The Hawaii Department of Public Safety and ten state officials were sued for negligence by a prisoner who was beaten by other inmates. In their answer, the defendants asserted Eleventh Amendment immunity as an affirmative defense. They subsequently filed a third-party complaint for indemnification or contribution against the inmates who had attacked the plaintiff. The plaintiff argued that this effected a waiver of the immunity defense because it constituted an invocation of federal jurisdiction by the State defendants. The Ninth Circuit rejected this contention in Alolelei v. Hawaii Dep’t of Public Safety, 2007 U.S. App. LEXIS 12214 (9th Cir. May 25, 2007). The Alolelei Court held that filing of a third-party complaint does not constitute an invocation of federal jurisdiction that is incompatible with an intent to preserve the immunity defense, on the following mootness/contingency analysis:

If the district court did not find that the State defendants were entitled to sovereign immunity or otherwise find for the defendants on [plaintiff’s] claims, then the third-party complaint put all of the defendants in a position to seek contribution from joint tortfeasors. If the district court found that the State defendants had sovereign immunity, then their third-party claims became moot, and in fact, the State defendants withdrew their third-party claims once the district court granted them summary judgment. State defendants, like other defendants, are allowed to assert legitimate alternative defenses.

The Alolelei Court stressed that the defendants had not delayed in asserting the immunity defense, having asserted it before filing their third-party complaint.