The opinion of the court was delivered by: MCAVOY
MEMORANDUM, DECISION & ORDER
Plaintiff David McGregor brings this action under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq., alleging defendants violated his rights to leave thereunder. Defendants now move to dismiss the Complaint, pursuant to Fed.R.Civ.P. 12(b)(1), for lack of subject matter jurisdiction. Defendants argue they are immune from suit under the Eleventh Amendment to the United States Constitution.
Defendants do not dispute plaintiff's allegations for the purposes of the motion. Plaintiff was employed by the New York State Department of Correctional Services ("DOCS") as a corrections officer until his termination on November 19, 1996. (Pl. Compl. P 4). Defendants are DOCS employees. During the relevant period of his employment, plaintiff and his wife were expecting a child. (Id. P 11). Plaintiff notified DOCS that he would need to take leave on a number of days to accompany his wife to prenatal medical appointments and Lamaze classes beginning in mid-October, 1996. (Id. P 12). After taking such leave on November 12, 1996, plaintiff was notified that he was being charged "absent without leave" for missing work that day. (Id. P 16). On November 15, 1996, defendant Alfred Accornero suspended plaintiff from his position, and plaintiff shortly thereafter was discharged. (Id. PP 21 - 23).
On June 9, 1997, plaintiff filed the present Complaint alleging that defendants "interfered with, restrained and denied the plaintiff's use or attempt to use rights provided under" the FMLA. (Pl. Compl. P 24). Plaintiff further alleges that he was wrongfully discharged as a result of his use, or attempted use, of those rights. (Id. P 25). Defendants appeared by way of Answer filed August 8, 1997.
On May 28, 1998, defendants filed the present motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(h)(3).
A. Standard for Motion to Dismiss for Lack of Subject Matter Jurisdiction
Under Federal Rule of Civil Procedure 12(h)(3), the Court must grant defendants' Rule 12(b)(1) motion to dismiss if plaintiff fails to carry his burden to show that the Court may properly exercise subject matter jurisdiction. In Re Joint E. & S. Dist. Asbestos Litig., 14 F.3d 726, 730 (2d Cir. 1993). "'Without jurisdiction the court cannot proceed at all in any case. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.'" Steel Co. v. Citizens for a Better Environment, 140 L. Ed. 2d 210, 118 S. Ct. 1003, 1012 (1998) (quoting Ex parte McCardle, 74 U.S. 506, 7 Wall. 506, 514, 19 L. Ed. 264 (1868)).
1. The Eleventh Amendment
The Eleventh Amendment to the United States Constitution provides as follows:
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 or Subjects of any Foreign State.
U.S. Const. amend. XI. This language not only prohibits suits against states brought by citizens of other states in federal court, but, implicitly, suits against a state in federal court brought by its own citizens. See Edelman v. Jordan, 415 U.S. 651, 662-63, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974); Hans v. Louisiana, 134 U.S. 1, 10, 33 L. Ed. 842, 10 S. Ct. 504 ...