Ude v. Univ. of Tenn., 3:12-CV-399
| Decision Date | 25 March 2013 |
| Docket Number | No. 3:12-CV-399,3:12-CV-399 |
| Parties | BART UDE, Plaintiff, v. UNIVERSITY OF TENNESSEE, DEPARTMENT OF MECHANICAL, AEROSPACE AND BIOMEDICAL ENGINEERING OF THE UNIVERSITY OF TENNESSEE, KNOXVILLE, Defendants. |
| Court | U.S. District Court — Eastern District of Tennessee |
(Phillips)
Plaintiff, Bart Ude, acting pro se, has brought this action against the University of Tennessee for alleged violations of his civil rights under 42 U.S.C. §§ 1981, 1983, and1985, while he was a graduate student in the University's Department of Mechanical, Aerospace and Biomedical Engineering. Plaintiff also asserts a claim for "breach of an implied contract." Defendants move the court to dismiss plaintiff's complaint because the court lacks subject matter jurisdiction over plaintiff's claims by virtue of the Eleventh Amendment to the United States Constitution. For the reasons which follow, the defendants' motion will be granted, and this action will be dismissed.
The facts, taken from plaintiff's complaint are as follows: Plaintiff Bart Ude, a person of black race, was a doctoral student at the University of Tennessee (UT) pursuing a doctoral degree in Engineering Science. He was admitted by the Department of Mechanical Aerospace and Biomedical Engineering (MABE) to the Biomedical Engineering program on December 22, 2005. Ude states he took a qualifying examination which required him to obtain a majority pass vote, and he obtained two passes out of three. MABE issued him a conditional pass with the condition that he retake the part of the examination which he did not pass. Ude appealed the decision of MABE to the Graduate Council. Ude avers that while the appeal was pending, MABE wanted him to abrogate the appeal procedure and retake the examination, which he refused. Ude alleges that when he failed to abandon his appeal, defendant retaliated against him by refusing to allow him to retake the examination after the appeal and dismissing him from the Biomedical Engineering program in May 2009 without a hearing. The complaint alleges that defendants notified Ude that they met in September 2008 and voted to fail him because he did not retake the examination while the appeal was pending and voted not to allow him to retake the examination after the appeal. Ude claims MABE's action was arbitrary, capricious, intentional, deliberate, and racially motivated. Ude asserts he had a constitutionally protected right to appeal the decision of the department and express his objections to their decisions.
Defendant UT moves to dismiss plaintiff's complaint on the grounds that the court lacks subject matter jurisdiction by virtue of the Eleventh Amendment to the UnitedStates Constitution. In response, plaintiff asks the court to strike UT's motion to dismiss on the grounds that it was untimely filed. In addition, plaintiff states that the Eleventh Amendment does not prohibit his suit because UT employees, in their official capacity, violated his Constitutional rights under the Thirteenth and Fourteenth Amendments, as well as the Civil Rights Act of 1871.
Following the filing of defendant UT"s motion to dismiss, Ude moved for leave to amend his complaint to add as additional defendants, individual members of the faculty of MABE, the Dean and Assistant Dean of the Graduate School, and the Director of the Office of Equity and Diversity of UT.
Under Federal Rule of Civil Procedure 12(b)(1), plaintiff has the burden to establish that this court has jurisdiction over his claims. Rogers v. Stratton Industries, 798 F.2d 913, 915 (6th Cir. 1986). A motion to dismiss under Rule 12(b)(6), Federal Rules of Civil Procedure, requires the court to construe the complaint in the light most favorable to the plaintiff, accept all the complaint's factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of his claims that would entitle him to relief. Meador v. Cabinet for Human Resources, 902 F.2d 474, 475 (6th Cir.) cert. denied, 498 U.S. 867 (1990). The court may not grant such a motion to dismiss based upon a disbelief of a complaint's factual allegations. Lawler v. Marshall, 898 F.2d 1196, 1198 (6th Cir. 1990); Miller v. Currie, 50 F.3d 373, 377 (6th Cir. 1995) (). The court must liberallyconstrue the complaint in favor of the party opposing the motion. Id. However, the complaint must articulate more than a bare assertion of legal conclusions. Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434 (6th Cir. 1988). "[The] complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory." Id. (citations omitted).
Ude contends that UT's initial responsive pleading (motion to dismiss) was untimely filed and should be stricken from the record. UT responds that Ude's motion to strike is without merit, because the motion was timely filed; and in any event, the court lacks subject matter jurisdiction over plaintiff's claims by virtue of Eleventh Amendment immunity.
The record shows that Ude filed his complaint on July 31, 2012. On August 13, 2012, the Clerk issued a summons for service to "Office of General Counsel, 719 Andy Holt Tower, University of Tennessee, Knoxville, TN 37996." On August 14, 2012, the United States Marshal mailed the summons and complaint via certified mail, return receipt requested. University Mail Services received the summons and complaint on August 15, and Catherine J. Boyd, a Mail Services Supervisor, signed the receipt for the package. On August 16, 2012, University Mail Services delivered the summons and complaint to theOffice of the General Counsel. Therefore, service was completed on August 16, 2012. On September 6, 2012, twenty-one days after service, UT filed its motion to dismiss.
Ude asserts in his motion that UT was served on August 15, 2012, when the summons and complaint were delivered to University Mail Services. Defendant points out that University Mail Services is not an authorized agent for service of process for UT, and the proper agent for service, the Office of General Counsel, did not receive the summons and complaint until August 16, 2012.
Rule 4(j) of the Federal Rules of Civil Procedure specifies that a state can be served only by serving its chief executive officer or by serving the state "in the manner prescribed by that state's law." Tennessee law permits service "upon the state of Tennessee or any agency thereof, by delivering a copy of the summons and of the complaint to the attorney general of the state or to any attorney general." Tenn.R.Civ.P. 4.04(6). The summons and complaint were not received by UT's Office of General Counsel until August 16, 2012. UT's response to the complaint was due twenty-one days later, or on September 6, 2012, the date UT filed its motion to dismiss. Therefore, the court finds that UT's motion to dismiss was timely filed and is properly before the court. Plaintiff's motion to strike is without merit and is hereby DENIED. The court will next address UT's argument that Eleventh Amendment immunity bars plaintiff's claims.
The Eleventh Amendment provides as follows:
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. Const. Amend. XI. It is well settled and a fundamental principle of federalism that the Eleventh Amendment bars suit against a state and/or one of its agencies in federal court without its consent, waiver, or act of Congress to override immunity. See Han v. Louisiana, 134 U.S. 1 (1980); Salt Lick Bancorp v. F.D.I.C., 187 Fed.Appx. 428, 442-43 (6th Cir. 2006). The immunity applies to agencies and/or subdivisions as long as they are an "arm of the state." See Ernst v. Rising, 427 F.3d 351, 358-59 (6th Cir. 2005). In deciding whether an entity is an "arm of the state," the Supreme Court has considered several factors:
(1) the state's potential liability for a judgment against the entity; (2) the language by which state statutes and state courts refer to the entity and the degree of state control and veto power over the entity's actions; (3) whether the state or local officials appoint the board members of the entity; and (4) whether the entity's functions fall within the traditional purview of state or local government. In discussing these factors, the Court has emphasized that the first factor - the liability of the state for a judgment - is the foremost factor, and that it is the state treasury's potential legal liability for the judgment, not whether the state treasury will pay the judgment in that case, that controls the inquiry . . . .
This analysis has been previously performed in past cases, and this court has repeatedly held that the University of Tennessee is an arm, and alter ego of the State of Tennessee and, as such, is entitled to the state's Eleventh Amendment immunity. Stefanovic v. University of Tennessee, 935 F.Supp. 944, 946 (E.D.Tenn. 1996); Hiefner v.University of Tennessee, 914 F.Supp. 1513 (E.D.Tenn. 1995); Kersavage v. University of Tennessee, 731 F.Supp. 1327, 1329 (E.D.Tenn. 1989) ().
In the instant matter, the court finds that UT maintains absolute immunity in that UT is clearly an "arm of the state" and that no exceptions apply. Thus, the Eleventh Amendment prohibits all suits, whether for injunctive, declaratory or monetary relief, against UT and its departments. See Thiokol Corp. v. Dept of Treasury, 987 F.2d 376, 381 (6th Cir. 1993); see also Seminole Tribe v. Florida, 517 U.S. 44,...
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