This Court believes there is much force in that argument and
concludes that State Treasury money should be treated as State
Treasury money for purposes of Mancuso analysis even if it is held
and managed in a dedicated fund devoted to tort obligations, rather
than as part of a general fund devoted to the payment of official
salaries and like expenses. See Houghton v. Board of Regents of
University of Washington, 691 F. Supp. 800, 803-804 (SDNY 1988)
(Washington state tort claims revolving fund, immunity upheld);
Daniel v. American Board of Emergency Medicine 988 F. Supp. 127,
177-178 (WDNY 1997) (New Mexico Risk Management Division of General
Services Department responsible to pay claim, immunity upheld.)
This Court recognizes that the Eleventh Amendment retains its full
vitality. Indeed, the Eleventh Amendment seems to be in a state of
recovery from prior limiting decisions by Federalist-minded judges
cutting down its scope. We note that in Alden v. Maine, 119 S.Ct.
2240, decided June 23, 1999, a case resolved after this Court's
initial decision in this case, the Supreme Court held that Congress
did not have the power to subject non-consenting states to private
suits for damages in state court where the claim was founded on the
federal Fair Labor Standards Act. In Seminole Tribe of Florida v.
Florida, 517 U.S. 44 (1996), the Supreme Court overruled its decision
in Pennsylvania v. Union Gas Company, 491 U.S. 1 (1989), emphasizing
and reinstating its prior doctrine that in order to abrogate the
sovereign immunity of the states Congress must express its intent
"unequivocally" and must act pursuant to a valid exercise of power to
be found in express provisions of the Constitution as amended.
Seminole Tribe also reiterated the Supreme Court's long held doctrine
that "the relief sought by a plaintiff suing a State is irrelevant to
the question of whether the suit is barred by the Eleventh
Amendment," and that the Eleventh Amendment does not exist solely in
order to prevent federal court judgments that must be paid out of the
State's treasury. Seminole Tribe, 517 U.S. 44 (citing Hess v. Port
Authority Trans-Hudson Corporation, 513 U.S. 30, 48 (1994)).
Last, but not least, the Court notes that the Supreme Court has
found Eleventh Amendment immunity for states in actions brought
pursuant to the unfair competition provisions of the Trademark Remedy
Clarification Act. In College Savings Bank v. Florida Prepaid
Postsecondary Education Expense Board, 119 S.Ct. 2219, decided by the
Supreme Court on June 23, 1999, after this Court's First Opinion, the
Supreme Court held that so much of the Trademark Remedy Clarification
Act, which purported to subject the states to suits brought under §
43(a) of the Lanham Act for false and misleading advertising, was
not effective to abrogate Florida's sovereign immunity under the
Eleventh Amendment, where an agency of the State of Florida violated
the Lanham Act by making misstatements about its own tuition savings
plans in its brochures and annual reports, to the detriment of
Plaintiff's competing CollegeSure plan. In doing so, the Supreme
Court overruled and repudiated its prior determination in Parden v.
Terminal Railway of Alabama Docks Department, 377 U.S. 184 (1964),
which held that the employee of a state operated railroad might sue
under the Federal Employers' Liability Act, 45 U.S.C. § 51-60,
because operating a railroad in interstate commerce was an implied
waiver of Eleventh Amendment immunity. See Also Florida Prepaid
Postsecondary Education Expense Board v. College Savings Bank,
527 U.S. 627 (1999)(Eleventh Amendment immunity for state infringers of
Because of the most recent Idaho statute, and in light of the
current trend of Supreme Court jurisprudence on the subject of
Eleventh Amendment immunity, this Court concludes that the IPC's
second motion under Rule 60(b) F.R.Civ.P. has merit and must be
granted. We note that as to the cases where the IPC is plaintiff,
this Court's conclusion remains unaffected, that a state waives its
sovereign immunity by voluntarily invoking the jurisdiction of the
federal courts. This principle was reaffirmed in College Savings
Bank, supra at 119 S.Ct. 2228, n3 and again at 2226. See also Gunter
v. Atlantic Coast R.R., 200 U.S. 273, 284 (1906), cited with approval
in College Savings Bank.
The Court grants the motion to the extent that it severs and
dismisses the action initially filed under 98 Civ. 0681 and the
claims of Intervenor G&T Terminal Packaging Co., Inc. The Court
retains jurisdiction of the cases filed originally under Docket Nos.
97 Civ. 8125 and 98 Civ. 2934 in which the IPC sued as plaintiff and
thereby waived its immunity. Whether these cases may be voluntarily
discontinued by the IPC in light of the newly enacted statute of
March 3, 2000. is not an issue presently before this Court for
consideration. By a consent order issued and filed in the Court of
Appeals under Court of Appeals Docket Nos. 99-7206 and 9116 on April
18, 2000, it was provided that "the above entitled appeals are hereby
withdrawn from active consideration by the Court, such withdrawal to
be without prejudice to the reinstatement of the appeal by
Appellant's counsel so notifying the Clerk in writing by June 9,
2000. If not thus reinstated, the appeal shall be deemed withdrawn
with prejudice. Withdrawal of the appeal from active consideration
shall not operate as a dismissal of the appeal under FRAP 42(b)"
Following June 9, 2000 or upon receipt of a further Mandate issued
by the Court of Appeals, this court will conduct a case management
conference on notice for the purpose of making such directions in
those cases in which the IPC is plaintiff, as may be appropriate.
The Clerk shall enter a final judgment severing and dismissing the
case in which the IPC appears solely as a defendant, and the claim of
the Intervenor G&T Terminal Packing Company.
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