Hennessey v. Univ. of Kan. Hosp. Auth.

• Decision Date: 09 November 2022
• Docket Number: 22-3000
• Citation: 53 F.4th 516
• Parties: Tamatha HENNESSEY, Plaintiff - Appellant, v. UNIVERSITY OF KANSAS HOSPITAL AUTHORITY, Defendant - Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

53 F.4th 516

Tamatha HENNESSEY, Plaintiff - Appellant,

v.UNIVERSITY OF KANSAS HOSPITAL AUTHORITY, Defendant - Appellee.

No. 22-3000

United States Court of Appeals, Tenth Circuit.

FILED November 9, 2022

Mary Beth Beasley and April Fortner, University of Colorado Law School Appellate Advocacy Practicum (Matthew Cushing on the briefs), Boulder, Colorado, for Plaintiff – Appellant.

J. Wesley Smith, Simpson, Logback, Lynch, Norris, P.A. (Trevin E. Wray with him on the brief), Overland Park, Kansas, for Defendant – Appellee.

Before BACHARACH, McHUGH, and MORITZ, Circuit Judges.

McHUGH, Circuit Judge.

Tamatha Hennessey alleges a radiology technician sexually assaulted her during her visit to the University of Kansas hospital for emergency medical care. Proceeding pro se, Ms. Hennessey brought a civil action for negligent supervision against the University of Kansas Hospital Authority ("UKHA"), which oversees operation of the hospital. UKHA moved to dismiss the action, arguing Ms. Hennessey failed to plead facts supporting subject matter/diversity jurisdiction and that it is entitled to sovereign immunity. UKHA premised both arguments on it being an arm of the state of Kansas and therefore entitled to the same immunities as the state. But UKHA failed to support its motion with any evidence demonstrating it is an arm of the state or any analysis of the factors governing whether a state-created entity is an arm of the state. The district court, relying on the statutory scheme creating UKHA, Kan. Stat. Ann. §§ 76-3301 –3323 (the "University of Kansas Hospital Authority Act" or the "Act"), took it upon itself to analyze whether UKHA is an arm of the state. Finding the Act characterizes UKHA as an entity of the state, UKHA is not autonomous from the state, and UKHA is concerned with state-wide rather than local functions, the district court concluded UKHA is an arm of the state and, therefore, dismissed Ms. Hennessey's action.

Ms. Hennessey appeals, raising three arguments: (1) a procedural argument that the burden is on UKHA to demonstrate it is an arm of the state and it failed to meet this burden by not presenting any evidence and not arguing the factors governing the arm-of-the-state analysis; (2) a substantive argument that, regardless of the burden, the University of Kansas Hospital Authority Act supports the conclusion that UKHA is not an arm of the state; and (3) a fallback argument that a remand for limited discovery and presentation of evidence is appropriate.

We now join every other circuit to consider the issue and hold the burden falls on the entity asserting it is an arm of the state. UKHA did not meet its burden. Furthermore, while our precedent permits a district court to raise the arm-of-the-state issue sua sponte, the district court erred in concluding that UKHA is not autonomous under the language of the University of Kansas Hospital Authority Act. Accordingly, we vacate the district court's order granting UKHA's motion to dismiss and remand for further proceedings.

I. BACKGROUND

A. Factual Allegations

Ms. Hennessey alleges the following facts in her pro se complaint.¹ See Moore v. Guthrie , 438 F.3d 1036, 1039 (10th Cir. 2006) ("[A]ll well-pleaded factual allegations in the complaint are accepted as true and viewed in the light most favorable to the nonmoving party." (quotation marks and ellipsis omitted)).

After suffering from right shoulder and left jaw pain for a few weeks, Ms. Hennessey sought treatment at the University of Kansas Hospital Emergency Room. A nurse ordered an MRI and CT scan

. Jonathan McIntire, a radiology technician, was assigned to perform the tests. Mr. McIntire took Ms. Hennessey to a radiology room in a new part of the hospital far removed from the ER. Once there, Mr. McIntire instructed Ms. Hennessey to change into a different hospital gown and then strapped Ms. Hennessey's arms and legs to the MRI board. Mr. McIntire commenced the MRI.

During the MRI, Ms. Hennessey fell asleep, possibly from Ativan

medication administered by ER staff. Ms. Hennessey awoke to Mr. McIntire "pinching her nipples." ROA at 12. Mr. McIntire then "groped one breast" and "put his mouth over [Ms. Hennessey's] breasts." Id. at 13.

It was not until four hours after the nurse ordered the MRI and CT scan

that Mr. McIntire completed the tests and returned Ms. Hennessey to the ER. Ms. Hennessey contends a radiology technician could complete the tests in an hour and alleges hospital personnel were unaware she was out of the ER for a longer period than necessary to complete the tests.

B. Procedural History

Ms. Hennessey, through counsel, initially filed a civil suit in a Wyandotte County, Kansas district court, naming UKHA and Mr. McIntire as defendants. UKHA moved for judgment on the pleadings, raising various immunity and failure-to-state-a-claim defenses. Before the state district court ruled on the motion, Ms. Hennessey and UKHA stipulated to the voluntary dismissal of the action without prejudice.

Proceeding pro se, Ms. Hennessey turned to federal court, filing the action underlying this appeal in the United States District Court for the District of Kansas.²

In describing the parties, Ms. Hennessey alleged she was "a resident of the State of Missouri residing [in] Belton, MO." Id. at 6. And Ms. Hennessey alleged UKHA "is and was a corporate entity established by law that operates the hospital located at 4000 Cambridge Street, Kansas City, Kansas 66106." Id. In a section labeled "Jurisdiction and Venue," Ms. Hennessey pleaded that "[j]urisdiction is proper because Defendant is a Kansas corporation and/or entity operating a hospital located in Kansas City, Wyandotte County, Kansas." Id. at 7. Ms. Hennessey's filing raised a single claim against UKHA for negligent supervision.

Supported by a three-page memorandum of law, UKHA moved to dismiss for lack of subject matter jurisdiction and based on sovereign immunity. In pertinent part, the memorandum of law read:

While the Petition generally states that Plaintiff is a citizen of Missouri, she does not explicitly assert diversity jurisdiction. If she did assert diversity jurisdiction, however, sovereign immunity would similarly prevent the Court from allowing the case to proceed. The University of Kansas Hospital Authority is an instrumentality of the State of Kansas, and Eleventh Amendment immunity would prohibit a federal exercise of personal jurisdiction as to this Defendant. See K.S.A. 76-3304(a) ; Perkins v. Univ. of Kan. Med. Ctr. , 2014 U.S. Dist. LEXIS 47491, *9-10 (D. Kan. Apr. 7, 2014), citing Ellis v. University of Kansas Medical Center , 163 F.3d 1186, 1196 (10th Cir. 1998).

Id. at 26–27. UKHA neither submitted any evidence in support of its motion nor identified or analyzed the factors governing whether an entity is an arm of the state. Ms. Hennessey responded to UKHA's motion to dismiss by arguing she (1) pleaded the elements of diversity jurisdiction by identifying the state of residence of each party and (2) could overcome sovereign immunity because UKHA was a corporate entity and a political subdivision of the state. Ms. Hennessey, however, did not request any discovery on the arm-of-the-state issue underlying UKHA's subject matter jurisdiction and sovereign immunity defenses.

UKHA filed a reply. On the issue of subject matter jurisdiction, UKHA contended it was an instrumentality and arm of the state such that it was therefore not a citizen of any state for purposes of diversity jurisdiction. But, once again, UKHA provided no factual support and no real analysis on this point, stating only:

Plaintiff argues she invoked the jurisdiction of the United States District Court based upon diversity of citizenship as provided for in 28 U.S.C. § 1332. "To sustain diversity jurisdiction there must exist an ‘actual’, ‘substantial’, controversy between citizens of different states from all parties on the other side." City of Indianapolis v. Chase Nat'l Bank of City of N.Y. , 314 U.S. 63, 69 [62 S.Ct. 15, 86 L.Ed. 47] (1941). First and foremost, a state is not a citizen for purposes of diversity jurisdiction. Moor v. Cty. of Alameda , 411 U.S. 693, 717, 93 S. Ct. 1785, 1800 (1973). Defendant University of Kansas Hospital Authority is an instrumentality of the State of Kansas; therefore, it is not a citizen of the State for diversity purposes. See Wilkins v. Kan. Dep't of Labor , No. 6:12-CV-01363-JAR-KMH , 2013 U.S. Dist. LEXIS 19912, at *5 (D. Kan. Feb. 14, 2013) ; Perkins v. Univ. of Kan. Med. Ctr. , No. 13-2530-JTM , 2014 U.S. Dist. LEXIS 47491 at *6 (D. Kan. Apr. 7, 2014). Therefore, this Court lacks diversity jurisdiction over Plaintiff's claims.

Id. at 89. As to sovereign immunity, UKHA argued (1) entities created by and serving as alter egos of the state are entitled to sovereign immunity; and (2) it had not waived its right to sovereign immunity. UKHA supported the former argument with the following passage:

The University of Kansas Hospital Authority ... was created by the University of Kansas Hospital Act ... in 1998. K.S.A. 76-3304(a). The act established the Authority as "a body politic and corporate, with corporate succession" whose exercise of rights, powers, and privileges are "deemed and held to be the performance of an essential government function." Id. A nineteen-member board of directors, thirteen of which are appointed by the governor and subject to confirmation by the senate, governs the Authority. K.S.A. 77-3304(b). Additionally, the Act grants the Authority the "duties, privileges, immunities, rights, liabilities, and disabilities of a body corporate and a political instrumentality of the state." K.S.A 77-3308(a)(1). Therefore, the immunity to suit in federal court granted to the State of Kansas by the Eleventh Amendment to the United States Constitution has been bestowed upon the Authority.

Id. at 90.

The district court undertook the heavy lifting that UKHA did not undertake in its motion to dismiss. The district court began by identifying the four...