UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

DAVID CORCORAN

Plaintiff,

Case Number 09-10163

v. Honorable Thomas L. Ludington

STATE OF MICHIGAN,

Defendant.

______________________________________ /

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS, DISMISSING

PLAINTIFF’S COMPLAINT WITHOUT PREJUDICE, AND CANCELING HEARING

On January 14, 2009, Plaintiff David Corcoran filed a complaint against his employer,

Defendant State of Michigan, alleging three counts: (1) violations of 42 U.S.C. §§ 1983, 1981, and

1985; (2) violations of the Michigan Elliot-Larson Civil Rights Act, Mich. Comp. Laws. § 37.2101,

et seq.; and (3) violations of the Michigan Freedom of Information Act, Mich. Comp. Laws §

15.231, et seq. Generally, Plaintiff alleges that Defendant failed to hire or promote him to a position

based on his gender and age and that Defendant failed to respond to Plaintiff’s request for

information related to the hiring process pursuant to the Michigan Freedom of Information Act.

On February 17, 2009, Defendant filed a motion to dismiss [Dkt. # 5] contending that this

Court lacks personal jurisdiction over Defendant, who is entitled to immunity from suit in federal

court under the Eleventh Amendment to the United States Constitution. Plaintiff filed a response

[Dkt. # 11] on April 10, 2009, and Defendant filed a reply [Dkt. # 12] on April 17, 2009. The Court

has reviewed the parties’ submissions and finds that the facts and the law have been sufficiently set

forth in the motion papers. The Court concludes that oral argument will not aid in the disposition

of the motion. Accordingly, it is ORDERED that the motion be decided on the papers submitted.

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Compare E.D. Mich. LR 7.1(e)(2).

The Eleventh Amendment provides: “The Judicial power of the United States shall not be

construed to extend to any suit in law or equity, commenced or prosecuted against one of the United

States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” Generally,

under the Eleventh Amendment, a state is immune from being sued in federal court, unless it waives

that immunity. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 97-99 (1984). In this

case, there is no suggestion by Plaintiff or otherwise that Defendant has waived its immunity and

consented to suit in federal court. See, e.g., Ku v. State of Tennessee, 322 F.3d 431, 435 (6th Cir.

2003) (finding that the State had waived the defense when it had “engaged in extensive discovery

and then invited the district court to enter judgment on the merits,” and “[i]t was only after judgment

was adverse to the State that it revealed that it had its fingers crossed behind its metaphorical back

the whole time”).

Plaintiff contends that the Eleventh Amendment only bars “retroactive damages,” and not

“prospective relief,” citing Frew v. Hawkins, 540 U.S. 431, 436-37 (2004). Based on that

proposition, Plaintiff seeks leave to file an amended complaint. In Frew, the Supreme Court

explained the following:

The Eleventh Amendment confirms the sovereign status of the States by shielding them from

suits by individuals absent their consent. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54,

(1996). To ensure the enforcement of federal law, however, the Eleventh Amendment

permits suits for prospective injunctive relief against state officials acting in violation of

federal law. Ex parte Young, [209 U.S. 123 (1908)]. This standard allows courts to order

prospective relief, see Edelman v. Jordan, 415 U.S. 651 (1974); Milliken v. Bradley, 433

U.S. 267 (1977), as well as measures ancillary to appropriate prospective relief, Green v.

Mansour, 474 U.S. 64, 71-73 (1985). Federal courts may not award retrospective relief, for

instance, money damages or its equivalent, if the State invokes its immunity. Edelman, [415

U.S.] at 668.

540 U.S. at 437.

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Notably, nothing in the opinion suggests that all types of “prospective relief” are available,

rather than the narrow category of “prospective injunctive relief.” While Plaintiff has expressed a

desire to amend the complaint, he has not suggested how he would amend it, that is, what

prospective, injunctive relief he would seek that would allow this Court to exercise personal

jurisdiction over Defendant. Thus, the Court will grant Defendant’s motion to dismiss for lack of

personal jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(2). See Ku, 322 F.3d at 435

(determining that “the immunity defense in cases otherwise falling within a federal court’s original

jurisdiction should be treated like the defense of lack of personal jurisdiction”).

Accordingly, it is ORDERED that Defendant’s motion to dismiss [Dkt. # 5] is GRANTED.

It is further ORDERED that the complaint [Dkt. # 1] is DISMISSED WITHOUT

PREJUDICE.

It is further ORDERED that the hearing scheduled for April 30, 2009, is CANCELED.

s/Thomas L. Ludington 

THOMAS L. LUDINGTON

United States District Judge

Dated: April 20, 2009

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served

upon each attorney or party of record herein by electronic means or first

class U.S. mail on April 20, 2009.

s/Tracy A. Jacobs 

TRACY A. JACOBS

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