Martin v. State of Nevada, Division of Insurance

Filing 19

ORDER granting 12 Motion to Dismiss. Signed by Chief Judge Robert C. Jones on 4/26/13. (Copies have been distributed pursuant to the NEF - JC) (Main Document 19 replaced on 4/26/2013) (JC).

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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C. TERESA MARTIN,
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Plaintiff,
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vs.
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NEVADA DIVISION OF INSURANCE,
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Defendant.
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3:13-cv-00047-RCJ-WGC

2:13-cv-00047-RCJ-WGC
ORDER

Plaintiff C. Teresa Martin has sued the State of Nevada’s Division of Insurance in this

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Court for age and sex discrimination. Defendant has moved to dismiss the claim for age

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discrimination under the Age Discrimination in Employment Act (“ADEA”). The Court grants

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the motion.

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The Court generally has no jurisdiction to entertain a suit against the State of Nevada or

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one of its departments by one of its citizens absent the State’s consent. See U.S. Const. amend.

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XI; Hans v. Louisiana, 134 U.S. 1 (1890). Nevada has explicitly refused to waive its Eleventh

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Amendment immunity from suit in federal court as a general matter, see Nev. Rev. Stat.

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§ 41.031(3), and the State did not remove the present case from state court, so waiver does not

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apply in the present case. Although § 5 of the Fourteenth Amendment gave Congress the power

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to abrogate the States’ Eleventh Amendment immunity with respect to discrimination suits in

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some circumstances, see Fitzpatrick v. Bitzer, 427 U.S. 445, 455–56 (1976) (Title VII), Congress

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did not exercise that power in passing ADEA, because “Congress had virtually no reason to

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believe that state and local governments were unconstitutionally discriminating against their

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employees on the basis of age,” Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91 (2000). The pre-

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Kimel decisions from inferior courts that Plaintiff cites in opposition are no longer persuasive.

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CONCLUSION

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IT IS HEREBY ORDERED that the Motion to Dismiss (ECF No. 12) is GRANTED.

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IT IS SO ORDERED.

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Dated this 26th day April, 2013.
Dated this 22nd day ofof April, 2013.

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_____________________________________
ROBERT C. JONES
United States District Judge

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