ROSS v. UNIVERSITY OF FLORIDA BOARD OF TRUSTEES

Filing 9

ORDER granting 7 Motion to Dismiss for Failure to State a Claim. This case is dismissed with prejudice. Signed by JUDGE RICHARD SMOAK on 3/9/2015. (jcw)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
DIANE ROSS,
Plaintiff,
v.

CASE NO. 1:15-cv-16-RS-GRJ

THE UNIVERSITY OF FLORIDA
BOARD OF TRUSTEES,
Defendant.
_________________________________________/
ORDER
Before me are Defendant University of Florida Board of Trustees’ Amended
Motion to Dismiss Plaintiff’s Complaint and Demand for Jury Trial for Failure to
State a Claim on Which Relief Can be Granted (Doc. 7), and Plaintiff’s Response
in Opposition (Doc. 8).
To overcome a motion to dismiss, a plaintiff must allege sufficient facts to
state a claim for relief that is plausible on its face. See Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007). Granting a motion to dismiss is appropriate if it is
clear that no relief could be granted under any set of facts that could be proven
consistent with the allegations of the complaint. Hishon v. King & Spalding, 467
U.S. 69, 104 S. Ct. 2229, 2232 (1984). Plaintiff filed a two-count complaint in the
Circuit Court of Alachua County, Florida alleging claims that arise under 29

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U.S.C. § 612-(a)(1)(d). On February 3, 2015, Defendant timely removed this case
to the United States District Court for the Northern District of Florida.
The Eleventh Circuit has held that “a state waives its immunity from a
federal forum when it removes a case, which voluntarily invokes the jurisdiction of
that federal forum.” Stroud v. McIntosh, 722 F.3d 1294, 1302 (11th Cir. 2013).
Nevertheless, a state does not waive “any defense it would have enjoyed in state
court—including immunity from liability for particular claims.” Id. Defendant
University of Florida Board of Trustees is an agency or subdivision of the State of
Florida. § 768.28(2), Fla. Stat. (2014). Neither the state of Florida nor the federal
Congress has validly waived the state’s sovereign immunity for claims brought
under 29 U.S.C. §2612-(a)(1)(d) of the FMLA. Coleman v. Court of Appeals of
Maryland, 132 S. Ct. 1327 (2012); §768.28(2), Fla. Stat. (2014); Hill v.
Department of Corrections, 513 So. 2d 129, 133 (Fla. 1987). Accordingly,
Defendant is immune to suit in this action, and Plaintiff has stated a claim for
which no relief can be granted.
Therefore, the relief requested in Defendant University of Florida Board of
Trustees’ Amended Motion to Dismiss Plaintiff’s Complaint and Demand for Jury
Trial for Failure to State a Claim on Which Relief Can be Granted (Doc. 7) is
GRANTED. This case is dismissed with prejudice.

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ORDERED on March 9, 2015.
/s/ Richard Smoak
RICHARD SMOAK
UNITED STATES DISTRICT JUDGE

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