The opinion of the court was delivered by: MARY COOPER, District Judge
The third-party defendants, Peter Harvey, Attorney General of
the State of New Jersey ("Harvey"), in his official capacity, and
the State of New Jersey (collectively referred to as the "state
defendants"), move to dismiss the third-party complaint filed by
Ocean County, the Ocean County Prosecutor's Office, and E. David
Millard, former Ocean County Prosecutor (collectively referred to
as the "county plaintiffs"), for failure to state a claim upon
which relief may be granted, pursuant to Federal Rule of Civil
Procedure ("Rule") 12(b)(6). The county plaintiffs brought the
third-party action to compel the state defendants to defend and
indemnify them for any and all claims asserted by the plaintiff,
William Davis, Jr., in his second amended complaint. In response
to the state defendants' motion to dismiss, the county plaintiffs
cross-move for voluntary dismissal of the third-party complaint,
pursuant to Rule 41. Because the Court lacks subject matter
jurisdiction to hear the county plaintiffs' claims, the Court will grant the state defendants' motion and
deny the county plaintiffs' cross motion as moot.
The parties are familiar with the background of this action.
(See 8-4-05 Mem. Op. & Ord.) In the Court's August 4, 2005
Memorandum Opinion and Order, we granted in part the county
plaintiffs' motion for summary judgment, holding that the county
plaintiffs were entitled to Eleventh Amendment immunity.*fn1
The state defendants moved to dismiss the third-party complaint,
claiming that (1) the Court lacked subject matter jurisdiction to
decide the action based upon Eleventh Amendment immunity, and (2)
the county plaintiffs failed to satisfy the requirements of the
New Jersey Tort Claims Act ("NJTCA"). (State Defs. Br., at 1-2.)
The county plaintiffs cross-moved for voluntary dismissal of the
third-party complaint without prejudice.
The state defendants move to dismiss the third-party complaint
pursuant to Rule 12(b)(6) for failure to state a claim upon which
relief can be granted. Although the state defendants move to
dismiss pursuant to Rule 12(b)(6), their defense of sovereign
immunity is more appropriately decided under Rule 12(b)(1), which deals with subject matter jurisdiction. See
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99
(1984) (holding that absent a clear waiver by a state of its
sovereign immunity under the Eleventh Amendment or a
congressional abrogation of that immunity, a federal court lacks
subject matter jurisdiction to hear claims brought by an
individual against a state). Also, even if the parties do not
dispute subject matter jurisdiction, the Court has an obligation
to consider the question sua sponte. See, e.g., Mt.
Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 278
(1977). The party that invokes the court's jurisdiction bears the
burden of persuasion when the subject matter jurisdiction of the
court is challenged. Rudolph v. Adamar of N.J., Inc.,
153 F.Supp.2d 528, 533 (D.N.J. 2001) (citations omitted).
II. Eleventh Amendment Immunity
The Eleventh Amendment bars the county plaintiffs' claims
against the state defendants.
A. The State of New Jersey
The Eleventh Amendment provides that "[t]he 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
Eleventh Amendment bars suits against any state or its agencies in federal
court by that state's own citizens as well as by citizens of other states. Edelman v. Jordan, 415 U.S. 651,
662-63 (1974). The Eleventh Amendment precludes both legal and
equitable relief, as well as all claims under Section 1983.
Pennhurst, 465 U.S. at 100-01.
There are only three "narrowly circumscribed" exceptions to
Eleventh Amendment immunity: (1) abrogation by Act of Congress;
(2) waiver by state consent to suit; and (3) suits against
individual state officials for prospective relief to remedy an
ongoing violation of federal law. MCI Telecomm. Corp. v. Bell
Atl.-Pa., 271 F.3d 491, 503 (3d Cir. 2001). Here, the county
plaintiffs do not claim that any of the exceptions to
Eleventh Amendment immunity apply. Also, the county plaintiffs admit,
after the Court previously granted judgment in favor of the
county defendants, that the third-party complaint "cannot be
maintained in Federal Court" and that "it is now evident that
this Court lacks the jurisdiction to hear this matter." (County
Defs. Br. at 3.) Accordingly, the State of New Jersey is immune
against suit under the Eleventh Amendment.
B. The Attorney General of the State of New Jersey
The Attorney General argues that he is entitled to sovereign
immunity because the county plaintiffs' claims for defense and
indemnification would require the Court to direct a ...