Commercial Litigation and Arbitration

Removal: Does Voluntary Removal by State Defendants Waive Eleventh Amendment Immunity? — Circuit Split

Singleton v. Commonwealth of Ky., 2016 U.S. Dist. LEXIS 43383 (E.D. Ky. Mar. 31, 2016):

To the extent the Singletons argue these parties waived their Eleventh Amendment immunity by removing this suit to federal court, the Court disagrees. The circuit courts are split as to whether voluntarily removing a lawsuit to federal court constitutes a waiver of the state's immunity, in light of the Supreme Court's 2002 decision Lapides v. Board of Regents, 535 U.S. 613 (2002). Although the Lapides court indicated a desire to "limit [its] answer to the context of state-law claims, in respect to which the State has explicitly waived immunity from state-court proceedings," id. at 617, some circuit courts view the case broadly and find Lapides "applies generally to any private suit which a state removes to federal court." See, e.g., Meyers ex rel. Benzing v. Texas, 410 F.3d 236, 242-43 (5th Cir. 2005). In the absence of clear Sixth Circuit precedent on the issue, this Court adopts a conservative approach and [*37]  finds Lapides does not prevent the Defendants from asserting Eleventh Amendment immunity for federal claims which they permissibly removed to federal court. See Burke v. Kentucky State Police, No. 14-cv-00024-GFVT, 2016 WL 361690, at *3-5 (E.D. Ky. Jan. 27, 2016); see also Crawford v. Lexington-Fayette Urban Cnty. Govt., No. 06-299-JBC, 2007 WL 101862, at *4-6 (E.D. Ky. Jan. 10, 2007).


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