and BMW will be permitted to amend its third-party complaint. The motion to dismiss the cross-claim, however, will be granted as uncontested pursuant to Local Rule of Civil Procedure 20(c).
The plaintiffs herein filed their complaint against BMW of North America, Inc. ("BMW NA"), and Bavarian Motor Works, A.G. ("BMW AG"), asserting claims for negligence, strict products liability, and breach of warranty. The claims stem from an accident on State Route 78 in which minors Jessica Sitkoff was injured and Gwyn Allison Sitkoff was killed. The minors were passengers in a BMW 325i convertible when the driver of the car lost control after the left wheels entered a depressed shoulder area on a construction site. The car struck a guardrail, then a tree, and then rolled down an embankment. The plaintiffs allege that, inter alia, the BMW defendants are liable for their failure to include some sort of roll-bar device.
The BMW defendants filed separate third party complaints. The third party complaints are largely the same, except that BMW NA, but not BMW AG, named the Commonwealth of Pennsylvania Department of Transportation ("PennDOT") as a third party defendant. In count III of said third-party complaint, BMW NA alleges that PennDOT was the owner of the property whereon the accident occurred and had jurisdiction over the roadway and thus had a duty to keep the roadway free from defects; PennDOT knew or should have known that the roadway was dangerous and defective and the damages suffered by the plaintiffs occurred as a result of the negligence, recklessness, and carelessness of PennDOT. BMW NA seeks judgment "for all sums that my be adjudged against BMW NA in favor of plaintiffs...."
PennDOT moved to dismiss based upon the 11th Amendment's grant to the states of immunity from suit by individuals in federal court. BMW NA argues that the plaintiffs and not PennDOT are the real party in interest due to a joint tortfeasor release.
II. STANDARD OF REVIEW.
Upon a motion to dismiss for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1), the party asserting jurisdiction must be allowed a reasonable opportunity to demonstrate jurisdiction. The burden is, therefore, upon said party to show jurisdiction. Unlike a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6), when a party attacks the factual allegations of jurisdiction, we are not limited in our review to the allegations of the complaint; we may review any evidence and resolve factual disputes regarding the allegations giving rise to jurisdiction.
It is for the court to resolve any and all factual disputes involving the existence of jurisdiction. (See generally Moore's Federal Practice (Second Ed.) at P12.07[2.-1].)
We conclude that a challenge to jurisdiction based upon the 11th Amendment is a factual challenge, since, as based upon the analysis in the next section, the question of jurisdiction rests upon the real-party-in-interest analysis.
There is no dispute that PennDOT is the "state" for 11th Amendment purposes. The 11th Amendment immunizes a state from a private citizen's suit in federal court. Pennsylvania has not waived this immunity. 42 Pa. Con. Stat. Ann. § 8521(b). What would appear to be a simple question of 11th Amendment immunity, however, is complicated by a joint tortfeasor release agreed to in a separate action.
The issue here involved is: when the state is expressly named a defendant of record, does the 11th Amendment bar suit in federal court by a private party if the judgment would not be paid by the state treasury, that is, when the state, although expressly named a defendant of record, is not the real party in interest.
We have found no cases dealing directly with such a situation as we here face. A brief review of 11th Amendment jurisprudence shows that the cases, which began with the old but fast rule that we never have jurisdiction whenever the state is a party of record, hold that 11th Amendment immunity rests on the outcome of the "real party in interest analysis."
In Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 6 L. Ed. 204 (1824), the Supreme Court held:
It may, we think, be laid down as a rule which admits of no exception, that, in all cases where jurisdiction depends on the party, it is the party named in the record. Consequently, the 11th amendment, which restrains the jurisdiction granted by the constitution over suits against States, is, of necessity, limited to those suits in which a State is a party on the record.