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April 16, 2004.

NEELA DEVI KUMAR ALI, et al., Plaintiffs,
P.T. LYONS, et al., Defendants

The opinion of the court was delivered by: MARY A. McLAUGHLIN, District Judge


This is a wrongful death and survivorship case brought by the decedent's parents against P.T. Lyons ("Lyons"), Lyon's employer, Scientific Window Cleaners, Haverford Township and the Commonwealth of Pennsylvania, Department of Transportation ("PennDOT"). PennDOT filed a motion to dismiss, asserting Eleventh Amendment immunity.*fn1 The Court will grant PennDOT's motion.

According to the complaint, on November 29, 2001, the decedent, Sophia Devi Ali, was driving on Darby Road in Haverford Township, Pennsylvania. Her car was struck by a vehicle driven by Lyons in the course of his employment. Ms. Ali died as a result of the crash.

  The plaintiffs assert wrongful death claims against both PennDOT and Haverford Township, alleging both entities owned, controlled, maintained, supervised and had a duty to maintain Darby Road. The road is alleged to have been improperly maintained and inadequately posted with warning signs for speeding, slippery conditions, hills, or curves. The plaintiffs also allege defective road design against these defendants.

  The complaint was originally filed in the United States District Court for the Eastern District of New York in June 2003. The parties stipulated to transfer the case to the Eastern District of Pennsylvania in November, 2003 without prejudice to the defendants' right to file motions to dismiss on grounds other than venue. After transfer, PennDOT filed the instant motion.

  PennDOT argues that it is immune from suit in federal court under the Eleventh Amendment of the United States Constitution. The Eleventh Amendment bars suits in federal court that name the state as a defendant. This immunity extends to suits against departments or agencies of the state having no existence apart from the state. The immunity is waived if the state or state agency consents to suit in federal court.*fn2 U.S. CONST. amend. XI; Koslow v. Pennsylvania, 302 F.3d 161, 167-68 (3d Cir. 2002); Laskaris v. Thornburg, 661 F.2d 23, 25 (3d Cir. 1981) (citing Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 280 (1977)).

  There is no dispute that PennDOT is an agency of the Commonwealth. See 71 Pa. Cons. Stat. Ann. §§ 511-527; Dave v. Commonwealth of Pennsylvania, 483 F.2d 294, 295-98 (3d Cir. 1973). The issue is whether the state has consented to suit in this case.

  Pennsylvania has specifically withheld consent from suit in federal courts. See 42 Pa. Cons. Stat. § 8521(b).*fn3 The plaintiffs argue that PennDOT has nevertheless waived its immunity in this particular case for three reasons: (1) PennDOT actively participated in the lawsuit; (2) PennDOT invoked federal jurisdiction by stipulating to the transfer of the case; and (3) PennDOT failed to raise the defense in its initial pleadings, in violation of Rule 12(h)(1) of the Federal Rules of Civil Procedure.

  None of these arguments is persuasive. In support of their first point, the plaintiffs rely on a Ninth Circuit rule that a state waives its immunity if it appears in federal court and actively litigates the merits of the case. Hill v. Blind Indus. and Servs. of Maryland, 179 F.3d 754, 763 (9th Cir 1999). In the Third Circuit, however, a state may raise the defense "for the first time on appeal even if the state defended the merits of the suit in the district court." Chittister v. Dep't of Community and Econ. Dev., 226 F.3d 223, 227 (3d Cir. 2000). In any event, PennDOT has not litigated the merits of the case.

  In support of their second point, the plaintiffs rely on Lapides v. Board of Reagents of the University System of Georgia, 535 U.S. 613 (2002). In Lapides, the Supreme Court held that a state waives its Eleventh Amendment immunity if it invokes federal jurisdiction by removing or joining in the removal of a lawsuit from state to federal court. 535 U.S. at 616. PennDOT neither removed nor joined in the removal of this case from state court to federal court. The plaintiffs invoked federal jurisdiction, not PennDOT.

  The plaintiffs' final argument assumes that Eleventh Amendment immunity is tantamount to a defense of lack of personal jurisdiction, improper venue, or insufficiency of process. Rule 12(h)(1) provides in part that such defenses are waived if not made in a Rule 12 motion or in a responsive pleading. The Court does not need to decide whether an Eleventh Amendment defense is subject to Rule 12(h)(1) to dispose of this argument. PennDOT has raised the defense in this, its first and only, Rule 12 motion. The Court finds that PennDOT has not waived its Eleventh Amendment immunity. The Court will grant PennDOT's motion to dismiss.

  An appropriate order follows. ORDER

  AND NOW, this 16th day of April, 2004, upon consideration of the defendant Commonwealth of Pennsylvania, Department of Transportation's Motion to Dismiss (Docket No. 7), the opposition and reply thereto, and after hearing argument thereon at a telephone conference held on April 15, 2004, IT IS HEREBY ORDERED that said motion is GRANTED for the reasons stated in a memorandum of today's date. The ...

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