United States District Court, N.D. Mississippi, Oxford Division
before this Court is Defendants University of Mississippi and
Board of Trustees of the Institute of Higher Learning's
motion to dismiss for lack of jurisdiction and failure to
state a claim . Having considered the matter, the Court
finds the motion should be granted.
Plaintiff, Dr. Richard Thomas, is a former professor at the
University of Mississippi's Desoto campus. After
Defendants terminated his employment, Thomas filed his
complaint against the University and the Board itself in this
action alleging breach of contract and due process
filed a motion to dismiss, arguing they are entitled to
Eleventh Amendment immunity, and that they are not
"persons" under 42 U.S.C. § 1983. On May 9,
2018, Thomas moved to amend his complaint by adding several
individual defendants employed by the University of
Mississippi and the Board. The Court granted Thomas's
motion to amend that same day and ordered Thomas to file his
amended complaint within seven days. See L.U. Civ.
R. 7(b)(2)(stating that a party must file an amended pleading
within seven days of entry of the order granting a motion to
amend) To date, Thomas has failed to file his amended
complaint or respond to Defendants' motion to dismiss.
Therefore, the Court will proceed on Defendants' motion.
argue that the complaint should be dismissed for two reasons.
First, they argue that as "arms of the state" they
are entitled to Eleventh Amendment immunity from this suit.
Thus, they move under Rule 12(b)(1) for this Court to dismiss
the case for lack of jurisdiction. Second, they argue that
they are not "persons" for the purposes of §
1983. Therefore, they also make a Rule 12(b)(6) motion for
the Court to dismiss the complaint for failure to state a
claim for relief under § 1983. Because, as set forth
below the Court finds the motion should be granted on the
first ground, it does not consider the second.
12(b)(1) Motion to Dismiss Standard
a Rule 12(b)(1) motion is filed in conjunction with a Rule
12(b)(6) motion, . . . courts must consider the
jurisdictional challenge first." McCasland v. City
of Castroville, Tex., 478 Fed.Appx. 860, 860 (5th Cir.
2012) (per curiam) (citing Wolcott v. Sebelius, 635
F.3d 757, 762 (5th Cir. 2011); Moron v. Kingdom of Saudi
Arabia, 27 F.3d 169, 172 (5th Cir. 1994)). This "
'prevents a court without jurisdiction from prematurely
dismissing a case with prejudice.' " Id.
12(b)(1) motion allows a party to challenge the Court's
subject matter jurisdiction. " '[A] factual attack
under Rule 12(b)(1) may occur at any stage of the
proceedings, and plaintiff bears the burden of proof that
jurisdiction does in fact exist.' " Arena v.
Graybar Elec. Co., 669 F.3d 214, 223 (5th Cir. 2012)
(quoting Menchaca v. Chrysler Credit. Corp., 613
F.2d 507, 511 (5th Cir. 1980) (citations omitted)).
Fifth Circuit has instructed:
A case is properly dismissed for lack of subject matter
jurisdiction when the court lacks the statutory or
constitutional power to adjudicate the case. In considering a
challenge to subject matter jurisdiction, the district court
is free to weigh the evidence and resolve factual disputes in
order to satisfy itself that it has the power to hear the
case. Thus, under Rule 12(b)(1), the district court can
resolve disputed issues of fact to the extent necessary to
Smith v. Reg'l Transit Autk, 756 F.3d 340, 347
(5th Cir. 2014) (quotation marks and citation omitted). In
ruling on a Rule 12(b)(1) motion to dismiss, the Court can
consider: "(1) the complaint alone; (2) the complaint
supplemented by undisputed facts evidenced in the record; or
(3) the complaint supplemented by undisputed facts plus the
court's resolution of disputed facts." Tsolmon
v. United States, 841 F.3d 378, 382 (5th Cir. 2016)
(internal quotation marks and citation omitted).
Eleventh Amendment Immunity
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 Eleventh Amendment strips courts of
jurisdiction over claims against a state that has not
consented to suit." Pierce v. Hearn Indep. Sch.
Dist.,600 Fed.Appx. 194, 197 (5th Cir. 2015) (per