Adeyemi v. State of MD

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

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JAMES ADEYEMI, *

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Plaintiff, *

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v. * Civil No. ELH-19-3207

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DEPARTMENT OF PUBLIC SAFETY AND

CORRECTIONAL SERVICES, *

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Defendant. *

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* * * * * * * * * * * * *

MEMORANDUM OPINION

In this employment discrimination case, the self-represented plaintiff, James Adeyemi,

who is deaf, filed a “Complaint of Defamation and Retaliation” against his former employer, the

Maryland Department of Public Safety and Correctional Services (“DPSCS”). ECF 1

(“Complaint”). The Complaint, which is accompanied by 29 exhibits, seems to assert two claims

against defendant DPSCS: defamation, under Maryland law, and retaliation, under the Americans

with Disabilities Act, as amended, 42 U.S.C. § 12101 et seq. (“ADA”). ECF 1 at 2. Adeyemi seeks

“compulsory damage and [recovery for] financial loss.” Id.

Although the Complaint is difficult to decipher, it appears that plaintiff’s retaliation claim

is predicated on his non-selection for a job position with DPSCS. See ADA, Title V, 42 U.S.C. §

12203(a).1 In particular, plaintiff alleges that DPSCS retaliated against him after he complained

about being discriminated against during the hiring process. And, he alleges that DPSCS retaliated

1 Significantly, the Complaint does not include a claim of disability discrimination under

Title I of the ADA.

against him by refusing to verify his prior employment with DPSCS for prospective employers.

ECF 1 at 14.

Defendant has moved to dismiss the Complaint for lack of subject matter jurisdiction,

pursuant to Fed. R. Civ. P. 12(b)(1) or, in the alternative, for summary judgment, pursuant to Fed.

R. Civ. P. 56. ECF 12. The motion is support by a memorandum (ECF 12-1) (collectively, the

“Motion”) and thirteen exhibits. According to DPSCS, plaintiff’s ADA claim is barred by the

State’s entitlement to immunity under the Eleventh Amendment to the Constitution. ECF 21-1 at

8-11. As to the defamation claim, DPSCS contends that plaintiff has failed to comply with the

requirements of the Maryland Tort Claims Act (“MTCA”), Md. Code (2014 Repl. Vol., 2018

Supp.), §§ 12-101 et seq. of the State Government Article (“S.G.”). Id. at 12-15. Alternatively,

defendant urges the Court to decline to exercise supplemental jurisdiction with regard to the State

law defamation claim. Id. at 11-12.

Adeyemi opposes the Motion (ECF 15) and has submitted two additional exhibits.

Defendant has not replied and the time to do so has expired.

No hearing is necessary to resolve the Motion. See Loc. R. 105.6. For the reasons that

follow, I shall grant the Motion.

I. Factual and Procedural Background2

Plaintiff was a contract employee with DPSCS. On April 4, 2014, Adeyemi entered into

an agreement with DPSCS’s Police and Correctional Training Commissions (“PCTC”) to begin

work as an “IT Programmer Analyst Lead/Advanced.” ECF 1 at 3; ECF 12-3 (Employment

2 As discussed, infra, given the posture of this case, I must assume the truth of the facts

alleged by Adeyemi in the Complaint.

Contract). Plaintiff continued working for PCTC until he resigned on November 17, 2015. ECF 1

at 3.3 Plaintiff claims that he resigned because he was discriminated against for being deaf. Id.

On January 13, 2017, DPSCS posted a job vacancy announcement for “Administrator VI:

Technical Services Administrator” at PCTC. ECF 1 at 4; see ECF 12-8 (Job Posting). Plaintiff

applied for this position and was notified on January 23, 2017, that he was selected for an

interview. See ECF 12-9 (Interview Notification). But, Adeyemi complains that during the

interview for this position he was not given “a paper of questions for [the] interview” and he

“noticed the interpreter translated very late,” which made him suspect “that the interpreter might

not be certified.” ECF 1 at 4.

Several months later, on May 11, 2017, plaintiff was notified that he was not selected for

the position. Id.; see ECF 12-10 (Rejection Letter). Adeyemi claims that the recruiter told him that

the decision was based on the interview scores rather than the individual’s educational background

or work experience. ECF 1 at 4.

Thereafter, on July 10, 2017, plaintiff contacted the Executive Director of the Office of

Equal Opportunity (“OEO”) at DPSCS to complain that he was discriminated against during the

interview and recruitment process for the Technical Services Administrator position. ECF 1 at 5;

see ECF 12-11 (Email from Adeyemi to DPSCS). By letter of the same date, the Executive Director

of DPSCS responded to Adeyemi’s complaint. See ECF 1-4. The letter summarized plaintiff’s

stated complaints: “[Y]ou stated that you were discriminated against because your education was

not taken into consideration when another candidate was selected [and you] alleged that the

selection of the other candidate was only based on the oral interview for which you were

3 In its Motion, defendant includes many factual assertions that are not included in the

Complaint. These facts are not properly considered at this juncture. But, the date that plaintiff

resigned from his position is not material to the issues here.

substantially limited based on the fact that you are deaf and the sign language interpreter that

assisted you during the interview was not certified….” Id. at 1. In response to those complaints,

the letter explained that the interpreter was “certified” and a college degree “was not a requirement

in order to qualify for the position,” so education did not have to be taken into consideration. Id.

at 1-2. Further, the letter advised Adeyemi of his right to file a complaint of discrimination with

the Maryland Commission on Civil Rights and the Equal Employment Opportunity Commission

(“EEOC”). Id. at 2.

The following day, plaintiff contacted OEO again, stating that he was “afraid of applying

for any job at DPSCS” and he was “tired of everyone get[ting] away with hurting [his] job

opportunit[ies]” and “abus[ing] [him] at work.” ECF 12-13 at 1. But, he said that he was still

“willing to go through” with an interview that DPSCS had previously offered him for another IT

programmer position. Id.4

Thereafter, throughout 2018, plaintiff applied for numerous positions at DPSCS, as well as

the Maryland Office of the Comptroller, and Anne Arundel County Department of Social Services.

See, e.g., ECF 1-7; ECF 1-11; ECF 1-17. According to Adeyemi, he was not selected for these

positions because his DPSCS employment references “refus[ed] to verify” his past employment as

part of their retaliation against him. ECF 1 at 14.

In June 2019, plaintiff filed a Charge of Discrimination with the EEOC against DPSCS,

alleging retaliation between November 2018 and March 2019. See ECF 1-25. In the Charge,

Adeyemi stated, id. at 1: “I was previously employed by [DPSCS]. I previously filed complaints

of discrimination against [DPSCS]. Since in or about November 2018, I have been aware that

Respondent has either failed to respond to request for references from prospective employers or

4 It is not entirely clear whether plaintiff interviewed for this position.

provided unfavorable references.” Further, he stated, id.: “I believe that I have been discriminated

against in retaliation for engaging in protected activity….”

II. Legal Standard5

With respect to the ADA, defendant has moved to dismiss under Fed. R. Civ. P. 12(b)(1)

for lack of subject matter jurisdiction. DPSCS contends that plaintiff’s ADA claim is barred by

sovereign immunity. And, DPSCS claims that the State law defamation claim is subject to

dismissal for failure to comply with the MTCA. Alternatively, defendant urges the Court to decline

to exercise supplemental jurisdiction as to the State law claim.

District courts of the United States are courts of limited jurisdiction; they possess “‘only

that power authorized by Constitution and statute.’” Gunn v. Minton, 586 U.S. 251, 256 (2013)

(quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)); see Home Depot

U.S.A., Inc. v. Jackson, ___ U.S. ___, 139 S. Ct. 1743, 1746 (2019); Exxon Mobil Corp. v.

Allapattah Servs., Inc., 545 U.S. 546, 552 (2005). Simply put, if Congress or the Constitution “has

not empowered the federal judiciary to hear a matter, then the case must be dismissed.” Home

Buyers Warranty Corp. v. Hanna, 750 F.3d 427, 432 (4th Cir. 2014); see also Steel Co. v. Citizens

for a Better Env’t, 523 U.S. 83, 94 (1998) (“‘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.’”) (citation omitted).

Rule 12(b)(1) of the Federal Rules of Civil Procedure permits a defendant to challenge the

court’s subject matter jurisdiction with respect to the plaintiff’s suit. Under Rule 12(b)(1), the

plaintiff bears the burden of proving, by a preponderance of evidence, the existence of subject

5 Because I will grant defendant’s Motion under Fed. R. Civ. P. 12(b)(1), I need not address

Rule 56. Moreover, defendant does not appear to make any arguments under Rule 56. See ECF

12-1. And, as to the defamation claim, I address supplemental jurisdiction, infra.

matter jurisdiction. See Demetres v. E. W. Const., Inc., 776 F.3d 271, 272 (4th Cir. 2015); see also

The Piney Run Preservation Ass’n v. Cty. Comm’rs of Carroll Cty., 523 F.3d 453, 459 (4th Cir.

2008); Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). However, a court should

grant a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) “‘only if the

material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter

of law.’” B.F. Perkins, 166 F.3d at 647 (citation omitted).

A challenge to subject matter jurisdiction under Rule 12(b)(1) may proceed “in one of two

ways”: either a facial challenge or a factual challenge. Kerns v. United States, 585 F.3d 187, 192

(4th Cir. 2009); accord Hutton v. Nat’l Bd. of Exam’rs Inc., 892 F.3d 613, 620-21 (4th Cir. 2018).

In a facial challenge, “the defendant must show that a complaint fails to allege facts upon which

subject-matter jurisdiction can be predicated.” Hutton, 892 F.3d at 621 n.7 (citing Beck v.

McDonald, 848 F.3d 262, 270 (4th Cir. 2017)); see also Kerns, 585 F.3d at 192. Alternatively, in

a factual challenge, “the defendant maintains that the jurisdictional allegations of the complaint

are not true.” Hutton, 892 F.3d at 621 n.7 (citing Beck, 848 F.3d at 270). In that circumstance,

the court “may regard the pleadings as mere evidence on the issue and may consider evidence

outside the pleadings without converting the proceeding to one for summary judgment.” Velasco

v. Gov’t of Indonesia, 370 F.3d 392, 398 (4th Cir. 2004); see also Beck, 848 F.3d at 270; In re

KBR, Inc., Burn Pit Litig., 744 F.3d 326, 333 (4th Cir. 2014); Evans, 166 F.3d at 647.

Sovereign immunity is “a weighty principle, foundational to our constitutional system.”

Cunningham v. Lester, 990 F.3d 361, 365 (4th Cir. 2021). The Fourth Circuit has made clear that

the defense of sovereign immunity is a jurisdictional bar, explaining that “‘sovereign immunity

deprives federal courts of jurisdiction to hear claims, and a court finding that a party is entitled to

sovereign immunity must dismiss the action for lack of subject-matter jurisdiction.’” Cunningham

v. Gen. Dynamics Info. Tech., Inc., 888 F.3d 640, 649 (4th Cir. 2018) (citation omitted), cert.

denied, ___ U.S. ___, 139 S. Ct. 417 (2018). Notably, “the burden of proof falls to an entity

seeking immunity as an arm of the state, even though a plaintiff generally bears the burden to prove

subject matter jurisdiction.” Williams v. Big Picture Loans, LLC, 929 F.3d 170, 176 (4th Cir.

2019) (citing Hutto v. S.C. Ret. Sys., 773 F.3d 536, 543 (4th Cir. 2014)).

Defendant raises a facial challenge to the Court’s subject matter jurisdiction, asserting that

the doctrine of sovereign immunity forecloses plaintiff’s ADA claim. ECF 12-1 at 8-10; see

Cunningham v. Gen. Dynamics Info. Tech., Inc., 888 F.3d 640, 649 (4th Cir. 2018) (observing that

“‘sovereign immunity deprives federal courts of jurisdiction to hear claims’”) (citation omitted),

cert. denied, ___ U.S. ___, 139 S. Ct. (2018). Thus, it must show that the Complaint “fails to

allege facts upon which subject-matter jurisdiction can be predicated.” Hutton, 892 F.3d at 621

n.7; see Kerns, 585 F.3d at 192.

III. Discussion

A. The ADA and Sovereign Immunity

1.

The ADA was enacted in 1990 “to provide a clear and comprehensive national mandate

for the elimination of discrimination against individuals with disabilities,” 42 U.S.C.

§ 12101(b)(1), and “to provide clear, strong, consistent, enforceable standards addressing

discrimination against individuals with disabilities.” Id. § 12101(b)(2). The ADA contains five

titles: Title I, Employment; Title II, Public Services; Title III, Public Accommodations; Title IV,

Telecommunications; and Title V, Miscellaneous Provisions.

Title I of the ADA prohibits discrimination “against a qualified individual on the basis of

disability in regard to job application procedures, the hiring, advancement, or discharge of

employees, employee compensation, job training, and other terms, conditions, and privileges of

employment.” 42 U.S.C. § 12112(a); see also Summers v. Altarum Inst., Corp., 740 F.3d 325, 328

(4th Cir. 2014) (“The ADA makes it unlawful for covered employers to ‘discriminate against a

qualified individual on the basis of disability.’”) A “qualified individual” is defined as a person

who, “with or without reasonable accommodation, can perform the essential functions of the

employment position that such individual holds or desires.” 42 U.S.C. § 12111(8).

Unlawful discrimination under Title I of the ADA “can include the failure to make

‘reasonable accommodations to the known physical or mental limitations of an otherwise qualified

individual with a disability who is an applicant or employee . . . .’” Wilson v. Dollar Gen.

Corp., 717 F.3d 337, 344 (4th Cir. 2013) (quoting § 12112(b)(5)(A)). Moreover, “denying

employment opportunities to a job applicant or employee who is an otherwise qualified individual

with a disability” may qualify as “discrimination against a qualified individual on the basis of

disability.” 42 U.S.C. § 12112(b)(5)(B). In addition, the ADA bars the discharge of a qualified

employee because he is disabled. Summers, 740 F.3d at 328.

Also of relevance here, Title V states, in part: “No person shall discriminate against any

individual because such individual has opposed any act or practice made unlawful by this chapter

or because such individual made a charge, testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing under this chapter.” 42 U.S.C. § 12203(a). In other words,

Title V protects individuals who are retaliated against for exercising their rights under Title I, II,

or III of the ADA.

Title V does not have its own remedial scheme. See 42 U.S.C. § 12203(c); G. v. Fay Sch.,

931 F.3d 1, 10–11 (1st Cir. 2019). Thus, a Title V claim must be predicated on another section of

the ADA. See Melerski v. Virginia Dep't of Behavioral Health & Developmental Servs., No. 4:15-

CV-00039, 2016 WL 154144, at *3 (W.D. Va. Jan. 11, 2016) (“A Title V retaliation action must

rest upon a previous Title's subject.”) (citing Collazo-Rosado v. Univ. of P.R., 775 F. Supp. 2d

376, 384 (D.P.R. 2011)).

Plaintiff does not cite the relevant title of the ADA in his Complaint. But, because he brings

a retaliation claim, it arises under Title V. See 42 U.S.C. 12203(a). And, it is predicated on Title

I, because he alleges that he was retaliated against for complaining about employment

discrimination. See 42 U.S.C. § 12112.

2.

As noted, DPSCS maintains that plaintiff’s ADA claim is barred by the Eleventh

Amendment to the Constitution. The Eleventh Amendment to the Constitution provides: “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 of another State, or by

Citizens or subjects of any Foreign State.” The Eleventh Amendment “embodies the principle of

sovereign immunity and prohibits suit by private parties against states in federal courts.” Weller

v. Dep’t of Soc. Serv’s for City of Balt., 901 F.2d 387, 397 (4th Cir. 1990).

The Supreme Court has explained: “Although by its terms the Amendment applies only to

suits against a State by citizens of another State, our cases have extended the Amendment’s

applicability to suits by citizens against their own States.” Bd. of Trustees of Univ. of Alabama v.

Garrett, 531 U.S. 356, 363 (2001) (collecting cases); see, e.g., Virginia Off. for Prot. & Advocacy

v. Stewart, 563 U.S. 247, 253 (2011); Lapides v. Bd. of Regents of Univ. Sys. of Georgia, 535 U.S.

613, 618 (2002); Kimmel v. Fla. Bd. of Regents, 528 U.S. 62, 72-73 (2000). Thus, “the ultimate

guarantee of the Eleventh Amendment is that nonconsenting States may not be sued by private

individuals in federal court.” Garrett, 531 U.S. at 363. Put simply, states are generally immune

from suit for damages in federal court, absent consent or a valid congressional abrogation of

sovereign immunity. See Coleman v. Court of Appeals of Md., 566 U.S. 30, 35 (2012); Va. Office

for Prot. & Advocacy, 563 U.S. at 253-54; Passaro v. Virginia, 935 F.3d 243, 247 (4th Cir. 2019),

cert. denied, 140 S. Ct. 903 (2020).

The doctrine of state sovereign immunity from private suit predates the enactment of the

Eleventh Amendment. See Williams v. Morgan State Univ., ___ Fed. App’x ___, 2021 WL

1041699, at *2 (4th Cir. Mar. 18, 2021) (citing Alden v. Maine, 527 U.S. 706, 724 (1999); Hans

v. Louisiana, 134 U.S. 1, 3 (1890)). However, as the Supreme Court affirmed in Garrett, 531 U.S.

at 363, among several other decisions, it has construed the Eleventh Amendment to embody the

broader principles of state sovereign immunity.6

The Fourth Circuit recently echoed this principle in Pense v. Md. Dep’t of Public Safety

and Correctional Services, 926 F.3d 97 (4th Cir. 2019), stating, id. at 100: “The Supreme Court

‘has drawn on principles of sovereign immunity to construe the Amendment to establish that an

unconsenting State is immune from suits brought in federal courts by her own citizens as well as

by citizens of another State.’” (Quoting Port Auth. Trans–Hudson Corp. v. Feeney, 495 U.S. 299,

304 (1990)); see Lapides, 535 U.S. at 618 (“The Eleventh Amendment provides that the ‘Judicial

power of the United States shall not be construed to extend to any suit . . . commenced or

prosecuted against one of the . . . States’ by citizens of another State, U.S. Const., Amdt. 11, and

(as interpreted) by its own citizens.”) (emphasis added; ellipses in Lapides); Lee-Thomas v. Prince

George’s Cty. Pub. Sch., 666 F.3d 244, 248 (4th Cir. 2012).

6 In Williams, 2021 WL 1041699, the Fourth Circuit characterized state sovereign

immunity as “a broader doctrine” than Eleventh Amendment immunity, and described the text of

the Eleventh Amendment as a “rather narrow and precise provision . . . .” Id. at *2.

The defendant refers to Eleventh Amendment immunity and state sovereign immunity

interchangeably. See, e.g., ECF 21-1 at 9. At various points, I shall also refer to state sovereign

immunity as Eleventh Amendment immunity, consistent with defendant’s usage.

State sovereign immunity bars suit not only against a state, but also against an

instrumentality of a state, such as a state agency, sometimes referred to as an “arm of the state.”

See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101-02 (1984) (“It is clear, of

course, that in the absence of consent a suit in which the State or one of its agencies or departments

is named as the defendant is proscribed by the Eleventh Amendment.”); see also Regents of Univ.

of Cal. v. Doe, 519 U.S. 425, 429 (1997); Pense, 926 F.3d at 100; McCray v. Md. Transit Admin.,

741 F.3d 480, 483 (4th Cir. 2014); Bland v. Roberts, 730 F.3d 368, 389 (4th Cir.

2013); Constantine v. Rectors and Visitors of George Mason Univ., 411 F.3d 474, 479 (4th Cir.

2005). Put another way, sovereign immunity applies when “‘the governmental entity is so

connected to the State that the legal action against the entity would . . . amount to the indignity of

subjecting a State to the coercive process of judicial tribunals at the instance of private parties.’”

Lane v. Anderson, 660 F. App’x 185, 195-96 (4th Cir. 2016) (quoting Cash v. Granville Cty. Bd.

of Educ., 242 F.3d 219, 224 (4th Cir. 2001)) (cleaned up). In contrast, sovereign immunity “does

not immunize political subdivisions of the state, such as municipalities and counties, even though

such entities might exercise a ‘slice of state power.’” Ram Ditta v. Md. Nat. Capital Park &

Planning Comm’n, 822 F.2d 456, 457 (4th Cir. 1987) (quoting Lake Country Estates, Inc. v. Tahoe

Regional Planning Agency, 440 U.S. 391, 401 (1979)).

It is undisputed that DPSCS is an arm of the State. Under Md. Code (2017 Repl. Vol.), §

2-101 of the Correctional Services Article, DPSCS is a principal department of Maryland State

government. See Clarke v. Maryland Dep't of Pub. Safety and Corr. Servs., 316 Fed. App'x 279,

282 (4th. Cir. 2009) (stating “the Maryland Department of Public Safety and Correctional services

is undoubtedly an arm of the state for purposes of § 1983”). Therefore, in the absence of an

exception to the Eleventh Amendment bar, DPSCS is not subject to suit in federal court.

The Fourth Circuit has identified three exceptions to the Eleventh Amendment’s

prohibition of suit against a state or an arm of a state. In Lee-Thomas, 666 F.3d at 249, it said

(internal quotations omitted):

First, Congress may abrogate the States’ Eleventh Amendment immunity when it

both unequivocally intends to do so and acts pursuant to a valid grant of

constitutional authority. Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356,

363 (2001) . . . . Second, the Eleventh Amendment permits suits for prospective

injunctive relief against state officials acting in violation of federal law. Frew ex

rel. Frew v. Hawkins, 540 U.S. 431, 437 (2004) . . . . Third, a State remains free to

waive its Eleventh Amendment immunity from suit in a federal court. Lapides v.

Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 618 (2002).

None of the exceptions is applicable here. Title I of the ADA originally contained language

abrogating state sovereign immunity in federal court. See 42 U.S.C. § 12202. However, the

Supreme Court determined in Garrett, 531 U.S. 356, that Congress did not validly abrogate

sovereign immunity with respect to discrimination claims under Title I of the ADA. Id. at 374.

The Court said, id.: “[T]o authorize private individuals to recover money damages against the

States, there must be a pattern of discrimination by the States which violates the Fourteenth

Amendment . . . Those requirements are not met here . . .” See also McCray, 741 F.3d at 483.

Neither the Supreme Court nor the Fourth Circuit has determined whether Congress

abrogated sovereign immunity for retaliation claims under Title V. But, many courts have ruled

that where Title V claims are predicated on alleged violations of Title I, the Court’s decision in

Garrett applies. Demshki v. Monteith, 255 F.3d 986, 988–89 (9th Cir. 2001) (“Congress may not

abrogate the states’ Eleventh Amendment immunity from Title V claims.”); see, e.g., Block v. Tex.

Bd. of L. Exam'rs, 952 F.3d 613, 619 (5th Cir. 2020) (“Title V itself does not abrogate a state's

sovereign immunity. Instead, a plaintiff may bring a retaliation claim against a state entity only to

the extent that the underlying claim of discrimination effectively abrogates sovereign immunity of

the particular state.”); Levy v. Kansas Dept. of Social and Rehabilitation Services, 789 F.3d 1164,

1169 (10th Cir. 2015); see Bowen v. Maryland, Dep't of Pub. Safety & Corr. Servs., RDB-17-1571,

2018 WL 1784463, at *5 (D. Md. Apr. 12, 2018); Chiesa v. N.Y. State Dep't of Labor, 638 F. Supp.

2d 316, 323 (N.D.N.Y. 2009). Thus, because Adeyemi’s underlying Title I claim is barred by

sovereign immunity, so too is his Title V claim.

The second exception is unavailable because the suit does not seek prospective injunctive

relief. See ECF 1 at 2, 15. Instead, Adeyemi seems to seek only money damages, which he may

not recover, absent an exception.

As to the third exception, there is no allegation of a waiver of immunity by the State. To

be sure, a state may waive its Eleventh Amendment sovereign immunity and permit suit in federal

court. See Lapides, 535 U.S. at 618; Pense, 926 F.3d at 101; Lee-Thomas, 666 F.3d at 249. But,

the test to determine whether a State has waived its immunity from suit in federal court is a

“stringent” one. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 240 (1985), superseded on

other grounds, as recognized in Lane v. Pena, 518 U.S. 187, 198 (1996); see FAA v. Cooper, 566

U.S. 284, 290 (2012) (stating that a waiver of sovereign immunity must be expressed in statute,

not legislative history); Pense, 939 F.3d at 101; Cunningham, 990 F.3d at 365 (recognizing that a

waiver of sovereign immunity must be “unequivocally expressed in statutory text”).

Under Atascadero, 473 U.S. at 254, a court may find that a state has waived its Eleventh

Amendment immunity “only where stated by the most express language or by such overwhelming

implication from the text as will leave no room for any other reasonable

construction.” Id. (internal quotation marks and alteration omitted); accord Pense, 926 F.3d at

101; Lee-Thomas, 666 F.3d at 250-51. Maryland has not waived its immunity to suit in federal

court as to ADA claims under Title V or Title I. See McCray, 741 F.3d at 483; see also

Constantine, 411 F.3d at 479.

Moreover, plaintiff’s opposition offers no legal argument for why his ADA claim is not

barred by the Eleventh Amendment. See ECF 15. Therefore, he has waived any opposition to the

argument. See Stenlund v. Marriot Int’l, Inc., 172 F. Supp. 3d 874, 887 (D. Md. 2016) (“In failing

to respond to [defendant’s] argument, Plaintiff concedes the point.”); Ferdinand-Davenport v.

Children’s Guild, 742 F. Supp. 2d 772, 777 (D. Md. 2010) (same).

Accordingly, Adeyemi’s ADA claim shall be dismissed, without prejudice.

B: Supplemental Jurisdiction

At this juncture, the only remaining claim is the defamation claim that falls under State

law. There is no basis for federal question jurisdiction under 28 U.S.C. § 1331. Nor do the

allegations support diversity jurisdiction under 28 U.S.C. § 1332.

Federal courts are courts of limited jurisdiction. Home Buyers Warranty Corp. v.

Hanna, 750 F.3d 427, 432 (4th Cir. 2014) (quotation marks omitted) (citing Kokkonen v. Guardian

Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). Thus, a federal district court may adjudicate a

case only if it possesses the “power authorized by Constitution and statute.” Exxon Mobil Corp.

v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005) (internal quotation marks omitted).

Notably, “[a] court is to presume . . . that a case lies outside its limited jurisdiction unless

and until jurisdiction has been shown to be proper.” United States v. Poole, 531 F.3d 263, 274

(4th Cir. 2008) (citing Kokkonen, 511 U.S. at 377). Even where no party challenges subject matter

jurisdiction, a federal court has “an independent obligation to determine whether subject-

matter jurisdiction exists.” Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010). And, “if Congress has

not empowered the federal judiciary to hear a matter, then the case must be

dismissed.” Hanna, 750 F.3d at 432.

Congress has conferred jurisdiction on the federal courts in several ways. To provide a

federal forum for plaintiffs who seek to vindicate federal rights, Congress has conferred on the

district courts original jurisdiction over civil actions that arise under the Constitution, laws, or

treaties of the United States. See 28 U.S.C. § 1331; see also Exxon Mobil Corp., 545 U.S. at 552;

ESAB Grp., Inc. v. Zurich Ins. PLC, 685 F.3d 376, 394 (4th Cir. 2012); see also U.S. Constitution

Art. III, § 2 (“The Judicial Power shall extend to all Cases, in Law and Equity, arising under this

Constitution, the Laws of the United States, and Treaties made . . .”). This is sometimes called

federal question jurisdiction.

In addition, “Congress . . . has granted district courts original jurisdiction in civil actions

between citizens of different States, between U.S. citizens and foreign citizens, or by foreign states

against U.S. citizens,” so long as the amount in controversy exceeds $75,000. Exxon Mobil

Corp., 545 U.S. at 552; see 28 U.S.C. § 1332. Article III, § 2 of the Constitution permits a federal

court to decide “Controversies . . . between Citizens of different States.” Navy Federal Credit

Union v. Ltd. Financial Services LP, 972 F.3d 344, 352 (4th Cir. 2020). Of relevance here,

diversity jurisdiction “requires complete diversity among parties, meaning that the citizenship of

every plaintiff must be different from the citizenship of every defendant.” Cent. W. Va. Energy

Co., Inc. v. Mountain State Carbon, LLC, 636 F.3d 101, 103 (4th Cir. 2011) (emphasis

added); see Strawbridge v. Curtiss, 7 U.S. 267 (1806).

Under the “well-pleaded complaint” rule, facts showing the existence of subject matter

jurisdiction “must be affirmatively alleged in the complaint.” Pinkley, Inc. v. City of Frederick,

191 F.3d 394, 399 (4th Cir. 1999) (citing McNutt v. Gen’l Motors Acceptance Corp., 298 U.S. 178

(1936)). Put another way, “before a federal court can decide the merits of a claim, the claim must

invoke the jurisdiction of the court.” Miller v. Brown, 462 F.3d 312, 316 (4th Cir. 2006).

Moreover, the “burden of establishing subject matter jurisdiction is on . . . the party asserting

jurisdiction.” Robb Evans & Assocs., LLC v. Holibaugh, 609 F.3d 359, 362 (4th Cir. 2010);

accord Hertz, 599 U.S. at 95; McBurney v. Cuccinelli, 616 F.3d 393, 408 (4th Cir. 2010).

The citizenship of the litigants is central when diversity jurisdiction is invoked. Axel

Johnson, Inc. v. Carroll Carolina Oil Co., 145 F.3d 660, 663 (4th Cir. 1998). Notably, “state

citizenship for diversity jurisdiction depends not on residence, but on national citizenship and

domicile.” Id. (citation omitted). Generally, “the existence of such citizenship cannot be inferred

from allegations of mere residence, standing alone.” Id; see also Robertson v. Cease, 97 U.S. 646,

648 (1878) (“Citizenship and residence, as often declared by this court, are not synonymous

terms.”).

In other words, for “purposes of diversity jurisdiction, residency is not sufficient to

establish citizenship.” Johnson v. Advance Am., Cash Advance Ctrs. of S.C., Inc., 549 F.3d 932,

937 n.2 (4th Cir. 2008). Rather, a U.S. national is a citizen of the state where the person has his

or her domicile, which “requires physical presence, coupled with an intent to make the State a

home.” Id.

As noted, “the burden is on the party asserting jurisdiction to demonstrate that jurisdiction

does, in fact, exist.” Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999). Here, plaintiff seems

to indicate that he is a citizen of Maryland. See ECF 1. And, DPSCS, as an arm of the State of

Maryland, would certainly be considered a citizen of Maryland for purposes of diversity. Thus,

there is not complete diversity between the parties.

In the absence of diversity, the Court must consider 28 U.S.C. § 1367(a), by which a district

court is authorized to resolve state law claims under the grant of supplemental jurisdiction.

Pursuant to § 1367(c)(3), however, a district court “may decline to exercise supplemental

jurisdiction over a claim . . . if . . . the district court has dismissed all claims over which it has

original jurisdiction.”

The Fourth Circuit has recognized that under § 1367(c)(3), “trial courts enjoy wide latitude

in determining whether or not to retain jurisdiction over state claims when federal claims have

been extinguished.” Shanaghan v. Cahill, 58 F.3d 106 (4th Cir. 1995); see also ESAB Group, Inc.

v. Zurich Ins. PLC, 685 F.3d 376, 394 (4th Cir. 2012) (“Section 1367(c) recognizes courts’

authority to decline to exercise supplemental jurisdiction in limited circumstances, including . . .

where the court dismisses the claims over which it has original jurisdiction.”); Hinson v. Northwest

Fin. S. Carolina, Inc., 239 F.3d 611, 616 (4th Cir. 2001) (stating that, “under the authority of 28

U.S.C. § 1367(c), authorizing a federal court to decline to exercise supplemental jurisdiction, a

district court has inherent power to dismiss the case . . . provided the conditions set forth in §

1367(c) for declining to exercise supplemental jurisdiction have been met”); Ramsay v. Sawyer

Property Management of Maryland, LLC, 948 F. Supp. 2d 525, 537 (D. Md. 2013) (declining to

exercise supplemental jurisdiction over plaintiff's state law claims after dismissing FDCPA

claims); Int’l Ass’n of Machinists & Aerospace Workers v. Werner-Masuda, 390 F. Supp. 2d 479,

500 (D. Md. 2005) (“Because the court will dismiss the claims over which it has original

jurisdiction, the court will decline to exercise supplemental jurisdiction over the remaining state

law claims.”).

When exercising this discretion, the Supreme Court has instructed federal courts to

“consider and weigh . . . the values of judicial economy, convenience, fairness, and comity in order

to decide whether to exercise jurisdiction over . . . pendent state-law claims.” Carnegie-Mellon

Univ. v. Cohill, 484 U.S. 343, 350 (1988). The Court has said: “Needless decisions of state law

should be avoided both as a matter of comity and to promote justice between the parties, by

procuring for them a surer-footed reading of applicable law.” United Mine Workers of America v.

Gibbs, 383 U.S. 715, 726 (1966).

Pursuant to 28 U.S.C. § 1367(c), and the factors set forth in Carnegie–Mellon, 484 U.S. at

350, I decline to exercise supplemental jurisdiction with respect to plaintiff’s defamation claim. 7

In the absence of subject matter jurisdiction as to the ADA claim, there is no reason for the tort

claim to be heard in federal court, rather than in a Maryland State court, which is well equipped to

address State law claims. See, e.g., Medina v. L & M Const., Inc., RWT–14–00329, 2014 WL

1658874, at *2 (D. Md. Apr. 23, 2014) (“Finally, as a matter of comity, this Court will remand

Medina's state law claims back to state court, as ‘[n]eedless decisions of state law [by federal

courts] should be avoided both as a matter of comity and to promote justice between the parties,

by procuring for them a surer-footed reading of applicable law.’”) (alteration in Medina) (quoting

United Mine Workers of Am. v. Gibbs, 383 U.S. at 726); see also 13D WRIGHT & MILLER, FEDERAL

PRACTICE AND PROCEDURE § 3567.3 n. 72 (3d ed. 2020) (collecting cases).

Because the Court does not have original jurisdiction with respect to plaintiff’s defamation

claim, plaintiff may file his State-law claim in a Maryland court within thirty days following the

entry of an Order of dismissal. As Judge William D. Quarles, Jr. explained in Johnson v. Frederik

Memorial Hosp., Inc., WDQ-12-2312, 2013 WL 2149762, at *7 n.26 (D. Md. May 15, 2013):

28 U.S.C. § 1367(d) provides that, “[t]he period of limitations for any claim

asserted under subsection (a) . . . shall be tolled while the claim is pending and for

a period of 30 days after it is dismissed unless State law provides for a longer tolling

7 In view of my disposition as to the defamation claim, I need not consider defendant’s

argument that plaintiff was required to comply with the MTCA, S.G. § 12-101, but failed to do so.

period.” Accord Md. Rule 2–101(b) (“[I]f an action is filed in a United States

District Court or a court of another state within the period of limitations prescribed

by Maryland law and that court enters an order of dismissal . . . because the court

declines to exercise jurisdiction . . . an action filed in a circuit court within 30 days

after the entry of the order of dismissal shall be treated as timely filed in this

State.”).

IV. Conclusion

For the reasons set forth above, I shall grant the Motion. This dismissal is without prejudice

to plaintiff’s right to file his suit in State court within thirty days following the entry of the Order

of dismissal, pursuant to 28 U.S.C. § 1367(d).

An Order follows.

Dated: May 5, 2021 /s/

Ellen L. Hollander

United States District Judge