Bradley v. Cruz et al

Filing 250

Judge Indira Talwani: ORDER entered. MEMORANDUM AND ORDER. The 236 Motion to Dismiss Counts V and VI and the 249 request to dismiss count IV for lack of subject matter jurisdiction are ALLOWED, the court's 48 Memorandum & Order is VACATED as to the dismissal of Count IV for failure to state a claim, and Counts IV, V and VI are DISMISSED without prejudice pursuant to Rule 12(b)(1).(DaSilva, Carolina)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JOHN BRADLEY,
Plaintiff,
v.
TIMOTHY J. CRUZ, et al.,
Defendants.

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Civil Action No. 1:13-cv-12927-IT

MEMORANDUM AND ORDER
August 10, 2017
TALWANI, D.J.
Plaintiff John Bradley brought three state law claims against Defendant Office of the
District Attorney for Plymouth County (“D.A.’s Office”): Breach of the Covenant of Good Faith
and Fair Dealing (Count IV); Wrongful Termination in Violation of Public Policy (Count V);
and Violation of the Massachusetts Whistleblower Act, Mass. Gen. Laws ch. 149, § 184 (Count
VI). Compl. and Jury Demand 12-14 [#1]. In 2014, the court dismissed Count IV on the D.A.’s
Office’s motion under Federal Rule of Civil Procedure 12(b)(6). Mem. & Order [#48]. 1 The
D.A.’s Office has now filed a Motion to Dismiss Counts V and VI [#236] pursuant to Rule
12(b)(1) of the Federal Rules of Civil Procedure, on the ground of Eleventh Amendment
sovereign immunity. After inquiry from the court, Order [#248], the D.A.’s Office has
additionally requested that the court dismiss Plaintiff’s claim for breach of the covenant of good

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The Motion to Dismiss [#35] was filed by Defendants D.A.’s Office, Timothy Cruz and Frank
Middleton. Defendants Cruz and Middleton are not parties to the pending motion.
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faith and fair dealing pursuant to 12(b)(1) based on Eleventh Amendment sovereign immunity.
Office of the Dist. Att’y for Plymouth Cty.’s Resp. to the Court’s Aug. 1, 2017 Order [#249].
Rule 12(b)(1) is “[t]he proper vehicle for challenging a court’s subject-matter
jurisdiction,” including on the basis of sovereign immunity. Valentin v. Hosp. Bella Vista, 254
F.3d 358, 362 (1st Cir. 2001). The motion may be raised at any time during the course of the
litigation. Aversa v. United States, 99. F.3d 1200, 1209 (1st Cir. 1996). With exceptions not
relevant here, in ruling on Rule 12(b)(1) motion, the court “credit[s] the plaintiff's well-pleaded
factual allegations” and “draw[s] all reasonable inferences from them in [the plaintiff’s] favor.”
Valentin, 254 F.3d at 363. The Eleventh Amendment bars suit “against one of the United States
by Citizens of another State, or by Citizens or Subjects of any Foreign State” in federal court,
absent its consent. U.S. Const. amend. XI. Its purpose “is to accord the States the respect owed
them as joint sovereigns[,] . . . and it is concerned not only with the States’ ability to withstand
suit, but their privilege not to be sued.” Vaqueria Tres Monjitas, Inc. v. Pagan, 748 F.3d 21, 2627 (1st Cir. 2014) (internal quotations omitted). Eleventh Amendment immunity “extends to any
entity that is an ‘arm of the state.’” Wojcik v. Massachusetts State Lottery Comm’n, 300 F.3d 92,
99 (1st Cir. 2002) (quoting In re San Juan Dupont Plaza Hotel Fire Litig., 888 F.2d 940, 942 (lst
Cir. 1989)).
Bradley does not appear to dispute that the D.A.’s Office is an arm of the state. 2 Instead,
he argues that the D.A.’s Office waived its defense through affirmative litigation conduct.

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In Miller v. City of Boston, 297 F. Supp. 2d 361, 369 (D. Mass. 2003) (Tauro, J.), the court
found that the Office of the District Attorney for the Suffolk District constituted a state agency
for the purposes of sovereign immunity:
Its predominant function is to appear for the [C]ommonwealth . . .
in all . . . criminal [and] civil cases that are pending within its
district. In addition, the Attorney General has supervisory authority
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Bradley also argues that the D.A.’s Office has filed this motion as a part of the remaining
Defendants’ “joint hyper-technical strategy aimed at creating a split of the claims.” Pl.’s Opp. to
Def. Cruz [sic] Mot. Dismiss 2 [“Pl.’s Opp.”] [#238].
A state may waive its immunity in three ways: “(1) by a clear declaration that it intends
to submit itself to the jurisdiction of a federal court or administrative proceeding; (2) by consent
to or participation in a federal program for which waiver of immunity is an express condition; or
(3) by affirmative conduct in litigation.” Consejo de Salud de la Comunidad de la Playa de
Ponce, Inc. v. González-Feliciano, 695 F.3d 83, 103 (1st Cir. 2012) (quoting New Hampshire v.
Ramsey, 366 F.3d 1, 15 (1st Cir. 2004)). “The ‘test for determining whether a State has waived
its immunity from federal-court jurisdiction is a stringent one.” Atascadero State Hosp. v.
Scanlon, 473 U.S. 234, 241 (1985). A state may raise the sovereign-immunity defense during
any phase of the litigation. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99, 104 n.8
(1984); see also Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 33 (1st Cir. 2006).
“[W]here a state voluntarily becomes a party to a cause, and submits its rights for judicial
determination, it will be bound thereby, and cannot escape the result of its own voluntary act by
invoking the prohibitions of the [Eleventh] Amendment.” Maysonet-Robles v. Cabrero, 323 F.3d
43, 52 (1st Cir. 2003) (quoting Gunter v. Atlantic Coast Line R.R., 200 U.S. 273, 284 (1906)).
“[A] State’s waiver of its Eleventh Amendment immunity through conduct in litigation must be

over all district attorneys and can take charge of cases that are
being handled by the district attorneys. What is more, the salaries
of the district attorneys, their assistants, and their employees are
paid by the Commonwealth. The district attorneys must also
account to the Commonwealth for their expenses. And, although
the offices of the district attorneys are, for the most part, divided
by county, some of the offices transcend county lines.
Id. at 368-69 (internal quotation marks and footnotes omitted).
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‘unambiguous’ and ‘evince a clear choice to submit [its] rights [to] adjudication by the federal
courts.” Consejo de Salud, 695 F.3d at 103 (quoting Ramos-Piñero v. Puerto Rico, 453 F.3d 48,
52 (1st Cir. 2006)). A state waives its Eleventh Amendment immunity only “when it voluntarily
entreats a federal court to adjudicate its rights.” Id. at 104. The waiver-by-litigation-conduct
doctrine is grounded in “the judicial need to avoid inconsistency, anomaly, and unfairness.”
Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 620 (2002). For example, “[a]
state voluntarily invokes federal jurisdiction when . . . it files a claim in the bankruptcy court . . .
or when it chooses to intervene in federal-court litigation,” Bergemann v. Rhode Island Dep’t of
Envtl. Mgmt., 665 F.3d 336, 340 (1st Cir. 2011) (citing Gardner v. New Jersey, 329 U.S. 565,
574 (1947) and Clark v. Barnard, 108 U.S. 436, 447-48 (1883)); when it removes to federal court
a state-law claim for which the state’s immunity has been waived or abrogated in state court, id.
at 341 (citing Lapides, 535 U.S. at 620); or when it files a counterclaim and third-party
complaint, Paul N. Howard Co. v. Puerto Rico Aqueduct Sewer Auth., 744 F.2d 880, 886 (1st
Cir. 1984). However, a state does not engage in affirmative litigation conduct merely by
defending itself after being sued in federal court. Consejo de Salud, 695 F.3d at 103. For
instance, filing an answer to a complaint and conducting discovery is not sufficient to amount to
waiver. Rhode Island Dep’t of Envtl. Mgmt. v. United States, 304 F.3d 31, 49 (1st Cir. 2002).
Bradley relies on Ku v. Tennessee, 322 F.3d 431 (6th Cir. 2003), for the proposition that
“appearing without objection and defending on the merits in a case over which the district court
otherwise has original jurisdiction is a form of voluntary invocation of the federal court’s
jurisdiction that is sufficient to waive a State’s defense of Eleventh Amendment immunity.” Id.
at 435. However, this does not comport with First Circuit precedent. The Sixth Circuit based its
holding in Ku on its conclusion that,

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by creating a clear rule of waiver by removal [in Lapides v. Board
of Regents of University System of Georgia, 535 U.S. 613,] the
Supreme Court has unequivocally rejected the view that, in cases
over which the federal court otherwise has original jurisdiction, the
additional ‘jurisdictional bar’ erected by the Eleventh Amendment
should be treated as a matter of ‘subject matter’ jurisdiction rather
than ‘personal’ jurisdiction.
Id. The First Circuit has not read Lapides so broadly. See Maysonet-Robles, 323 F.3d at 50 & n.5
(“As to jurisdiction, while the Eleventh Amendment has been described as a jurisdictional bar
with a ‘hybrid nature,’ similar in some respects to personal jurisdiction and to subject matter
jurisdiction in others, it is on all fours with neither . . . . Although Lapides . . . addressed some of
Justice Kennedy’s concerns [set forth in his concurrence in Wisconsin Department of
Corrections v. Schacht, 524 U.S. 381 (1998), that treating Eleventh Amendment sovereignty in
the same manner as personal jurisdiction would eliminate the unfairness that results when a state
raises immunity for the first time on appeal], its relatively narrow holding did not alter the hybrid
nature of the Eleventh Amendment.”); see also Bergemann, 665 F.3d at 341 (declining to apply
Lapides beyond the context of state-law claims in which the state’s immunity in state court has
been waived or abrogated, and rejecting other circuits’ interpretations of Lapides as creating a
bright-line rule that a state’s removal of any claim to federal court constitutes waiver-bylitigation conduct). Further, after the Supreme Court issued its decision in Lapides, the First
Circuit has continued to recognize that a state may raise the defense of Eleventh Amendment
immunity at any time. Diaz-Fonesca, 451 F.3d at 33.
Similarly, because a state may raise the sovereign-immunity defense at any stage of
litigation, id., the doctrine of judicial estoppel is inapposite. While the D.A.’s Office could have
avoided protracted litigation by raising the issue of Eleventh Amendment immunity earlier in the
proceedings, it is not barred from doing so now because it previously defended this action on

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other grounds.
Bradley argues that the D.A.’s Office voluntarily invoked the court’s jurisdiction by
seeking attorneys’ fees and stating that the court had “broad power” to award them; seeking
multiple protective orders; filing motions to strike portions of Bradley’s draft Local Rule 56.1
statement; and seeking sanctions against Bradley. Pl.’s Opp. 4-5. Bradley contends that such
conduct is “roughly analogous to the assertion of counterclaims.” Id. at 5. The actions are not
analogous. In the motion practice cited by Bradley, the D.A.’s Office was not voluntarily
invoking the court’s jurisdiction so it could affirmatively bring new claims not previously before
the court. Instead, the D.A.’s Office filed the aforementioned motions in response to the claims
Bradley had filed and the issues that stemmed from their litigation. Even the motion for sanctions
did not assert new claims; it related directly to events arising from summary-judgment motion
practice, and in any event was withdrawn.
Nor does the D.A.’s Office’s motion amount to an impermissible effort to split the claims
or forum shop. As it has not waived its immunity in federal court, the D.A.’s Office cannot be
required to litigate Bradley’s claims here. Bradley has not pointed to, nor has this court
unearthed, any precedent to support his argument that the federal court may not dismiss a state
defendant with a colorable defense of immunity in federal court because the plaintiff may have
to litigate claims in two forums.
Because the D.A.’s Office is entitled to sovereign immunity under the Eleventh
Amendment to the United States Constitution, the Motion to Dismiss Counts V and VI [#236]
and the request to dismiss count IV [#249] for lack of subject matter jurisdiction are
ALLOWED, the court’s Memorandum & Order [#48] is VACATED as to the dismissal of Count
IV for failure to state a claim, and Counts IV, V and VI are DISMISSED without prejudice

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pursuant to Rule 12(b)(1).
IT IS SO ORDERED.
Date: August 10, 2017

/s/ Indira Talwani
United States District Judge

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