United States District Court, D. Columbia
October 24, 2005.
Mihretu Bulti Dasisa, Plaintiff,
University of Massachusetts, et al., Defendants.
The opinion of the court was delivered by: COLLEEN KOTELLY, District Judge
Plaintiff, a Washington, D.C. resident proceeding pro se,
sues the University of Massachusetts and California State
University purportedly under the Court's diversity jurisdiction.
He accuses each defendant of breach of contract, negligence,
infliction of emotional distress, discrimination, and retaliation
for allegedly cancelling his student financial aid. Plaintiff
seeks $30 million in damages. Each defendant has moved to dismiss
the complaint under Fed.R.Civ.P. 12(b)(1), (b)(2), (b)(3) and
(b)(6). Upon consideration of the parties' submissions and the
entire record, the Court will grant each motion.
Each defendant moves to dismiss the complaint on the ground of
sovereign immunity.*fn1 The Eleventh Amendment immunizes a
state and state agencies from suit in the federal courts, unless immunity is waived.*fn2 See Barbour v. Washington
Metropolitan Area Transit Authority, 374 F.3d 1161, 1163 (D.C.
Cir. 2004); Duncan v. Washington Metropolitan Area Transit
Authority, 214 F.R.D. 43, 45-46 (D.D.C. 2003) (citing cases). A
waiver is found "only where stated `by the most express language
or by such overwhelming implications from the test as [will]
leave no room for any other reasonable construction.'" Morris v.
Washington Metropolitan Area Transit Authority, 781 F.2d 218,
221 (D.C. Cir. 1986) (internal citations omitted).
Defendants assert that they are instrumentalities of their
respective states and therefore are entitled to immunity. See
Defendant University of Massachusetts' Motion to Dismiss at 10-11
(citing, inter alia, McNamara v. Honeyman, 546 N.E.2d 139, 142
(Mass. 1989)) ("All of these factors indicate that the university
is an agency of the State, and not a separate entity."); Motion
to Dismiss on Behalf of Defendant the Board of Trustees of the
California State University at 9; Seater v. California State
University, Fullerton, 48 F.3d 1228, (9th Cir. 1995) (Table)
("California state colleges and universities, are  immune from
private damage actions or suits for injunctive relief brought in
federal court. . . ."). Plaintiff has not refuted either
defendant's general claim of sovereign immunity by pointing to
authority that supports a waiver. The Court therefore will grant
each defendant's motion based on immunity as it pertains to the
non-federal claims, i.e., breach of contract, negligence, and
infliction of emotional distress. The Court will also grant the
motion on immunity grounds as it pertains to plaintiff's claim of
retaliation arising under the qui tam and whistleblower
provisions of the False Claims Act ("FCA"), 31 U.S.C. § 3729 et seq, see Complaint at 3, inasmuch as the District of
Columbia Circuit has explicitly held that states cannot be held
liable as "persons" under the FCA. U.S. ex rel. Long v. SCS
Business & Technical Institute, Inc., 173 F.3d 870, 873 (D.C.
A waiver of sovereign immunity may be determined in one of two
ways. A state may consent to be sued or, as in this case,
"Congress may exercise its enforcement power under § 5 of the
Fourteenth Amendment to abrogate a state's immunity without its
consent." Barbour v. Washington Metropolitan Area Transit
Authority, 374 F.3d at 1163. Plaintiff invokes Title IX of the
Civil Rights Act of 1964 as the basis of his discrimination
claim. See Complaint at 3. Under that statute proscribing
gender discrimination, "[a] State shall not be immune under the
Eleventh Amendment of the Constitution of the United States from
suit in Federal court for a violation of . . . title IX of the
Education Amendments of 1972 . . . or the provisions of any other
Federal statute prohibiting discrimination by recipients of
Federal financial assistance." 42 U.S.C. § 2000d-7(a)(1).
Plaintiff implies that defendants receive federal funds, see
Complaint at 2, and neither defendant has claimed otherwise. The
Court therefore concludes that defendants are not immune from a
claim arising under Title IX.*fn3
As alternative grounds for dismissal, each defendant has
asserted that this Court lacks personal jurisdiction over it and
this venue is improper for litigating the case. Plaintiff, who
has the burden of establishing jurisdiction, has not refuted the
former claim by presenting a basis for this Court to exercise
jurisdiction over the non-resident defendants under the District
of Columbia's long-arm statute. See D.C. Code § 13-423.
Moreover, the alleged events giving rise to the claims arose in Massachusetts and California. Venue
in this Court therefore is improper. See
28 U.S.C. § 1391(a)-(b). The Court will grant the motions to dismiss the
Title IX claim pursuant to Fed.R.Civ.P. 12(b)(2) (lack of
personal jurisdiction) and (b)(3) (improper venue).
For the preceding reasons, the Court grants each defendant's
motion to dismiss. A separate Order accompanies this Memorandum
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