UNIVERSITY OF SOUTH FLORIDA BOARD OF TRUSTEES, a public body corporate of the State of Florida, Plaintiff-Appellant,
COMENTIS, INC., a Delaware corporation, Defendant-Appellee.
from the United States District Court for the Middle District
of Florida D.C. Docket No. 8:15-cv-01544-EAK-AEP
HULL, MARCUS, and ROGERS, [*] Circuit Judges.
ROGERS, Circuit Judge.
board of trustees of the University of South Florida sued
CoMentis, Inc., in federal court, asserting jurisdiction
based on diversity of citizenship under 28 U.S.C. §
1332(a). The district court dismissed the complaint on the
merits, and the university appeals. However, because the
plaintiff state university is an arm of the state, it is not
a "citizen" of the state for diversity jurisdiction
purposes. As the plaintiff now concedes on appeal, the
district court should therefore have dismissed the suit for
lack of jurisdiction. This conclusion is required by the same
analysis that would give the university Eleventh Amendment
immunity if sued in federal court.
Congress has authorized diversity jurisdiction over suits
between "citizens of different States, " 28 U.S.C.
§ 1332(a)(1), that authorization does not extend to
suits between a state and a citizen of another state because
"a state is not a citizen of a state for the purpose of
diversity jurisdiction under 28 U.S.C. § 1332, "
Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405,
412 (11th Cir. 1999) (citing Moor v. Alameda Cty.,
411 U.S. 693, 717 (1973)). Similarly, the statutory
authorization does not extend to suits between "[a]
public entity or political subdivision of a state" and a
citizen of another state, if the entity or division is
"simply an 'arm or alter ego of the
State.'" Univ. of S. Ala., 168 F.3d at 412
(citing Moor, 411 U.S. at 717-18). "Therefore,
if a party is deemed to be 'an arm or alter ego of the
State, ' then diversity jurisdiction must fail"
under 28 U.S.C. § 1332(a)(1). Univ. of S. Ala.,
168 F.3d at 412.
Board is an "arm or alter ego of the State" for
diversity jurisdiction because it meets the same test that
applies to determining whether the USF Board is entitled to
Eleventh Amendment immunity. We have held that the Eleventh
Amendment immunity analysis applies to determinations of
citizenship for diversity jurisdiction purposes.
Id.; see also Coastal Petroleum Co. v. U.S.S.
Agri- Chems., 695 F.2d 1314, 1318 (11th Cir. 1983).
Board is an "arm" of Florida because the State of
Florida defines the USF Board to be a part of its government,
exercises great control over it, funds it, and pays judgments
entered against it. We have repeatedly applied this test in
determining whether a state entity is entitled to Eleventh
Amendment immunity. See Tuveson v. Fla. Governor's
Council on Indian Affairs, Inc., 734 F.2d 730, 732 (11th
Cir. 1984) (stating the four-factor test); see also,
e.g., Williams v. District Bd. of Trs. of Edison
Cmty. Coll., Fla., 421 F.3d 1190, 1192 (11th Cir. 2005)
(per curiam); Manders v. Lee, 338 F.3d 1304, 1309
(11th Cir. 2003) (en banc).
Florida defines the USF Board to be a part of the state
government. Florida lists USF as a "[s]tate
university." Fla. Stat. § 1000.21(6)(d). Florida
declares that the "boards of trustees [of state
universities] are a part of the executive branch of state
government." Id. § 1001.71(3). The state
therefore clearly defines the USF Board to be a part of its
conclusion is strongly supported by our decision in
Williams, in which we held that a Florida community
college was entitled to Eleventh Amendment immunity. We
concluded that "[a] community college is a creature of
state law, " Williams, 421 F.3d at 1194-95, and
stated that that conclusion "favor[ed] a determination
that a community college is an arm of the state, "
id. at 1193. In doing so we relied on Florida's
statutory provisions that empower the state government to
supervise the community colleges, id. at 1192-93,
although we also noted that "[t]he board of a community
college is not an agent of the executive branch of state
government under Florida law, " id. at 1193.
Florida law empowers the state government to control
community colleges and state universities similarly,
compare Fla. Stat. § 1004.21-32 (state
universities), with id. § 1004.65- 726
(community colleges), and while we indicated in
Williams that a Florida community college is not an
agent of the state's executive branch, Florida explicitly
defines the board of trustees of a state university to be a
part of the state government's executive branch.
Id. § 1001.71(3).
the State of Florida exercises great control over the USF
Board by defining the USF Board's powers and by
appointing its members. The USF Board is not only subject to
control by a statewide Board of Governors, but the USF Board
itself is appointed mostly by the state Governor or the Board
of Governors. Of the USF Board's thirteen members, six
are appointed by the Governor of Florida, and five by the
Board of Governors. Fla. Const. art. IX, § 7(c).
Florida Constitution states that "[t]here shall be a
single state university system, " that "[a] board
of trustees shall administer each public university, "
and that "a board of governors shall govern the state
university system." Fla. Const. art. IX, § 7(b).
The Board of Governors is almost entirely appointed by the
Governor of Florida. That Board of
Governors "establish[es] the powers and duties of the
boards of trustees" of state universities. Fla. Const.
art. IX, § 7(c). The Board of Governors also closely
scrutinizes the USF Board's activities, as it
"oversee[s] the enforcement of all state university laws
and rules and regulations and the timely provision of
direction, resources, assistance, intervention when needed,
and strong incentives and disincentives to force
accountability for results." Fla. Stat. §
the State of Florida funds USF. While the USF Board initially
prepares the budget, Fla. Bd. of Governors Reg. 1.001(6)(a),
the Board of Governors must approve the proposed budget,
id., and submits the approved budget, along with the
approved budgets of all other state universities, to the
state legislature, Fla. Stat. § 1001.705(2)(f). The
Board of Governors sets rules for any independent fundraising
by the USF Board through tuition and fees. Fla. Bd. of
Governors Reg. 1.001(6)(b). The Board of Governors also
annually audits the USF Board's finances. Id. at
Florida ultimately pays the judgments entered against the USF
Board. While each state university board of trustees is
"a public body corporate" that can enter into
contracts, sue and be sued, implead and be impleaded, and
therefore hold property and have judgments entered against
them, Fla. Stat. § 1001.72(1), (3), Florida ultimately
pays such judgments. Not only does the state legislature fund
the USF's budget as determined under the executive
branch's control, the Board of Governors secures a
comprehensive general liability insurance for state
universities, id. § 1001.706(4)(d), and the
boards of trustees must maintain coverage under the State
Risk Management Trust Fund, id. § 1001.72(2).
Florida ultimately pays any judgments entered against the USF
Board by funding the USF's activities in general, and by
mandating the USF's enrolling in risk-management
insurance. Examining a similar insurance scheme for community
colleges, we reasoned in Williams that the state
"laws [that] ensure that community colleges are able to
satisfy their liabilities . . . reflect that the state is
ultimately responsible for those liabilities."
Williams, 421 F.3d at 1194. The same is true here.
given how tightly Florida's government controls its
public education system, we have concluded, for Eleventh
Amendment purposes, that boards of trustees of Florida's
community colleges are "arms" of the state,
id. at 1195, and also in unpublished opinions that
the boards of trustees of Florida's state universities
are "arms" of the state, Crisman v. Fla. Atl.
Univ. Bd. of Trs., 572 F.App'x 946 (11th Cir. 2014)
(per curiam); Luna v. Larkin, 563 F.App'x 739
(11th Cir. 2014) (per curiam); Hillemann v. Univ. of
Cent. Fla., 167 F.App'x 747, 748 (11th Cir. 2006)
(per curiam); see also Irwin v. Miami-Dade Cty. Pub.
Schs., 398 F.App'x 503, 507 (11th Cir. 2010) (per
curiam). District courts have reached the same result, in
some cases with respect to the USF Board in particular.
See, e.g., Debose v. Univ. of S. Fla., No:
8:15-cv-2787, 2016 WL 1367173 (M.D. ...