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BOWERS v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION

March 6, 2002

MICHAEL BOWERS, PLAINTIFF,
V.
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, ACT, INC., NCAA INITIAL-ELIGIBILITY CLEARINGHOUSE, TEMPLE UNIVERSITY OF THE COMMONWEALTH SYSTEM OF HIGHER EDUCATION, UNIVERSITY OF IOWA, AMERICAN INTERNATIONAL COLLEGE, DEFENDANTS, TEMPLE UNIVERSITY OF THE COMMONWEALTH SYSTEM OF HIGHER EDUCATION, DEFENDANT AND THIRD-PARTY PLAINTIFF, V. DELAWARE STATE UNIVERSITY, UNIVERSITY OF MEMPHIS, UNIVERSITY OF MASSACHUSETTS AMHERST, THIRD-PARTY DEFENDANTS.



The opinion of the court was delivered by: Stephen M. Orlofsky, United States District Judge.

    OPINION

INTRODUCTION AND PROCEDURAL HISTORY

This Opinion, the ninth in the ongoing saga of Michael Bowers, resolves certain unanswered questions left open by my previous opinion, in which I largely denied the Motions to Dismiss of the Third-Party Defendants. See Bowers v. Nat'l Collegiate Athletic Assoc., 171 F. Supp.2d 389 (D.N.J. 2001) ("Bowers VIII").*fn1 More specifically, I determined that the Defendant and Third-Party Plaintiff, Temple University of the Commonwealth System of Higher Education ("Temple"), had a right to contribution under Title II of the Americans with Disabilities Act ("Title II") and Section 504 of the Rehabilitation Act of 1973 ("Rehab. Act") against each of the Third-Party Defendants. I declined, however, to decide whether or not a similar right of contribution existed under the New Jersey Law Against Discrimination ("NJLAD").

My hesitation to decide the NJLAD question was based on the fact that the Third-Party Defendant, University of Memphis ("Memphis"), as an "arm of the state" of Tennessee, is immune from suit in federal court under a state cause of action, and the remaining Third-Party Defendants, University of Massachusetts Amherst ("U. Mass.") and Delaware State University ("DSU") have at least colorable claims to the same immunity. This Court, arguably, lacks jurisdiction to hear Temple's supplemental state claims against immune entities. As I explained in my previous opinion, sovereign immunity does not partake of all of the traditional features of subject matter jurisdiction. See Bowers VIII, 171 F. Supp.2d at 398-99; see also Wisconsin Dep't of Corr. v. Schacht, 524 U.S. 381, 389 (1998) (noting that court need not raise sovereign immunity defense on its own motion). There is language in the Pennhurst opinion, however, to suggest that at least the bar against supplemental state law claims is jurisdictional, perhaps because the policy interests of sovereign immunity counsel a narrow view of pendent jurisdiction. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 118 (1984) (noting that "doctrine of pendent jurisdiction . . . has a different scope when applied to suits against the State"). On the other hand, that language may well be dicta, and the Third Circuit has rejected the view that the Eleventh Amendment is a limit on federal jurisdiction. Compare id. at 119-20, with Christy v. Pennsylvania Turnpike Comm'n, 54 F.3d 1140, 1144 (3d Cir. 1995), and Schacht, 524 U.S. at 391 (observing that Supreme Court has not determined whether Eleventh Amendment immunity "is a matter of subject-matter jurisdiction"). Still, I deemed it wiser to err on the side of caution.*fn2
I therefore requested supplemental briefing on the question of whether U. Mass. and DSU were entitled to claim the sovereign immunity of their respective states. DSU elected not to file a supplemental brief. I now must determine whether or not U. Mass. is an "arm of the state" of Massachusetts, and, if so, whether or not the NJLAD even permits a claim for contribution in these circumstances.
Additionally, as part of my determination that Temple may bring a claim for contribution against the Third-Party Defendants under Title II and the Rehab. Act, I ruled that Congress had validly abrogated the sovereign immunity of the States in enacting Title II, at least to the extent that Title II does not permit damages for conduct other than intentional discrimination. See Bowers VIII, 171 F. Supp.2d at 402-08. I also concluded that Memphis waived its immunity from suit in accepting funds under the terms of the Rehab. Act. Id. at 408-09. Memphis has appealed those determinations to the Third Circuit.*fn3 Memphis has also sought a stay in this Court of any further proceedings pending the outcome of the appeals. Approximately one month after Memphis filed its notice appeal, on December 21, 2001, the University of Iowa ("Iowa"), one of the original Defendants, filed an appeal challenging my July 3, 2001 Opinion and Order denying Iowa status as an arm of the state entitled to sovereign immunity.*fn4
Moreover, U. Mass. has applied to me to certify an interlocutory appeal, pursuant to 28 U.S.C. § 1292(b), so that it may in turn petition the Third Circuit for consideration of its appeal of my determination that a right of contribution exists, as a matter of statutory interpretation, under Title II and the Rehab. Act. That question, as I explained in Bowers VIII, is logically antecedent to the sovereign immunity issue as I framed it. I asked, first, whether there exists a right of contribution in general under the statutory framework of Title II and the Rehab. Act. See Bowers VIII, 171 F. Supp.2d at 395-97. Since I concluded that contribution is available under both statutes, I went on to consider whether or not the Third-Party Defendants could have been liable to Bowers in the first instance, as that is one of the common-law elements of a right to contribution.*fn5 See id. at 397-98. U. Mass.'s proposed appeal, as I understand it, challenges the first, statutory, determination, but not the second, fact-specific one. U. Mass. also seeks a stay pending any appeal of the right to contribution/statutory interpretation issue.
Finally, Bowers has moved to sever the Third-Party claims in their entirety, so that his case, which is ready to proceed to trial, need not wait for the pending appeals by the Third-Party Defendants. That motion is currently pending before Magistrate Judge Rosen.

This Court has jurisdiction over Temple's claims pursuant to 28 U.S.C. § 1367(a).*fn6

DISCUSSION

A. U. Mass.'s Motions to Dismiss
In its Supplemental Brief, U. Mass. seeks to dismiss Temple's claims for contribution under both federal and state statutes on the grounds that it possesses sovereign immunity from suit. I requested supplemental briefing only on the question of U. Mass.'s immunity from suit under the NJLAD. See Bowers VIII, 171 F. Supp.2d at 409. However, U. Mass. relies for its federal immunity argument almost entirely on Memphis' Rule 12(b)(1) Brief. Temple, of course, has already had an opportunity to respond to those arguments. Since I therefore see little danger of prejudice to Temple, I will treat U. Mass.'s Brief as a Motion to Dismiss Temple's claims under Title II and the Rehab. Act, as well as those under the NJLAD.
1. Whether U. Mass. is an "Arm of the State" of Massachusetts
Whether or not U. Mass. is an entity entitled to sovereign immunity turns on whether, when U. Mass. is a defendant in a law suit, the State of Massachusetts is the "`real, substantial, party in interest.'" Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997) (quoting Ford Motor Co. v. Dep't of Treas., 323 U.S. 459, 464 (1945)). As the parties are now painfully aware, the Third Circuit applies a massive multi-factor balancing test to determine when a state entity is an "arm of the state," so that in a claim against the entity the state is the real party in interest. See Carter v. City of Philadelphia, 181 F.3d 339, 347-48 (3d Cir. 1999); Fitchik v. N.J. Transit Rail Operations, Inc., 873 F.2d 655 (3d Cir. 1989). I have previously determined, however, that exposure of the state treasury to judgments against the entity is sufficient to demonstrate that the entity is an arm of the state. See Bowers VIII, 171 F. Supp.2d at 402 (citing Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 50-51 (1994); id. at 59 (O'Connor, J., dissenting)). In addition, I concluded that where a state denominates all of a university's ...

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