present, no trial date has been set because of the pending interlocutory a p p e a l. Since the parties are awaiting the Second Circuit's decision, the Plaintiff a rg u e s that there is sufficient time for UConn to prepare to defend the new retaliation c la im . The Court notes that the end of the 2009-2010 Second Circuit term is imminent a n d a decision will likely be issued soon. UConn responds by contending that the Defendants would also be prejudiced b e c a u s e the proposed amendment would substantially delay the resolution of the p e n d in g claims. First, it notes that while some discovery has been conducted on the 9 proposed claim, it only took the Plaintiff's deposition and received document p ro d u c tio n from him for the limited purpose of defending against the Plaintiff's motion fo r injunctive relief. In addition, UConn challenges the Court's jurisdiction to hear the c a s e , citing the Eleventh Amendment, and would file a motion for summary judgment if the amendment was allowed. F in a lly, the Plaintiff replies by arguing that his claim is not barred by the Eleventh Am e n d m e n t because UConn has waived any claim of immunity by its litigation conduct in removing this case to federal court. In support of his reply, the Plaintiff relies on L a p id e s v. Bd. Of Regents of University System of Georgia, 535 U.S. 613, 619, 122 S.Ct. 1 6 4 0 (2002), in which the Supreme Court held that where a state university voluntarily re m o v e s a case to federal court, it voluntarily invokes that court's jurisdiction. As n o te d in Lapides, a defendant cannot "(1) [ ] invoke federal jurisdiction, thereby c o n te n d in g that the `Judicial power of the United States' extends to the case at hand, a n d (2) [ ] claim Eleventh Amendment immunity, thereby denying that the `Judicial p o w e r of the United States' extends to the case at hand." Id. at 619. Because the Plaintiff seeks to amend his complaint after expiration of the d e a d lin e to do so in the Court's scheduling order, he must satisfy the "good cause" re q u ire m e n t of Fed. R. Civ. P. 16(b). As noted previously, "a finding of good cause d e p e n d s on the diligence of the moving party." Parker, 204 F.3d at 340. "In other w o rd s , the movant must show that the deadlines cannot be reasonably met despite its d ilig e n c e ." Lincoln, 418 F. Supp. 2d at 454. The Court finds that the Plaintiff has s a tis fie d the good cause standard. 10 As the Plaintiff pointed out in his brief and during oral argument, the events g iv in g rise to his new retaliation claim began in the Fall of 2009 and culminated on F e b ru a ry 8, 2010 when UConn announced that he would not continue as the UTC Chair, lo n g after the deadline the Court set for amending pleadings. The Plaintiff moved to a m e n d his complaint on March 11, 2010, less than five weeks later. Clearly, no amount o f diligence would have permitted the Plaintiff to discover the facts supporting his c la im prior to expiration of the deadline for amendment of the pleadings. Thus, the P la in tiff has shown "good cause" from a diligence standpoint to modify the scheduling o rd e r. See id. at 454 (permitting motion to amend to allege retaliation claim where e v e n ts giving rise to claim occurred after the deadline for amendments in the s c h e d u lin g order had passed, but denying motion to amend to allege hostile work e n v iro n m e n t claim because facts underlying that claim were known to the plaintiff at th e time he filed his action); Robinson, 1993 WL 191166, at *3 (finding good cause to a m e n d scheduling order where the reason to seek amendment occurred after the d e a d lin e had passed). T h is , however, does not end the inquiry. Even if the Court finds that the Rule 1 6 (b ) "good cause" standard has been satisfied, it must then proceed to consider w h e th e r the Plaintiff's new retaliation claim survives scrutiny under Rule 15. See L in c o ln , 418 F. Supp. 2d at 454-55 (considering motion to amend under both Fed. R. Civ. P . 16(b) standard and Fed. R. Civ. P. 15 standard). Under Rule 15(a), "[t]he court should freely give leave [to amend pleadings] when ju s tic e so requires." The Supreme Court has instructed that leave to amend should be 11 granted "absent any apparent or declared reason - such as undue delay, bad faith or d ila to ry motive on the part of the movant, repeated failure to cure deficiencies by a m e n d m e n ts previously allowed, undue prejudice to the opposing party by virtue of a llo w a n c e of the amendment, or futility of the amendment[.]" Foman v. Davis, 371 U.S. 1 7 8 , 182 (1962). In the present circumstances, the primary factors in contention are u n d u e delay, prejudice, and futility of the proposed amendment. C itin g undue delay and prejudice, UConn argues that leave to amend should be d e n ie d because discovery in this case has closed, the Court has entered a decision on s u m m a ry judgment, and a ruling on the Court's denial of summary judgment, now on a p p e a l, is imminent. In these circumstances, UConn contends, it would be unduly p re ju d ic e d by the proposed amendment because it would necessitate substantial p re p a ra tio n , including discovery and dispositive motion practice. However, as the P la in tiff correctly points out, the cases that UConn cites in support of its claims of u n d u e delay and prejudice are inapposite because they involve situations in which a p a rty moved to amend on the basis of facts that were either known or reasonably could h a v e been discovered at the outset of the case. The more relevant cases are those c a s e s where, as here, courts analyzed a retaliation claim that was based upon facts that o c c u rre d after expiration of the deadline for amending pleadings and after the close of d is c o v e ry but before trial. Research has revealed three relevant cases. First, in Lincoln v. Potter, the p la in tiff, a letter carrier for the United States Postal Service, filed an age discrimination s u it related to the redesign of his postal route. 418 F. Supp. 2d at 447. After expiration 12 of the deadline to amend pleadings and the close of discovery, the plaintiff filed a m o tio n to amend his complaint to assert two new causes of action, the first for hostile w o rk environment and the second for retaliation that allegedly resulted in a material c h a n g e in his work conditions after he filed suit and made discovery demands. Id. at 4 5 4 . The district court denied leave to amend to assert the hostile work environment c la im because the facts underlying this claim were known to the plaintiff at the time that h e filed the action. Id. However, the district court granted leave to amend to assert the re ta lia tio n claim, finding that there was no undue delay or prejudice because the im p e tu s of the retaliation claim did not arise until after the close of discovery, and the p la in tiff moved to amend his complaint less than a month after the alleged retaliation o c c u rre d . Id. Second, in O'Sullivan v. New York Times Co., No. 96 Civ. 6143(LAP), 1997 WL 7 6 2 0 5 0 , at *1 (S.D.N.Y. Dec. 8, 1997), the plaintiffs brought suit alleging that they were te rm in a te d based on their age as part of a corporate downsizing. Nearly one year after th e suit was filed, plaintiff Mooney, who had been rehired by the defendant for a position in a different department, was told during an interview for a managerial position that he w o u ld have a better chance of obtaining the position if he dropped his lawsuit. Id. One m o n th later, in April 1997, he was informed that he had not been selected for the p o s it io n . Id. Subsequently, in November 1997, one week before discovery was s c h e d u le d to close, the plaintiffs moved to amend their complaint to assert a retaliation c la im on behalf of Mooney for the defendant's failure to hire him for the managerial p o s itio n . Id. The district court denied leave to amend, finding that the plaintiffs' delay 13 of seven months in filing a motion to amend after the events giving rise to the retaliation c la im was not justified in light of the approaching discovery deadline and the d e fe n d a n t's stated intention to file a motion for summary judgment. Id. at *2. The d is tric t court further found that the defendant would be prejudiced even though it had k n o w n since July 1997 of the potential retaliation claim because the claim was not fully d e v e lo p e d and amending the complaint would result in additional discovery on the eve o f the deadline. Id. Finally, the district court noted that the alleged retaliation took place tw o years after the corporate downsizing which gave rise to the underlying complaint, a n d discovery with respect to the retaliation charge would involve matters different from th e issue of corporate downsizing and relate to events remote in time from the d o w n s iz in g . Id. T h ird , in Smith v. Cadbury Beverages, Inc., 942 F. Supp. 150, 152 (W.D.N.Y. 1996), t h e plaintiff brought suit alleging that his employer discriminated against him based u p o n his race and in retaliation for bringing prior administrative and legal complaints a g a in s t the defendant. Subsequently, following the close of discovery and while the d e fe n d a n t's motion for summary judgment was pending, the plaintiff filed a motion to a m e n d his complaint to assert a claim of retaliation resulting from his suspension and te rm in a tio n in October 1995, two years after the events underlying his original c o m p la in t. Id. at 159. The district court denied leave to amend on the basis that the d e fe n d a n t would suffer prejudice if the amendment was permitted. Id. The district court e x p la in e d : In this case, Smith's new claims are based upon different factual c irc u m s ta n c e s , and in large part require application of different law. 14 Accordingly, permitting Smith to amend essentially would open up an e n tire ly new lawsuit. This would be highly prejudicial to Cadbury, which h a s litigated the original claims and, but for my granting its motion for s u m m a ry judgment, would be trial ready . . . . Moreover, because Smith m a y still be able to assert a separate action (assuming his new claims are le g a lly sufficient), he is not significantly prejudiced by my denying his m o tio n to amend. Id. In this case, the Plaintiff moved to amend his complaint within weeks of the e v e n ts giving rise to his new retaliation claim. However, the Court must consider U C o n n 's claims of undue prejudice. As noted in O'Sullivan and Smith, permitting an a m e n d m e n t years after the plaintiff originally filed suit and after the discovery deadline e x p ire d based upon a different set of factual circumstances would result in significant p re ju d ic e to the defendant because it would essentially create an entirely new lawsuit a n d necessitate substantial additional discovery at a late stage of the litigation process. Turning to the issue of futility, UConn also makes the argument that the proposed a m e n d m e n t would be futile because the Eleventh Amendment bars the Plaintiff's new re ta lia tio n claim, which is brought pursuant to Conn. Gen. Stat. 31-51q. The Eleventh Am e n d m e n t provides that "[t]he Judicial power of the United States shall not be c o n s tru e d to extend to any suit in law or equity, commenced or prosecuted against one o f the United States by Citizens of another State, or by Citizens or Subjects of any F o re ig n State." "While the Amendment by its terms does not bar suits against a State b y its own citizens, [the Supreme Court] has consistently held that an unconsenting S ta te is immune from suits brought in federal courts by her own citizens as well as by c itiz e n s of another State." Edelman v. Jordan, 451 U.S. 651, 662-63 (1974). Eleventh 15 Amendment immunity extends to agencies and departments of a state, including state u n iv e rs itie s . See Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); D u b e v. State University of New York, 900 F.2d 587, 594 (2d Cir. 1990) (noting that the s ta te is the real party in interest for Eleventh Amendment purposes when SUNY is sued). "In seeking to delineate the Eleventh Amendment boundaries of waiver, the Supreme C o u rt has held that a state waives its immunity `either if [it] voluntarily invokes [a federal c o u rt's ] jurisdiction, or else if [it] makes a `clear declaration' that it intends to submit its e lf to [a federal court's] jurisdiction." In re Charter Oak Associates, 361 F.3d 760, 767 (2 d Cir. 2004). U C o n n is correct that there has been no applicable statutory waiver. A court may n o t find a statutory waiver "unless the state has spoken in the most express language o r by such overwhelming implications from the text as [will] leave no room for any other re a s o n a b le construction." Minotti v. Lensink, 798 F.2d 607, 610 (2d Cir. 1986). A state's d e c is io n to waive its immunity also requires that it determine where it may be sued. Id. Accordingly, "there will be no waiver of immunity against federal suit unless the state s p e c if ie s its intention to consent to suit in federal court." Id. Here, the Plaintiff seeks to amend his complaint to bring a retaliation claim under Conn. Gen. Stat. 31- 51q. As th e District of Connecticut has held, There is no support for the contention that by the enactment of Conn. Gen. S ta t. 31-51q the state intended to waive its Eleventh Amendment im m u n ity from suit in federal court. First, the statute does not contain any la n g u a g e that expressly waives this immunity. Second, although C o n n e c tic u t courts have held that the statute constitutes a waiver of s o v e re ig n immunity [in state court], the decisions involved waiver in state a c tio n s only. 16 Cook v. McIntosh, No. CIV. 3:97CV773 (AHN), 1998 WL 91066, at *6 (D. Conn. Feb. 20, 1 9 9 8 ). A State may also waive its Eleventh Amendment immunity based upon its litig a tio n conduct. The Supreme Court has expressly held that a States waives its im m u n ity to suit in federal when it voluntarily removes a case from state court to federal c o u rt. Lapides v. Bd. Of Regents of University System of Georgia, 535 U.S. 613, 619, 122 S .C t. 1640 (2002). As noted in Lapides, a defendant cannot "(1) [ ] invoke federal ju ris d ic tio n , thereby contending that the `Judicial power of the United States' extends to the case at hand, and (2) [ ] claim Eleventh Amendment immunity, thereby denying th a t the `Judicial power of the United States' extends to the case at hand." Id. Here, U C o n n clearly waived its Eleventh Amendment immunity with respect to the underlying c o m p la in t by removing the case from state to federal court, thereby invoking this C o u rt's jurisdiction. However, UConn now argues that, although it waived immunity as to the claims asserted in the underlying complaint, it has not (and will not) consent to th e new retaliation claim that the Plaintiff seeks to add, and therefore it has not waived E le v e n th Amendment immunity with respect to this claim. T h e parties do not cite and research has not revealed any cases within the S e c o n d Circuit that directly address the present situation. However, a case from the N in th Circuit is instructive. That case held that the State Regents waived their Eleventh Am e n d m e n t immunity over new claims asserted in an amended complaint because they h a d removed the original complaint to federal court. See Embury v. King, 361 F.3d 562, 5 6 5 (9th Cir. 2004). Citing Lapides, the Ninth Circuit held that, once immunity is waived 17 by removal, the federal court's power extends to the entire case, not just to the claims th a t had already been made at the time of removal. Id. According to the Ninth Circuit, " [a ]llo w in g a State to waive immunity to remove a case to federal court, then `unwaive' it to assert that the federal court could not act, would create a new definition of c h u tz p a h ." Id. at 566. W h ile the Ninth Circuit's decision in Embury was well reasoned in the context of th a t case, where the proposed amendment related to the same factual events giving rise to the original complaint, the present situation is distinguishable based upon the r a t io n a le underlying the principle of waiver based upon litigation conduct. As the S u p re m e Court explained in Lapides, "an interpretation of the Eleventh Amendment that fin d s waiver in the litigation context rests upon the Amendment's presumed recognition o f the judicial need to avoid inconsistency, anomaly, and unfairness, and not upon a S ta te 's actual preference or desire, which might, after all, favor selective use of `im m u n ity' to achieve litigation advantages." Id. at 620. Given this rationale, it would s e e m fair to draw the conclusion that UConn has not waived its Eleventh Amendment im m u n ity as to the Plaintiff's new retaliation claim for the same reason that the Court f in d s that the Plaintiff acted diligently; namely, because the claim relates to a set of fa c tu a l circumstances distinct from the underlying suit. Therefore, no inconsistency, a n o m a ly, or unfairness will result if leave to amend is denied and the Plaintiff is required to pursue this claim in state court. Nor would the Plaintiff be prejudiced because there is an available forum from which to seek redress for his new retaliation claim. Balanced a g a in s t the undue prejudice to the Defendants of granting the motion to amend, which 18 would necessitate the opening of discovery at the precipice of setting a trial date, the p ro p e r resolution of this dispute is clearly to deny the motion to amend. Therefore, the P la in tiff's motion to amend is DENIED. In light of the Court's ruling denying the Plaintiff's motion to amend, the Court la c k s jurisdiction over the Plaintiff's Conn. Gen. Stat. 31-51q against UConn for re m o v in g him from the UTC Chair position. Thus, he cannot obtain preliminary in ju n c tiv e relief from the Court on this claim. See Stewart v. United States Immigration a n d Naturalization Service, 762 F.2d 193, 198 (2d Cir. 1985) (finding that district court la c k e d jurisdiction over plaintiff's motion for preliminary injunctive relief relating to c la im of improper suspension without pay because plaintiff failed to commence an a c tio n in district court with regard to this claim). Accordingly, the Plaintiff's motion for p re lim in a ry injunction is also DENIED. IV . CONCLUSION B a s e d upon the above reasoning, the Plaintiff's motion to amend [Doc. #92] and m o tio n for preliminary injunction [Doc. #93] are DENIED. IT IS SO ORDERED /s/ Vanessa L. Bryant U n ite d States District Judge D a te d at Hartford, Connecticut: June 3, 2010. 19

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