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December 21, 1992

ALBERT HESS, Plaintiff,

The opinion of the court was delivered by: ALFRED J. LECHNER, JR.

 LECHNER, District Judge

 This is a personal injury action brought by plaintiff Albert Hess ("Hess") against defendant Port Authority Trans-Hudson (the "Port Authority"). Currently before the court is the motion of the Port Authority to dismiss the complaint (the "Complaint"), filed 31 May 1990, *fn1" for lack of subject matter jurisdiction. *fn2"

 For the reasons set forth below, the motion to dismiss is granted.


 Hess is a citizen and resident of the State of New Jersey. Complaint, P 1. Port Authority is an agency of the States of New York and New Jersey, created by an Interstate compact to which the United States Congress assented. Moving Brief at 1; Port Authority Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 301, 109 L. Ed. 2d 264, 110 S. Ct. 1868 (1990). Port Authority operates various terminal, transportation and other facilities within the statutorily-defined "Port District" of New York and New Jersey, in part through its wholly-owned subsidiary PATH Interstate Railway System ("PATH"). Moving Brief at 1.

 The facts of this lawsuit are not complex. On 29 June 1987, at approximately 6:30 a.m., Hess was injured in the course of his duties while employed by the Port Authority. Complaint, P 10. According to Hess, he was working in the engine of a commuter train proceeding from 33rd Street in New York City to Hoboken, New Jersey when, "the window in said train malfunctioned and struck [Hess'] right hand." Id. According to Hess, the accident "was caused by the negligence of [the Port Authority], its agents, servants and/or employees . . . and was due in no manner whatsoever to any act or failure to act on the part of [Hess]." Id., PP 5, 9-11.

 Hess claims that, as a result of the accident, he has sustained "soft tissue injury to the right hand; superiostela hematoma of the right hand and injury to the tissues and muscles of the righthand." *fn3" Id., P 12. Moreover, "some or all of the above injuries are or may be permanent in nature. The full extent of [Hess'] injuries are not presently known." Id. Hess also claims:

 As a result of the accident . . . [he] has suffered a loss and impairment of earnings and earning power and will suffer the same for an indefinite time in the future; has undergone great physical pain and mental anguish and will undergo the same for an indefinite time in the future; has been obliged to and will have to continue to expend large sums of money in the future in an effort to effect a cure of his injuries; and has been unable to attend his usual duties and occupation and will be unable to attend to the same for an indefinite time in the future, all to his great detriment and loss.

 Id., P 8.

 Hess filed the Complaint on 31 May 1990, almost three years after the accident. Hess seeks damages "in excess of fifty thousand dollars pursuant to the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 51 et seq. and the Boiler Inspection Act, 45 U.S.C. § 23. Id. PP 2, 12.


 The Port Authority seeks a dismissal of the Complaint on the ground that the Eleventh Amendment bars this suit because of Hess' failure to comply with the provisions on N.J.S.A § 32:1-163. Moving Brief at 3. According to the Port Authority, this section requires suit against it to be filed within one year from the date of any alleged accident. Id.

 Hess counters these arguments by contending that Feeney stands for the proposition that the Port Authority has waived Eleventh Amendment Immunity entirely and that, in any event, the provisions of the consent to Suit Statutes have no relevance to an action brought pursuant to FELA. Opp. Brief at 3-6. Hess cites Hilton v. South Carolina Public Railways Comm'n, U.S. , 112 S. Ct. 560 (1991) as holding that "any sovereign immunity which may be held by state owned railroads under a state's common law has been abrogated by . . . FELA." Opp. Brief at 3. Thus, "pursuant to Hilton, [Hess] does not need any consent by [the Port Authority] to bring suit under . . . FELA." Id. Hess also argues that, even if the consent to Suit Statutes are relevant to this case, the one year limitations period cannot supersede the three year limitations period provided by FELA. Id. at 6-8.

 A. Motion to Dismiss -- Standard of Review

 On a motion brought pursuant to Federal Rule of Civil Procedure 12(b)(6), all allegations of the plaintiff must be taken as true and all reasonable factual inferences drawn in his or her favor. Gomez v. Toledo, 446 U.S. 635, 636, 64 L. Ed. 2d 572, 100 S. Ct. 1920 (1980); Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991); Unger v. National Residents Matching Program, 928 F.2d 1392, 1395 (3d Cir. 1991); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990); Melikian v. Corradetti, 791 F.2d 274, 277 (3d Cir. 1986), petition for cert. filed 6 June 1990.

 Nevertheless, legal conclusions made in the guise of factual allegations are not given the presumption of truthfulness. See Papasan v. Allain, 478 U.S. 265, 286, 92 L. Ed. 2d 209, 106 S. Ct. 2932 (1986); Haase v. Webster, 257 U.S. App. D.C. 63, 807 F.2d 208, 215 (D.C.Cir. 1986); Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir. 1981), aff'd, 460 U.S. 325, 75 L. Ed. 2d 96, 103 S. Ct. 1108 (1983); Western Mining Council v. Watt, 643 F.2d 618, 626 (9th Cir.), cert. denied, 454 U.S. 1031, 70 L. Ed. 2d 474, 102 S. Ct. 567 (1981).

 Accordingly, a court may dismiss a complaint for failure to state a claim when it appears beyond doubt that no relief could be granted under any set of facts which could be proved consistent with the allegations. Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984); Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Unger, 928 F.2d at 1395 (3d Cir); Markowitz, 906 F.2d at 103; Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988). However, "a complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley, 355 U.S. at 45-46; accord Cruz v. Beto, 405 U.S. 319, 321, 31 L. Ed. 2d 263, 92 S. Ct. 1079 (1972); Unger, 928 F.2d at 1395; Angelastro v. Prudential-Bache Secur., Inc., 764 F.2d 939, 944 (3d Cir.), cert. denied, 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 267 (1985).

 Additionally, the Supreme Court has stated that a federal court reviewing the sufficiency of the complaint has a limited role. "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support his claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); see also Estate of Bailey v. County of York, 768 F.2d 503, 506 (3d Cir. 1985).

 The Eleventh Amendment states:

 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. Well established law governs application of the Eleventh Amendment. Feeney, 495 U.S. at 304. As the Supreme Court has recently stated:

 Since Hans v. Louisiana, 134 U.S. 1, 33 L. Ed. 842, 10 S. Ct. 504 (1890), we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it affirms: that the States entered the federal system with their sovereignty intact; that the judicial authority in Article III is limited by this sovereignty.

 Blatchford v. Noatak, 115 L. Ed. 2d 686, U.S. , 111 S. Ct. 2578, 2581 (1991); accord Welch v. Texas Dep't of Highways & Pub. Transp., 483 U.S. 468, 472, 97 L. Ed. 2d 389, 107 S. Ct. 2941 (1987).

 Stated differently, the Supreme Court "has drawn upon principles of sovereign immunity to construe the [Eleventh] Amendment to "establish that 'an unconsenting State is immune from suits brought in federal courts *fn4" by her own citizens as well as by citizens of another state.'" Feeney, 495 U.S. at 304 (quoting Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984) (quoting Employees v. Dep't of Pub. Health & Welfare, 411 U.S. 279, 280, 36 L. Ed. 2d 251, 93 S. Ct. 1614 (1980))) (emphasis added); accord Welch, 483 U.S. at 472.

 The Eleventh Amendment bar to suit is not absolute. Blatchford, U.S. at , 111 S. Ct. at 2581; Feeney, 495 U.S. at 304. Two events may render the Eleventh Amendment inapplicable. First, in certain cases, Congress may abrogate a state's sovereign and/or Eleventh Amendment Immunity. *fn5" Blatchford, U.S. at , 111 S. Ct. at 2581; Feeney, 495 U.S. at 304; Dellmuth v. Muth, 491 U.S. 223, 227, 105 L. Ed. 2d 181, 109 S. Ct. 2397 (1989). Second, states may consent to suit in federal court, in which case Eleventh Amendment immunity is waived. Feeney, 495 U.S. at 304; Will, 491 U.S. at 66; Welch, 483 U.S. at 473; Pennhurst, 465 U.S. at 99.

 In the first instance, the Court has adopted "a particularly strict standard" to evaluate claims that Congress has abrogated a state's sovereign and Eleventh Amendment immunity. Gregory, U.S. at , 111 S. Ct. at 2401; Feeney, 495 U.S. at 305; Dellmuth, 491 U.S. at 227-28. As the Court stated in Dellmuth:

 To temper Congress' acknowledged power of abrogation with due concern for the Eleventh Amendment's role as an essential component of our constitutional structure, we have applied a simple but stringent test: "Congress may abrogate the State's constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language ...

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