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WALSH v. PORT AUTH. TRANS-HUDSON CORP.

February 4, 1993

CHARLES F. WALSH, Plaintiff,
v.
PORT AUTHORITY TRANS-HUDSON CORPORATION, Defendant.



The opinion of the court was delivered by: WILLIAM G. BASSLER

BASSLER, DISTRICT JUDGE:

 The defendant, the Port Authority Trans-Hudson Corporation, ["PATH"] moves to dismiss the complaint for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). For the following reasons, the Court grants the motion and dismisses the complaint.

 I. BACKGROUND

 The plaintiff, Charles F. Walsh, filed suit in this Court on May 9, 1989 under the Federal Employers Liability Act, ["FELA"] 45 U.S.C. § 51 et seq. Walsh alleges that the negligence of PATH and its agents on Oct. 6, 1986 resulted in a passenger train door slamming into his right-wrist and arm, seriously injuring him. Walsh worked for PATH at the time.

 The Port Authority of New York and New Jersey ["the Port Authority"] is an agency of the states of New York and New Jersey, created by a bistate compact which was ratified by Congress. 42 Stat. 174 (1921). The defendant, PATH, is a regional rail commuter system operated as a wholly-owned subsidiary of the Port Authority. PATH is subject to suit to the same extent as the Port Authority. See N.J. Stat. Ann. § 32:1-35.61 (West 1990); N.Y. Unconsol. Law § 6612 (McKinney 1979).

 II. DISCUSSION

 This motion turns on whether Walsh's complaint, which was filed more than two years after the alleged negligent conduct, is barred by the one-year limitation provision in the Port Authority's consent-to-suit statutes and the Eleventh Amendment to the United States Constitution. Walsh argues that the three-year limitation period under FELA applies.

 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 Citizens or Subjects of any Foreign State.

 The United States Supreme Court, drawing upon principles of sovereign immunity, has construed the amendment to "establish that 'an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another state.'" Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 100, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984) (quoting Employees v. Missouri Dept. of Public Health and Welfare, 411 U.S. 279, 280, 36 L. Ed. 2d 251, 93 S. Ct. 1614 (1973)).

 The Eleventh Amendment may bar a suit even though a state is not named as a party to the action, provided the state is the real party in interest. Edelman v. Jordan, 415 U.S. 651, 663, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974). The Third Circuit has held that the Port Authority is considered a state agency entitled to Eleventh Amendment immunity. Port Authority Police Benevolent Assoc. v. Port Authority of New York and New Jersey, 819 F.2d 413, 415 (3d Cir.), cert. denied, 484 U.S. 953, 98 L. Ed. 2d 370, 108 S. Ct. 344 (1987); but see Feeney v. Port Authority Trans-Hudson Corp., 873 F.2d 628, 630 (2d Cir. 1989), aff'd on other grounds, 495 U.S. 299, 109 L. Ed. 2d 264, 110 S. Ct. 1868 (1990) (holding that the Port Authority is not a state agency for Eleventh Amendment purposes).

 This circuit has also held that PATH, the Port Authority's wholly owned subsidiary, is also a state agency. Leadbeater v. Port Authority Trans-Hudson Corp., 873 F.2d 45, (3d Cir. 1989), vacated on other grounds, 495 U.S. 926 (1990). Therefore, PATH is entitled to immunity under the Eleventh Amendment, unless one of the two narrow exceptions to the coverage of the amendment applies.

 Under the first exception, a state may waive its immunity and consent to be sued in federal court. See Clark v. Barnard, 108 U.S. 436, 447, 27 L. Ed. 780, 2 S. Ct. 878 (1883). Second, Congress may abrogate this immunity, without the states' consent, when it acts under Section 5 of the Fourteenth Amendment "to enforce by appropriate legislation" the substantive provisions of that amendment. See Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 49 L. Ed. 2d 614, 96 S. Ct. 2666 (1976). The United States Supreme Court has also indicated that Congress' authority to abrogate the states' immunity extends, to a limited extent, beyond Section 5 of the Fourteenth Amendment. See County of Oneida v. Oneida Indian Nation of New York, 470 U.S. 226, 252, 84 L. Ed. 2d 169, 105 S. Ct. 1245 (1985).

 Walsh argues that both exceptions apply here. He asserts that the states of New York and New Jersey have completely waived their sovereign immunity concerning PATH. Furthermore, he asserts that Congress, in enacting FELA, abrogated the Eleventh ...


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