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IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

GIDEON FALK, ) 

 ) 

 Plaintiff, ) 

 ) 

 ) Cause No.: 2:13-cv-159 

v. ) 

 ) 

BOARD OF TRUSTEES OF ) 

PURDUE UNIVERSITY, D/B/A ) 

PURDUE UNIVERSITY and ) 

PURDUE CALUMET ) 

 ) 

 Defendant. ) 

PLAINTIFF’S MOTION FOR VOLUNTARY DISMISSAL 

Plaintiff, Gideon Falk (hereinafter “Falk”), by counsel, Edward W. Hearn and John T. 

VanDenburgh, of JOHNSON & BELL, P.C., and pursuant to Federal Rule of Civil Procedure 

41(a)(2), respectfully submits this Motion for Voluntary Dismissal of Plaintiff’s action. In 

support, Plaintiff states as follows: 

1. Plaintiff commenced this action against Defendant, the Board of Trustees of 

Purdue University, on or about May 8, 2013. Plaintiff asserted the following 4 counts in his 

Complaint: 1) Breach of Contract; 2) Intentional Infliction of Emotional Distress; 3) Declaratory 

Relief; and 4) civil rights violations of 42 U.S.C § 1983. 

2. On July 9, 2013, Defendant filed its Answer, asserting no affirmative defenses. 

On August 27, 2013, Defendant filed a Motion for Leave to File Amended Answer to Assert 

Affirmative Defenses and attached its Amended Answer as Exhibit A. On September 3, 2013, 

this Court granted Defendant’s Motion. 

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3. Thereafter, the parties engaged in written discovery and one deposition, which 

occurred recently, on February 14, 2014. 

4. On February 28, Plaintiff filed his Motion for Partial Summary Judgment and an 

accompanying memorandum of law on his Breach of Contract Claim. 

5. On April 28, 2014, Defendant filed its Response to Plaintiff’s Motion for Partial 

Summary Judgment and Motion to Strike, as well as its own Motion for Summary Judgment. 

6. In Defendant’s Motion for Summary Judgment, Defendant asserted its Eleventh 

Amendment Immunity as a State Agency to be sued under 42 U.S.C. § 1983 in federal court. 

7. Plaintiff was previously under the impression that Defendant was waiving its 

Eleventh Amendment sovereign immunity. Although Defendant asserted this as an affirmative 

defense in its Amended Answer, it did not file a motion to dismiss and rather decided to defend 

against all of Plaintiff’s claims on the merits in this Federal Court. Accordingly, Plaintiff 

believed that Defendant waived its Eleventh Amendment sovereign immunity. 

8. The Supreme Court has held that a state waives its Eleventh Amendment 

Immunity “by a general appearance in litigation in a federal court.” Petty v. Tennessee-Missouri 

Bridge Comm’n, 359 U.S. 275, 276 (1959). Courts have generally held that a waiver of Eleventh 

Amendment immunity occurs when the state appears as a defendant and defends the case on the 

merits. Fordyce v. City of Seattle, 55 F.3d 436, 441 (9th Cir. 1995). 

9. A waiver of Eleventh Amendment immunity has been found when a state’s 

conduct during the litigation clearly manifests acceptance of the federal court’s jurisdiction. 

Hankins v. Finnel, 964 F.2d 853, 856-58 (8th Cir. 1992). “If a state does not wish to be in 

federal court, the state can quickly make its objections known and obtain a ruling on that 

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defense.” Hill V. Blind Indus. & Servs. 1999 U.S. App. LEXIS 35237, *14 (9th Cir. 1999) 

(emphasis supplied). 

10. The Supreme Court has further held that Eleventh Amendment is a “legal power 

to assert a sovereign immunity defense should [the state] choose to do so,” and that defense is 

waived unless it is timely invoked. Wis. Dep’t of Corr. V. Schacht, 524 U.S. 381, 387–88 

(1998). By not filing a motion to dismiss or otherwise attempting to obtain a ruling on its 

objection to federal court jurisdiction, Plaintiff was under the impression that Defendant 

consented to this Court’s jurisdiction over all of his claims. 

11. As Defendant is now asserting the Eleventh Amendment Immunity defense, this 

Court will not have jurisdiction to hear his 42 U.S.C. § 1983 claim. See Schacht, 524 U.S. at 

387–88 (explaining that federal courts do not have jurisdiction over claims under 42 U.S.C. § 

1983 against state agencies); see also Garrity v. Sununu, 752 F.2d 727, 738 (1st Cir. 1984) 

(defendants’ conduct during litigation “indicates consent to this suit and an acceptance of the 

federal court’s jurisdiction.”). 

12. Defendant’s underlying conduct that is the subject of Plaintiff’s 42 U.S.C. § 1983 

claim, is the same conduct that is the basis of his remaining state court claims. 

13. So while Plaintiff believes that Defendant has waived its Eleventh Amendment 

immunity, for the purposes of expeditiously resolving Plaintiff’s claims, he requests that the 

Court dismiss the action pending before this court, so that he can re-file this lawsuit in Indiana 

state court. One of Plaintiff’s primary reasons for bringing his claims is for declaratory and 

injunctive relief regarding his current employment conditions at Purdue. Thus, Plaintiff would 

rather bring his claims in state court in their entirety, as the statute of limitations has not yet run, 

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rather than further delay the resolution of his current employment conditions by going through 

the lengthy and costly process of arguing this Eleventh Amendment aspect before this Court. 

14. F.R.C.P. 41(a)(2) provides that after a defendant has filed a motion for summary 

judgment, a plaintiff may voluntarily dismiss his case upon court order. In fact, dismissals under 

F.R.C.P. 41(a)(2) are within the trial court’s sound discretion and will only not be granted when 

the defendant is unduly prejudiced. Tyco Laboratories, Inc. v. Koppers Company, Inc., 627 

F.2d 54 (7th Cir. 1980). 

15. Defendant will not be prejudiced by the court granting Plaintiff’s voluntary 

dismissal. The only actions between the parties thus far in this case have been discovery, 

including only one deposition, and the recent filing of their respective summary judgment 

motions. As Defendant intends to re-file this action in Indiana state court, all of the discovery 

conducted in this case up to this point will be used in the subsequent state court case. 

Additionally, Defendant’s counsel has indicated to Plaintiff’s counsel that he would still file a 

motion for summary judgment in any subsequent state court action. Thus, the research and 

preparation of the parties’ summary judgment motions will also be able to be utilized in the 

subsequent state court action. 

16. Moreover, a substantial amount of Court resources have not been committed to 

this matter. This Court has not conducted any hearings and there has only been two status 

conferences conducted by the Court. Furthermore, there have been absolutely no decisions on 

the merits of this case. Dismissal often is granted when a Rule 41(a)(2) motion is made at the 

early stages, before much has happened. Tyco Laboratories, Inc., 627 F.2d at 58. Additionally, 

this Motion has been brought in good faith as Plaintiff was under the impression that Defendant 

was waiting its Eleventh Amendment Immunity on all claims. 

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17. In fact, the only prejudice that will occur is to the Plaintiff if this Court does not 

grant this Motion for Voluntary Dismissal. Federal Courts have held that to permit a defendant 

to litigate the case on the merits, and then belatedly claim Eleventh Amendment immunity to 

avoid an adverse result, would “work a virtual fraud on the federal court and opposing litigants.” 

Newfield House, Inc. v. Massachusetts Dep’t of Pub. Welfare, 651 F.2d 32, n.3 (1st Cir. 1981). 

18. Moreover, it is well-settled that a defendant can gain unfair advantages by waiting 

until after a Plaintiff’s summary judgment is filed to raise its Eleventh Amendment Immunity. 

See Hill V. Blind Indus. & Servs. 1999 U.S. App. LEXIS 35237, *5 (9th Cir. 1999) (explaining 

that the integrity of the judicial process is undermined if a party, unhappy with the trial court’s 

rulings or anticipating defeat, can belatedly raise its Eleventh Amendment privilege and 

unilaterally void the entire proceeding). This is exactly what occurred in this case. Plaintiff 

went through discovery and filed his Motion for Summary Judgment. Approximately a year 

after the case began, anticipating defeat from Plaintiff’s Motion for Summary Judgment; 

Defendant has attempted to obtain a ruling on its Eleventh Amendment Immunity. If Defendant 

wanted to object to this claim being heard before this court, it should have attempted dismiss this 

claim as soon it knew that it would be raising the defense, rather than defending all of the claims 

on the merits for approximately a year. 

19. Federal courts have stated the following in this regard: 

 “[w]e see no valid reason why a party should belatedly be able to assert Eleventh 

Amendment immunity. A party knows whether it purports to be an ‘arm of the 

state,’ and is capable of disclosing early in the proceedings whether it objects to 

having the matter heard in federal court. Timely disclosure provides fair warning 

to the plaintiff, who can amend the complaint, dismiss the action and refile it in 

state court, or request a prompt ruling on the Eleventh Amendment defense 

before the parties and the court have invested substantial resources in the case. 

Timely disclosure also facilitates discovery, when appropriate, and allows the 

parties to establish a full record for appellate review. Requiring the prompt 

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assertion of an Eleventh Amendment defense also minimizes the opportunity for 

improper manipulation of the judicial process. (emphasis supplied) 

Id. at *8. 

20. As a result of Defendant’s late assertion of its Eleventh Amendment Immunity, 

this Court should allow Plaintiff to voluntarily dismiss this case so he can come to a prompt 

resolution of his current employment conditions in state court. Plaintiff is not requesting a ruling 

from this Court that Defendant has waived its Eleventh Amendment Immunity. Rather, Plaintiff 

is merely requesting that this Court permit Plaintiff to voluntary dismiss this case in recognition 

of the potential adverse and unjust effects that Plaintiff will suffer otherwise. 

WHEREFORE, Plaintiff, Gideon Falk, respectfully requests that this Honorable Court 

voluntarily dismiss this action pursuant to F.R.C.P. 41(a)(2), and for all other just and proper 

relief in the premises. If this Court denies this Motion for Voluntary Dismissal, Plaintiff further 

requests additional time to respond to Defendant’s Motion to Strike, Motion for Summary 

Judgment, and to file his Reply in support of his Motion for Summary Judgment. 

 Respectfully Submitted, 

 JOHNSON & BELL, P.C. 

 By: s/Edward W. Hearn 

 Edward W. Hearn, #18691-64 

 John T. VanDenburgh, 31545-64 

 11051 Broadway, Ste. B 

 Crown Point, IN 46307 

 219/791-1900 

 Attorneys for Plaintiff

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 CERTIFICATE OF SERVICE 

 I hereby certify that on May 19, 2014, I have electronically filed the foregoing with the 

Clerk of the Court using CM/ECF system which sent notification of such filing to the all parties 

or record. 

 s/Edward W. Hearn 

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