The opinion of the court was delivered by: Judge James M. Munley United States District Court
Before the court for disposition are a motion to remand filed by the plaintiff and a motion to dismiss filed by the defendants in this civil rights in employment action. The matters have been fully briefed and are ripe for disposition.
Defendant Pennsylvania Capitol Police Department (PCPD) employs the Plaintiff Thomas Wayne Davies as a police sergeant. Plaintiff has worked for PCPD for eighteen years. His employment with the PCPD is covered by a collective bargaining agreement. Plaintiff asserts that he was forced to leave his position as sergeant on May 27, 2005 without "just cause." Plaintiff filed the instant four-count complaint alleging the following: 1) Count I, Due Process violation, pre- and post-deprivation rights, under 42 U.S.C. § 1983; 2) Count II, violation of plaintiff's constitutional right to be free from injury to reputation under 42 U.S.C. § 1983; 3) Count III, a state law tort claim for defamation/false light; and 4) Count IV, defamation. Plaintiff filed his complaint in the Court of Common Pleas for Lackawanna County on July 21, 2005.
On July 18, 2005, defendants removed the action to this court based upon federal question jurisdiction as half of the complaint's counts are based upon federal law.*fn2
Subsequently, the plaintiff filed a motion to remand the action to state court, and the defendant filed a motion to dismiss. We will address each motion, starting with the motion to remand.
Plaintiff has moved to remand this action to state court on the basis that the Pennsylvania Capitol Police Department is protected by Eleventh Amendment immunity from suit in federal court. The defendants agree that generally Eleventh Amendment immunity bars suit against a state or its agencies in federal court.*fn3 They contend, however, that where the state removes the case to federal court, a waiver of the immunity is effected and the suit may proceed. After a careful review, we agree with the defendants.
The United States Supreme Court has addressed the issue of whether a state waives its Eleventh Amendment immunity by removing a case from state court to federal court. See Lapides v. Board of Regents of the Univ. Sys. of Georgia, 535 U.S. 613 (2002). In that case, the United States Supreme Court held that the State of Georgia waived Eleventh Amendment immunity by removing an action filed in state court to federal court. Id. at 620. Accordingly, we find that likewise, in this case, the state waived its Eleventh Amendment immunity by removing the case to this court.*fn4
In support of his position that the case should be remanded, the plaintiff relies upon Brierly v. Pennsylvania Dept. of Transportation, Civ.A.No. 92-4573, 1992 WL 372327 (E.D. Pa. Dec. 8, 1992). We find the plaintiff's reliance on this district court case unpersuasive as it was decided prior to the United States Supreme Court decision addressing the precise issue with which we are faced.
Accordingly, for these reasons, the plaintiff's motion to remand the action to the Court of Common Pleas of Lackawanna County Pennsylvania will be denied. We now turn our attention to the defendants' motion to dismiss.
Defendants have moved to dismiss the complaint 12(b)(6) of the Federal Rules ...