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February 24, 1999


The opinion of the court was delivered by: Gonzalez, District Judge.



Plaintiff California Mother Infant Program ("CMI") is a California corporation that provides "alternative methods of incarceration for inmates who are the mothers of children 6 years of age and younger." (First Am.Compl. ("Compl.") at 2.) In 1985, CMI was assigned a contract with defendant California Department of Corrections (the "Department"), an agency of the state of California, under which CMI agreed to provide its services in return for compensation. See generally Cal.Penal Code § 6258 (allowing the "Director of Corrections [to] contract for the establishment and operation of separate community correctional reentry centers for men and women"). The parties renewed the three-year contract in 1986, 1989, and 1992. From 1995 until 1997, they renewed the contract through one-year extensions. On June 30, 1997, the Department terminated contractual relations between the parties.

CMI filed suit in state court on June 29, 1998. CMI's first amended complaint ("complaint") alleges four causes of action. Three of these are state law claims. CMI's fourth cause of action alleges race discrimination under 42 U.S.C. § 1981*fn1 and the California Constitution.

On November 30, 1998, the Department removed the case to this Court. Both parties have filed opposing motions that are now before the Court. This Order addresses CMI's motion to remand.*fn2


A. Applicable Law

Removal of a case to federal court is governed by 28 U.S.C. § 1441, which allows removal of "any civil action brought in a State court of which the district courts of the United States have original jurisdiction." 28 U.S.C. § 1441(a). Where "one or more non-removable claims or causes of action" are joined to the claim that allows removal, "the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates." 28 U.S.C. § 1441(c). Once a case is removed, the non-removing party can move for remand. See id. § 1447.

B. Analysis

The Eleventh Amendment bars any claims by an individual against a state or state agency. See U.S. Const. amend. XI ("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."); Hans v. Louisiana, 134 U.S. 1, 9-11, 14-15, 10 S.Ct. 504, 33 L.Ed. 842 (1890) (holding that the Eleventh Amendment bars a suit by a citizen against his or her own state); Alabama v. Pugh, 438 U.S. 781, 782, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978) (per curiam) ("There can be no doubt, however, that suit against the State and its Board of Corrections is barred by the Eleventh Amendment, unless Alabama has consented to the filing of such a suit."); cf. NAACP v. California, 511 F. Supp. 1244, 1250 (E.D.Cal. 1981) ("Thus, for example, the bar against suit imposed by the Eleventh Amendment applies with equal vigor in the context of actions based on 42 U.S.C. § 1983 and in the context of actions based on 42 U.S.C. § 1981."), aff'd 711 F.2d 121 (9th Cir. 1983). Both parties agree that the Department is a state agency and that the Eleventh Amendment applies.

The Eleventh Amendment's sovereign immunity doctrine is unique in that it resembles a cross between a subject matter jurisdictional limitation and a personal jurisdictional limitation on the Court's power. See Wisconsin Dep't of Corrections v. Schacht, 524 U.S. 381, 118 S.Ct. 2047, 2055, 141 L.Ed.2d 364 (1998) (Kennedy, J., concurring). Like a personal jurisdictional limitation, Eleventh Amendment immunity can be waived, a court need not raise the immunity issue on its own, and the immunity extends to individual claims rather than to entire cases; in spite of this, the defense can be raised by the state at any stage of the litigation, like a subject matter jurisdictional limitation. Compare Edelman v. Jordan, 415 U.S. 651, 678, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (stating that "the Eleventh Amendment defense sufficiently partakes of the nature of a jurisdictional bar so that it need not be raised in the trial court" but instead can be raised on appeal") with Patsy v. Board of Regents, 457 U.S. 496, 515 n. 19, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982) (citing Edelman but stating that "because of the importance of state law in analyzing Eleventh Amendment questions and because the State may, under certain circumstances, waive this defense, we have never held that it is jurisdictional in the sense that it must be raised and decided by this Court on its own motion"); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 121, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) ("A federal court must examine each claim in a case to see if the court's jurisdiction over that claim is barred by the Eleventh Amendment.").

1. Remand

In this case, the Department removed to federal court based on the section 1981 claim. Both parties agree that this claim is subject to an Eleventh Amendment defense,*fn3 making the nature of the Eleventh Amendment bar particularly significant in this case. If the Eleventh Amendment bar is more akin to a limitation on the Court's subject matter jurisdiction, as CMI argues, then the case was improperly removed and should be remanded. If, however, the bar is more akin to a personal jurisdictional limitation, then the case is properly before this Court.

CMI relies on Henry v. Metropolitan Sewer Dist., 922 F.2d 332 (6th Cir. 1990), where the Sixth Circuit held that when a case is removed to federal court and there are claims that are clearly barred by the Eleventh Amendment, the court should remand the barred claims back to state court rather than dismiss them. See id. at 338. Other cases have gone further, finding that where the Eleventh Amendment bars one removed claim, the entire case should be remanded to state court, even if federal question claims remain that would otherwise support federal jurisdiction. See, e.g., Frances J. v. Wright, 19 F.3d 337, 341 (7th Cir. 1994). But see Kruse v. Hawai`i, 68 F.3d 331, 335 (9th Cir. 1995) (holding "that an Eleventh Amendment bar against some of the claims of an action does not ...

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