UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

ARLENE NUNEZ, et al., )

Plaintiffs, )

)

v. ) CAUSE NO. 2:14-CV-293-JD-JEM 

)

INDIANA DEPARTMENT OF CHILD ) 

SERVICES, )

Defendant. )

FINDINGS, REPORT AND RECOMMENDATION OF 

UNITED STATES MAGISTRATE JUDGE PURSUANT TO

28 U.S.C. § 636(b)(1)(B) & (C)

This matter is before the Court on a Motion to Dismiss Plaintiffs’ Complaint [DE 15], filed

by Defendant on November 10, 2014. 

On January 16, 2015, Judge Jon E. DeGuilio entered an Order [DE 22] referring this matter

to the undersigned Magistrate Judge for a report and recommendation on the instant motion pursuant

to 28 U.S.C. § 636(b)(1)(B). This Report constitutes the undersigned Magistrate Judge’s combined

proposed findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). For the following

reasons, the Court recommends that the District Court grant the motion to dismiss.

PROCEDURAL BACKGROUND

Plaintiffs Arlene Nunez and Veronica L. Martinez filed their Complaint on August 20, 2014,

alleging that Defendant Indiana Department of Child Services violated provisions of the Fair Labor

Standards Act (“FLSA”) 29 U.S.C. § 201 et seq. Defendant seeks dismissal of Plaintiffs’ Complaint

on the grounds that the claims are barred by the Eleventh Amendment and the doctrine of sovereign

immunity. On November 24, 2014, Plaintiffs filed a response to the instant Motion, and Defendant

filed its reply on December 5, 2014.
STANDARD OF REVIEW

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the

sufficiency of the complaint and not the merits of the suit. See Gibson v. City of Chicago, 910 F.2d

1510, 1520 (7th Cir. 1990). In ruling on such a motion, the Court accepts as true all of the wellpleaded facts alleged by the plaintiff and all reasonable inferences that can be drawn therefrom. See

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007); see also Tamayo v. Blagojevich, 526 F.3d

1074, 1082 (7th Cir. 2008). 

To survive a 12(b)(6) motion to dismiss for failure to state a claim, the complaint must first

comply with Rule 8(a) by providing “a short and plain statement of the claim showing that the

pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), such that the defendant is given “fair notice of

what the . . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (quoting

Conley v. Gibson, 355 U.S. 41, 47 (1957)); see also Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). 

Second, the “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 570); see

also Tamayo, 526 F.3d at 1082. The Supreme Court explained that the “plaintiff’s obligation to

provide the grounds of his entitlement to relief requires more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555

(quotation marks and brackets omitted); see also Iqbal, 556 U.S. at 678-79; Brooks v. Ross, 578 F.3d

574, 581 (7th Cir. 2009). The Seventh Circuit Court of Appeals has explained that “[t]he complaint

‘must actually suggest that the plaintiff has a right to relief, by providing allegations that raise a right

to relief above the speculative level.’” Indep. Trust Corp. v. Stewart Info. Servs. Corp., 665 F.3d

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930, 935 (7th Cir. 2012) (quoting Windy City Metal Fabricators & Supply, Inc. v. CIT Tech. Fin.

Serv., Inc., 536 F.3d 663, 668 (7th Cir. 2008)). In order “[t]o meet this plausibility standard, the

complaint must supply enough fact to raise a reasonable expectation that discovery will reveal

evidence supporting the plaintiff’s allegations.” Indep. Trust Corp., 665 F.3d at 934-935 (quoting

Twombly, 550 U.S. at 556) (quotation marks omitted).

ANALYSIS

Defendant, a state agency, moves for dismissal on the grounds that the claims in Plaintiffs’

Complaint are barred pursuant to the doctrine of sovereign immunity. Plaintiffs argue that the state

of Indiana, and thus Defendant Indiana Department of Child Services by extension, have consented

to suit.

“The Eleventh Amendment provides states with immunity from suits in federal courts unless

the State consents to the suit or Congress has abrogated their immunity. State agencies are treated

the same as states for purposes of the Eleventh Amendment.” Tucker v. Williams, 682 F.3d 654, 658

(7th Cir. 2012); see also Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S.

666, 669 (1999). Defendant argues, and Plaintiffs agree, that Congress has not abrogated the states’

immunity with the FLSA. Plaintiffs argue instead that Indiana has expressly consented to suit under

the FLSA.

The “test for determining whether a State has waived its immunity from federal-court

jurisdiction is a stringent one” that requires a state to “voluntarily invoke[]” or “make[] a clear

declaration that it intends to submit itself to [federal] jurisdiction.” Coll. Sav. Bank, 527 U.S. at

675-76; see also Mueller v. Thompson, 133 F.3d 1063, 1064 (7th Cir. 1998) (“Federal courts will

not entertain suits against a state that arise under a federal statute to which the Eleventh Amendment

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is applicable unless the state has made its intention to waive its rights under the amendment clear.”). 

For there to be waiver of immunity, “ there must be an ‘unequivocal indication that the State intends

to consent to federal jurisdiction that otherwise would be barred by the Eleventh Amendment.’”

MCI Telecomm. Corp. v. Ill. Bell Tel. Co., 222 F.3d 323, 338 (7th Cir. 2000) (quoting Atascadero

State Hosp. v. Scanlon, 473 U.S. 234, 238 n.1 (1985)). Plaintiffs argue that Indiana has

consented to contract suits, that Indiana courts have held that employment creates a contractual

relationship, and that because FLSA’s provisions have been treated as employment contracts by

some courts (although notably not the Seventh Circuit Court of Appeals), Indiana has consented to

be sued under the FLSA. Plaintiffs also argue that FLSA retaliation claims are tort claims, and since

Indiana’s Tort Claims Act does not explicitly bar claims brought pursuant to the FLSA, it has

consented to suit. 

Plaintiffs convoluted arguments are unavailing. Although Plaintiffs are correct that the

Indiana Tort Claims Act does not specifically include FLSA claims in its list of causes of action that

are barred by sovereign immunity, that list is not presented as exhaustive and, in fact, the Act

explicitly states that it “shall not be construed as: (1) a waiver of the eleventh amendment to the

Constitution of the United States; [or] (2) consent by the state of Indiana or its employees to be sued

in any federal court.” Ind. Code. § 34-13-3-5(f). Furthermore, consent to some types of suits does

not mean that Indiana has consented to all similar suits. In Mueller v. Thompson, the Seventh

Circuit Court of Appeals addressed the question of whether Wisconsin had consented to suit in

federal court under the FLSA. 133 F.3d 1063 (7th Cir. 1998). In that case, there was a statute that

“authorize[d] suits to be brought in any court of competent jurisdiction against

employers—including the State itself—for overtime pay,” and the state’s labor department explicitly

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“adopted the FLSA and regulations under it relating to state and local employees to be the law of

Wisconsin regarding overtime pay” pursuant to an authorizing statute. Id. at 1064 (quotations

omitted). Although that connection between the FLSA and state law is much less convoluted than

the connections Plaintiffs attempt to draw, the Seventh Circuit found that Wisconsin had not clearly

waived its immunity to suit for FLSA claims in federal court. “[I]mplicit waivers [of immunity]

won’t do; the court must be highly confident that the state really did intend to allow itself to be sued

in federal court.” Id.

In this case, Indiana has not clearly declared its intent to consent to federal jurisdiction over

suits brought under the FLSA, and has made no waiver of sovereign immunity as to this specific

lawsuit. Accordingly, Defendant Indiana Department of Child Services is immune from this suit,

and the Court recommends that its Motion to Dismiss be granted.

CONCLUSION

For the foregoing reasons, the Court RECOMMENDS that the District Court GRANT the

Motion to Dismiss Plaintiffs’ Complaint [DE 15].

This Report and Recommendation is submitted pursuant to 28 U.S.C. § 636(b)(1)(C). 

Pursuant to 28 U.S.C. § 636(b)(1), the parties shall have fourteen (14) days after being served with

a copy of this Recommendation to file written objections thereto with the Clerk of Court. The

failure to file a timely objection will result in waiver of the right to challenge this Recommendation

before either the District Court or the Court of Appeals. Willis v. Caterpillar, Inc., 199 F.3d 902,

904 (7th Cir. 1999); Hunger v. Leininger, 15 F.3d 664, 668 (7th Cir. 1994); Provident Bank v.

Manor Steel Corp., 882 F.2d 258, 260-261 (7th Cir. 1989). 

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SO ORDERED this 29th day of May, 2015.

s/ John E. Martin 

MAGISTRATE JUDGE JOHN E. MARTIN

UNITED STATES DISTRICT COURT

cc: All counsel of record

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