De Romero v. Institute of Puerto Rican Culture

• Decision Date: 15 December 2006
• Docket Number: Civil No. 06-1675(SEC).
• Citation: 466 F.Supp.2d 410
• Parties: Alicia Robles DE ROMERO, Plaintiff v. INSTITUTE OF PUERTO RICAN CULTURE, Defendant.
• Court: U.S. District Court — District of Puerto Rico

Page 410

466 F.Supp.2d 410

Alicia Robles DE ROMERO, Plaintiff v. INSTITUTE OF PUERTO RICAN CULTURE, Defendant.

Civil No. 06-1675(SEC).

United States District Court, D. Puerto Rico.

December 15, 2006.

COPYRIGHT MATERIAL OMITTED

Eugenio C. Romero, Eugenio C. Romero Law Office, San Juan, PR, for Plaintiff.

Edgardo Colon-Arraras, Goldman Antonetti & Cordova, San Juan, PR, for Defendant.

OPINION AND ORDER

CASELLAS, Senior District Judge.

Plaintiff filed this suit seeking damages under the Copyright Act, 17 U.S.C.A. § § 106(a), 501, and 504, for the destruction by Defendant of the mural "Petroglifos". Defendant seeks to dismiss the complaint, asserting that it is protected by the immunity afforded by the Eleventh Amendment. Currently pending before the Court is that Motion to Dismiss (Docket # 18), which Plaintiff opposed (Docket # 23). For the reasons set forth below, Defendant's Motion will be GRANTED.

Background

We state the facts as set forth in the complaint. Plaintiff was the common law wife of the artist Ralph De Romero, who passed away on May 20, 2000. Effective December 22, 2003, a mural by Mr. De Romero called "Petroglifos" was registered to Plaintiffs name at the U.S. Copyright Office. Petroglifos, a scenic mural, was in exhibition at the Puerto Rican Indian Museum (hereinafter "the Museum") — located in the headquarters of the Institute of Puerto Rican Culture (hereinafter "IPRC" or Defendant) — from approximately 1996 until August 28, 2003. The mural was embedded in a gypsum board overlay separated from a structural interior wall of the museum.

Around January 2001, Plaintiff learned that the Museum would be remodeled and requested that Petroglifos be removed, protected, and/or returned to her. Originally, the IPRC informed Plaintiff that Petroglifos would be integrated into the remodeled facility. Later on, however, the IPRC notified Plaintiff that it would not use Petroglifos in the remodeled Museum and that she would therefore have an opportunity to remove the work from the premises. Plaintiff then attempted to coordinate with the IPRC so as to be able to remove Petroglifos, but to no avail. Her efforts came to a decisive end when, on August 28, 2003, the IPRC informed her that the mural had been destroyed during the remodeling of the Museum.

The instant complaint is based on these facts. Plaintiff seeks to recuperate $500,000.00 in damages pertaining to the moral rights of the author, the value of the destroyed art work, and her own suffering upon dealing with the aforementioned scenario.

Standard of Review

Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a party to move the Court to dismiss a complaint for lack of subject matter jurisdiction. A motion under this rule may be used to assert that a complaint is barred by the defendant state's sovereign immunity. See 5B Charles Alan Wright & Arthur Miller, Federal Practice and Procedure, § 1350 (2004); Murphy v. U.S., 45 F.3d 520 (1st Cir.1995) (analyzing under R. 12(b)(1) the United States' motion to dismiss the complaint as barred by its sovereign immunity); Smith v. Washington Metropolitan Area Transit Authority, 290 F.3d 201, 205 (4th Cir.2002) ("an assertion of governmental immunity is properly addressed under the provisions of Rule12(b)(1)") (citations omitted). In ruling on such a motion, the Court may consider materials outside the pleadings in order to aid its determination regarding jurisdiction. Gonzalez v. U.S., 284 F.3d 281, 288 (1st Cir.2002).

Applicable Law and Analysis

The one and only issue before the Court is whether the Eleventh Amendment Immunity protects Defendant from this action. Despite the singularity of the main question, the discussion must be bifurcated. Our first task is to ascertain whether the states, and their alter egos, enjoy such immunity in actions arising under the Copyright Act. Once that point is settled, our attention must turn to whether the IPRC partakes of the Commonwealth's Eleventh Amendment Immunity.

I. Abrogation of Eleventh Amendment Immunity

The Eleventh Amendment to the Constitution of the United States provides that:

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. U.S.C.A. Const. Amend. XI.

Despite the limited scope of the Amendment's text, the U.S. Supreme Court has stated that the Eleventh Amendment must be understood "to stand not so much for what it says, but for the presupposition ... which it confirms". Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) (quoting Blatchford v. Native Village of Noatak, 501 U.S. 775, 779, 111 S.Ct. 2578, 115 L.Ed.2d 686 (1991)). "That presupposition [...] has two parts: first, that each State is a sovereign entity in our federal system; and second, that Title is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent.'" Id. (quoting Hans v. Louisiana, 134 U.S. 1, 10, 10 S.Ct. 504, 33 L.Ed. 842 (1890)). Stated succinctly, the general rule is that "the Constitution does not provide for federal jurisdiction over suits against nonconsenting States." Kimel v. Florida Board of Regents, 528 U.S. 62, 72-73, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000).

Despite the Amendment's formidable protection, the state's sovereign immunity may be circumvented under some circumstances. In order to enforce compliance with federal law, the Federal Government can bring suit against a State in federal court. Seminole Tribe, 517 U.S. at 71, n. 14, 116 S.Ct. 1114 (citing United States v. Texas, 143 U.S. 621, 644-645, 12 S.Ct. 488, 36 L.Ed. 285 (1892)). In the same vein, an individual may sue a state officer so as to "ensure that the officer's conduct is in compliance with federal law." Id. (citing Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908)). Additionally, a state may waive its immunity by consenting to suit, or Congress, in the exercise of its power to enforce the Fourteenth Amendment, may authorize such suit. College Say. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999).

When a state's claim of sovereign immunity is sought to be disarmed by recourse to a purported abrogation of such immunity, the court, as arbiter of the joust between state and federal powers, must make two determinations prior to allowing Congress to overpower the states' sovereignty. First, the court must ask "whether Congress unequivocally expressed its intent to abrogate that immunity." Kimel, 528 U.S. at 73, 120 S.Ct. 631 (citing Seminole Tribe, 517 U.S. at 55, 116 S.Ct. 1114). If the answer to that inquiry is in the affirmative, the court must then consider "whether Congress acted pursuant to a valid grant of constitutional authority." Id. The first question may be disposed of by way of a "simple but stringent test: `Congress may abrogate the States' constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute.'" Id. (quoting Dellmuth v. Muth, 491 U.S. 223, 228, 109 S.Ct. 2397, 105 L.Ed.2d 181 (1989)). Resolution of the second inquiry requires a more complicated analysis.

In abrogating the states' sovereign immunity, Congress must act pursuant to a constitutional provision that allows for the subjugation of the Eleventh Amendment. The U.S. Supreme Court has discarded Art. I of the Constitution as a possible source of that power. See, Id. at 80, 120 S.Ct. 631 ("Congress' powers under Article I of the Constitution do not include the power to subject States to suit at the hands of private individuals"); Seminole Tribe, 517 U.S. at 72-73, 116 S.Ct. 1114. ("The Eleventh Amendment restricts judicial power under Article III, and Article I cannot be used to circumvent the limitations placed upon federal jurisdiction."). By contrast, § 5 of the Fourteenth Amendment "does grant Congress the authority to abrogate, the States' sovereign immunity". Kimel, 528 U.S. at 80, 120 S.Ct. 631. But that authority is not unferreted. As the Supreme Court has explained, the power granted Congress by § 5 of the Fourteenth Amendment is one of enforcement, not of creation:

Congress' power under § 5, however, extends only to enforcing the provisions of the Fourteenth Amendment. [...] The design of the Amendment and the text of § 5 are inconsistent with the suggestion that Congress has the power to decree the substance of the Fourteenth Amendment's restrictions on the states. [...] Congress does not enforce a constitutional right by changing what the right is. It has been given the power to enforce, not the power to determine what constitutes a constitutional violation.¹ City of Boerne v. Flores, 521 U.S. 507, 519, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997) (internal citations and quotations marks omitted).

In order to demarcate the fine line dividing "measures that remedy or prevent unconstitutional actions [from] measures that make a substantive change in the governing law" the Supreme Court has devised a congruence and proportionality test. Id. at 519-520, 117 S.Ct. 2157 ("Where must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end".) What this means is that "there must be congruence between the means used and the ends to be achieved" and "[t]he appropriateness of ... [the] measures must be considered in light of the evil presented." Id. at 530, 117 S.Ct. 2157. "Strong measures appropriate to address one harm may be an unwarranted response to another, lesser one." A clearer formulation of what is required of Congress when it invokes § 5 to abrogate the states' sovereign immunity may be found in Florida Prepaid Postsecondary Educ. Expense Bd. v. College Say. Bank, 527 U.S. 627, 639, 119 S.Ct. 2199, 144 L.Ed.2d...