United States District Court, M.D. Florida, Fort Myers Division
DR. NELAYDA FONTE, Plaintiff,
LEE MEMORIAL HEALTH SYSTEM and DR. VENKAT PRASAD, Defendants.
OPINION AND ORDER 
POLSTER CHAPPELL, UNITED STATES DISTRICT JUDGE.
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.
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
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.
Eleventh Amendment immunity
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.
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.
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.
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.
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
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 ...