United States District Court, N.D. Mississippi, Aberdeen Division
ORDER DENYING MOTION TO RECONSIDER ORDER GRANTING
DISCOVERY LIMITED TO ELEVENTH IMMUNITY ISSUE
A. SANDERS UNITED STATES MAGISTRATE JUDGE.
the Court is Defendants  Motion to Reconsider this
Court's  Order Granting Discovery Limited to Eleventh
Amendment Immunity Issue. Defendants argue this Court
committed a clear error of law by permitting the requested
discovery, resulting in manifest injustice.
may be granted to address “(1) an intervening change in
controlling law, (2) the availability of new evidence not
previously available, or (3) the need to correct a clear
error of law or prevent manifest injustice.” Davis
v. Louisville Mun. Sch. Dist., 2010 WL 1141097, *1 (N.D.
Miss. Mar. 22, 2010). “Granting a motion for
reconsideration, however, is ‘an extraordinary remedy
and should be used sparingly.'” Id.
(quoting In re Pequeno, 240 Fed.Appx. 634, 636 (5th
Defendants argue this Court erred by granting Plaintiff
discovery to determine “whether the state has expressly
and voluntarily waived its sovereign immunity,
independent of congressional condition, ” because
Plaintiff advanced a theory based solely on waiver
conditioned on the grant of federal funds. But, as this Court
noted in its order, Plaintiff clarified its position that,
although the ADEA is not a statute by which Congress has
exercised its powers under the Spending Clause to condition
receipt of federal funds on a waiver of Eleventh Amendment
immunity, “it does not mean that the State did not make
some express waiver of its Eleventh Amendment sovereign
Defendants argue Plaintiff's discovery requests
“relate solely to immunity waiver through acceptance of
conditions in federal funding.” However, the Court does
not read Plaintiff's requests so narrowly. Interrogatory
No. 1 asks “whether or not Defendants are currently
receiving or have received in the past three (3) years any
federal funds.” There is no conditional limitation.
Interrogatory No. 2 asks, if the answer to No. 1 is in the
affirmative, to “describe the amount and source of such
funds.” Again, there is no conditional limitation.
Interrogatory No. 3 asks “whether, in connection with
the receipt of any federal funds, Defendants executed any
contract document whereby they agreed to waive any
immunities they might have to employment discrimination
suits” (emphasis added). Rather than being limited
to a Congressional condition, this interrogatory asks whether
Defendants have executed any contract whereby they agreed to
waive any immunity they might have to employment
the heart of Plaintiff's requested discovery. Either the
State has agreed to waive its immunity or it has not. There
is a difference, subtle as it may be, in Congress
conditioning receipt of federal funds on the State's
waiver of immunity and the State voluntarily waiving that
immunity. See Watson v. Texas, 261 F.3d 436, 440
(5th Cir. 2001) ([U]nlike any other issue of federal subject
matter jurisdiction, [Eleventh Amendment immunity] can be
waived by the state.”).
A state's waiver must be unequivocal, but it can be
either express or implied. Where waiver is by express
statement, the intent to waive immunity from suit in federal
court must be stated by the most express language or by such
overwhelming implications from the text as will leave no room
for any other reasonable construction.
Id. at 440-41 (internal citations omitted).
Plaintiff seeks to determine whether the State has
voluntarily, expressly, and unequivocally waived its Eleventh
Amendment immunity. The State knows whether it has entered
into such a contract.
Defendants executed a contract whereby they agreed to waive
immunities to employment discrimination suits, Request for
Production No. 1 seeks copies of such contract. Request for
Production No. 2 seeks copies of all contracts between
Defendants and any agency of the United States
“relating to any conditions that may be imposed upon
Defendants as a condition to receipt of federal funds.”
While such a request is broader than Request for Production
No. 1, Request for Production No. 2 helps to ensure that a
waiver does not go undiscovered through a narrow
interpretation of Request for Production No. 1.
bemoan that the granted discovery forces them to “prove
a negative.” On the contrary. If there is no waiver,
there is no waiver. Defendants need only candidly answer the
requested discovery. The onus remains on the Plaintiff to
show that Eleventh Amendment immunity has been waived. The
discovery responses will aid her in that quest.
the Court notes that a waiver such as the one Plaintiff seeks
to discover is highly unlikely. The State's Eleventh
Amendment immunity is one that must be closely protected,
having both constitutional and jurisdictional implications.
But this Court must know whether that immunity applies to
this case. Either it does, or it doesn't. Either this
Court has jurisdiction, or it doesn't. That is the
question this Court has to answer, and the requested
discovery should aid this Court in that inquiry.
Motion for Reconsideration is DENIED. The
parties shall have an additional fourteen (14) days from the
date of this Order to complete the limited discovery allowed