The opinion of the court was delivered by: Martini, U.S.D.J.
This matter comes before the Court on Third Party Defendant New Jersey Department of Transportation's ("NJDOT's") motion to dismiss Third Party Plaintiffs' complaint*fn1 . There was no oral argument. Fed. R. Civ. P. 78. For the reasons set forth below, the NJDOT's motion is GRANTED and Third Party Plaintiffs' complaint is DISMISSED.
On May 27, 2004, Plaintiff filed this action against Defendants, alleging Defendants' responsibility for remediating certain lands that Plaintiff purchased in 1996. The details of the dispute between Plaintiff and Defendants are complex and largely irrelevant for purposes of addressing this motion. In brief, however, Plaintiff purchased lands used as asphalt production plants in 1996. The purchase triggered the Industrial Site Responsibility Act ("ISRA"), N.S.J.A. 13:1K-6 et seq., formerly known as the Environmental Cleanup Responsibility Act ("ECRA"), which required remediation of some of this land. Plaintiff asserts Defendants bear responsibility for remediating these sites pursuant to terms contained in a purchase agreement and Remediation Agreements with the New Jersey Department of Environmental Protection ("NJDEP"). Plaintiff further asserts Defendants failed to perform under their obligations. Plaintiff seeks specific performance and damages because it has had to expend large sums of money to come into compliance with ISRA and to avoid NJDEP sanctions.
On May 26, 2005, select Defendants (hereinafter referred to as "Third Party Plaintiffs") filed a Third Party Complaint against the New Jersey Department of Transportation alleging the NJDOT's responsibility for the cleanup.*fn2 Third Party Plaintiffs allege the NJDOT used the sites at issue from the 1950s through the mid-1970s in connection with its highway projects. The NJDOT has now filed this motion to dismiss claiming immunity from suit under the Eleventh Amendment.
In deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), all allegations in the complaint must be taken as true and viewed in the light most favorable to the plaintiff. Warth v. Seldin, 422 U.S. 490, 501 (1975); Trump Hotels & Casino Resorts, Inc., v. Mirage Resorts Inc., 140 F.3d 478, 483 (3d Cir. 1998). In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court may consider only the complaint, exhibits attached to the complaint, matters of public record, and undisputedly authentic documents if the plaintiff's claims are based upon those documents. Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). If, after viewing the allegations in the complaint in the light most favorable to the plaintiff, it appears beyond doubt that no relief could be granted "under any set of facts which could prove consistent with the allegations," a court may dismiss a complaint for failure to state a claim. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Zynn v. O'Donnell, 688 F.2d 940, 941 (3d Cir. 1982).
III. Eleventh Amendment Sovereign Immunity
The Eleventh Amendment grants states immunity from suit by private parties.*fn3 Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989); A.W. v. Jersey City Pub. Schs., 341 F.3d 234, 238 (3d Cir. 2003). The Supreme Court has recognized two exceptions to this bar. First, Congress may authorize such a suit in the exercise of its power to enforce the Fourteenth Amendment. Coll. Sav. Bank v. Fla. Prepaid Post-secondary Educ. Expense Bd., 527 U.S. 666, 670 (1999). Second, a State may waive its sovereign immunity by consenting to suit. Id. Third Party Plaintiffs allege that this case gives rise to both exceptions.
a. Waiver Through Insurance Procurement
Third Party Plaintiffs first claim that the NJDOT may have waived sovereign immunity by purchasing environmental liability insurance. Although they do not know if the NJDOT in fact has such insurance, they argue that since the NJDOT has the statutory authority to purchase insurance under N.J.S.A. 27:25-5(r), this Court should allow further discovery of the issue.
As an initial matter, the statute which purportedly confers upon the NJDOT the power to procure insurance, N.J.S.A. 27:25-5(r), applies specifically to the New Jersey Transit Corporation rather than to the New Jersey Department of Transportation. More importantly, even if the NJDOT had purchased insurance covering the claims at issue in this case, the Supreme Court has ruled that the question of whether a state has waived Eleventh Amendment immunity turns not on the state's ability to seek reimbursement for a judgment against it, but the entity's potential legal liability. Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 431 (1997). And although some courts have looked to insurance coverage in performing an analysis under the Eleventh Amendment, these courts do so not to determine whether a state entity has waived immunity but to determine whether the entity claiming immunity is in fact an "alter ago" of the state. See, e.g., Christy v. Penn. Tpk. Comm'n, 54 F.3d 1140, 1147 (3d Cir. 1995); Fitchik v. New Jersey Transit Rail Operations, 873 F.2d 655 (3d Cir. 1989). There is no dispute here that a suit against the NJDOT amounts to a suit against the state qua state. For these reasons, even if Third Party Plaintiffs could show that the NJDOT has procured insurance, this Court rejects the notion that such procurement amounts to the state's waiver of sovereign immunity.
b. Waiver Through Acceptance of Federal Highway Funds
Third Party Plaintiffs next argue that the NJDOT may have subjected itself to suit in federal court if it accepted federal funds to build its highways. Again, although they do not know whether the NJDOT accepted such funds, they ask for discovery of the issue. This Court finds it unnecessary to grant such discovery since, even if Third Party Plaintiffs could ...