The opinion of the court was delivered by: Irenas, Senior District Judge
This case comes before the Court on Defendants' motion to dismiss Plaintiffs' complaint pursuant to Fed. R. Civ. P. 12(b)(1) for a lack of subject matter jurisdiction. Defendants argue that they are immune from suit under the Eleventh Amendment. This Court has jurisdiction over the matter pursuant to 28 U.S.C. §§ 1331, 1343 and 1367.
Plaintiffs, who include both current firefighters with the City of Atlantic City Fire Department ("Fire Department" or "Department") and persons who unsuccessfully applied for firefighter positions with the Department, brought suit against the State of New Jersey Department of Personnel ("DOP") and the Merit System Board ("MSB") (collectively referred to as the "State Defendants"), the City of Atlantic City ("City"), and the Fire Chief for the City, Benjamin Brenner ("Brenner") alleging racial discrimination in hiring and promotion.
Prior allegations of discrimination in New Jersey's fire departments in the 1970's resulted in the United States government bringing suit against the State of New Jersey and its cities for allegedly engaging in a pattern of discrimination in firefighter hiring and promotions. See United States v. State of New Jersey, et al., United States District Court for the District of New Jersey, Civil Action Numbers 77-2054 and 79-184. On May 30, 1980, the parties to that suit entered into a consent decree ("Consent Decree") designed to prevent unlawful discrimination on the basis of race, color or national origin by promoting the hiring and advancement of minority firefighters throughout the State. Today, Plaintiffs allege that the goals of the consent decree have not been met. Specifically, Plaintiffs allege that Defendants have: engaged in ongoing discrimination in both the creation and scoring of firefighter hiring and promotional exams given by the DOP in 2000; segregated certain fire houses and tours; enforced disciplinary violations more harshly for minority firefighters; and condoned racism in the ranks.
On the basis of these allegations, Plaintiffs filed a five-count complaint with this Court on February 25, 2003. Counts I, II and V allege violations of Plaintiffs' civil rights under 42 U.S.C. §§ 1983, 1981 and 1985, respectively. Count III alleges violations of the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5-12(a) et seq. Count IV alleges that Defendants are in violation of the 1980 Consent Decree. Plaintiffs request that this Court enter a declaratory judgment against Defendants on all counts, enjoin Defendants from continuing the allegedly discriminatory practices, require Defendants to comply with the Consent Decree, and award both compensatory and punitive damages, costs and fees.
On May 16, 2003, State Defendants filed a pre-answer motion to dismiss for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). In a letter dated July 10, 2003, Defendants Atlantic City and Brenner joined the State Defendants' motion.
A motion to dismiss on the basis of Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction made prior to the filing of the defendant's answer is a facial challenge to the complaint. *fn1 See Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977); Courtney v. Choplin, 195 F. Supp. 2d 649, 650 (D.N.J. 2002). Review of a facial challenge in this context is similar to review of a 12(b)(6) motion and requires the Court to accept the allegations in the complaint as true. See Mortensen, 549 F.2d at 891; Courtney, 195 F. Supp. 2d at 650. Therefore, the Court views the Complaint in the light most favorable to Plaintiffs. Mortensen, 549 F.2d at 891.
Defendants argue that this Court lacks subject matter jurisdiction over Plaintiffs' claims because Defendants are immune from suit pursuant to the Eleventh Amendment. Eleventh Amendment immunity is an affirmative defense and requires Defendants to bear the burden of showing that they are entitled to immunity. Christy v. Pa. Turnpike Comm'n, 54 F.3d 1140, 1144 (3d Cir. 1995). The Eleventh Amendment provides that: "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. The underlying purpose of the Amendment is to "afford the States the dignity and respect due sovereign entities." Fed. Mar. Comm'n v. S. C. State Ports Auth., 535 U.S. 743, 765 (2002); see also Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 54 (1996); P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993); In re State of New York, 256 U.S. 490, 497 (1921).
To this end, the United States Supreme Court has consistently "held that the sovereign immunity enjoyed by the States extends beyond the literal text of the Eleventh Amendment." Fed. Mar. Comm'n, 535 U.S. at 754. Although the text expressly bars only suits in federal court against States by citizens of other States and foreign states, the Amendment has been broadly interpreted to prohibit nearly all suits by private individuals, regardless of that individual's citizenship. See, e.g., Bd. of Tr. of Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001) (finding that the "ultimate guarantee of the Eleventh Amendment" is to protect non-consenting States from suits by private individuals in federal court); Employees of the Dep't of Pub. Health & Welfare v. Dep't of Pub. Health & Welfare, 411 U.S. 279, 280 (1973) (stating that "it is established that an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State"). This sweeping immunity "applies regardless of whether a private plaintiff's suit is for money damages or some other type of relief." Fed. Mar. Comm'n, 535 U.S. at 765; see also Seminole Tribe, 517 U.S. at 58 (finding the type of relief sought "irrelevant to the question whether the suit is barred by the Eleventh Amendment").
The breadth of state sovereign immunity protects not only states, but expands to protect entities and persons who can show that, even though the State is not the named defendant, "the state is the real, substantial party in interest." Ford Motor Co. v. Dep't of Treasury, 323 U.S. 459, 464 (1945); see also Ex parte New York, 256 U.S. 490, 500 (1921) (noting that immunity is to be determined "not by the mere names of the titular parties but by the essential nature and effect of the proceeding, as it appears from the entire record"). The State is the real party in interest "`if the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration,' . . . or if the effect of the judgment would be to ...