the public policy tort claim and the breach of contract
claim, Defendants argue that Plaintiff has failed to allege facts upon
which relief can be granted.
A motion to dismiss for failure to state a claim will be denied unless
it appears that the plaintiff can prove no set of facts which would
entitle it to relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957);
see also Fidelity Fin. Corp. v. Federal Home Loan Bank of San Francisco,
792 F.2d 1432, 1435 (9th Cir. 1986), cert. denied, 479 U.S. 1064 (1987).
All material allegations in the complaint will be taken as true and
construed in the light most favorable to the plaintiff. See NL Indus.,
Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986) Although the court is
generally confined to consideration of the allegations in the pleadings,
when the complaint is accompanied by attached documents, such documents
are deemed part of the complaint and may be considered in evaluating the
merits of a Rule 12(b)(6) motion. See Durning v. First Boston Corp.,
815 F.2d 1265, 1267 (9th Cir. 1987), cert. denied, 484 U.S. 944 (1987).
Dismissal of a complaint can be based on either the lack of a
cognizable legal theory or the lack of sufficient facts alleged under a
cognizable legal theory. See Balistreri v. Pacifica Police Dept.,
901 F.2d 696, 699 (9th Cir. 1990).
It is undisputed that the Regents is an instrumentality of the State of
California. As such, it is immune under the Eleventh Amendment from a
suit in federal court for damages. Alabama v. Pugh, 438 U.S. 781 (1978)
("the Eleventh Amendment prohibits federal courts from entertaining suits
by private parties against States and their agencies"). The Eleventh
Amendment is not, however, an automatic bar to this Court's authority.
"Rather, the Eleventh Amendment grants the State a legal power to assert
a sovereign immunity defense should it choose to do so. The State can
waive the defense." Wisconsin Dept. of Corrections v. Schacht,
524 U.S. 381, 389 (1998).
The "test for determining whether a State has waived its immunity from
federal-court jurisdiction is a stringent one." College Sav. Bank v.
Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 675 (1999)
(internal citations omitted) This "stringent" test is met where there is
"unequivocal evidence [of] the state's intention to subject itself to
the jurisdiction of the federal court." Hill v. Blind Industries and
Services of Maryland, 179 F.3d 754, 758-759 (9th Cir. 1999) (citing
Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985)). Though a
State's waiver of immunity must be "unequivocal," it need not amount to
`an express written waiver. . . . On the contrary, we have recognized
that a State may waive its Eleventh Amendment immunity by conduct that is
incompatible with an intent to preserve that immunity." Id.
Although originally sued in State court, the Regents removed this case
to federal court. See April 12 Notice of Removal. Removal is proper only
where all defendants consent to removal and join in the removal
petition. Hewitt v. City of Stanton, 798 F.2d 1230, 1232 (9th Cir. 1986);
Chicago R.I. & P.R. Co. v. Martin, 178 U.S. 245 (1900). Plaintiff
contends that consent to removal constituted a waiver of the Regents'
Eleventh Amendment immunity. "Although under no compulsion to appear in
federal court, [the State defendant] voluntarily invoke[d] its
jurisdiction" by joining in the notice of removal. Schacht, 524 U.S. at
395 (Kennedy, J. concurring)
Plaintiff finds support for this contention in Justice Kennedy's
opinion concurring in the judgment in Wis. Dept. of Corrections v.
Schacht. In his concurrence, Justice Kennedy argued for a "rule of waiver
in every case where the State, through its attorneys, consents to removal
from the state court to the federal court." Id. at 397. Justice Kennedy
reasoned that because "a State which is made a defendant to a state-court
action is under no compulsion to appear in federal court any appearance
the State makes in federal court may well be regarded as voluntary." Id.
at 395-96. The State's consent to removal, therefore, "amounted to a
direct invocation of the jurisdiction of the federal courts. . . ." Id.
at 397. Only Justice Kennedy addressed this issue. The unanimous opinion
of the Court resolved the dispute on other grounds. Id. at 398 (because
"the [removal] issue was not addressed either by the parties or the Court
of Appeals, the proper course is for us to defer addressing the question
until it is presented for our consideration, supported by full briefing
and argument, in some later case").
Several circuit courts have found the reasoning employed by Justice
Kennedy persuasive. See Sutton v. Utah State School for the Deaf &
Blind, 173 F.3d 1226 (10th Cir. 1999) (by removing case to federal
court, State unequivocally waived its immunity); Newfield House, Inc. v.
Mass. Dept. of Public Welfare, 651 F.2d 32, 36 n. 3 (1st Cir. 1981)
(State waived immunity by removing case to federal court); Estate of
Porter v. Illinois, 36 F.3d 684, 691 (7th Cir. 1994) (holding that
removal may constitute a waiver if State official has authority to waive
immunity).*fn1 In Hill, 179 F.3d at 758, the Ninth Circuit noted that it
had "not had occasion to address the issue," but commented that "[w]e
find persuasive Justice Kennedy's thoughtful concurrence in [Schacht]."
In Hill, moreover, the court found that the State had waived its
Eleventh Amendment immunity when it waited until the first day of trial
before raising its immunity defense. Id. at 756. The court reasoned that
allowing the tardy invocation of the Eleventh Amendment would undermine
"the integrity of the judicial process" by permitting a party
"anticipating defeat" to "void the entire proceeding and begin anew in a
different forum." Id. at 757. By requiring a timely assertion of the
immunity privilege, the court hoped to "minimize the opportunity for
improper manipulation of the judicial process." Id. at 758. Similar
fairness concerns informed Justice Kennedy's concurring opinion. "Under a
rule inferring waiver from the failure to raise the objection at the
outset of the proceedings, States would be prevented from gaining an
unfair advantage." Schacht, 524 U.S. at 395 (Kennedy, J. concurring).
This case exemplifies the risks of "improper manipulation of the
judicial process" that informed the Ninth Circuit's decision in Hill, 179
F.3d at 758, and Justice
Kennedy's Schacht concurrence. In this case,
Plaintiff brought State and federal claims against both the Regents and
individual Defendants in State court. Defendants then removed to federal
court on the basis of the federal question presented by Plaintiff's civil
rights claim. Without the Regents' consent, the individual Defendants
could not have removed the claims to federal court. See, supra, Chicago
R.I. & P.R. Co., 178 U.S. at 245; Prize Frize, Inc. v. Matrix (U.S.)
Inc., 167 F.3d 1261, 1266 (9th Cir. 1999) (Section 1446 requires all
proper defendants to join or consent to the removal notice). In federal
court, however, the Regents sought immunity as to both federal and State
claims. The Regents was not entitled to immunity on Plaintiff's State
claims so long as they remained in State court.
If the Regents were successful in invoking immunity, therefore, the
State claims against it either would be remanded to State court or
dismissed and refiled there. See Schacht, 524 U.S. at 391-92
(28 U.S.C. § 1447 (c) could be read to require remand of those claims
foreclosed by the Eleventh Amendment); Lee v. American National Ins.
Co., 260 F.3d 997, 1007 (9th Cir. 2001) (court should remand rather than
dismiss "an otherwise viable state-law claim" if "that claim was part of
a removed . . . case which was subsequently determined to be beyond the
federal court's power to decide"). The federal claim against the
individual Defendants, however, would remain in federal court. See
Schacht, 524 U.S. at 392-93 (remand of entire case improper if federal
question jurisdiction exists on any claims) Consequently, removal
followed by invocation of the immunity privilege would result in the
removal of a single cause of action from a unified complaint. This result
is not contemplated by the statutory scheme governing removal. See
28 U.S.C. § 1441 (c) (providing for removal of "entire case"); Dillon
v. State of Miss. Military Dept., 23 F.3d 915, 918 (5th Cir. 1994). The
individual Defendants would be in federal court, which they could not
have accomplished without the Regents' maneuver, and Plaintiff would be
forced to litigate his case in two fora simultaneously.
Such gamesmanship is prejudicial to Plaintiff and results in
unnecessary duplication of judicial resources. "A defendant has no right
to say that an action shall be several which a plaintiff elects to make
joint. A separate defense may defeat a joint recovery, but it cannot
deprive a plaintiff of his right to prosecute his own suit to final
determination in his own way." Torrence v. Shedd, 144 U.S. 527, 530
(1892). Indeed, this is the rationale that underlies the "rule of
unanimity" requiring the consent of all defendants for removal.
The rule of unanimity appears to be based on the
principle that the plaintiff should only be required to
proceed against multiple defendants in one action. If
the plaintiff chooses to file in state court, it may
proceed against all defendants in state court unless
they all agree to remove in a proper manner, in which
case the defendants' choice of forum will be honored.
No defendant may split the case into separate parts by
its removal decision.
Branch ex rel. Branch v. Coca-Cola Bottling Co. Consol., 83 F. Supp.2d 631,
636 (D.S.C. 2000).
Similarly, "as a matter of justice as well as judicial economy, it is
desirable to have the same issues heard and decided by the same
adjudicator." Boggs v. Lewis, 863 F.2d 662, 665 (9th Cir. 1988) (citation
omitted). In Boggs, a district court denied a motion to remand a State
law negligence claim that had been removed along with a removable claim.
In affirming the district court, the Ninth Circuit emphasized the
considerable resources expended by the
district court prior to the motion to remand. Id. In
this case, this Court has exercised jurisdiction over this
claim for eight months. It has digested considerable briefing on
both the State and federal claims in the complaint, twice heard oral
argument and adjudicated two motions to dismiss.*fn2 Upon remand, the
State court where this action was originally filed would be required to
address the very same issues that have been twice briefed before this
Court. In this circumstance, the Regents' tardy invocation of its
Eleventh Amendment immunity prejudices not only Plaintiff, but
unnecessarily burdens both the State and federal courts, and permits the
State to gain an "unfair advantage" in this litigation. Schacht, 524
U.S. at 395 (Kennedy, J. concurring).
The Regents rely on Watkins v. Cal. Dept. of Corrections,
100 F. Supp.2d 1227, 1230 (C.D. Cal. 2000) to argue that consent to
removal is not a sufficiently explicit waiver of the immunity privilege.
In Watkins, the court concluded that removal alone did not constitute a
waiver of immunity. That court noted that recent Supreme Court decisions
"suggest that the lower courts should be slow to impose an `implied'
waiver of sovereign immunity as the price for allowing a state to
exercise any of its rights." Watkins, 100 F. Supp.2d at 1230 (citing
Alden v. Maine, 527 U.S. 706 (1999) and College Sav. Bank v. Florida
Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999)). Informed
by these recent decisions, the Watkins court concluded that in
determining whether there has been a waiver of the Eleventh Amendment,
"the most important factor to consider is whether the state has actively
litigated the merits of its case before the federal tribunal." Id.
However, as the Watkins court noted, neither Alden nor College Sav.
Bank addressed the question now before the Court. Rather, Alden concerned
the power of Congress to abrogate a State's sovereign immunity without
its consent, and College Sav. Bank held that a State does not
"constructively" waive its immunity through its activities in interstate
commerce. In College Sav. Bank, in fact, the Court reaffirmed a State's
prerogative to waive the Eleventh Amendment immunity privilege.
"Generally, we will find a waiver either if the State voluntarily invokes
our jurisdiction, or else if the State makes a clear declaration that it
intends to submit itself to our jurisdiction." College Sav. Bank, 527
U.S. at 675-676 (internal citations omitted). The question presented here
is whether removal of State law claims from the State court where they
are brought is a voluntary invocation of this Court's jurisdiction. For
the reasons stated above, the Court finds that it is.
B. Statute of Limitations
1. Section 1983
Section 1983 does not contain an independent statute of limitations.
Instead, the Court will apply the forum State's general tort statute of
limitations to claims brought under section 1983. Wilson v. Garcia,
471 U.S. 261 (1985). In California, the appropriate statute of
limitations is one year. Harding v. Galceran, 889 F.2d 906, 907 (9th
Cir. 1989). The one year limitations period begins to run on the date the
plaintiff "knows or has reason to
know of the injury that is the basis of
the action." Alexopulos v. San Francisco Unified School District,
817 F.2d 551, 555 (9th Cir. 1987).
In the present case, Plaintiff alleges a violation of procedural due
process, specifically, that his employment as a professor at UCSF was a
protected property interest and that he was deprived of this property
without due process of law.
In procedural due process claims, the deprivation by
state action of a constitutionally protected interest
in "life, liberty, or property" is not in itself
unconstitutional; what is unconstitutional is the
deprivation of such an interest without due process of
law. The constitutional violation actionable under
section 1983 is not complete when the deprivation
occurs; it is not complete unless and until the state
fails to provide due process.
Zinermon v. Burch,