Lazarou v. Mississippi State University et al

Filing 112

MEMORANDUM OPINION re 111 Order on Motion to Dismiss. Signed by Glen H. Davidson on 4/16/12. (mhg)

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF MISSISSIPPI

EASTERN DIVISION

GEORGIOS Y. LAZAROU, Ph.D.

PLAINTIFF
CIVIL ACTION NO.1 :07-cv-Ob060-GHD-DAS

v.

MISSISSIPPI STATE UNIVERSITY AND
BOARD OF TRUSTEES, INSTITUTIONS OF HIGHER LEARNING

DEFENDANTS

MEMORANDUM OPINION
Presently before the Court is Defendants' motion to dismiss on the grounds of Eleventh
Amendment immunity [85]. Upon due consideration, the Court finds the motion should be
granted.

A. Factual and Procedural Background
Plaintiff Georgios Y. Lazarou, Ph.D. ("Plaintiff') is a proclaimed Cypress native whose
primary language is Greek.

Plaintiff is a former non-tenured,

tenure-tr~ck

professor at

Mississippi State University ("MSU"). Plaintiff was denied tenure and subsequently resigned
from his position at MSU. Plaintiff then filed an EEOC charge. Upon receipt of his right to sue
letter, Plaintiff initiated this suit against Defendants MSU and the Board of Trustees, Institutions
of Higher Learning ("Defendants"), claiming he was unlawfully denied tenure and discriminated
against due to his race and national origin in violation of federal and state law. Plaintiff asserts a
Title VII claim and a supplemental state law breach of contract claim for injunctive relief.
On April 8, 2008, Plaintiff moved to stay the case or hold the case in abeyance and/or for
continuance [31] for six months based on Plaintiff s purported illness and clinical depression,
which rendered him unable to proceed at that time with the litigation. Accordingly, the Court
stayed the case until mid-October of 2008. Subsequently, Defendants filed a motion to dismiss

[85] pursuant to Rules 12(b)(l) and 12(b)(6) of the Federal Rules of Civil Procedure. The Court
stayed the case pending the resolution of this motion.

B. Legal Standards
"Federal courts are courts of limited jurisdiction; without jurisdictibn conferred by
statute, they lack the power to adjudicate claims." In re FEMA Trailer Formaldehyde Prods.

Liab. Litig., 668 F.3d 281, 286 (5th Cir. 2012) (citing Kokkonen v. Guardian Life Ins. Co. ofAm.,
511 U.S. 375, 377, 114 S. Ct. 1673, 128 L. Ed. 2d 391 (1994); Stockman 'v. Fed. Election

Comm'n, 138 F.3d 144, 151 (5th Cir. 1998)). A claim is "properly dismissed fdr lack of subjectmatter jurisdiction when the court lacks the statutory or constitutional power to adjudicate" the
claim. Home Builders Ass'n, Inc. v. City of Madison, 143 F.3d 1006, 101Q (5th Cir. 1998)
(internal citation omitted).

The court must address a Rule 12(b)(1) jurisdictional challenge

before addressing a challenge on the merits. Ramming v. United States, 281 F;3d 158, 161 (5th
Cir.2001). Addressing Rule 12(b)(l) challenges first "prevents a court without jurisdiction from
prematurely dismissing a case with prejudice." !d.
"[A] factual attack under Rule 12(b)(l) may occur at any stage of the proceedings, and
plaintiff bears the burden of proof that jurisdiction does in fact exist." Arena 'v. Graybar Elec.

Co., Inc., 669 F.3d 214, 223 (5th Cir. 2012) (quoting Menchaca v. Chrysler Credit. Corp., 613
F.2d 507,511 (5th Cir. 1980) (citations omitted)). In such a consideration, the <purt must
take the well-pled factual allegations of the complaint as true arid
view them in the light most favorable to the plaintiff. . .. [U]nder
Rule 12(b)(1), the court may find a plausible set of facts by
considering any of the following: (1) the complaint alone; (2) the
complaint supplemented by the undisputed facts evidenced in the
record; or (3) the complaint supplemented by undisputed facts plus
the court's resolution of disputed facts.

2

Lane v. Halliburton, 529 F.3d 548,557 (5th Cir. 2008) (citations and internal qllotation marks
omitted).
"The ultimate question in a Rule 12(b)(6) motion is whether the complaint states a valid
claim when all well-pleaded facts are assumed true and are viewed in the light most favorable to
the plaintiff." Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir.
2010) (citing In re Katrina Canal Breaches LiUg., 495 F.3d 191, 205 (5th iCir. 2007)). Of

.
course, the complaint must allege "enough facts to state a claim to relief that is plausible on its
face." Bell Atl. Corp. v. Twombly, 550 U.S. 544,570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007).
The court must not evaluate the likelihood of the claim's success, but instead ascertain whether
the plaintiff has stated a legally cognizable claim that is plausible. Lone Star Fund, 594 F.3d at
387 (citingAshcroflv. Iqbal, 556 U.S. 662,129 S. Ct. 1937, 173 L. Ed. 2d 868 CZ009)).
"If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadihgs are presented
to and not excluded by the court, the motion must be treated as one for summary judgment under
Rule 56." FED. R. CIY. P. 12(d). The Court notes that Defendants have attached the following to
their brief in support of the motion: a letter from Defendants to Plaintiff stipulating that
Defendants receive and are the administrators of federal funding; a letter from Plaintiff to the
then-president of MSU, Robert H. Foglesong, summarizing Plaintiff's discrimination claim;
transcripts of two depositions of Foglesong; a transcript of deposition testimoJiY of Dr. Thomas
Meredith, commissioner of higher education in Mississippi; a letter from Plaintiff to Dr.
Meredith challenging the final decision regarding Plaintiff's tenure and promotion status; and a
transcript of the telephonic deposition of Dr. Meredith. Because the Defendants in the case sub
judice have submitted matters outside the pleadings which this Court shall not exclude, the

3

motion shall be considered a motion for summary judgment brought pursuant to Rule 56 of the
Federal Rules of Civil Procedure.
Summary judgment "should be rendered if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine dispute as to;any material fact
and that the movant is entitled to judgment as a matter of law." FED. R. CIY. P. 56(a); Celotex

Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Weaver v.
CCA Indus., Inc., 529 F.3d 335, 339 (5th Cir. 2008). The rule "mandates the

~ntry

of summary

judgment, after adequate time for discovery and upon motion, against a party who fails to make a
sufficient showing to establish the existence of an element essential to that patty's case, and on
which that party will bear the burden of proof at trial." Celotex Corp., 477

U~S.

at 322, 106 S.

Ct. 2548. The party moving for summary judgment bears the initial responsibility of informing
the district court of the basis for its motion and identifying those portions of the record it believes
demonstrate the absence of a genuine issue of material fact. !d. at 323, 106 S. Ct. 2548. Under
Rule 56(a) of the Federal Rules of Civil Procedure, the burden then shifts to the non-movant to
"go beyond the pleadings and by ... affidavits, or by the 'depositions, answers to interrogatories,
and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.' "

Id. at 324, 106 S. Ct. 2548; Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir.
2001); Willis v. Roche Biomedical Labs., Inc., 61 F.3d 313, 315 (5th Cir. 1995).
C. Discussion

Defendants argue in their motion that (1) Plaintiff's breach of contract claims are barred
from being asserted against the state by Eleventh Amendment immunity; and

(~)

Plaintiff failed

to provide the statutorily required pre-suit notice for his state law claims. Tht1 Court finds that
,

4

Plaintiffs state law claims are barred under the Eleventh Amendment, and thus does not reach
the issue of whether the Plaintiff provided the statutorily required pre-suit notice.
Courts should address Eleventh Amendment immunity prior to reaching the merits of a
case. See United States v. Tex. Tech Univ., 171 F.3d 279, 285-86 (5th Cir. 11999). Sovereign
immunity is a broad jurisdictional doctrine prohibiting suit against the govequnent absent the
government's consent.

Sovereign immunity was assumed at common law, brought from

England to the colonies, and existed prior to the ratification of the United Stdtes Constitution.
Although the term "sovereign immunity" nowhere appears in the Constitution, the concept was
perhaps woven into the very fabric of the document. Andrew Hamilton explainoo:
It is inherent in the nature of sovereignty not to be amenable to tlte

suit of an individual without its consent. This is the general senS1e,
and the general practice of mankind; and the exemption, as one of
the attributes of sovereignty, is now enjoyed by the government of
every State in the Union.
.
THE FEDERALIST No. 81, at 511 (Alexander Hamilton) (Wright ed., 1961). At the Virginia
ratifying convention, James Madison stated: "Jurisdiction in controversies between a state and
citizens of another state is much objected to, and perhaps without reason. It is not in the power
of any individuals to call any state into court." 3 DEBATES ON THE FEDERAL CONSTITUTION 533
(J. Elliot 2d ed., 1854). At that same convention, John Marshall stated: "With respect to disputes
between a state and the citizens of another state, its jurisdiction has been decried with unusual
vehemence. I hope no gentleman will think that a state will be called at the b,r of the federal
court." 3 id., at 555.
Despite the long-standing principle of sovereign immunity, in 1793, the United States
Supreme Court held that a state could be sued by a citizen of another state or a foreign country.
See Chisolm v. Georgia, 2 Dall. 419, 1 L. Ed. 440 (1793). But five years later, t1b.e states ratified

5

the Eleventh Amendment, which provides: "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; see C. JACOBS, THE ELEVENTH AMENDMENT AND SOVEREIG/N IMMUNITY 64­
75 (1972).

The Fifth Circuit has stated: "Eleventh Amendment immunit~ operates like a

jurisdictional bar, depriving federal courts of the power to adjudicate suits ,against a state."

Union Pac. R. Co. v. La. Pub. Servo Comm'n, 662 F.3d 336, 340 (5th Cir. 2011) (internal
citations omitted). "The Eleventh Amendment grants a State immunity from su.t in federal court
by citizens of other States, and by its own citizens as well." Lapides v. Ed. ofRegents, 535 U.S.
613, 616, 122 S. Ct. 1640, 152 L. Ed. 2d 806 (2002) (citation omitted).' Indeed, "[t]he
amendment has been judicially construed to bar federal jurisdiction over suits brought against a
state by its own citizens, despite the absence oflanguage to that effect." See Ja~nandan v. Giles,
538 F.2d 1166, 1177 (5th Cir.), cert. denied, 432 U.S. 910, 97 S. Ct. 2959, 53 L. Ed. 2d 1083
(1977) (internal citations omitted).

State immunity "extends to any state agency or entity

deemed an 'alter ego' or 'arm' ofthe state." Perez v. Region 20 Educ. Servo Ctr., 307 F.3d 318,
326 (5th Cir. 2002). "[A] suit against a state official in his or her official capacity is not a suit
against the official but rather is a suit against the official's office." Will v. Mich. Dep't ofState

Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989).
It is well settled that Defendants Mississippi State University and The Board of Trustees,

Institutions of Higher Learning, are arms of the state. See MISS. CODE ANN. § 37-113-3 (2008);

Jagnandan, 538 F.2d at 1173-78 (a suit against MSU is a suit against the

state~

as any recovery

would come from the state). The Fifth Circuit has explained:
The genesis of Mississippi State University (M.S.U.) is found in
Chapter XIX of the Laws of the State of Mississippi, approved February
6

28. 1878. The school was first known as the Agricultural and Mechani¢al
College of the State of Mississippi. Laws of Mississippi, ch. XIX. §. 2.
Overseeing the school was a Board of Trustees appointed by the Govemor
with the advice and consent of the state senate. Id. § 3. The Board was
declared to be a body politic and corporate, capable of suing and being
sued. Id. § 5. The Governor was the ex officio president. Id. § 6. The
State Treasurer was the ex officio treasurer, empowered to keep and
disburse all moneys of the school according to the orders of the Board. Id.
§ 8. Later, Mississippi's universities were placed under the control of the
Board of Trustees of state institutions of higher learning. The Agricultural
and Mechanical College of Mississippi logo was changed to Mississippi
State University by statute, although the school retained "all its property
and the franchises. rights, powers, and privileges heretofore conferred on
it by law (1878 Act) ...." MISS. CODE ANN. § 37-113-3 (1972).

Jagnandan, 538 F.2d at 1174 (footnotes omitted).

The Fifth Circuit further stated: "This

statutory scheme clearly demonstrates the State of Mississippi's control over the fiscal policies
established by the Board, and a fortiori over the finances of M.S.U." Id. at 1175. The Fifth
Circuit found that "[s]tate decisional law confirms that the Board and the Univ$.'sity are part and
parcel of the state." Id. In Coleman v. Whipple, 2 So. 2d 566 (Miss. 1941), the Mississippi
Supreme Court found that the Board was "the managing board or head of the university, and then
and now constitute the University of Mississippi, created by the State through its legislature
which, under its act of creation (Sec. 5) retains the right to repeal the entire att; its property is
owned by the State and the university is as an arm of the State, the State itself"! 2 So. 2d at 568.
The court described MSU as follows: "The acts creating the colleges now knoWn as Mississippi
State College (renamed Mississippi State University) (February 28, 1878) ... 1ll1ust be similarly
construed, and such construction is not at all affected by Chapter 127 of the Laws of 1932,
creating a single board of trustees for all the state institutions of higher learning." Id. at 567.
Because Defendants are arms of the state, Defendants are entitled to Eleventh Amendment
immunity unless (1) the state has waived sovereign immunity or consented to suit; (2) the Ex

7

parte Young doctrine renders the state amenable to suit; or (3) there is valid abrogation by
Congress. Only the first two could apply in the case sub judice.
(1) Waiver/Consent to Suit
Defendants maintain that the Eleventh Amendment bars Plaintiff's state law claims and
that Defendants have neither waived immunity nor consented to suit.

Elev~nth

Amendment

sovereign immunity from suit is waiveable, but such waiver must be clearly stilted and will not
be easily implied. Idaho v. Coeur d'Alene Tribe ofIdaho, 521 U.S. 261, 267, i117 S. Ct. 2028,
138 L. Ed. 2d 438 (1997); Jagnandan, 538 F.2d at 1117 (citing Edelman v. Jordan, 415 U.S.
651,673,94 S. Ct. 1347,39 L. Ed. 2d 662 (1974); Petty v. Tenn.-Mo. Bridge Comm'n, 359 U.S.
275,276, 79 S. Ct. 785, 3 L. Ed. 2d 804 (1959)). The Fifth Circuit has stated that
[n]o mention is made of the power to sue or to be sued either in the
organizational statutes or in the general powers and duties of the
Board [of Trustees, Institutions of Higher Learning]. Under
specific circumstances the Board is allowed to sue or be sued. In
these instances, however, the waiver is limited to a narrowly
defined activity. The consent to be sued is not given with suth
clarity as to amount to a waiver of Eleventh Amendm~t
protection.
Jagnandan, 538 F.2d at 1177 (footnotes omitted); see MISS. CODE ANN. §§ 37-JOI-3, 37-101-7,
37-101-15 (1972). The Mississippi Code provides in pertinent part that "[MStr] shall continue
to exist as a body-politic and corporate, . . . with all its property and the ftanchises, rights,
powers, and privileges heretofore conferred on it by law, or properly incident toi such a body and
necessary to accomplish the purpose of its creation[.]" MISS. CODE ANN. § 37-113-3. The Fifth
Circuit has stated that "[t]his provision ... lacks the clarity needed in order tQ infer the state's
consent to be sued." Jagnandan, 538 F.2d at 1178. This Court cannot exercise supplemental
jurisdiction over state law claims asserted against a non-consenting state entit)1'. See Raygor v.

8

Regents ofthe Univ. ofMinn., 534 U.S. 533, 541-42, 122 S. Ct. 999, 152 L. Ed. 2d 27 (2002);
Yoder v. MSU, No.1 :09CV7-D-D, 2010 WL 364466, at *2 (N.D. Miss. Feb. 1,2010).
Plaintiff argues, unavailingly, that Defendants have otherwise waived ot consented to be
sued on the state law claims. First, Plaintiff contends that Defendants' acceptanCe of vast federal
funding constitutes a waiver of sovereign immunity. The Court finds the argument unpersuasive,
as the Fifth Circuit has previously rejected such an argument. See McGarry;v. Univ. of Miss.
I

Med. Ctr., 355 F. App'x 853, 856 (5th Cir. 2009); Sullivan v. Univ. of Tex. Health Sci. Ctr., 217
F. App'x 391, 395 (5th Cir. 2007). Second, Plaintiff contends that Defendants have voluntarily
consented to suit by engaging in extensive discovery, agreeing to numerous trial settings, and
otherwise participating in the case. Defendants maintain that they were sued involuntarily by
Plaintiff and have not consented to suit by participation. The Court agrees. ,Defendants have
done nothing to actively invoke this Court's jurisdiction. See, e.g., Lapides, 53S U.S. at 620, 122
S. Ct. 1640. Therefore, the Court finds that Defendants have neither waived sovereign immunity
nor consented to suit on the state law claims.
(2) Ex parte Young Doctrine
Plaintiff next maintains that under Ex parte Young, 209 U.S. 123,28 S. Ct. 441,52 L. Ed.
714 (1908), he may seek injunctive relief against Defendants on the state law claims.
Defendants argue that Eleventh Amendment immunity bars all state law Claims asserted in
federal court, including those suits for injunctive relief. Defendants additionally argue that the
Ex parte Young doctrine does not apply, as even if the action is asserted

~gainst
,

individual

officers, the state is the real, substantial party in interest. The Court instrUcts the parties as
follows.

9

"In determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment
bar to suit, a court need only conduct a 'straightforward inquiry into whether [the] complaint
alleges an ongoing violation of federal law and seeks relief properly characterized as
prospective.''' Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. at 296, 117 S. Ct. 2028
(O'Connor, J., joined by Scalia and Thomas, J.J., concurring in part and concurring in judgment).

Ex parte Young thus allows suit to be brought against a state officer in federal court for the
purpose of enforcing the Supremacy Clause to the Constitution if all of the following criteria are
met: (1) the plaintiff has pleaded his case against the state official responsible for enforcing the
law at issue in that person's official capacity; (2) the plaintiff has alleged an ongoing violation of
federallaw, not state law, as federal courts may not instruct state officials on state law, thereby
significantly intruding on state sovereignty and failing to enforce the Supremacy Clause; and (3)
the plaintiff has requested the proper relief, that is, prospective, injunctive relief, or relief that is
ancillary to prospective relief. In the case sub judice, Plaintiff has brought st.e law breach of
contract claims against Mississippi State University and the Board of Trustees, Institutions of
Higher Learning and has not sued a named state official. The Court finds that the Ex parte

Young doctrine does not apply in the case sub judice because (1) Plaintiff has not sued the
appropriate state official in his or her official capacity; and (2) Plaintiff has asserted claims of
state law violations, which are not subject to suit under Ex parte Young.
D. Conclusion

In sum, the Court finds that Plaintiff's state law claims are properly dismissed without
prejudice because such claims are barred by the Eleventh Amendment. See Warnock v. Pecos

Cnty.• Tex., 88 F.3d 341, 343 (5th Cir. 1996). The Court notes that to the extent Plaintiff's
claims may be characterized as employment discrimination claims brought under Title VII, the

10

claims are not barred by Eleventh Amendment immunity. See Perez, 307 F.3d at 326 n.l ("we
have long recognized that Congress has clearly abrogated the states'

E1ev~nth

Amendment

immunity in enacting Title VII").
Thus, Defendants' motion to dismiss [85] is GRANTED; Plaintiffs state law claims are
DISMISSED WITHOUT PREJUDICE.

J£

A separate order in accordance with this opinion shall issue this day.

6 £t of April, 2012.
THIS the Lday

!£~

SENIOR JUDGE

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