Opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

KHARIM El KHOLY CIVIL ACTION

VERSUS 24-637-SDD-RLB

BOARD OF SUPERVISORS,

LOUISIANA STATE UNIVERSITY

AGRICULTURAL AND MECHANICAL

COLLEGE

RULING

This matter is before the Court on the Motion for Summary Judgment1 by

Defendant, Board of Supervisors, Louisiana State University and Agricultural and

Mechanical College (“LSU”). Plaintiff, Kharim El Kholy (“Plaintiff”) has filed a Response

indicating that he agrees this Court lacks subject matter jurisdiction but seeks dismissal

without prejudice rather than with prejudice as LSU has requested.2 LSU filed a Reply, to

which Plaintiff filed a Response.3 For the following reasons, the Court finds that LSU’s

Motion for Summary Judgment shall be denied under Rule 56 of the Federal Rules of

Civil Procedure, but the Court lacks subject matter jurisdiction over this matter and will

therefore dismiss this matter without prejudice under Rule 12(b)(1).

I. FACTUAL BACKGROUND

In August 2015, Plaintiff was hired by LSU as a non-tenured professor in the

Department of Civil & Environmental Engineering.4 His position had an appointment term

1 Rec. Doc. 31.

2 Rec. Doc. 35.

3 Rec. Doc. 68.

4 Rec. Doc. 1, ¶ 4.

of 3 years. He was reappointed multiple times.5 Over the span of 7 years, from 2016 to

2023, LSU received several complaints from Plaintiff’s female students of sexual

harassment and improper conduct.6 Plaintiff was counseled for those claims and received

“correction;” however, Plaintiff alleges none of the complaints were ever proven.7

Plaintiff’s annual appointment expired in May of 2023, and LSU did not renew his contract

based on the student complaints.8 LSU gave Plaintiff 12 months’ notice of its intent to

terminate employment.9 LSU subsequently hired a younger instructor to fill Plaintiff’s

role.10

II. PARTIES’ ARGUMENTS

LSU moves for summary judgment arguing that it is immune from liability under

the Eleventh Amendment; LSU argues alternatively that it is entitled to summary judgment

on the merits.11 LSU emphasizes that it is not moving for relief under Rule 12(b)(1) lack

of subject matter jurisdiction because it has consented to this Court’s subject matter

jurisdiction by participating in this litigation.12 LSU claims, however, that it is entitled to

Eleventh Amendment sovereign immunity from liability, which is distinct from immunity

from suit, and entitles LSU to dismissal on the merits with prejudice.13

Plaintiff responds, conceding that the Court lacks subject matter jurisdiction based

on LSU’s Eleventh Amendment sovereign immunity from suit, but insists that the

dismissal should be under Rule 12(b)(1) without prejudice. LSU counters that this Court

5 Id.; see also Rec. Doc. 31-2, ¶ 6

6 Rec. Doc. 31-2, ¶¶ 7-16

7 Id.; see also Rec. Doc. 1, ¶ 9

8 Id. at ¶¶ 17, 19

9 Id. at ¶¶ 20, 24.

10 Id. at ¶ 24

11 Rec. Doc. 31-2.

12 Rec. Doc. 36.

13 Id.

should follow the Eastern District of Louisiana in Harris v. Louisiana Off. Of Juv. Just.,

where the court dismissed a plaintiff’s federal claims based on the defendant's immunity

from liability, which the court noted is not jurisdictional but rather constitutes an

adjudication on the merits.14 Plaintiff responds, arguing that, in Harris, the defendant had

removed the case from state court to federal court, thereby indicating an express waiver

of sovereign immunity from suit, which is not the case here.15 Plaintiff cites Middle District

of Louisiana cases under similar circumstances where the Court dismissed claims without

prejudice due to lack of subject matter jurisdiction.16

III. LAW & ANALYSIS

“The Eleventh Amendment grants a state immunity from suit in federal court by

citizens of other states, and by its own citizens as well.”17 While immunity doctrine acts

as an affirmative defense to preclude suit in a federal forum, it is “more akin to a limitation

on subject-matter jurisdiction.”18 However, unlike subject-matter jurisdiction, Eleventh

Amendment immunity may be waived by the state.19 Courts have found waiver of

immunity in cases where the state: (1) “voluntarily invokes federal-court jurisdiction,” or

(2) “makes a ‘clear declaration’ that it intends to submit to federal jurisdiction.”20

The Supreme Court has held that waiver requires “an unequivocal indication that

the State intends to consent to federal jurisdiction that otherwise would be barred by the

Eleventh Amendment” because “constructive consent is not a doctrine commonly

14 No. CV 18-13356, 2019 WL 2617175, *4 (E.D. La. June 26, 2019).

15 Rec. Doc. 38.

16 Id.

17 Lapides v. Bd. of Regents, 535 U.S. 613, 616 (2002) (citation omitted).

18 Union Pac. R. Co. v. Louisiana Pub. Serv. Comm'n, 662 F.3d 336, 340 (5th Cir. 2011).

19 Id.

20 Id. (citing Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999)).

associated with the surrender of constitutional rights.”21 Similarly, the Fifth Circuit has

applied the general rule that a state's waiver of Eleventh Amendment immunity must be

unequivocal, if not express.22 In this context, the Fifth Circuit, applying Lapides v. Board

of Regents of University System of Georgia,23 has held that a state's voluntary action in

removing a case from state to federal court constitutes an unequivocal waiver of Eleventh

Amendment immunity.24 However, the Fifth Circuit has restricted the application of

litigation-conduct waiver as described in Lapides to cases in which a state voluntarily

invokes the jurisdiction of the federal court by removing a case from state court.25 In

instances other than removal, the Fifth Circuit has not found “that [a state's] litigation

conduct created ‘inconsistency, anomaly, and unfairness' to a degree that requires waiver

of sovereign immunity” as described in Lapides.26 Ultimately, a determination of whether

a state has waived its Eleventh Amendment immunity “must focus on the litigation act the

State takes that creates the waiver” and whether that act clearly indicates an intent to

waive.27

LSU acknowledges that it did not remove this case to federal court; however, it

insists that its acquiescence to the litigation brought in this forum constitutes a waiver of

its sovereign immunity from suit. LSU argues that it has “participated in the litigation of

this action, and LSU did not raise lack of subject matter jurisdiction as an issue in its

21 Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238 n. 1, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985),

superseded by statute on other grounds as stated in Pace v. Bogalusa City Sch. Bd., 403 F.3d 272, 280 n.

29 (5th Cir.2005) (en banc).

22 See, e.g., Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 332 (5th Cir.2002); Neinast v. Texas, 217

F.3d 275, 279 (5th Cir.2000).

23 535 U.S. 613 (2002).

24 Meyers ex rel. Benzing v. Texas, 410 F.3d 236, 255 (5th Cir.2005).

25 See id. at 242–43; see also, e.g., Spooner v. Jackson, 251 Fed.Appx. 919, 924 (5th Cir.2007).

26 535 U.S. 613.

27 Id. at 620.

Motion,”28 and it “does not seek dismissal of Plaintiff’s claims on the basis of the Court’s

lack of subject matter jurisdiction.”29 LSU requests that, because it “has participated in

this litigation,” the Court should “not dismiss Plaintiff’s claims on a jurisdictional basis.”30

Plaintiff points out that LSU’s reliance on Harris is misplaced because the Harris

case was originally filed in state court and then removed to federal court by the state

defendant. LSU ignores the distinction, which under Lapides is significant in finding a

waiver, and claims that Harris is nevertheless applicable because “Plaintiff filed this matter

in federal court over one year ago and the parties have engaged in written discovery and

conducted Plaintiff’s deposition. The discovery deadline has passed as has the

dispositive motion deadline.”31

This Court, and others, have rejected the argument that active participation in

federal litigation constitutes a sovereign’s waiver of subject matter jurisdiction. For

example, in Union Pac. R.R. Co. v. La. Pub. Serv. Comm'n, the Fifth Circuit held that,

even where the state had litigated a case on the merits through summary judgment and

did not raise the immunity issue until appeal, it had not waived its Eleventh Amendment

immunity from suit.32 In that case, as here, Louisiana was involuntarily brought into federal

court as a defendant. The Fifth Circuit found that, while the state may have defended the

case on the merits, “it never chose to litigate in a federal forum,” and its conduct was

otherwise “insufficient to constitute an unequivocal or clear declaration of waiver.”33 The

Union Pacific court explained that its decision was:

28 Rec. Doc. 36, p. 1.

29 Id. at p. 2.

30 Id.

31 Id. at p. 3.

32 662 F.3d 336 (5th Cir. 2011).

33 Id. at 341.

consistent with our earlier case law, in which we found that participation by

the state in an action does not necessarily preclude a later assertion of

Eleventh Amendment immunity. See, e.g., Sullivan v. Univ. of Tex. Health

Sci. Ctr. at Hous. Dental Branch, 217 F. App'x 391, 393 (5th Cir. 2007) (per

curiam) (holding that the state did not waive immunity by participating in

EEOC process and stating that failure to raise immunity defense is not a

“clear declaration” of waiver); Neinast v. Texas, 217 F.3d 275, 279–80 (5th

Cir. 2000) (holding that litigating a motion to dismiss for failure to state a

claim is not a voluntary waiver of immunity); Skelton, 234 F.3d at 295–96

(stating that issues of immunity under the Eleventh Amendment need not

be raised in the trial court); Evans v. City of Bishop, 238 F.3d 586, 589 n. 6

(5th Cir. 2000) (same).34

Another section of this Court addressed this issue in Dilley v. Louisiana.35 In Dilley,

the plaintiff argued that the state defendant “actively participated in this matter such that

it ha[d] waived its Eleventh Amendment immunity,” but the Court noted that “the U.S.

Court of Appeals for the Fifth Circuit has held that far more involvement is required

before a Court can find waiver.”36 The Court relied on the Union Pacific case and found it

directly applicable to the facts in Dilley where the state did not remove the case to federal

court but “actively participated” in the litigation process.37

Based on the foregoing jurisprudence, the Court finds that LSU’s active

participation in this litigation is insufficient to constitute an express waiver of sovereign

immunity to suit in this forum. Because the Court lacks subject matter jurisdiction in this

matter, it cannot grant Rule 56 relief but will sua sponte dismiss this matter pursuant to

Rule 12(b)(1) and Rule 12(h)(3). “Sua sponte dismissal is mandatory when a court

discovers that it lacks subject-matter jurisdiction.’”38 When dismissal is based on lack of

34 Id.

35 No. 19-00391-BAJ-EWD, 2024 WL 4510564, *2 (M.D. La. Oct. 16, 2024).

36 Id. at *2 (emphasis added).

37 Id.

38 Carver v. Atwood, 18 F.4th 494, 497 (5th Cir. 2021)(quoting Fed. R. Civ. P. 12(h)(3) (“If the court

determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”); see also

Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514, 19 L.Ed. 264 (1869) (“Jurisdiction is power to declare the

subject matter jurisdiction based on sovereign immunity, the dismissal “must be” without

prejudice:39

Our precedents also make clear that a jurisdictional dismissal must be

without prejudice to refiling in a forum of competent jurisdiction. See

Mitchell v. Bailey, 982 F.3d 937, 944 (5th Cir. 2020) (explaining, in the

context of sovereign immunity, that “[a] court's dismissal of a case

resulting from a lack of subject matter jurisdiction is not a determination

of the merits and does not prevent the plaintiff from pursuing a claim in

a court that does have proper jurisdiction. Accordingly, such a dismissal

should be made without prejudice.” (quotation omitted)). This rule

applies with equal force to sovereign-immunity dismissals. See, e.g.,

Warnock v. Pecos Cnty., 88 F.3d 341, 343 (5th Cir. 1996) (“Because

sovereign immunity deprives the court of jurisdiction, the claims barred

by sovereign immunity can be dismissed only under Rule 12(b)(1) and

not with prejudice.”). Therefore, even if the district court had afforded

Carver the notice required by the Rules, it still should have dismissed

her complaint without prejudice.40

IV. CONCLUSION

For the foregoing reasons, LSU’s Motion for Summary Judgment41 is DENIED.

However, this matter is dismissed without prejudice for lack of subject matter jurisdiction.

The Clerk of Court is ordered to terminate this matter.

IT IS SO ORDERED.

Baton Rouge, Louisiana, this _9_th_ day of March, 2026.

S

________________________________

SHELLY D. DICK

CHIEF DISTRICT JUDGE

MIDDLE DISTRICT OF LOUISIANA

law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and

dismissing the cause.”)).

39 Id. at 498.

40 Id. at 498-99 (original emphasis).

41 Rec. Doc. 31.