MEMORANDUM AND ORDER
Presently before the Court is the motion of defendant New Jersey Racing Commission ("Racing Commission") to dismiss Count V of the plaintiffs' complaint for lack of jurisdiction, pursuant to Fed.R.Civ.P. 12(b), on the grounds that the Racing Commission is immune from suit in federal court by virtue of the Eleventh Amendment to the Constitution of the United States and that it has not waived that immunity. For the reasons stated below, the Racing Commission's motion to dismiss will be granted.
This controversy arises out of a fire which occurred at the Garden State Racetrack in Cherry Hill, New Jersey, on April 14, 1977. Plaintiffs' complaint invokes the jurisdiction of this Court to entertain their claims on the basis of diversity of citizenship between the parties and an amount in controversy in excess of $ 10,000, exclusive of costs and interest, pursuant to 28 U.S.C. § 1332(a). In Counts I through IV of the complaint, plaintiffs allege that the defendant Garden State Racing Association ("Garden State") was negligent in the operation and inspection of its racetrack premises and that it breached certain implied warranties regarding the safety of those premises. In Count V, plaintiffs allege that the defendant Racing Commission, a state agency, was negligent in regulating, licensing and inspecting the racetrack and that it breached warranties regarding the safety of the premises.
The Eleventh Amendment to the Constitution of the United States states:
The 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, or by Citizens or Subjects of any Foreign State.
On its face, the Eleventh Amendment precludes federal court jurisdiction over claims brought against a state by citizens of another state. Ex Parte New York, 256 U.S. 490, 41 S. Ct. 588, 65 L. Ed. 1057 (1921). Furthermore, although not apparent on its face, the Eleventh Amendment also precludes federal court jurisdiction over suits brought against a state by its own citizens. Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974). Moreover, a state's Eleventh Amendment immunity to suit in federal court is not limited to cases in which it is a party of record, but extends to certain claims against its officers, agencies or instrumentalities when the state itself is the real party in interest. Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974); Edelman v. Jordan, supra. This immunity, however, has been held not to extend to political subdivisions of a state, such as a city or county, Port of Seattle v. Oregon & W. R. Co., 255 U.S. 56, 41 S. Ct. 237, 65 L. Ed. 500 (1921), or to governmental corporations, Hopkins v. Clemson Agricultural College of South Carolina, 221 U.S. 636, 31 S. Ct. 654, 55 L. Ed. 890 (1911); Harris v. Penna. Turnpike Com'n, 410 F.2d 1332 (3d Cir.), Cert. denied, 396 U.S. 1005, 90 S. Ct. 558, 24 L. Ed. 2d 497 (1969). The determination of whether a state is the real party in interest and, thus, whether the Eleventh Amendment immunity will bar an action is often a difficult one and may turn not only upon the particular facts concerning the creation and legislative history of the entity, Maryland Casualty Co. v. State Highway Com'n of Missouri, 256 F. Supp. 666 (W.D.Mo.1966), but also upon ascertainment of the responsibilities, functions and powers of the entity as determined from state law sources. Id. Once the character of the entity is thus determined, federal law must be turned to in order to learn of the availability of Eleventh Amendment immunity. Gordenstein v. University of Delaware, 381 F. Supp. 718 (D.Del.1974). The Supreme Court said in Edelman v. Jordan :
when the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants.