PHILPOT v. WUIS/UNIVERSITY OF ILLINOIS, SPRINGFIELD

Filing 32

ORDER MODIFYING AND ADOPTING REPORT AND RECOMMENDATIONS for 10 Motion to Dismiss filed by WUIS/UNIVERSITY OF ILLINOIS, SPRINGFIELD, 29 Report and Recommendations. The Court SUSTAINS WUIS's limited objection (Filing No. 31) and modifie s the Magistrate Judge's Report and Recommendation as follows: The Motion to Dismiss is GRANTED as this Court does not have personal jurisdiction over the matter at hand and WUIS is protected by sovereign immunity under the Eleventh Amendment . The Court hereby ADOPTS the Magistrate Judge's Report and Recommendation (Filing No. 29) as modified herein, GRANTING WUIS's Motion to Dismiss (Filing No. 10). Final judgment will issue by separate order. Copy to Plaintiff via U.S. Mail. Signed by Judge Tanya Walton Pratt on 8/25/2015.(MAC)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
LARRY G. PHILPOT,
Plaintiff,
v.
WUIS/UNIVERSITY OF ILLINOIS
SPRINGFIELD,
Defendant.

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Case No. 1:14-cv-01791-TWP-TAB

ORDER MODIFYING AND ADOPTING THE MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION
This matter is before the Court on Defendant WUIS/University of Illinois Springfield’s
(“WUIS”) Motion to Dismiss (Filing No. 10). Plaintiff Larry G. Philpot (“Mr. Philpot”) initiated
this lawsuit against WUIS on October 31, 2014, asserting various copyright claims. WUIS moved
to dismiss the action based on lack of subject matter jurisdiction/sovereign immunity, lack of
personal jurisdiction, improper venue, and improper service. The Court referred the Motion to the
Magistrate Judge for a report and recommendation. Magistrate Judge Tim Baker issued a Report
and Recommendation, recommending that the Motion to Dismiss be granted (Filing No. 29).
As an initial matter, a district court may assign dispositive motions to a magistrate judge,
in which case the magistrate judge may submit to the district judge only a report and recommended
disposition, including any proposed findings of fact. Schur v. L.A. Weight Loss Ctrs., Inc., 577
F.3d 752, 760 (7th Cir. 2009). See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b). “The
magistrate judge’s recommendation on a dispositive matter is not a final order, and the district
judge makes the ultimate decision to adopt, reject, or modify it.” Schur, 577 F.3d at 760. See 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). After a magistrate judge makes a report and

recommendation, either party may object within fourteen days. 28 U.S.C. § 636(b)(1); Fed. R.
Civ. P. 72(b)(2). “A judge of the court shall make a de novo determination of those portions of
the report or specified proposed findings or recommendations to which objection is made.” 28
U.S.C. § 636(b)(1). Further, a judge “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.” Id.
Mr. Philpot did not file any objections to Magistrate Judge Baker’s Report and
Recommendation to dismiss his action. However, WUIS timely filed a limited Objection to the
Report and Recommendation (Filing No. 31). WUIS does not object to the ultimate disposition of
the Report and Recommendation that its Motion to Dismiss should be granted. Rather, WUIS asks
the Court to expand upon the analysis of the Report to also consider and reach the merits on
WUIS’s argument concerning a lack of subject matter jurisdiction based on Eleventh Amendment
sovereign immunity. WUIS asks the Court to include this additional basis for dismissing Mr.
Philpot’s action so that this issue would be resolved in the event Mr. Philpot re-filed this action in
a jurisdiction which does have subject matter jurisdiction.
Upon review, the Court finds no error of law or fact in the Report and Recommendation.
While WUIS requests that the Court reach the merits on the subject matter jurisdiction/sovereign
immunity issue, the Court is not required to do so. As the Seventh Circuit Court of Appeals has
explained, “a district court may dismiss for lack of personal jurisdiction without determining
whether subject-matter jurisdiction exists.” Central States, Southeast & Southwest Areas Pension
Fund v. Reimer Express World Corp., 230 F.3d 934, 939 n.2 (7th Cir. 2000); see also Erno Kalman
Abelesz v. OTP Bank, 692 F.3d 638, 646 n.2 (7th Cir. 2012) (court declined to address arguments
concerning subject matter jurisdiction, the act of state doctrine, the political question doctrine,
treaty-based arguments, and statutes of limitations because the dismissal was resolved on the basis

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of lack of personal jurisdiction). Further, the Supreme Court has noted that “there is no unyielding
jurisdictional hierarchy. Customarily, a federal court first resolves doubts about its jurisdiction
over the subject matter, but there are circumstances in which a district court appropriately accords
priority to a personal jurisdiction inquiry.” Ruhrgas Ag v. Marathon Oil Co., 526 U.S. 574, 578
(1999).
Nevertheless, the Court is persuaded that dismissal is also warranted based on Rule
12(b)(1); therefore, it will modify the Report and Recommendation accordingly. WUIS is a public
radio station owned and operated by the University of Illinois and governed by the University’s
Board of Trustees. (Filing No. 20-4 p. 17.) The Eleventh Amendment to the United States
Constitution 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.” A state, therefore, is immune
from suit by an individual unless such state consents to be sued. The Seventh Circuit has
previously acknowledged that Illinois’s public universities, including the University of Illinois, are
entitled to the protection of the Eleventh Amendment. Goshtasby v. Board of Trustees of the
University of Illinois, 123 IF.3d 427 (7th Cir. 1997). Importantly, none of the exceptions to a
state’s sovereign immunity apply here as there has been: (1) no waiver by the State; (2) no
abrogation of the immunity by Congress through a valid exercise of its congressional powers; and
(3) the suit is not against state officials or seeks prospective equitable relief for on-going violations
of federal law. See Ind. Prot. & Advocacy Servs. v. Ind. Family & Social Servs. Admin., 603 F.3d
365 (7th Cir. 2010). Accordingly, this court also lacks subject matter jurisdiction.
The Court SUSTAINS WUIS’s limited objection (Filing No. 31) and modifies the
Magistrate Judge’s Report and Recommendation as follows:

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The Motion to Dismiss is

GRANTED as this Court does not have personal jurisdiction over the matter at hand and WUIS
is protected by sovereign immunity under the Eleventh Amendment. The Court hereby ADOPTS
the Magistrate Judge’s Report and Recommendation (Filing No. 29) as modified herein,
GRANTING WUIS’s Motion to Dismiss (Filing No. 10). Final judgment will issue by separate
order.
SO ORDERED.
Date: 8/25/2015

DISTRIBUTION:
Larry G. Philpot
8125 Halyard Way, 1st Floor
Indianapolis, Indiana 46236
Scott B. Cockrum
HINSHAW & CULBERTSON LLP
[e-mail]
David H. Levitt
HINSHAW & CULBERTSON LLP
[e-mail]
Jeffrey S. Dixon
HINSHAW & CULBERTSON LLP
[e-mail]

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