Bergemann et al v. State of Rhode Island Department of Environmental Management et al

Filing 19

MEMORANDUM AND ORDER denying 4 Motion to Remand to State Court; granting 14 Motion to Dismiss- So Ordered by Chief Judge Mary M Lisi on 12/16/09. (Barletta, Barbara)

UNITED STATES D I S T R I C T COURT FOR THE D I S T R I C T OF RHODE ISLAND SCOTT BERGEMANN, e t a l . , Plaintiffs v. THE STATE OF RHODE ISLAND, THE DEPARTMENT OF ENVIRONMENTAL MANAGEMENT, a n d FRANK T . CAPRIO in his official capacity as Treasurer of the State of Rhode Island, Defendants C.A . No. 09-150ML

MEMORANDUM A N D O R D E R

M a r y M. L i s i , C h i e f U n i t e d S t a t e s D i s t r i c t J u d g e . This case represents the second e f f o r t by a group of Rhode Island Environmental Police Officers ("EPOs") to challenge c e r t a i n wage practices by the Rhode Island Department of Environmental M a n a g e m e n t ("RIDEM") u n d e r t h e F a i r L a b o r S t a n d a r d s A c t ( " F L S A " ) , 29 U.S.C.
§§

201 20 of

to

219.

Plaintiff

Scott

Bergemann from the

and first

approximately

the

original

plaintiffs

l i t i g a t i o n i n 1 9 9 7 , s e e B e r g e m a n n v . R h o d e I s l a n d , 9 5 8 F . S u p p . 61 ( D . R . I . 1 9 9 7 ) , a r e j o i n e d b y a n e w g r o u p o f EPO p l a i n t i f f s i n t h i s suit. As b e f o r e , t h e p l a i n t i f f s a s s e r t v i o l a t i o n s o f t h e FLSA for which they seek damages and The case i s now before t h i s Court

related to wage compensation, enjoinment of future violations.

on the p l a i n t i f f s ' motion to remand and the defendants' motion to dismiss Count I of the EPOs' complaint. herein, the plaintiffs' For the reasons set forth and the defendants'

m o t i o n i s DENIED,

m o t i o n i s GRANTED.

Background

On D e c e m b e r 2 3 ,

2008,

the plaintiffs,

who a r e e m p l o y e d b y

RIDEM a s l a w e n f o r c e m e n t p e r s o n n e l , c o m m e n c e d l e g a l a c t i o n a g a i n s t t h e S t a t e o f R h o d e I s l a n d , RIDEM, a n d t h e S t a t e T r e a s u r e r i n R h o d e I s l a n d S u p e r i o r C o u r t , a s s e r t i n g ( C o u n t I ) v i o l a t i o n o f t h e FLSA; (Count II) breach of contract; Laws § 36-8-1 e t s e q . ; l and (Count I I I ) v i o l a t i o n of R.I. Gen. (Count IV) unjust enrichment. The

p l a i n t i f f s alleged t h a t (1) they receive no compensation for t h e i r daily thirty minute lunch periods, during which they are required "to monitor, address and respond to a l l calls for law enforcement duties," Complaint
~

47; and (2)

the defendants have refused to retirement contribution

include holiday pay in the plaintiffs' totals. Id.
~

67.

The p l a i n t i f f s f i l e d an amended complaint on

February 9, 2009, but failed to serve i t on the defendants. In their answer to the original complaint, the defendants

submitted that the plaintiffs "are in on-call status during their lunch breaks and are only required to respond in the event of an emergency," Answer
~

47.

Defendants denied plaintiffs' assertion Id.
~

regarding the holiday pay.

67.

Further,

the defendants

asserted the affirmative defense of sovereign immunity as well as "the benefit of a l l expressed and implied exceptions to the waiver of sovereign immunity." Answer 11. Within days of filing their

r e s p o n s e , t h e d e f e n d a n t s r e m o v e d t h e c a s e p u r s u a n t t o 28 U . S . C . §

This Statute addresses the administration systems for Rhode Island State employees.
-2-

of

retirement

1441(a), a s s e r t i n g f e d e r a l q u e s t i o n j u r i s d i c t i o n o f t h i s C o u r t . On A p r i l 2 4 , 2 0 0 9 , t h e p l a i n t i f f s f i l e d a m o t i o n t o r e m a n d , i n which they disputed this Court's subj ect matter jurisdiction.

Specifically,

t h e p l a i n t i f f s argued t h a t t h e Eleventh Amendment

protects the State from l i t i g a t i o n in federal court without the S t a t e ' s consent, P I s . ' Mot. 2, and t h a t the Rhode Island Superior Court has 216(b).2 jurisdiction over the Id. at 3. case pursuant to 29

u. S . C.

§

A footnote

in plaintiffs'

motion

also

suggested t h a t defendants' removal of the case may have e f f e c t e d a waiver of immunity. defendants remand. filed P I s . ' s Mo t . 3 n. 2 . On May I , 2009, the

their objection to

the plaintiffs'

motion to

The defendants maintained that sovereign immunity under from suit in state and reasoned

the Eleventh Amendment p r o t e c t e d them federal court and stated that they

"made a

mindful,

d e c i s i o n " t o r e m o v e t h i s FLSA a c t i o n t o F e d e r a l C o u r t i n o r d e r " t o have Plaintiffs' Federal claim decided by a United States d i s t r i c t judge." D e f s . ' Obj. Mot. Remand 2-3. 2009, while the p l a i n t i f f s ' motion to remand was

On May 4 ,

s t i l l pending, the defendants filed a motion to dismiss Count I of the original complaint on the grounds that this Court lacks subject m a t t e r j u r i s d i c t i o n o v e r t h e FLSA c l a i m a n d t h a t t h e c o m p l a i n t fails to state a claim upon which r e l i e f can be granted. Defs.'

2

S u b s e c t i o n 2 1 6 ( b ) p r o v i d e s t h a t a n a c t i o n t o r e c o v e r f o r FLSA v i o l a t i o n s r e l a t e d t o minimum wage o r maximum h o u r s "may b e maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction." 29 U . S . C . § 216 (b). -3-

Mem. M o t . D i s m i s s 2 .

The defendants further asserted that "Et]he

removal from State to Federal Court i s of no consequence to the issue of the State's sovereign immunity." Id. at 3.

After a hearing on p l a i n t i f f s ' motion for remand on June 11, 2009, the Court took the motion under advisement. Following the

hearing, the Court conducted a conference with counsel in chambers. In the course of that conference, the Court asked counsel for the defendants to consider whether purposeful availment of the federal courts in order to establish lack of federal jurisdiction over the FLSA c l a i m m i g h t b e c o n s t r u e d a s t h e t y p e o f l i t i g a t i o n c o n d u c t that could result in waiver of the defendants' sovereign immunity. Pursuant to a mutual stipulation f i l e d on June 24, 2009, the defendants accepted service of the f i r s t amended complaint and had u n t i l July 27, 2009 to answer or otherwise respond to p l a i n t i f f s ' f i r s t amended complaint. 3 On J u l y 2 7 , 2 0 0 9 , t h e d e f e n d a n t s f i l e d As

a motion to dismiss Count I of the f i r s t amended complaint.

b e f o r e , t h e S t a t e a r g u e s t h a t t h e FLSA c l a i m i s b a r r e d b y s o v e r e i g n immunity, which i s not waived by removal. D e f s . ' Mem. 3 .

On S e p t e m b e r 3 , 2 0 0 9 , t h e p l a i n t i f f s f i l e d a n o b j e c t i o n t o defendants' motion to dismiss. The p l a i n t i f f s argue t h a t (1) the

State's "voluntary invocation of federal jurisdiction" results in a waiver of i t s sovereign immunity; (2) the S t a t e has e f f e c t i v e l y

a d o p t e d t h e FLSA t h r o u g h i t s w a g e a n d l a b o r s t a t u t o r y s c h e m e ; a n d

3

Although the f i r s t amended complaint was apparently served on the defendants a t t h a t time, i t was not f i l e d i n t h i s Court u n t i l December 10, 2009. The f i r s t amended complaint no longer asserts a breach of contract claim.

-4-

(3) u n d e r t h e p r i n c i p l e o f e q u i t a b l e e s t o p p e l , t h e S t a t e s h o u l d b e precluded from asserting sovereign immunity.

Discussion
I. Standards of Review A civil a c t i o n f i l e d i n s t a t e court may be removed to a

federal court i f the case i s one over which the federal court has original jurisdiction.
§

28 U.S.C.

§

1 4 4 1 ( a ) . P u r s u a n t t o 28 U . S . C .

1447(c),

the Court must grant a motion to remand " [ i ] f a t any

time before final judgment i t appears that the d i s t r i c t court lacks subject matter jurisdiction." 28 U.S.C.
§

1447(d).

Because the

removal statute must be narrowly interpreted, any doubt should be resolved in favor of remand. Supp. 61, 62-63 W i l b e r t v . UNUM L i f e I n s . C o . , 9 8 1 F .

(D.R.I. 1997).

Rule 12(b} (1) provides for dismissal of an a c t i o n for lack of federal subject matter jurisdiction. jurisdiction of the federal courts Because the subject matter
lS

limited,

courts

are

encouraged to resolve the jurisdictional issue before weighing the merits of a pending action. Morales Feliciano v. Rullan, 303 F.3d

1, 6 (1st Cir. 2002) ("[A] court, when confronted with a colorable challenge to its subject-matter jurisdiction, should resolve that question before weighing the merits of a pending action."). A motion brought under Rule 12(b} (6) for failure to state a

claim upon which r e l i e f can be granted i s subj e c t to the same standard of review as a Rule 12(b} (1) motion. See e.g. NegronIn

Gaztambide v. Hernandez-Torres, 35 F.3d 25, 27 (1st Cir. 1994). a jurisdictional challenge,

"[t]he party invoking federal court

-5-

jurisdiction b e a r s t h e b u r d e n o f p r o v i n g i t s e x i s t e n c e . "

Pejepscot

Indus. Park, Inc. v. Maine Cent. R.R. Co., 215 F.3d 195, 200 (1st Cir. 2000). II. Sovereign Immunity

A s t a t e ' s immunity from s u i t i s a " fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today." Alden v. Maine, 527

U.S. 706, 713, 119 S.Ct. 2240, 2246-47, 144 L.Ed.2d 636 (1999). In recognition of the States as sovereign entities in the federal

system, the Eleventh Amendment provides t h a t a s t a t e i s immune from suit in federal court. 2246. Alden, 527 U.S. a t 712-13, 119 S.Ct. a t

Pursuant to the Eleventh Amendment, " [ t ] h e J u d i c i a l power of

the United States shall not be construed to e xtend 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 ." refers to citizens U .S . Const . amend . XI. of another state, Although the amendment the Supreme Court has

c o n s i s t e n t l y held t h a t "an unconsenting S t a t e i s immune from s u i t s brought in federal courts by her own citizens as well as by

citizens of another State."

Edelman v. Jordan, 415 U.S. 651, 662-

6 3 , 9 4 S . C t . 1 3 4 7 , 1 3 5 5 - 5 6 , 39 L . E d . 2 d 6 6 2 ( 1 9 7 4 ) ( e m p h a s i s a d d e d ) . There are two recognized exceptions to a s t a t e ' s immunity from s u i t under the Eleventh Amendment: state s
I

"(1) a

Congress may abrogate a statutory 452-56, a enactment, 96 S.Ct. see 2666,

sovereign

immunity 427

through U.S.

Fitzpatrick v. 2669-71,

Bitzer ;

445, and (2)

49 L . E d . 2 d 6 1 4

(1976);

s t a t e may waive i t s see Atascadero

immunity and agree to be sued in federal court,

-6-

State H o s p . v . S c a n l o n , 4 7 3 U . S . 2 3 4 , 2 3 8 , 1 0 5 S . c t . 3 1 4 2 , 3 1 4 5 , 87 L.Ed.2d 171 (1985)." 1997) . In order to abrogate a s t a t e ' s sovereign immunity, Congress must (1 ) " u n e q u i v o c a l l y e x p r e s s [] its intent to abrogate the C l o s e v . New Y o r k , 1 2 5 F . 3 d 3 1 , 36 (2d Cir.

immunity;" and (2)" a c t "pursuant to a v a l i d e x e r c i s e of power." Seminole Tribe of Florida v. F l o r i d a , 517 U.S. 44, 55, 116 S.Ct. 1114, 1123, to 134 L.Ed.2d 252 its (1996). On i t s part, be a state's

decision

waive

sovereign

immunity

must

voluntary.

College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Board, 527 U.S. 666, 675,119 S.Ct. 2219, find a waiver 2226, 144 L.Ed.2d 605 if the State

(1999) ("Generally,

we w i l l

either

voluntarily invokes our jurisdiction . makes a 'clear declaration'

or else if the State

that i t intends to submit i t s e l f to

jurisdiction.") (internal citations omitted). I I I . The Fair Labor Standards Act T h e FLSA w a s e n a c t e d b y C o n g r e s s t o p r o v i d e r e g u l a t i o n o f minimum w a g e , maximum h o u r , a n d r e c o r d k e e p i n g r e q u i r e m e n t s . v . M a i n e , 1 1 8 F . 3 d 3 7 , 42 (1st Cir. 1997). Mills

The language of the

FLSA i n d i c a t e s c o n g r e s s i o n a l i n t e n t t o a b r o g a t e s t a t e i m m u n i t y f r o m private actions in federal court. t h e FLSA, See e.g., Subsection 203(d) of

which includes "a public agency" in the definition of 29 U . S . C .

" E m p l o y e r , " a g a i n s t whom a n FLSA a c t i o n m a y b e b r o u g h t .
§

203(d).

However, the Supreme Court has since established that,

u n d e r t h e E l e v e n t h A m e n d m e n t , a s t a t e i s i m m u n e f r o m a n FLSA a c t i o n against i t . Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116

S . c t . 1114, 134 L.Ed.2d 252 (1996); Alden v. Maine, 527 U.S. 706,
-7-

712,

119

S.Ct.

2240,

2246, under

144

L.Ed.2d I

636 of the

(1999) (" [P]owers United States

delegated

to . Congress

Article

Constitution do not include the power to subject nonconsenting States to private s u i t s for damages in s t a t e c o u r t s . " ) . IV. Waiver of Immunity Although a s t a t e may waive i t s immunity and consent to s u i t i n federal court, "[t]he test for determining whether a State has

waived i t s immunity from federal-court jurisdiction i s a stringent one." Atascadero State Hosp. v. Scanlon, 473 U.S. at 241, 105

S.Ct. 3142i R . I . D e p ' t of Envt1. Mgmt. v. Rhode I s l a n d ("RIDEM"), 304 F.3d 31, 46 (1st Cir . 2002) . Consequently, a state will be

deemed to have waived i t s immunity "'only where s t a t e d by the most e x p r e s s l a n g u a g e o r b y s u c h o v e r w h e l m i n g i m p l i c a t i o n f r o m t h e t ex t as will leave no room for any other reasonable construction.'" Atascadero , 473 U.S. a t 254, 105 S.Ct . a t 3153 (quoting Edelman v. Jordan, 415 U.S. a t 673, 94 S.Ct . a t 1361). In addition, the Supreme Court has held that a s t a t e ' s conduct during l i t i g a t i o n may amount to a waiver of i t s Eleventh Amendment immunity. 535 U. S . Lapides v. Ed. of Regents of the Univ. Sys. of Georgia, 613 , 122 S . Ct. 1640 , 152 L . Ed. 2 d 806 ( 2 002) . The

plaintiff in Lapides brought suit against the Georgia university system f o r d e p r i v a t i o n of h i s c i v i l r i g h t s pursuant t o 42 U.S.C. 1983, and under the Georgia Tort Claims Act.
§

The defendants

removed the action to federal court and sought dismissal on the g r o u n d o f El e v e n t h A m e n d m e n t I m m u n i t y . Noting t h a t a Section 1983

claim for money damages could not be a s s e r t e d against the State and

-8-

had t o b e d i s m i s s e d , t h e S u p r e m e C o u r t l i m i t e d i t s h o l d i n g t o t h e state law tort claims. Because the Georgia Tort Claims Act waived

sovereign immunity from s t a t e law proceedings in s t a t e court, the Supreme Court held t h a t the s t a t e "voluntarily invoked the c o u r t ' s jurisdiction" when i t removed the case to federal court. Lapides

v . Bd. of Regents of the Univ. Syst . of Georgia, 535 U.S. a t 624, 122 S.Ct. a t 1646, 152 L.Ed.2d 806 (concluding that "the State's

action joining the removing of this case to federal court waived i t s Eleventh Amendment immunity"). In other words, Lapides, on

which the p l a i n t i f f s rely, establishes waiver by l i t i g a t i o n conduct (removal) where the State has waived i t s immunity to s u i t in i t s own c o u r t ; this case. eir. it is, therefore, inapposite to the circumstances of

See Steward v. North Carolina, 393 F.3d 484, 488 (4th addresses whether a state that removes an

2005) ("Lapides

a c t i o n t o f e d e r a l c o u r t h a v i n g a l r e a d y c o n s e n t e d t o s u i t i n i t s own courts can invoke Eleventh Amendment immunity; i t does not resolve whether a s t a t e t h a t has n o t consented t o s u i t i n i t s own c o u r t s maintains either the broader concept of sovereign immunity or

Eleventh Amendment immunity upon v o l u n t a r i l y removing a case to federal court."). Since Lapides, a number of Circuits have addressed whether

removal results in waiver where the S t a t e ' s sovereign immunity from suit has not been waived or abrogated in state court; and whether such waiver applies to federal as well as state claims. The

results have been conflicting.

See e.g. Lombardo v. Pennsylvania,

540 F.3d 190 (3d Cir. 2008) (holding t h a t , by removal, s t a t e waived -9-

State h a d n o t c o n s e n t e d t o s u i t i n i t s o w n c o u r t s . North Carolina, 393 F.3d 484 (4th Cir. state 2005).

Stewart v.

The Court made a immunity that

distinction between

the broader

sovereign

predates the Eleventh Amendment,

and the narrower immunity from

private suit filed in federal court that i s bestowed upon the State by the Eleventh Amendment. Stewart, 393 F.3d a t 488 ("Eleventh

Amendment immunity i s b u t an example of s t a t e sovereign immunity as i t applies to suits filed in federal court against unconsenting states."). provided by Lapides only addressed waiver of the narrow immunity the Eleventh Amendment, not "the portability of

sovereign immunity more generally."

Stewart,

393 F .3d a t 489.

The Court noted t h a t , unlike i n Lapides, the S t a t e i n Stewart did not attempt to achieve an unfair tactical advantage and "seek to -10-

regain i m m u n i t y t h a t i t h a d a b a n d o n e d p r e v i o u s l y , " i d . a t 4 9 0 , a n d the removal, therefore, did not implicate Uthe judicial need to Id. Consequently,

avoid inconsistency, anomaly, and unfairness."

where t h e S t a t e would have been immune from s u i t i n i t s own c o u r t s , removal did not effect a waiver. Id. The F i f t h Circuit disagreed and employed a very broad reading of Lapides in Meyers v. Texas, 410 F.3d 236 (5th Cir. 2005), on P l s . ' Mem. 7 - 9 .

which the p l a i n t i f f s in the instant case rely.

The Court i n Meyers concluded t h a t uLapides' s i n t e r p r e t a t i o n of the voluntary invocation principle, as including the waiver-by-removal rule, applies generally to any private s u i t which a s t a t e removes to federal court." Meyers, 410 F.3d a t 242. The Court explained

that i t saw no reason to limit the principle to Uonly state-law claims in respect to which a state has waived immunity therefrom in state court." Id. its Consequently, the Court held that Texas waived state claims by

i m m u n i t y a g a i n s t a n ADA c l a i m a n d v a r i o u s

removing the case to federal d i s t r i c t court. The F i r s t Circuit has not d i r e c t l y addressed the issue of whether a State defendant has waived i t s immunity by removing

federal claims to federal d i s t r i c t court when i t had not consented be sued for such claims. 4 In an action brought by the State in

4

T h e c a s e p r e v i o u s l y b r o u g h t b y a g r o u p o f t h e s a m e EPO plaintiffs is not instructive on the waiver by removal issue. In B e r g e m a n n v . R h o d e I s l a n d , 9 5 8 F . S u p p . 61 ( D . R . I . 1 9 9 7 ) , t h i s Court, in accepting Magistrate Judge Lovegreen's recommendation, h e l d t h a t t h e FLSA d o e s n o t a b r o g a t e t h e E l e v e n t h A m e n d m e n t a n d that the Rhode Island Tort Claims Act does not c o n s t i t u t e a waiver of immunity from s u i t s involving t r a d i t i o n a l government a c t iv i t i e s . However, unlike i n the i n s t a n t case, the action was commenced i n -11-

federal

district

court

to

enjoin

federal

administrative

proceedings, the First Circuit noted several distinctions between Lapides and the case before i t and declined to resulting from the S t a t e ' s l i t i g a t i o n conduct. States, 3 0 4 F . 3 d a t 49 we d o n o t find a waiver RIDEM v . U n i t e d close

("Although i t i s something of a

question,

read Lapides

to e f f e c t a waiver of Rhode The Court noted t h a t , unlike i n

Island's immunity in this case.").

Lapides, where the State defendant sought to "regain, by a change of forum, litigation by a advantage that the the state State [had] in already had

renounced

general

statute,"

RIDEM

"consistently asserted i t s sovereign immunity." a t 49.

RIDEM, 3 0 4 F . 3 d

Although the Court acknowledged that waiver by litigation

conduct was a well established p r i n c i p l e i n the c i r c u i t , S i t held t h a t , where Rhode I s l a n d was "undoubtably e n t i t l e d to immunity" before it brought would rule the not action, advance finding the waiver under those

circumstances motivate the

policies

that

ordinarily of federal

governing

voluntary

invocations

federal court by the p l a i n t i f f s , not removed by the State.
5

The cases c i t e d by RIDEM r e g a r d i n g that issue are distinguishable from the instant case . In Newfield House, Inc. v. M a s s . D e p ' t o f P u b . W e l f a r e , 6 5 1 F . 2 d 32 ( 1 s t C i r . 1 9 8 1 ) , t h e S t a t e argued t h a t the Eleventh Amendment did not b a r f e d e r a l j u r i s d i c t i o n and pressed a counterclaim i n federal c o u r t . In Arecibo Cmty. Health Care, Inc. v. Puerto Rico, 270 F.3d 17 (1st Cir. 2001), a bankruptcy code provision was deemed "a permissible means of obtaining a state's waiver of sovereign immunity." Finally, the defendant sewer authority in Paul N . Howard Co. v . Puerto Rico Aqueduct Sewer Auth., 744 F .2d 880, 886 (1st Cir. 1984) asserted immunity from federal jurisdiction in a contract rescission matter for which i t could have been sued in state court. In addition, the Court expressed doubt that the defendant was an " a l t e r ego" of the State. -12-

jurisdiction - p r e v e n t i n g i n c o n s i s t e n c y a n d u n f a i r n e s s . 50. In a subsequent case,

Id. at 49-

the First Circuit suggested in dicta

t h a t "a s t a t e may waive i t s immunity from s u b s t a n t i v e l i a b i l i t y without waiving i t s immunity from suit in a f edara L forum." Hampshire v. Ramsey, 366 F.3d 1, 15 (1st Cir. 2004). the State's "exploitation of its New

Di s t r e s s e d b y obtain

sovereign immunity to

u n f a i r l i t i g a t i o n advantages," Taylor v. U.S. Dep't of Labor, 440 F.3d 1, 5 (1st Cir. 2005), the Court i n Ramsey held t h a t the State waived i t s j u r i s d i c t i o n a l immuni t y by seeking dismissal of the

federal claim against i t on exhaustion grounds, but retained i t s sovereign immunity from substantive l i a b i l i t y for damages. This Court follows the lead of the First Circuit by directing its focus on the policy behind voluntary invocation the

prevention of inconsistency and unfairness. 49-50. of

S e e RIDEM, 3 0 4 F . 3 d

The Court i s , therefore, disinclined to expand the ruling particularly in light of the stringent test for

Lapides,

determining whether a s t a t e has waived i t s immunity from federal court
jurisdiction~

See Atascadero State Hosp. v.

Scanlon,

473

U.s. a t 241, 105 S.Ct. 3142.

In the case now before the Court, i t

is indisputable that the State could have asserted immunity against t h e FLSA c l a i m i n b o t h s t a t e a n d f e d e r a l c o u r t . Consequently, a

removal of the case to this Court creates no potential unfairness by re-estaplishing sovereign immunity that was previously

surrendered .

Moreover, a determination that removal effects waiver The

in this case would not serve to advance judicial consistency. -13-

State,

i n a n i d e n t i c a l FLSA c a s e ,

would be entitled to assert

sovereign immunity i f the case were filed in federal court or i f i t remained in state court. Therefore, unless i t is established that

t h e S t a t e h a s s u b j e c t e d i t s e l f t o a n FLSA b a s e d c l a i m i n s t a t e court, removal of this case to federal court does not result in waiver of jurisdictional immunity. V. Implied Waiver

The p l a i n t i f f s do not suggest that the State e x p l i c i t l y waived i t s s o v e r e i g n i m m u n i t y w i t h r e s p e c t t o FLSA c l a i m s . Instead, the

p l a i n t i f f s a r g u e t h a t t h e S t a t e h a s " e f f e c t i v e l y a d o p t e d t h e FLSA t h r o u g h i t s w a g e a n d l a b o r s t a t u t o r y s c h e m e , " P I s . ' Mem. 1 1 , a n d point to various Rhode Island s t a t u t e s governing labor and labor relations. The question of whether the enactment of Rhode Island

l a b o r s t a t u t e s s i m i l a r t o t h e FLSA i s s u f f i c i e n t t o i n d i c a t e a waiver of sovereign immunity was recently addressed i n l i t i g a t i o n brought by several employees of the Rhode Island Department of C o r r e c t i o n s , who a s s e r t e d l a c k o f c o m p e n s a t i o n f o r t h e o f f - d u t y care of police dogs. See Hauser v. Rhode Island Dep't of Corr., Noting t h a t the s t a t e wage Judge Smith

640 F. Supp.2d 143, 145 (D.R.I. 2009).

and labor scheme lacked express consent to be sued,

concluded that "the simple enactment of wage provisions reflecting o r m i r r o r i n g t h e FLSA, w i t h o u t m o r e , i s t o o t h i n a r e e d o n w h i c h t o find clear waiver." Hauser, agrees. labor 640 F. Supp.2d at 149. This Court

While there are s i m i l a r i t i e s between the Rhode Island statutes and the FLSA, that they the do not constitute consented to an a

"overwhelming

implication"

State has

-14-

private FLSA a c t i o n i n i t s own c o u r t s .
238-39 1 105 S.Ct. a t 3145-46.

Atascadero

1

473

u.s.

at

Without the State/s explicit consent however
1

t o b e s u e d i n i t s own c o u r t

1

i t s removal of this action is See Lapides
1

i n s u f f i c i e n t to waive the S t a t e s sovereign immuni ty. 535 U.S. a t 617-618 VI .
1

122 S.Ct. a t 1643.

Equitable Estoppel the plaintiffs assert that "[e]quitable [e]stoppel

FinallYI

demands the Court p r o h i b i t the State from taking advantage and benefiting [sic] from its
1

own

substantial

wrong by asserting

sovereign immunity."

Pls.

Mem. 1 3 .

SpecificallYI the plaintiffs

argue that the State/s assertion of immunity allows i t to "take advantage of a grave wrong - forcing law enforcement officers to work without compensation - without the opportunity for a full

factual hearing and the opportunity for the Court to balance the equities." Id. 13-14.

The F i r s t Circuit defines equitable estoppel as "a j u d i c i a l l y devised doctrine which precludes a party to a lawsuit some improper conduct on t h a t p a r t y / s p a r t or defense
FEMA 1
l l 1

because of

from asserting a claim Phelps v.

regardless of its substantive validity."
1

785 F.2d 13

16

(1st Cir. 1986).

The doctrine i s invoked

when "'one person makes a d e f i n i t e misrepresentation of f a c t to another person having reason to believe that the other will rely upon i t and the other in reasonable reliance upon i t or her detriment." 894(1) (1977)). also establish Id.
l

acts to his
§

(quoting Restatement (Second) of Torts
1

In a suit against the government affirmative misconduct -15on

a p l a i n t i f f must part of the

the

government.

Dantran, Inc. v. U.S. Dep't of Labor, 171 F.3d 58,67

(1st Cir. 1999) ( " I t i s firmly s e t t l e d that a party seeking to raise estoppel against the sovereign must, at the very least, demonstrate that government agents have been guilty of affirmative

misconduct.") . A c c o r d i n g t o t h e p l a i n t i f f s , RIDEM h a s i n d u c e d t h e E P O s t o work during t h e i r lunch periods in excess of t h e i r regular work h o u r s " w i t h t h e k n o w l e d g e t h a t t h e f u l l y - a p p l i c a b l e FLSA r e q u i r e s compensation for time a t work, Mem. 1 5 . in service to the state."

PIs. '

These allegations f i t into an equitable estoppel scenario

o n l y i f t h e EPOs w e r e i n d u c e d t o w o r k d u r i n g t h e i r l u n c h b r e a k s because the State misrepresented to them t h a t they would be paid for those periods. allegations, however. The F i r s t Amended Complaint makes no such Instead, the parties apparently differ in

t h e i r i n t e r p r e t a t i o n o f c e r t a i n FLSA p r o v i s i o n s w h i c h g o v e r n t h e paYment for mealtime periods. F i r s t Amended Complaint
~~

52, 53.

Under those circumstances, equitable estoppel i s not implicated. In sum, although the FLSA falls under the original

jurisdiction of the federal courts, the State's sovereign immunity under the Eleventh Amendment precludes t h i s C o u r t ' s determining p l a i n t i f f s ' FLSA c l a i m . See Powelson v. United States, 150 F.3d

1103, 1104-05 (9th Cir. 1998) (summarizing the relationship between sovereign immunity and subject matter jurisdiction as follows:

"Sovereign immunity is grounds for dismissal independent of subject matter jurisdiction. A statute may create subject matter

jurisdiction yet not waive sovereign immunity") . -16-

The C o u r t n o t e s t h a t t h i s i s t h e s e c o n d t i m e t h e S t a t e h a s removed a p r i v a t e FLSA a c t i o n w h e r e i t first "urg[es] federal

question jurisdiction" and then seeks to dismiss the action for lack of subject matter jurisdiction. See Hauser v. Dep't of Corr., 640 F. Supp. 143, 145 (D.R.I. 2009). Rhode Island The Federal

Rules of Civil Procedure are intended "to secure the just, speedy, and inexpensive determination of every action and proceeding." F e d . R. C i v . P . 1 . I t i s unclear why the defendants engage i n such

legal machinations to remove this case from the s t a t e court where i t could have been adjudicated without such additional efforts at the taxpayers' expense.

Conclusion
For the reasons set forth above, the plaintiffs' motion to

r e m a n d t h e c a s e i s DENIED; a n d t h e d e f e n d a n t s ' m o t i o n t o d i s m i s s C o u n t I o f t h e c o m p l a i n t i s GRANTED. SO ORDERED.

~f1h-l<;u,
M a r y M. L i s i December

Jf>

,2009

-17-