United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER GRANTING
DEFENDANT'S MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS
AND THE PARTIES' STIPULATED MOTION TO AMEND
N. Parrish District Judge.
the court is Defendants University of Utah and D r. William
McMahon's motion for partial judgment on the pleadings,
filed July 15, 2016 and a related motion to amend the
complaint. (Docket Nos. 80, 84). Defendants have stipulated
to the motion to amend the complaint. (Docket No. 87). In the
motion for partial judgment, Defendants argue for dismissal
of Plaintiff Dr. Judith Pinborough Zimmerman's Second,
Ninth, and Tenth Causes of Action based on governmental
immunity. Plaintiff filed a memorandum in opposition to
Defendants' motion on August 15, 2016, (Docket No. 85),
and Defendants replied on August 29, 2016, (Docket No. 91).
The stipulated motion deals with the Ninth Cause of Action.
(Docket No. 87). After review of the submitted materials, the
court concludes that oral argument would not materially
advance the resolution of this motion. See DUCivR
explained below, the court grants each of the motions. The
court concludes that Dr. Zimmerman's Second, Ninth, and
Tenth Causes of Action should be dismissed, but grants her
leave to amend her complaint as stipulated by the parties.
motion arises in the context of a lawsuit by Plaintiff
against her former employer, the University of Utah, and her
former supervisor, Dr. McMahon. Plaintiff filed this lawsuit
in December of 2013 after she was terminated from her
position as a Research Assistant Professor. The particulars
of the dispute are not relevant to resolution of this motion,
and a full explanation of the factual background may be found
in the court's recent decision regarding Defendants'
motion for summary judgment. (Docket No. 75).
filed her First Amended Complaint on January 22, 2015, which
asserts multiple causes of action against the Defendants.
(Docket No. 32). At issue in this motion are Plaintiff's
Second, Ninth, and Tenth Causes of Action, which are asserted
against the University of Utah alone. The Second Cause of
Action asserts that the University breached its employment
contract with Plaintiff when it terminated her in
contravention of the terms of that contract and University
policy. (Docket No. 32 at 18-19). The Ninth Cause of Action
asserts that the University terminated Plaintiff in violation
of Title I of the Americans with Disabilities Act
(“ADA”), codified as 42 U.S.C. § 12112.
(Docket No. 32 at 26-27). The Tenth Cause of Action asserts
that the University terminated Plaintiff in violation of the
Age Discrimination in Employment Act (“ADEA”),
codified as 29 U.S.C. § 623. (Docket No. 32 at 27-29).
Defendants argue that each of these causes of action are
barred by the Eleventh Amendment and should be dismissed. The
court has jurisdiction over this matter under 28 U.S.C.
§§ 1331 and 1367.
the pleadings are closed-but early enough not to delay the
trial-a party may move for judgement on the pleadings.”
Fed.R.Civ.P. 12(c). Such a motion “is treated as a
motion to dismiss under Rule 12(b)(6).” Atl.
Richfield Co. v. Farm Credit Bank, 226 F.3d 1138, 1160
(10th Cir. 2000). Dismissal is appropriate if the
plaintiff's “allegations fail to ‘state a
claim to relief that is plausible on its face.'”
See Myers v. Koopman, 738 F.3d 1190, 1193 (10th Cir.
2013) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570, 127 S.Ct. 1955 (2007)).
discussed above, Defendants argue that Plaintiff's
Second, Ninth, and Tenth Causes of Action against the
University of Utah are barred by the Eleventh Amendment to
the United States Constitution. (Docket No. 80 at 1). Under
the Eleventh Amendment, “an unconsenting State is
immune from suits brought in federal courts by her own
citizens as well as by citizens of another State."
Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct.
1347 (1974). This immunity extends to both the state itself
and “those governmental entities that are ‘arms
of the state.'” Ambus v. Granite Bd. of
Educ., 995 F.2d 992, 994 (10th Cir. 1993) (quoting
Meade v. Grubbs, 841 F.2d 1512, 1525 (10th Cir.
1988)). The University of Utah is an “arm of the
state” and is entitled to Eleventh Amendment immunity
from suit in federal court. Watson v. Univ. of Utah Med.
Ctr., 75 F.3d 569, 574-75 (10th Cir. 1996) (finding that
the University of Utah is an “arm of the state”
and entitled to Eleventh Amendment immunity); Lu v. Univ.
of Utah, ___F. App'x___, 2016 WL 4373337 at *2 (10th
Cir. August 16, 2016) (unpublished) (same). Nevertheless,
“such immunity is not absolute, ” and may be
waived by the state or abrogated by Congress in certain
instances. Arbogast v. Kan. Dep't of Labor, 789
F.3d 1174, 1181 (10th Cir. 2015). With these principles in
mind, the court will now evaluate the viability of
Plaintiff's Second, Ninth, and Tenth Causes of Action.
Plaintiff's Second Cause of Action Is Barred by the
Defendants argue that Plaintiff's Second Cause of Action,
a breach of contract claim against the University, is barred
by the Eleventh Amendment because the University is an
“arm of the state” and therefore immune from suit
in federal court. (Docket No. 80 at 6-7). In response,
Plaintiff asserts that “the State has specifically
waived immunity for contract claims” under Utah's
Governmental Immunity Act. (Docket No. 85 at 2) (citing Utah
Code § 63G-7-301 (“Immunity from suit of each
governmental entity is waived as to any contractual
obligation.”)). The court concludes that
Plaintiff's reliance on the Governmental Immunity Act is
the Governmental Immunity Act undoubtedly waives the
State's immunity from suit in its own courts, it does not
waive the State's immunity from suit in federal courts.
Sutton v. Utah State Sch. For Deaf & Blind, 173
F.3d 1226, 1235 (10th Cir. 1999) (quoting Richins v.
Industrial Constr., 502 F.2d 1051 (10th Cir. 1974)). It
is well-settled that a State's waiver of immunity from
suit in its own courts does not waive its Eleventh Amendment
immunity from suit in federal court. Petty v. Tenn.-Mo.
Bridge Comm'n, 359 U.S. 275, 276, 79 S.Ct. 785
(1959). As the Supreme Court explained,
Although a State's general waiver of sovereign immunity
may subject it to suit in state court, it is not enough to
waive the immunity guaranteed by the Eleventh Amendment. . .
. [A] State's constitutional interest in immunity
encompasses not merely whether it may be sued, but
where it may be sued. Thus, in order for a state
statute or constitutional provision to constitute a waiver of