Frederick v. NH Department of Health and Human Services
///ORDER granting 29 DHHS's motion for judgment on the pleadings. So Ordered by Judge Steven J. McAuliffe.(lat)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Case No. 14-cv-403-SM
Opinion No. 2017 DNH 089
State of New Hampshire,
Department of Health
And Human Services,
O R D E R
Katherine Frederick was employed by the State of New
Hampshire, Department of Health and Human Services (“DHHS” or
the “Department”) as a child support officer in its Conway, New
Her employment was terminated on September
On September 21, 2014, Frederick filed this suit,
advancing state and federal claims, including claims asserting
Title VII (Pregnancy Discrimination Act) violations,
retaliation, FMLA interference, and wrongful discharge.
moved to dismiss all of Frederick’s claims, and, on September
30, 2015, the court granted DHHS’s motion, without prejudice to
Frederick’s filing an amended complaint.
On November 13, 2015, Frederick filed an amended complaint,
asserting federal claims under Title VII (for gender
discrimination) and the Americans with Disabilities Act (“ADA”),
as well as a claim for wrongful discharge under state law.
again moved to dismiss.
On August 16, 2016, the court granted
DHHS’s motion in part, dismissing Frederick’s Title VII claim,
but denied the motion with respect to Frederick’s ADA and
wrongful discharge claims.
On September 13, 2016, DHHS timely filed its answer,
raising as an affirmative defense “all applicable immunities.”
Document No. 28.
Shortly thereafter, on October 26, 2016, DHHS
filed a motion for judgment on the pleadings, asserting its
immunity from suit under the Eleventh Amendment.
Standard of Review
Federal Rule of Civil Procedure 12(c) provides that,
“[a]fter the pleadings are closed but within such time as not to
delay the trial, any party may move for judgment on the
“The standard of review of a motion for judgment on
the pleadings under Federal Rule of Civil Procedure 12(c) is the
same as that for a motion to dismiss under Rule 12(b)(6).”
Marrero-Gutierrez v. Molina, 491 F.3d 1, 5 (1st Cir. 2007)
Accordingly, “[t]he court accepts the
plaintiff's well-pleaded facts as true and draws all reasonable
inferences in the plaintiff's favor.”
Holder v. Town of Newton,
No. 09-CV-341-JD, 2010 WL 3211068, at *1 (D.N.H. Aug. 11, 2010)
(citing Citibank Global Mkts., Inc. v. Santana, 573 F.3d 17, 23
(1st Cir. 2009)).
Judgment on the pleadings should be entered
“only if the uncontested and properly considered facts
conclusively establish the movant's entitlement to a favorable
Aponte-Torres v. Univ. of P.R., 445 F.3d 50, 54 (1st
In support of its motion, DHHS notes that the State has not
consented to be sued in federal court with regard to claims
under Title I of the ADA or for wrongful termination, nor has
Congress validly abrogated the Eleventh Amendment with regard to
Therefore, DHHS says, it is immune from this suit.
Frederick does not dispute DHHS’s contention that the State
is entitled to Eleventh Amendment immunity with respect to her
ADA and wrongful termination claims.
Instead, she argues that
the State waived its Eleventh Amendment immunity by voluntarily
litigating the case on the merits.
Frederick points out that
the case has been pending for over two years, during which time
the court has ruled on two motions to dismiss filed by DHHS.
That course of conduct, says Frederick, establishes the State’s
intent to waive its immunity and litigate the case on the
Frederick argues that DHHS “kept its immunity chip in
its back pocket” until the court declined to dismiss two of her
claims in its order on DHHS’s second motion to dismiss.
then, Frederick says, did DHHS invoke its “immunity chip” to
“get a do-over” in state court.
Pl.’s Br. at 5.
argues, DHHS should not be permitted to invoke the Eleventh
Amendment because inconsistency and unfairness will result.
”The Eleventh Amendment provides that the ‘Judicial power
of the United States shall not be construed to extend to any
suit . . . commenced or prosecuted against one of the States” by
citizens of another State, U.S. Const., Amdt. 11, and (as
interpreted) by its own citizens.’”
Lapides v. Bd. of Regents,
535 U.S. 613, 618 (2002) (quoting Hans v. Louisiana, 134 U.S. 1,
“As a general matter, ‘states are immune under the
Eleventh Amendment from private suit in the federal courts.’”
Wojcik v. Mass. State Lottery Comm., 300 F.3d 92, 99 (1st Cir.
2002) (quoting Greenless v. Almond, 277 F.3d 601, 606 (1st Cir.
However, “[a] State remains free to waive its Eleventh
Amendment immunity from suit in a federal court.”
U.S. at 618.
A state can waive its Eleventh Amendment immunity
to suit in three ways: (1) by “clear declaration that it intends
to submit itself to the jurisdiction of a federal court;”
(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.”
Taylor v. U.S. Dept. of
Labor, 440 F.3d 1, 5 (1st Cir. 2005) (quotations omitted).1
“[b]ecause the sovereign's decision to waive such immunity to
suit must be ‘altogether voluntary,’ the ‘test for determining
whether a State has waived its immunity from federal-court
jurisdiction is a stringent one.’”
Maysonet-Robles v. Cabrero,
323 F.3d 43, 50 (1st Cir. 2003) (quoting College Savs. Bank v.
Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 675
(1999) (further quotations omitted)).
Frederick argues that the state has waived its Eleventh
Amendment immunity through affirmative conduct in this
“As a general proposition, waiver by litigation
conduct requires a showing that a state has voluntarily invoked
the jurisdiction of the federal courts.”
Bergemann v. Rhode
Island Dep't of Envtl. Mgmt., 665 F.3d 336, 340 (1st Cir. 2011)
Congress may also abrogate a State’s sovereign immunity
through legislation. See Consejo de Salud de la Comunidad de la
Playa de Ponce, Inc. v. Gonzalez-Feliciano, 695 F.3d 83, 103
(1st Cir. 2012). However, in Bd. of Trustees of Univ. of Ala.
v. Garrett, 531 U.S. 356, 360 (2001), the Supreme Court held
that Congress did not effectively abrogate the states’ immunity
with respect to Title I of the ADA, and therefore suits in
federal court by state employees to recover money damages are
barred by the Eleventh Amendment.
(internal quotation marks, citation and alteration omitted).
“If litigation conduct is to constitute a waiver of immunity,
that conduct must be ‘unambiguous’ and ‘must evince a clear
choice to submit [the state's] rights for adjudication by the
Ramos-Pinero v. Puerto Rico, 453 F.3d 48, 52
(1st Cir. 2006) (quoting Maysonet-Robles, 323 F.3d at 52).
Lapides, 535 U.S. 613, for example, the Supreme Court determined
that a state waived its Eleventh Amendment immunity by
voluntarily invoking federal jurisdiction by removing a case to
the federal courts.
The Court explained that, when determining
whether a state has indicated intent to waive immunity, the
focus is on “the litigation act the State takes that creates the
Lapides, 535 U.S. at 620.
Frederick fails to identify any particular act taken by
DHHS that unambiguously suggests an intent to waive its
To the extent that she is arguing that
DHHS indicated that intent by filing motions to dismiss, her
argument is ineffective.
See, e.g., Inacom Corp. v. Comm. of
Mass., 2 F. Supp. 2d 150, 154–55 (D. Mass. 1998) (“Although the
Commonwealth has done more than merely appear, most of its
actions, including opposing a preliminary injunction on the
merits and opposing discovery, were responses to initiatives by
The Commonwealth's other actions (moving for
additional time to answer, filing an answer, reserving the right
to assert counterclaims, preparing for trial, and filing two
motions to dismiss, one of which was based on the Eleventh
Amendment bar) do not support a determination of waiver of or
preclusion to assert Eleventh Amendment immunity.”).
Diaz v. Dep't of Educ., 823 F. Supp. 2d 68, 73 (D.P.R. 2011)
(“the Court understands that the type of affirmative action that
constitutes Eleventh Amendment immunity waiver is absent in this
Even if, as Plaintiff argues, the DOE's behavior were to
be considered as showing an unjustified and inexcusable lack of
diligence, the Court cannot simply punish it by ignoring the
As our court of appeals has noted:
The Supreme Court's cases are as clear as they are
consistent in holding that a State only waives its
immunity under the Eleventh Amendment when it
voluntarily entreats a federal court to adjudicate its
rights. That a State is haled into federal court as a
defendant against its will and then defends itself
once therein will not do. See Fla. Dept. of State v.
Treasure Salvors, Inc., 458 U.S. 670, 683 n.18 (1982)
(“The fact that the State appeared and offered
defenses on the merits does not foreclose
consideration of the Eleventh Amendment issue....”).
Consejo de Salud de la Comunidad de la Playa de Ponce, Inc. v.
Gonzalez-Feliciano, 695 F.3d 83, 104 (1st Cir. 2012) (additional
citations and parentheticals omitted).
Here, the choice to litigate in federal court was
Frederick’s, not the State’s.
DHHS has appeared only to defend
DHHS has not asserted a counterclaim, filed a
third-party action or taken any other affirmative conduct that
would suggest it was “submit[ting] its rights for adjudication
in the federal courts.”
New Hampshire v. Ramsey, 366 F.3d 1, 16
(1st Cir. 2004); see Paul N. Howard Co. v. Puerto Rico Aqueduct
Sewer Auth., 744 F.2d 880, 886 (1st Cir. 1984) (“where
[defendant] not only appeared but filed a counterclaim and a
third-party complaint, we have little trouble concluding that
[it] voluntarily submitted to the jurisdiction of the federal
court, thereby waiving any Eleventh Amendment immunity it might
or might not have enjoyed.”); see also Candela Corp. v. Regents
of Univ. of California, 976 F. Supp. 90, 92–93 (D. Mass. 1997)
(“By removing the action, answering the complaint,
counterclaiming, and opposing a motion to remand on immunity
grounds, the [state] has clearly and unequivocally waived its
Eleventh Amendment immunity to suit in the present case.”).
DHHS timely raised its immunity defense in its answer, and in
its motion for judgment on the pleadings.
court cannot conclude that DHHS’s conduct amounts to its having
voluntarily invoked the jurisdiction of the court.
Finally, in support of her argument that it would be unfair
to allow DHHS to invoke its Eleventh Amendment immunity,
Frederick characterizes the proceedings in this action thus far
as “extensive litigation on the merits.”
Pl.’s Reply Br. at 2.
But, that characterization probably overstates the situation.
While Frederick’s case has been pending for over two years,
litigation activity has concerned motions to dismiss.
raised the immunity defense in its answer, and promptly filed a
motion for judgment on the pleadings on that basis.
have not yet progressed to discovery.
Given the suit’s status,
the out-of-circuit cases upon which Frederick relies in her
briefing are distinguishable and unpersuasive.
See Hill v.
Blind Indus. & Servs., 179 F.3d 754, 758 (9th Cir. 1999)
(finding waiver when defendants asserted Eleventh Amendment
immunity on the first day of trial); Arizona v. Bliemeister (In
re Bliemeister), 296 F.3d 858, 861 (9th Cir. 2002) (finding
waiver when state asserted Eleventh Amendment immunity after
failing to raise it in its answer, motion for summary judgment,
or at oral argument on the merits before the court where that
court announced its preliminary leanings).
For the foregoing reasons, as well as those set forth in
DHHS’s memoranda (documents no. 29-1 and 33), DHHS’s motion for
judgment on the pleadings (document no. 29) is GRANTED.
The clerk of court shall enter judgment in accordance with
this order, and close the case.
Steven J. McAuliffe
United States District Judge
May 5, 2017
Benjamin T. King, Esq.
Elizabeth A. Lahey, Esq.
Lisa M. English, Esq.
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