Edmund v. City of Fort Myers
Filing
46
OPINION AND ORDER denying 35 Motion to dismiss. Signed by Judge John E. Steele on 12/1/2011. (SVC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ROY F. EDMUND, on behalf of himself
and those similarly situated,
Plaintiff,
vs.
Case No.
2:10-cv-474-FtM-29SPC
CITY OF FORT MYERS,
Defendant.
______________________________________
OPINION AND ORDER
This matter comes before the Court on Defendant City of Fort
Myers’ Motion to Dismiss (Doc. #35) filed on October 13, 2011,
seeking to dismiss plaintiffs’ complaint pursuant to Rule 12(b)(1)
of the Federal Rules of Civil Procedure.
Plaintiff Roy F. Edmund
(“Plaintiff” or “Edmund”) filed a Response on October 27, 2011.
(Doc. # 40).
For the reasons discussed below, the motion is
denied.
I.
Edmund was hired by the City of Fort Myers, Florida as an
Irrigation Technician on or about April 21, 2005.
(Doc. #1, ¶18.)
Plaintiff claims that at various times he worked in excess of forty
(40) hours within a work week.1
Despite his overtime work, he
claims he was not compensated at a rate of one and one-half times
1
It is unclear from the Complaint whether Edmund remains
employed with the City of Fort Myers.
his regular rate.
Edmund further asserts that defendant failed to
maintain proper time records.
Edmund filed a one-count Complaint (Doc. #1) on his behalf and
on
behalf
situated,
of
other
employees
seeking a
and
declaration
former
that
the
employees
City
of
violated the Fair Labor Standards Act (“FLSA”).
further
seeks
an
award
of
overtime
similarly
Fort
Myers
The Complaint
compensation,
liquidated
damages, attorneys’ fees, pre-judgment interest, and an order
authorizing
plaintiff
to
send
notice
of
his
lawsuit
to
all
similarly situated Irrigation Technicians employed by the City of
Fort Myers within the past three (3) years.
II.
The City of Fort Myers (“the City”) seeks to dismiss the
Complaint for lack of subject matter jurisdiction.
Specifically,
the City contends that it is a municipal corporation of the State
of Florida, and as such is a “sovereign” which under the Eleventh
Amendment to the United States Constitution cannot be sued in
federal court.
The City also relies on “common law” (Doc. #35, p.
4), although it cites no case purporting to apply common law
sovereign immunity.
In response, Edmund asserts that defendant’s
motion to dismiss is frivolous because the Eleventh Amendment does
not apply to municipalities.
“Sovereign immunity is the privilege of the sovereign not to
be sued without its consent.”
Va. Office for Prot. & Advocacy v.
-2-
Stewart, 131 S. Ct. 1632, 1637 (2011).
A component of this
sovereign immunity is set forth in the Eleventh Amendment to the
Constitution, which 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 or subjects
of any foreign state.
U.S. Const. amend XI.
Despite its language, it is well settled
that the Eleventh Amendment bars suits brought in federal courts by
a state’s own citizens as well as by citizens of another state.
Williams v. Bd. of Regents of Univ. Sys., 441 F.3d 1287, 1303 (11th
Cir. 2006); Williams v. Dist. Bd. of Trs. of Edison Cmty. Coll.,
421 F.3d 1190, 1192 (11th Cir. 2005).
The Eleventh Amendment applies not only to the State, but to
a state agency which is an arm of the state.
1192.
Williams, 421 F.3d at
“Whether an agency qualifies as an arm of the state is a
federal question with a federal standard, but whether that standard
is met is determined by carefully reviewing how the agency is
defined by state law.”
Versiglio v. Bd. of Dental Exam’rs, 651
F.3d 1272, 1273 (11th Cir. 2011).
The Eleventh Amendment does not
apply to municipalities, counties, or other political subdivisions
of the state.
Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,
429 U.S. 274, 280 (1977); Robinson v. Georgia Dep’t of Transp., 966
F.2d 637, 638 (11th Cir. 1992).
Indeed, an “arm of the state” is
typically contrasted with a county or municipality, which are not
-3-
entitled to Eleventh Amendment protection. Regents of the Univ. of
Cal. v. Doe, 519 U.S. 425, 430 n.5 (1997) (“Ultimately, of course,
the question whether a particular state agency has the same kind of
independent status as a county or is instead an arm of the State,
and therefore ‘one of the United States' within the meaning of the
Eleventh Amendment, is a question of federal law. But that federal
question can be answered only after considering the provisions of
state law that define the agency's character.”); Tuveson v. Fla.
Governor's Council on Indian Affairs, Inc., 734 F.2d 730, 732 (11th
Cir.1984) (“The state law provides assistance in ascertaining
whether the state intended to create an entity comparable to a
county or municipality or one designed to take advantage of the
state's Eleventh Amendment immunity.”); Versiglio, 651 F.3d at 1273
(“But if a state creates an institution in such a way that gives it
independence, ‘[w]hatever may have been the state's reason for
doing it [that] way, it must live with the consequences. It cannot
claim an immunity based on a condition which it itself sought to
avoid’”, quoting Williams v. Eastside Mental Health Ctr., Inc., 669
F.2d 671, 678 (11th Cir.1982)).
In Florida, a municipality has broad home rule and police
powers, City of Aventura v. Masone, -- So. 3d --, 2011 WL 5964359
(Fla. Dist. Ct. App. Nov. 30, 2011), and is not an “arm” of the
State of Florida entitled to Eleventh Amendment protection. Cooper
v.
Dillon,
403
F.3d
1208,
1221
-4-
n.8
(11th
Cir.
2005)(“As
a
municipality, pursuant to Florida law, Key West is not insulated
from suit in this case by sovereign immunity under the Eleventh
Amendment.”)
See Will v. Michigan Dep’t of State Police, 491 U.S.
58, 70 (“States are protected by the Eleventh Amendment while
municipalities are not ....”) (citing Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 690 n.54 (1978)).”))
As such, the City of
Fort Myers’s motion is without merit.
Accordingly, it is now
ORDERED:
Defendant City of Fort Myers’ Motion to Dismiss (Doc. #35) is
DENIED.
DONE AND ORDERED at Fort Myers, Florida, this
December, 2011.
Copies: Counsel of record
-5-
1st
day of
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