United States District Court, M.D. North Carolina
RASHANDA MCCANTS and DEVON RAMSAY, individually and on behalf of all others similarly situated, Plaintiffs,
THE NATIONAL COLLEGIATE ATHLETIC ASSOCIATION and THE UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, Defendants.
MEMORANDUM OPINION AND ORDER
Loretta C. Biggs United States District Judge
Rashanda McCants and Devon Ramsay, brought this putative
class action in state court against Defendants, the National
Collegiate Athletic Association (the “NCAA”) and
the University of North Carolina at Chapel Hill
(“UNC-Chapel Hill”), alleging various state
claims against each Defendant. The NCAA removed the case to
this Court pursuant to the Class Action Fairness Act
(“CAFA”),  28 U.S.C. §§ 1332(d), 1441,
1446, and 1453. (ECF No. 1.) UNC-Chapel Hill filed a motion
to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the
Federal Rules of Civil Procedure,  seeking dismissal on the
ground that, as an agency of the State of North Carolina, it
is immune from suit in this Court under the Eleventh
Amendment, as well as other grounds. (ECF No. 19; see
also ECF No. 22 at 9, 12.) For the reasons set forth
below, the Court remands the case to state court.
Fourth Circuit has “been unclear on whether a dismissal
on Eleventh Amendment immunity grounds is a dismissal for
failure to state a claim under Rule 12(b)(6) or a dismissal
for lack of subject matter jurisdiction under Rule
12(b)(1).” Andrews v. Daw, 201 F.3d 521, 524
n.2 (4th Cir. 2000). Several recent Fourth Circuit opinions,
however, have recognized the jurisdictional characteristics
of the Eleventh Amendment. See, e.g., McCray v.
Md. Dep't of Transp., 741 F.3d 480, 483 (4th Cir.
2014); Carpenters Pension Fund of Baltimore v. Md.
Dep't of Health & Mental Hygiene, 721 F.3d 217,
220, 223 (4th Cir. 2013); Constantine v. Rectors &
Visitors of George Mason Univ., 411 F.3d 474, 480-81
(4th Cir. 2005). While Eleventh Amendment immunity contains
characteristics of subject matter jurisdiction in that a
state may raise immunity at any time, it “is not
strictly an issue of subject-matter jurisdiction”
because, unlike subject matter jurisdiction, Eleventh
Amendment immunity “may be waived by the [s]tate
altogether.” Constantine, 411 F.3d at 481,
482. According to the Supreme Court, “[t]he Eleventh
Amendment . . . does not automatically destroy original
jurisdiction. Rather, [it] grants the State a legal power to
assert a sovereign immunity defense should it choose to do
so.” Wis. Dep't. of Corrs. v. Schacht, 524
U.S. 381, 389 (1998).
“not a true limit on the subject-matter jurisdiction of
federal courts, the Eleventh Amendment is a block on the
exercise of that jurisdiction.” Roach v. W.Va.
Reg'l Jail & Corr. Facility Auth., 74 F.3d 46,
48 (4th Cir. 1996) (quotation omitted); accord Fent v.
Okla. Water Res. Bd., 235 F.3d 553, 559 (10th Cir. 2000)
(stating that Eleventh Amendment immunity “constitutes
a bar to the exercise of federal subject matter
jurisdiction”). Once asserted by the state, such
immunity becomes a threshold issue that must be resolved
before the court can address any of a plaintiff's claims.
See Constantine, 411 F.3d at 482 (“Given the
States' unique dignitary interest in avoiding suit, it is
no less important to resolve Eleventh Amendment immunity
questions as soon as possible after the State asserts its
immunity.” (citation and footnote omitted)). In recent
years, district courts within the Fourth Circuit have
generally considered this immunity defense under Rule
12(b)(1). See, e.g., Hutto v. S.C. Ret.
Sys., 899 F.Supp.2d 457, 466 (D.S.C. 2012); Beckham
v. Nat'l R.R. Passenger Corp., 569 F.Supp.2d 542,
547 (D. Md. 2008). This Court will do the same.
motion under Rule 12(b)(1), which governs dismissal for lack
of subject matter jurisdiction, raises the question of
“whether [the plaintiff] has a right to be in the
district court at all and whether the court has the power to
hear and dispose of [the] claim.” Holloway v. Pagan
River Dockside Seafood, Inc., 669 F.3d 448, 452 (4th
Cir. 2012). Ordinarily, the party asserting jurisdiction
bears the burden of establishing subject matter jurisdiction.
See Strawn, 530 F.3d at 296. However, where the
Eleventh Amendment bar has been asserted by a party, that
party has the burden of proving that it is entitled to
sovereign immunity. Hutto v. S.C. Ret. Sys., 773
F.3d 536, 543 (4th Cir. 2014). In evaluating a motion under
Rule 12(b)(1), the court may consider evidence outside the
pleadings and should grant the motion “only if the
material jurisdictional facts are not in dispute and the
moving party is entitled to prevail as a matter of
law.” Richmond, Fredericksburg & Potomac R.R.
Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).
Sovereign Immunity and Eleventh Amendment Immunity
have recognized two forms or species of state sovereign
immunity: (1) Eleventh Amendment immunity and (2) a
state's broader, general sovereign immunity. See,
e.g., Beaulieu v. Vermont, 807 F.3d 478, 483
(2d Cir. 2015); Lombardo v. Pa., Dep't of Pub.
Welfare, 540 F.3d 190, 194-95 (3d Cir. 2008);
Stewart v. North Carolina, 393 F.3d 484, 487-88 (4th
Cir. 2005). “While both doctrines are often referred to
as ‘sovereign immunity, ' they are not the
same.” Murphy v. Smith, 844 F.3d 653, 656 (7th
Cir. 2016); see also Stewart, 393 F.3d at 487
(“distinguish[ing] the related but not identical
concepts of Eleventh Amendment immunity and state sovereign
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, ” U.S.
Const. amend. XI, “and (as interpreted) by its own
citizens, ” Lapides v. Bd. of Regents of Univ. Sys.
of Ga., 535 U.S. 613, 618 (2002). See Edelman v.
Jordan, 415 U.S. 651, 662-63 (1974). “This
immunity protects a state's dignity and fiscal integrity
from federal court judgments, and acts as a limitation on the
federal judiciary's Article III powers.”
Beaulieu, 807 F.3d at 483 (citation omitted);
see also Bragg v. W.Va. Coal Ass'n, 248
F.3d 275, 291 (4th Cir. 2001) (explaining that the Eleventh
Amendment is a “limit on federal judicial power[,
]” which is “an essential element of the
constitutional design, ” because it “accords the
States the respect owed them as members of the
federation” (quoting P.R. Aqueduct & Sewer
Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146
the precise terms of the Eleventh Amendment only bar federal
jurisdiction over suits between a state and citizens of
another state or foreign state, the Supreme Court has long
observed that states possess a broader form of immunity that
transcends the literal meaning of the Eleventh Amendment.
See Fed. Maritime Comm'n v. S.C. State Ports
Auth., 535 U.S. 743, 754 (2002); Idaho v. Coeur
d' Alene Tribe of Idaho, 521 U.S. 261, 267-68 (1997)
(citing Hans v. Louisiana, 134 U.S. 1 (1890)). This
broader doctrine of immunity predates the enactment of the
Eleventh Amendment and the founding of our Nation. See
S.C. State Ports Auth. v. Fed. Maritime Comm'n, 243
F.3d 165, 167-68 (4th Cir. 2001). Unlike immunity under the
Eleventh Amendment, which addresses whether a state has
consented to being sued in a federal court, Stewart,
393 F.3d at 488, a state's more general sovereign
immunity bars all private suits against the state whether
brought in federal or state court, Beaulieu, 807
F.3d at 483; S.C. State Ports Auth., 243 F.3d at
169. This form of immunity is “based on the logical and
practical ground that there can be no legal right as against
the authority that makes the law on which the right
depends.” Stewart, 393 F.3d at 488 (quoting
Nevada v. Hall, 440 U.S. 410, 416 (1979)).
Supreme Court explained the relationship between Eleventh
Amendment immunity and sovereign immunity as follows:
We have . . . sometimes referred to the States' immunity
from suit as “Eleventh Amendment immunity.” The
phrase is convenient shorthand but something of a misnomer,
for the sovereign immunity of the States neither derives
from, nor is limited by, the terms of the Eleventh Amendment.
Rather, as the Constitution's structure, its history, and
the authoritative interpretations by this Court make clear,
the States' immunity from suit is a fundamental aspect of
the sovereignty which the States enjoyed before the
ratification of the Constitution, and which they retain today
(either literally or by virtue of their admission into the
Union upon an equal footing with the other States) except as
altered by the plan of the Convention or certain
Alden v. Maine, 527 U.S. 706, 713 (1999); Fed.
Maritime Comm'n, 535 U.S. at 753 (“[T]he
Eleventh Amendment does not define the scope of the
States' sovereign immunity; it is but one particular