Armstrong v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

WILLIAM M. ARMSTRONG CIVIL ACTION

VERSUS 22-CV-1001-SDD-EWD

BOARD OF SUPERVISORS OF

LOUISIANA STATE UNIVERSITY

AND AGRICULTURAL AND

MECHANICAL COLLEGE

RULING

This matter is before the Court on the Motion to Dismiss filed pursuant to Rule

12(b)(1) by Defendant, Board of Supervisors of Louisiana State University and

Agricultural and Mechanical College (the “LSU Board” or “LSU”).1 Plaintiff William M.

Armstrong (“Plaintiff” or “Armstrong”) filed an opposition,2 to which the LSU Board

replied.3 Armstrong filed a sur-reply.4 For the reasons set forth below, the Court finds that

the motion should be granted.

I. Background

Plaintiff Armstrong is the former associate head coach of the LSU men’s basketball

team.5 Armstrong sues the LSU Board for breach of his employment contract after he

was terminated in June of 2022 in the wake of allegations of National Collegiate Athletic

Association rules violations.6 Armstrong alleges that his termination was not “for cause”

under the terms of his contract with LSU and constitutes a breach entitling him to

damages stipulated within the contract and delineated by the Louisiana Wage Payment

1 Rec. Doc. 20.

2 Rec. Doc. 29.

3 Rec. Doc. 35.

4 Rec. Doc. 38.

5 Rec. Doc. 1, ¶ 11.

6 Rec. Doc. 1, ¶ 1.

Act.7 Armstrong’s claims are governed exclusively by state law; he does not state any

federal law claims.8

Armstrong invokes this Court’s diversity jurisdiction under 28 U.S.C. 1332, which

the LSU Board challenges in the pending Motion.9 The LSU Board does not challenge

Armstrong’s Missouri citizenship and it concedes that his allegations satisfy the

jurisdictional amount in controversy required by 28 U.S.C. 1332. The LSU Board argues

that it is not a citizen of a state for purposes of diversity jurisdiction and is therefore not

subject to this Court’s jurisdiction. The LSU Board also argues that it enjoys Eleventh

Amendment sovereign immunity from suit in federal court, which it has not waived.10

Armstrong contends that the LSU Board is subject to 28 U.S.C. 1332 and, alternatively,

contractually waived its Eleventh Amendment immunity from any suit arising from their

employment contract.11

II. Legal Analysis

a. 12(b)(1) Standard

Federal courts are courts of limited jurisdiction, and without jurisdiction conferred

by statute, they lack the power to adjudicate claims.12 Under Federal Rule of Civil

Procedure 12(b)(1), a claim is “properly dismissed for lack of subject-matter jurisdiction

when the court lacks the statutory or constitutional power to adjudicate” the claim.13 A

7 Rec. Doc. 1, ¶¶ 1, 57, 60, 61.

8 Rec. Doc. 1.

9 Rec. Doc. 1, ¶ 2; Rec. Doc. 20.

10 Rec. Doc. 20.

11 Rec. Doc. 29.

12 In re FEMA Trailer Formaldehyde Prods. Liab. Litig., 668 F.3d 281, 286–87 (5th Cir.

2012) (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S. Ct. 1673, 128 L. Ed. 2d

391 (1994); Stockman v. FEC, 138 F.3d 144, 151 (5th Cir. 1998)); see also Hall v. Louisiana, 12 F. Supp.

3d 878, 884 (M.D. La. 2014).

13 In re FEMA Trailer Formaldehyde Prods. Liab. Litig., 668 F.3d at 286–87 (quoting Home Builders Ass'n,

Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998).).

court should consider a Rule 12(b)(1) jurisdictional attack before addressing any attack

on the merits.14

“‘The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting

jurisdiction. Accordingly, the plaintiff constantly bears the burden of proof that jurisdiction

does in fact exist.’”15

b. Diversity Jurisdiction

The Fifth Circuit has explained that “[t]here is no question that a State is not a

‘citizen’ for purposes of the diversity jurisdiction.”16 Nor is an entity that is merely an “alter

ego” or “arm” of the state a “citizen” for purposes of 28 U.S.C. 1332(a)(1).17 “On the other

hand, if the agency is an independent one, separate and distinct from the state,” it will be

considered a “citizen” of the state and subject to diversity jurisdiction.18

Consequently, the Court must determine whether the LSU Board is an arm or alter

ego of the state. In making this determination, “the essential question is whether the state

is the real party in interest.”19 In Tradigrain, the Fifth Circuit adopted a multi-factor

balancing framework to answer that question.20 In PYCA Indus., Inc. v. Harrison County

Waste Water Mgmt. Dist. the Fifth Circuit later summarized and characterized the

Tradigrain framework as comprising “many factors . . . including: (1) whether state

statutes and case law characterize the agency as an arm of the state; (2) the source of

14 Hall v. Louisiana, 974 F. Supp. 2d 944, 951 (M.D. La. 2013) (citing Ramming v. United States, 281 F.3d

158, 161 (5th Cir. 2001), cert. denied, 536 U.S. 960, 122 S. Ct. 2665, 153 L. Ed. 2d 839 (2002)).

15 Raj v. Louisiana State Univ., 714 F. 3d 322, 327 (5th Cir. 2013) (quoting Ramming v. United States, 281

F.3d 158, 161 (5th Cir. 2001) (internal citations omitted)).

16 Moor v. Cnty. of Alameda, 411 U.S. 693, 717, 93 S. Ct. 1785, 36 L. Ed. 2d 596 (1973).

17 Id.; Tradigrain, Inc. v. Mississippi State Port Auth., 701 F.2d 1131, 1132 (5th Cir. 1983); see also PYCA

Indus., Inc. v. Harrison Cnty. Waste Water Mgmt. Dist., 81 F.3d 1412, 1416 (5th Cir. 1996).

18 Tradigrain, 701 F.2d at 1132 (5th Cir. 1983).

19 Id.; see also State Highway Comm'n of Wyoming v. Utah Constr. Co., 278 U.S. 194, 199–200 (1929).

20 Tradigrain, 701 F.2d at 1132-33 (5th Cir. 1983).

entity funding; (3) the degree of local autonomy; (4) whether the entity is concerned

primarily with local, as opposed to statewide problems; (5) the authority to sue and be

sued in its own name; and (6) the right to hold and use property.”21

The LSU Board suggests that the Court should follow the Fifth Circuit’s decision in

Ray v. Louisiana State University finding that the LSU Board was an arm of the state upon

analyzing these same factors.22 Relying on the Raj court’s analysis, LSU contends that

“[i]t is well-established that LSU is a non-independent arm of the state of Louisiana” that

is not amenable to diversity jurisdiction.23 Although the Raj court determined whether the

LSU Board was an arm of the state for purposes of Eleventh Amendment immunity, rather

than subject matter jurisdiction under 28 U.S.C. 1332, this is a distinction without a

meaningful difference in this context. The Tradigrain court adopted its multi-factor

balancing framework from its Eleventh Amendment jurisprudence24 and explained that

the analysis to determine whether a state entity is an arm of the state for purposes of

diversity jurisdiction is “virtually identical.”25 Similarly, every other circuit that has

addressed this issue has also held that the analysis is practically identical.26

21 81 F.3d 1412, 1416 (5th Cir. 1996) (citing Tradigrain, at 1132; McDonald v. Board of Mississippi Levee

Comm'rs, 832 F.2d 901, 906 (5th Cir.1987)).

22 714 F.3d 322, 327 (5th Cir. 2013). The Raj Court does not explicitly cite to “the Tradigrain factors” but

substantively performs the same analysis under the same factors. See generally id.

23 Rec. Doc. 20-1, pp. 5–6.

24 701 F.2d at 1132 (citing Huber, Hunt & Nichols v. Architectural Stone Co., 625 F.2d 22 (5th Cir. 1980)).

25 Id.; see also Laje v. R.E. Thomason General Hospital, 665 F.2d 724, 726 n. 2 (5th Cir. 1982).

26 See, e.g., Maryland Stadium Authority v. Ellerbe Becket Inc., 407 F.3d 255, 260–61 (4th Cir. 2005); Pub.

Sch. Ret. Sys. of Missouri v. State St. Bank & Tr. Co., 640 F.3d 821, 826 (8th Cir. 2011) (“Like the §

1332(a)(1) inquiry, the ultimate question of whether an entity is an arm of a State for purposes of the

Eleventh Amendment turns on whether a State is the real party in interest in a case involving the entity.”);

N.E. Fed. Credit Union v. Neves, 837 F.2d 531, 534 (1st Cir. 1988) (tests “pretty much the same”); Coastal

Petroleum Co. v. U.S.S. Agri–Chems., 695 F.2d 1314, 1318 (11th Cir. 1983) (analysis is “the same”); see

also Kansas Public Employees Retirement System v. Boatmen's First Nat. Bank of Kansas City, 982 F.

Supp. 806, 809 (D. Kan. 1997) (applying Eleventh Amendment test to find that public retirement system is

an alter ego of the state of Kansas, and, “therefore, is not a ‘citizen’ for the purposes of diversity jurisdiction

pursuant to 28 U.S.C. § 1332.”); see also Curators of Univ. of Missouri v. Corizon Health, Inc., 627 F. Supp.

3d 1030, 1035 (W.D. Mo. 2022) (“Indeed, every Circuit to address the issue has held that the analysis is

Thus, the Raj court’s finding and analysis are instructive to this Court’s analysis

under the Tradigrain framework. Armstrong presents no argument or authority to support

a finding that the LSU Board is an independent agency under the applicable factors or a

departure from the analysis in Raj. Thus, like the Raj court, the Court will consider the

available codified and case law.27 The Raj court analyzed each factor in turn:

First, state law characterizes the agency as an arm of the state, see

[Delahoussaye, 937 F.2d 144] at 147: LSU was created by state law, see

La. Rev. Stat. Ann. § 36:642(B) (2012), and its Board is part of the Louisiana

executive branch of government, see La. Rev. Stat. Ann. § 17:3215 (2011).

Second, LSU receives state funding as an executive branch agency, must

dispense donations in accordance with state law, and pays judgments

against it from state funds. La. Const. art. 12, § 10(C); La. Rev. Stat. Ann.

§ 17:3351 (2011); see Delahoussaye, 937 F.2d at 148. Third, state

executive branch officials have direct control over appointment of LSU

Board members. La. Rev. Stat. Ann. § 17:1453 (2012); see Delahoussaye,

937 F.2d at 148. Fourth, LSU's purpose under state law is statewide, not

local. La. Rev. Stat. Ann. § 17:3220 (LSU is “established and maintained to

serve the educational needs of the people of the state”); see Delahoussaye,

937 F.2d at 148. Fifth and sixth, the LSU Board has the right to sue and be

sued in its own name and hold property, while LSU itself does not, see La.

Rev. Stat. Ann. § 17:3351(A); however, “just because [the LSU Board] can

be sued and can hold and use property does not mean that these final two

factors weigh against a finding of sovereign immunity. In fact, precisely the

opposite is true. First . . . Louisiana has not waived its immunity from suit in

federal court. Second, and perhaps most importantly, money judgments

against the Board are paid by the State of Louisiana. Richardson, 118 F.3d

at 456; see La. Rev. Stat. Ann. § 17:3351.28

Following the Fifth Circuit’s balance of the Tradigrain factors applied to the LSU

Board, the Court concludes that the State of Louisiana is the real party in interest in

Armstrong’s suit against the LSU Board.

practically identical, and the Court found no case holding, or even suggesting, a difference”) (internal

citations omitted).

27 701 F.2d at 1132 (“If the agency's status is unclear, the court must look to any and all available sources

for guidance.”)

28 Raj v. Louisiana State Univ., 714 F.3d 322, 329 (5th Cir. 2013). The statutes relied upon and cited by the

Raj court have not meaningfully changed for purposes of this analysis since its decision.

The LSU Board is an arm of the state and is not a “citizen” for purposes of

diversity.29 Thus, this Court does not have jurisdiction over the LSU Board pursuant to 28

U.S.C. 1332.30 The LSU Board’s Rule 12(b)(1) Motion to Dismiss shall be granted for lack

of subject matter jurisdiction.31

III. Conclusion

LSU’s Motion to Dismiss is granted, and Armstrong’s claims against LSU are

dismissed.

IT IS SO ORDERED.

Baton Rouge, Louisiana, this 27th day of September, 2023.

S

________________________________

SHELLY D. DICK

CHIEF DISTRICT JUDGE

MIDDLE DISTRICT OF LOUISIANA

29 28 U.S.C. 1332(a)(1).

30 There is no allegation or suggestion in Armstrong’s pleadings that federal question jurisdiction is present

here. Armstrong’s claims against the LSU Board are exclusively breach of contract and tort law claims

governed by Louisiana state law.

31 Because the Court lack subject matter jurisdiction, it need not address the issue of Eleventh Amendment

sovereign immunity.