UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Kimberly Kyle

v. Civil No. 07-cv-348-JL

Opinion No. 2008 DNH 201

Fidéle Tremblay, Inc.

and Francis Hammond

O R D E R

This action arises out of an accident on Interstate 93 that

injured the plaintiff and killed her six-year old son. A tractor

trailer driven by defendant Francis Hammond, while in the employ

of defendant Fidéle Tremblay, Inc., jack-knifed into the

plaintiff’s vehicle in the wake of a snowstorm. The defendants

have filed a third-party complaint against the New Hampshire

Department of Transportation (“DOT”), alleging that its lack of

effort “to remove the snow or the resulting ice from the highway”

caused or contributed to the accident.

The Department of Transportation, equating itself with the

State of New Hampshire, has moved to dismiss the third-party

complaint, arguing (1) the court lacks subject-matter

jurisdiction over the defendants’ claims, (2) the DOT is immune

from those claims in this court under the Eleventh Amendment, and

(3) the third-party complaint fails to state a claim for relief. 

The court heard oral argument on the motion on November 19, 2008. 

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For the foregoing reasons, the court grants the motion to dismiss

on the basis of Eleventh Amendment immunity.

I. Subject-Matter Jurisdiction

This court has subject-matter jurisdiction over the

plaintiff’s claim against the defendants, Canadian citizens,

under 28 U.S.C. § 1332(a)(2), which applies to actions between

“citizens of a State and citizens or subjects of a foreign state”

where the amount in controversy exceeds $75,000. The DOT argues

that this section does not confer jurisdiction over the

defendants’ claim against it since “[a] state cannot be a

‘citizen’ of itself for purposes of diversity jurisdiction.” 

Univ. of R.I. v. A.W. Chesterton Co., 2 F.3d 1200, 1202 (1st Cir.

1993). Because § 1332 gives the court jurisdiction over the

plaintiff’s claim against the defendants, however, it can hear

the defendants’ claim against the DOT under 28 U.S.C. § 1367(a),

which confers “supplemental jurisdiction over all other claims

that are so related to claims in the action within such original

jurisdiction that they form part of the same case or

controversy.” See, e.g., State Nat’l Ins. Co. v. Yates, 391 F.3d

577, 579-80 (5th Cir. 2004).

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 This test thus “incorporates the twin interests served by

the Eleventh Amendment: protecting the state’s dignitary

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II. Eleventh Amendment Immunity

A. Applicable Law

 Though § 1367(a), unlike § 1332, can thus confer federal

subject-matter jurisdiction over a claim against a state as a

statutory matter, it does not waive the state’s immunity from

suit in federal court under the Eleventh Amendment. See Raygor

v. Regents of Univ. of Minn., 534 U.S. 533, 541-42 (2002). The

Eleventh Amendment generally immunizes states and their agencies

from suit in federal court, Pennhurst State Sch. & Hosp. v.

Halderman, 465 U.S. 89, 100 (1994), yet “[t]he mere imprimatur of

state authority is insufficient to inoculate an agency or

institution against federal court jurisdiction.” Metcalf & Eddy,

Inc. v. P.R. Aqueduct & Sewer Auth., 991 F.2d 935, 939 (1st Cir.

1993). The court of appeals has developed a two-part test for

deciding whether a state agency is entitled to Eleventh Amendment

immunity: first, the court must consider, by reference to a

number of criteria, whether the state has structured the agency

to share the state’s immunity; second, if these considerations

prove inconclusive, the inquiry shifts to whether any monetary

damages recovered against the agency will be paid from the

state’s treasury.1 Fresenius Med. Care Cardiovascular Res., Inc.

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interest in avoiding being haled into federal court, and

protecting the public fisc.” Pastrana-Torres v. Corporación De

P.R. Para La Difusión Pública, 460 F.3d 124, 126 (1st Cir. 2006)

(citations omitted).

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v. P.R. & the Caribbean Cardiovascular Ctr. Corp., 322 F.3d 56,

68 (1st Cir. 2003). If the answer to either of these questions

is “yes,” the federal suit against the agency is barred by the

Eleventh Amendment. Id.

B. Analysis

While the answer to the first question is the product of a

number of factors, the overriding consideration is the degree of

control which the state asserts over the entity. See id. Here,

the State of New Hampshire, through its governor and legislature,

exercises near-total control over the DOT, making the answer

“yes.” The DOT was expressly established as “an agency of the

state,” N.H. Rev. Stat. Ann. § (“RSA”) 21-L:2, I, making it a

“principal unit of the executive branch” under the Executive

Branch Reorganization Act of 1983, id. §§ 21:G-5, III, -G:6, I.

That legislation, in fact, was expressly intended to re-establish

control of state agencies in the political branches of

government. See id. §§ 21-G:2, -G:3. The DOT’s commissioner,

assistant commissioner, deputy commissioner, and the director of

each of its divisions are all appointed by the governor, with the

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2 The DOT also receives monies from a state highway fund,

but those, too, are allocated by the General Court. See RSA 9:9-

b.

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consent of the Executive Council, id. §§ 21-L:3, -L:5, -L:5-a,

and the commissioner is “responsible to” the governor and the

General Court in the exercise of his duties, id. § 21-L:4, I.

Furthermore, the DOT’s expenses are funded by the statewide

biennial state budget and the six-year state capital expenditure

fund, both of which are ultimately controlled by the General

Court.2 See id. §§ 9:3, 3-a. To this end, the commissioner

must, like the commissioners of all other state departments,

“[b]ienially compile a comprehensive program budget which

reflects all fiscal matters related to the operation of the

department and each program and activity of the department.” Id.

§ 21-G:9, II(a); see also id. § 9:4, I. Moreover, even after

funds are appropriated to the DOT by the General Court, their

expenditure remains subject to the approval of the governor and

the Executive Council. See id. § 4:15. The totality of this

statutory scheme leaves no doubt that New Hampshire has

structured the DOT to share the state’s Eleventh Amendment

immunity. See Breneman v. United States ex rel. FAA, 381 F.3d

33, 39 (1st Cir. 2004) (relying on nearly identical set of

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 At oral argument, the defendants suggested that, by

(presumably) accepting federal highway funds, the DOT has

consented to suit in federal court. But “the mere receipt of

federal funds cannot establish that a State has consented to suit

in federal court,” even when those funds are received under the

same federal legislation that gives rise to the suit at issue

(which is not the case here anyway, where the defendants have

brought a common-law claim against the DOT). Atascadero State

Hosp. v. Scanlon, 473 U.S. 234, 246-47 (1985). The defendants’

argument is untimely and incorrect. 

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considerations to conclude that the Massachusetts Aeronautic

Commission enjoyed Eleventh Amendment immunity).

The defendants’ sole argument to the contrary relies on what

they characterize as the DOT’s ability to “sue and be sued” under

RSA 230:81.3

 That statute provides, in relevant part, that

the department of transportation shall not be held

liable for damages arising from insufficiencies or

hazards on public highways . . . even if it has actual

notice or knowledge of them, when such hazards are

caused by snow, ice, or other inclement weather, and

the department of transportation’s failure or delay in

removing such hazards is the result of its

implementation, absent gross negligence or reckless

disregard of the hazard, of a winter or inclement

weather policy or set of priorities adopted in good

faith by the officials responsible for such policy[.] 

The ability of a state agency to “sue and be sued in its own

name” factors into the Eleventh Amendment calculus because “the

power to sue in the entity’s own name, when coupled with other

powers of self-determination typically held by distinct juridical

entities (power to contract, power to buy, hold, and sell

property), undeniably affords some additional independence from

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 The defendants do not argue that RSA 230:81, by waiving

the DOT’s immunity against this narrow class of claims, amounts

to a waiver of its Eleventh Amendment immunity, but any such

argument would be unavailing. “[I]n order for a state statute 

. . . to constitute a waiver of Eleventh Amendment immunity, it

must specify the state’s intention to subject itself to suit in

federal court.” Atascadero State Hosp., 473 U.S. at 241. RSA

230:81 does no such thing.

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the State, since the entity need not seek the State’s consent to

bring, defend, or settle a lawsuit.” A.W. Chesterton, 2 F.3d at

1207 n.11. But RSA 230:81 does not confer any such powers on the

DOT. It merely provides for a limited exception to the DOT’s

immunity from claims for “personal injury or property damages

arising out of its construction, maintenance, or repair of public

highways,” RSA 230:80, insofar as those claims arose from

weather-related hazards that the DOT did not remove due to gross

negligence or recklessness.4

The DOT’s amenability to private suit in one narrow set of

circumstances says next to nothing about its power “to sue and be

sued” in general, and even less about its “independence from the

State” as a “distinct juridical entity,” which, again, is the

only relevance of that power to the Eleventh Amendment inquiry in

the first place. A.W. Chesterton, 2 F.3d at 1207 n. 11. The

statutory scheme governing the DOT’s existence conclusively

demonstrates that it is a mere agency of the State of New

Hampshire, with operations tightly controlled by the governor and

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 The court therefore does not reach the DOT’s argument

that the third-party complaint fails to state a claim for relief.

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the General Court by the power of the purse and otherwise. The

DOT is therefore entitled to share in the State’s Eleventh

Amendment immunity. Its motion to dismiss the third-party

complaint (document no. 17) is GRANTED on that basis.5

SO ORDERED.

____________________________

Joseph N. Laplante

United States District Judge

Dated: November 20, 2008

cc: Peter Scott Bratton, Esq.

Scott D. Springer, Esq.

Bruce E. Turgiss, Esq.

Christopher J. Poulin, Esq.

Mark W. Shaughnessy, Esq.

Anthony M. Campo, Esq.

Andrew Ranks, Esq.

Lynmarie C. Cusack, Esq.

Edith L. Pacillo, Esq.

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