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Fonte v. Lee Memorial Health System

United States District Court, M.D. Florida, Fort Myers Division

August 28, 2019


          OPINION AND ORDER [1]


         Before the Court is Defendant Lee Memorial Health System (“LMHS”) and Dr. Venkat Prasad's Motion to Dismiss (Doc. 11), Plaintiff Dr. Nelayda Fonte's response in opposition (Doc. 20), Defendants' reply (Doc. 23) and Fonte's sur-reply (Doc. 25). For the following reasons, the Court grants the motion in part and denies it in part.


         LMHS employed Fonte as a surgeon for over twenty years. Late last year, Fonte took approved leave under the Family and Medical Leave Act (“FMLA”). Four days after she returned to work, Prasad fired her. Prasad is LMHS' chief medical officer. Fonte now sues LMHS and Prasad for unlawful interference and retaliation under the FMLA. Defendants move to dismiss the suit because LMHS has Eleventh Amendment sovereign immunity and Prasad cannot be held individually liable.


         “An assertion of Eleventh Amendment immunity essentially challenges a court's subject matter jurisdiction: ‘The Eleventh Amendment restricts the judicial powers under Article III, and Article I cannot be used to circumvent the constitutional limitations placed on federal jurisdiction.'” Seaborn v. State of Fla., Dep't of Corrections, 143 F.3d 1405, 1407 (11th Cir. 1998) (quoting Seminole Tribe v. Florida, 517 U.S. 44, 72-73 (1996)). The Federal Rules of Civil Procedure allow a defendant to dismiss a pleading for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). An attack on jurisdiction can be facial or factual. See Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990). Defendants make a facial attack. (Doc. 11 at 3; Doc. 20 at 3-4). “Facial attacks on the complaint require[ ] the court merely to look and see if [the] plaintiff has sufficiently alleged a basis for subject matter jurisdiction, and the allegations in [the] complaint are taken as true for the purposes of the motion.” Lawrence, 919 F.2d at 1529 (internal quotation marks omitted). “[A] plaintiff is afforded safeguards similar to those provided in opposing a Rule 12(b)(6) motion-the court must consider the allegations of the complaint to be true.” Id.


         A. Eleventh Amendment immunity

         The Eleventh Amendment protects a nonconsenting State from suit in federal court by its own citizens. U.S. Const. amend. XI; cf. Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 39 (1994) (stating “Eleventh Amendment jurisprudence emphasizes the integrity retained by each State in our federal system”). But Eleventh Amendment immunity is not absolute. “Under the traditional Eleventh Amendment paradigm, states are extended immunity, counties and similar municipal corporations are not, and entities that share characteristics of both require a case-by-case analysis.” Silberman v. Miami Dade Transit, 927 F.3d 1123, 1136 (11th Cir. 2019) (internal quotations omitted). For hybrid entities, sovereign immunity extends to those that act as an “arm of the State” and not as an arm of the county. See Manders v. Lee, 338 F.3d 1304, 1308 (11th Cir. 2003); Stanley v. Israel, 843 F.3d 920, 924 (11th Cir. 2016). LMHS argues it is an arm of Florida, and thus it has Eleventh Amendment immunity from this suit.[2]

         Courts use a four-factor test to determine arm-of-the State issues: “(1) how state law defines the entity; (2) what degree of control the state maintains over the entity; (3) where the entity derives its funds; and (4) who is responsible for judgments against the entity.” Manders, 338 F.3d at 1309 (citations omitted). The party claiming immunity must show the factors weigh in its favor. See Miller v. Advantage Behavioral Health Sys., 677 Fed.Appx. 556, 559 (11th Cir. 2017). The factors are also evaluated considering “the particular function the defendant was engaged [in] when taking the actions out of which liability is asserted to arise.” Manders, 338 F.3d at 1308; Freyre v. Chronister, 910 F.3d 1371, 1380 (11th Cir. 2018). Here, that function is Prasad firing Fonte.

         But LMHS claims that the Manders analysis is unnecessary because it has twice been granted sovereign immunity. (Doc. 23 at 1 (stating “this Court has analyzed the same legal question (Eleventh Amendment sovereign immunity) applied to the same public entity (Lee Health) and determined that Lee Health is immune from suit.” (emphasis in original)). LMHS relies on two Middle District of Florida cases: Gillies v. Lee Mem. Health Sys., No. 2:13-cv-442-FtM-29DNF, 2014 WL 4071673, at *1 (M.D. Fla. Aug. 18, 2014) and Lalone v. Lee Mem. Health Sys. Foundation, Inc., No. 2:11-cv-417-UA-DNF (ECF No. 12) (M.D. Fla. Jan. 20, 2012). Neither case is as advertised.

         In Gillies, LMHS moved to dismiss an age discrimination suit under the Eleventh Amendment. The district court denied the motion as moot because it granted the plaintiff's request for leave to amend the complaint. In doing so, the court commented that “it seems unlikely plaintiff can plead around sovereign immunity.” 2014 WL 4071673, at *1. From this offhand remark, LMHS declares itself immune from suit. The court's comment, however, is a far cry from determining that the Eleventh Amendment applies. At best, it represents dicta.

         Lalone fares no better. There, the court dismissed a wage and hour suit because LMHS' status as a political subdivision gave it sovereign immunity. But the three-page decision gave no arm-of-the-State analysis under Manders, which is problematic. See Silberman, 927 F.3d at 1137 (criticizing the court for not “even allud[ing] to the four-factor test”). The court simply found sovereign immunity based on LMHS' uncontested status as a political subdivision. Lalone has no binding or instructive effect here.

         LMHS does not stop there. It also cites F.T.C. v. Hosp. Bd. of Directors of Lee Cty., 38 F.3d 1184 (1994) to argue “the Eleventh Circuit explicitly recognized Lee Health's status as an arm of the state.” (Doc. 23 at 2). Not so. The Federal Trade Commission sued Lee Memorial for antitrust violations under the Sherman Act. At issue was whether Lee Memorial could have state-action immunity under federal antitrust law-not Eleventh Amendment immunity. 38 F.3d at 1186; cf. Diverse Power, Inc. v. City of Lagrange, Georgia, No. 18-cv-11014, 2019 WL 3928624, at *3 (11th Cir. Aug. 20, 2019) (“The doctrine of state-action immunity insulates states from suit under the federal antitrust laws.”). LMHS conflates the two principles. The Eleventh Circuit said Lee Memorial was a political subdivision ...

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