IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 99-31334

_____________________

CHARLES G. ANDERSON; GERALD C.

ANDERSON; CLINTON JACKSON;

TANDY JACKSON, JR.; ARTHUR

BROWN, JR.; AUBREY MATTHEWS,

JR.; W. E. BLACK, also known as

Sonny Black; W. H. FRANKLIN, JR.,

Plaintiffs-Appellants,

versus

RED RIVER WATERWAY COMMISSION,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court for the

Western District of Louisiana

_________________________________________________________________

November 8, 2000

Before JOLLY, SMITH, and BARKSDALE, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This case comes before us on appeal from the district court’s

grant of summary judgment for defendan t Red River Waterway

Commission (the “RRWC”). The plaintiffs’ suit stems from a rise

in the water level of the Red River that affected the plaintiffs’

property along the river banks. Although the plaintiffs originally

sued the RRWC in Louisiana state court, the case was removed to

federal court, remanded, and then removed to federal court again.1 We find the reasoning of the June 6, 2000 unpublished opinion

Northwest Louisiana Fish & Game Preserve Commission v. Red River

Waterway Commission , No. 99-31325, persuasive in this case. The

Northwest Louisiana Fish & Game Preserve Commission filed suit

under the same circumstances as the plaintiffs in this case, and

the case shared a virtually identical procedural history. This

court affirmed summary judgment for the RRWC on the grounds that

the RRWC did not have operational contro l over the project. It

also rejected the arguments that a suit in federal court against

the RRWC was barred by the Eleventh Amendment and that the case

should have been severed and remanded under 28 U.S.C. § 1441(c).

2 The district court held that the plaintiffs failed to establish a

genu ine material issue of fact for trial in their inverse

condemnation claim under the Lou isiana constitution and granted

summary judgment for the following reasons: the Eleventh Amendment

was no bar to federal court jurisdictio n, the plaintiffs’ claims

should not be severed and remanded to the state court and, finally,

there was no causation between the plaintiffs’ injuries and RRWC’s

conduct. We affirm the judgment of the district court dismissing

the complaint. 1

I

A

The Flood Control Act of 1968 authorizes and provides funding

for the United States Army Corps of Engineers to work w ith local

entities to enhance navigability and alleviate damage caused by

flooding. On this authority, the Corps of Engineers erected five

locks and dams along the Red River basin. The Louisiana3

legislature established the RRWC “to establish, o perate and

maintain the waterway” and to acquire the necessary property rights

to complete the task.

In January of 1995, the Corps of Engineers raised the water

l evel of one of the Red River pools to 95 feet, higher than the

original project design of 87 feet. Although the RRWC and the

Corps of Engineers had acquired most of the relevant pr operty

r ights prior to this rise in water level, no agreement was ever

reached with the class of plaintiffs in this case, all of whom own

property along the river near the affected pool.

B

The plaintiffs filed this class action suit in Louisiana state

court, alleging that the RRWC failed to provide full and fair

compensation to the numerous property owners comprising the class,

thereby constituting inverse condemnation under Article I, Section

4 of the 1974 Louisiana state constitution. The RRWC answered,

impl eaded the United States through the Corps of Engineers, and

removed the case to federal court. The district court remanded the

case to state court based on a lack of federal subject matter

jurisdiction over the origina l claim. The United States removed

the matter back to federal court under 28 U.S.C. § 2679(d), the

removal statute for cla ims against the United States. The

plaintiffs then moved to have their claim against the RRWC severed4

from the RRWC’s third-party claim against the United States and

again moved to have the case remanded to state court. This motion

was denied. The district court also rejected the plaintiffs’

assertion that the RRWC’s state sovereign immunity under the

Eleventh Amendment barred federal jurisdiction.

Following discovery, the district court granted summary

judgment for th e RRWC. The court found that Louisiana’s law of

inverse condemnat ion requires plaintiffs to sue the party that

damaged their property. Based on the evidence presented by the

parties, the court also found that the Corps of Engineers was

solely responsible for the rise in the water level. Because the

RRWC was not responsible for the damage to the plaintiffs’ land,

the court held that it could not be held responsible under

Louisiana’s inverse condemnation law.

II

The plaintiffs appeal and challenge (1) the district court’s

jurisdiction to rule on the claim because of state sovereign

immunity under the Eleventh Amendment, (2) the district court’s

refusal to sever and remand the principal claim to state court

under 28 U.S.C. § 1441(c), and (3) the grant of summary judgment.5 III

A

We review the district court’s determination that the suit was

not barred by the Eleventh Amendment de novo, as a question of law,

like other questions of subject matter jurisdiction. U nited States

v. Texas Tech Univ. , 171 F.3d 279, 288 (5th Cir. 1999).

The district court’s determination that the Eleventh Amendment

does not bar this suit from federal court is co r rect if we

determine that the RRWC is not “an arm of the state” and that it

“possesses an identity sufficiently distinct from that of the State

of Louisiana to place it beyond that shield.” P endergrass v.

Greater New Orleans Expressway Comm’n

, 144 F.3d 342, 344 (5th Cir.

1998) (quoting Minton v. St. Bernard Parish Sch. Bd.

, 803 F.2d 129,

131 (5th Cir. 1986)). Six factors guide our determination as to

whether an entity is an arm of the state entitled to Eleventh

Amendment immunity. See Clark v. Tarrant County, Texas , 798 F.2d

736, 744-45 (5th Cir. 1986), and Minton

, 803 F.2d at 131. The

factors are as follows:

(1) whether the state statutes and case law characterize the

agency as an arm of the state;

(2) the source of funds for the entity;

(3) the degree of local autonomy the entity enjoys;

(4) whether the entity is concerned primarily with local, as

opposed to statewide, problems;

(5) whether the entity has authority to sue and be sued in its

own name; and

(6) whether the entity has the right to hold and use property.6

Richardson v. Southern Univ.

, 118 F.3d 450, 452 (5th Cir. 1997).

The plaintiffs-appellants fail to address most of these factors in

their appellate brief. By contrast, the RRWC points to compelling

evidence on each of the six factors.

T he plaintiffs-appellants do note that any judgment against

the RRWC must be paid from state funds, which relates to the second

prong of the test, the source of fun ds. The RRWC, however,

p roduced evidence that the RRWC has the necessary funding to

satisfy the judgment in this case and that it can raise funds

directly through its taxing and bonding authority. See La. R.S.

34:2309(9). Thus, on the record before us, it appears undisputed

that any judgment against the RRWC would not be paid from state

funds appropriated for that purpose.

The RRWC’s evidence further establishes that all six factors

demonstrate that the RRWC is not an arm of the State of Louisiana.

This evidence has not been refuted by the plaintiffs. The district

court, therefor e, did not err in finding that the Eleventh

Amendment does not bar this suit in federal court.

B

Because a trial court has broad discretion to sever and remand

cases, we review the district court’s refusal to sever and remand

for an abuse of discretion. See B runet v. United Gas Pipeline Co.

,

15 F.3d 500, 505 (5th Cir. 1994).7

W here a district court has taken removal jurisdiction over

cases involving multiple claims, 28 U.S.C. § 1441(c) allows the

court to sever and remand separate and independent claims in which

state law predominates. Because it found that the third-party

complaint was not a “separate and independent claim,” the district

court refused to sever and remand the plaintiffs’ claim against the

RRWC.

This court has held that, where the liability of a third-party

defendant “is not premised on a separate and independent

obligation, but on an allegation that [the third-party defendant’s]

negligence rather than the [third-p arty plaintiff’s] conduct was

the true cause of plaintiff’s injuries

. . . courts have

consistently held that there is no separate and independent claim

under § 1441(c).” In re Wilson Indus. , 886 F.2d 93, 96 (5th Cir.

1989). Given this authority, and the fact that the plaintiffs fail

to show any factual distinction between the primary claim and the

third-party claim, the district court correctly concluded that it

was without discretion to sever and remand under § 1441(c).

C

We now turn to the di strict court’s determination on the

merits. We review a district court’s grant of summary judgment de

novo. See Matsushita Elec. Industrial Co. v. Zenith Radio Corp.

,

475 U.S. 574, 587 (1986); Todd v. AIG Life Ins. Co.

, 47 F.3d 1448,8

1451 (5th Cir. 1995). Summary judgment is appropriate if “there is

no genuine issue as to any material fact and

. . . the moving party

is entitled to a judgment as a matter of law.” FED. R. CIV. P.

56(c). In making this determination, we must evaluate the facts in

the light most favorable to the non-moving party. See M atsushita

,

475 U.S. at 587; Todd , 47 F.3d at 1451.

The Louisiana constitution states “[p]roperty shall not be

taken or damaged by the state or its political subdivisions except

for public purposes and with just compensation paid to the owner or

into c ourt for his benefit.” La. Const. Art. I, § 4, cl. 2

(emphasis added). Under the plain text of this provision, only

takings effected by the state are barred. The plaintiffs cite no

legal authority holding to the contrary.

The relevant summ ary judgment proof provided by the parties

irrefutably establish ed that the RRWC did not have operational

control over the Red River project. The RRWC submitted federal and

state legislative materials that established that its role in the

project was limited to the acquisition of property rights.

Operational control over the project was exercised solely by the

Corps of Engineers. Affidavit evidence, and the Project Management

Plan, fully support the conclusion that only the Corp of Engineers,

not the RRWC, made all operational decisions, such as the decision

to raise the water level above the original projection.9

None of the correspondence between the Corp of Engineers, the

Louisiana Department of Wildlife and Fish eries, local landowners

and the RRWC established a fact question as to the authority to

raise the water level. The two reports submitted by the plaintiffs

did not rebut the contention that the Corps of Engineers bore

responsibility for deciding to raise the water level.

The plaintiffs’ evidence citing to the RRWC’s legal authority

to manage the waterway and to acquire property, and the RRWC’s

“acts of assurance” to the United States does not controvert the

fact that the RRWC never exercised any authority that it might have

had to raise water levels and thereby damage the plaintiffs’

property. Furthermore, the Corps of Engineers’ potential right to

seek indemnification from the RRWC does not confer power upon the

p laintiffs to file suit against the RRWC. See S oileau v. Yates

Drilling Co.

, 183 So. 2d 62, 64-65 (La. App. Ct. 1966) (holding

that indemnity clause does not confer cause of action in favor of

third parties) and Haeuser v. Bd. of Comm’rs of the Port of New

Orleans

, 170 So. 2d 728, 729 (La. App. Ct. 1965) (“Plaintiffs have

no direct action against Defendant for such recovery, since

Defendant, or the State, if liable, is answerable only to the

United States in a proper proceeding.”).

We repeat, the RRWC’s role in the Red River project was

limited to the acquisition of property and did not extend to10

control of the water level. Because no evidence was produced to

show that the RRWC caused the damage to the plaintiffs’ property,

the district court was correct to conclude that the plaintiffs

c annot recover against the RRWC under Louisiana’s law of inve rse

condemnation. We therefore AFFIRM the district court’s grant of

summary judgment.

IV

For the reasons set forth above, the judgment of the district

court is

A F F I R M E D.