Opposition Brief — Orleans Parish School Board v. United States Gypsum Co.

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Supreme Couyst, U.S.

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2) OCT 22 1997

No. 97-326

In The

Supreme Court of the United States

October Term, 1997

ORLEANS PARISH SCHOOL BOARD,

Petitioner,

vs.

UNITED STATES GYPSUM COMPANY, ET AL..,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

RESPONDENT'S BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

James C. Gulotta, Jr.”

Barry W. Ashe

Mary L. Dumestre

Counsel for Respondent

W.R. Grace & Co.-Conn.

STONE, PIGMAN, WALTHER,

WITTMANN & HUTCHINSON

546 Carondelet Street

New Orleans, Louisiana 70130

(504) 581-3200

“Counsel of Record

Peer ee LR TNT TN

QUESTION PRESENTED

Whether this Court’s limitation on the Ex

parte Young exception to sovereign immunity articulated in

Idaho v. Coeur d'Alene Tribe of Idaho, __ U.S. __, 117

S.Ct. 2028 (1997), and this Court’s discussion of sovereign

Status in the context of a Tenth Amendment analysis in

Printz v. United States, __ U.S. __, 117 S.Ct. 2365

(1997), warrant overturning the precedents of the United

States Fifth Circuit Court of Appeals in Minton v. St.

Bernard Parish School Board, 803 F.2d 129 (Sth Cir. 1986)

and Moore v. Tangipahoa Parish School Board, 594 F.2d

489 (Sth Cir. 1979), that Louisiana parish school boards are

not "arms" or "alter egos" of the State.

‘i

LIST OF RELATED PARTIES

W.R. Grace & Co.-Conn. is the respondent

and only remaining defendant herein. In accordance with

Supreme Court Rule 29.6, respondent states as follows:

3 W.R. Grace & Co. is the parent company of

W.R. Grace & Co.-Conn.

y 2 W.R. Grace & Co.-Conn.’s nonwholly owned

subsidiaries are:

A-1 Bit & Tool Co., Inc.

Alewife Boston Ltd.

Amicon, Inc.

Auragen, Inc.

CCHP, Inc.

Circe Biomedical, Inc.

Coalgrace, Inc.

Coalgrace II, Inc.

Five Alewife Boston Ltd.

GEC Management Corporation

GN Holdings, Inc.

GPC Thomasville Corp.

Gloucester New Communities Company, Inc.

Grace A-B Inc.

Grace A-B II, Inc.

Grace Drilling Company

Grace H-G Inc.

Grace H-G II Inc.

Grace Offshore Company

W.R. Grace Capital Corporation

Gracoal, Inc.

Gracoal II, Inc.

Homco International, Inc.

Woolwich Sewer Company, Inc.

Woolwich Water Co., Inc.

é.

oO.

Ss.

iii

TABLE OF CONTENTS

Page

Question Presented ..........0..0000202~2O i

mo Rebeed Patties ................ ii

eC Comme ........ ili

able Of Authoriies ...................._. Vv

STATEMENT OF THE CASE .....___ eae 3

I st tpn ae ae 3

II. Statement of Facts ........00020~2~COCSC” 4

Ill. The Proceedings Below ...........__- 6

REASONS TO DENY THE WRIT .......__ 8

I. The Fifth Circuit Analyses In Minton And

Moore Were Correct And Need Not Be

Ree 9

Louisiana Parish School Boards Are No;

"Arms" Or "Alter Egos" Of The State. ___ 13

Il. The Orleans Parish School Board Did Not

Function As An Arm Of The State By

Relying Upon The Louisiana Educational

Facilities Asbestos Detection Program .....

IV. With Few Exceptions, County, District, And

City School Boards And Districts Are Not

"Arms" Or "Alter Egos" Of Their Respective

NN i ose de ae eC OS

V. The Constitutional Principles Discussed In

The Recent Decisions In Coeur D’Alene and

Printz Do Not Change The Outcome In the

ers ee ee a eee

ee PRT EY EEOC ECE TTT

APPENDIX

Appendix A -- Order and Reasons of the United

States District Court for the Eastern District of

Louisiana dated March 26, 1990 .............

Appendix B -- Per Curiam Decision of the United

States Court of Appeals, Fifth Circuit dated

Pe ic hk 6 cas 6 Be eh WANS

j TABLE OF AUTHORITIES

Page

Cases Cited:

Abrams v. Citibank, N.A., 537 F.Supp. 1192

creado... eer TT eae 19

Adams v. Rankin County Board of Education,

524 F.2d 928 (Sth Cir. 1975), cert.

denied, 438 U.S. 904, 98 S.Ct. 3121

ee ed ee) 25

@ Ambus v. Granite Board of Education, 975

F.2d 1555 (10th Cir. 1992), affirmed

on rehearing, 995 F.2d 992 (1993) ....... 24

Ames v. Kansas, 111 U.S. 449, 4 S.Ct. 437,

ieee ig. sg ks oe ek a 19

Bertot v. School District No. 1, 613 F.2d

wen CC. 1)... cs. ow 25

California v. Steelcase, Inc., 792 F Supp. 84

Pens greg teu 20

Cline v. School District No. 32, 476 F Supp.

ctl sit baton ch ac errr eee 26

Edelman v. Jordan, 415 U.S.

651, 97 S.Ct. 1347, 39 L.Ed.2d 662 (1974) . 19

Idaho v. Coeur d'Alene Tribe of Idaho, __

U.S. __, 117 S.Ct. 2028 (1997) ...... 2, 4,

Jacintoport Corp. v. Greater Baton Rouge

Port Comm’n, 762 F.2d 435 (Sth Cir.

1985), cert. denied, 474 U.S. 1057,

oe ks | re ee 19

Kenny v. Board of Trustees, 563 F.Supp. 95

Se FER ee ee rr eee 26

Lester H. by Octavia P. v. Gilhool, 916 F.2d

865 (3d Cir. 1990), cert. denied, 499

Um. SES, EAL GAR. GREP Cheep 6. ws. 24

Minton v. St. Bernard Parish School Board,

803 F.2d 129 (Sth Cir. 1986) ...... 2, 8, 9,

10, 11, 27, 28

Moor v. County of Almeda, 411 U.S. 693,

93 S.Ct. 1785, 36 L.Ed.2d 596 (1973) .... 8

Moore v. Abbott Lab., Inc., 900 F.Supp. 26

Ge GED oo oe WE A hwel was 19

Moore v. Tangipahoa Parish School Board,

594 F.2d 489 (Sth Cir. 1979) ...... 2, 9, 10,

27, 28

Mt. Healthy City School District v. Doyle,

429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d

PT ee 2, 8, 9, 12,

13, 27, 28

Vii

PYCA Industries, Inc. y. Harrison County

Waste Water Management Dist., 81

F.3d 1412 (5th Cir. BE i BS ork oe ss, 9

Printz v. United States, _U.S.__.117

S.Ct. 2365 (1997) ........... 3, 4, 26, 27

Rosa R. v. Connelly, 889 F.2d 435 (2d Cir.

1989), cert. denied, 496 U.S. 941,

110 S.Ct. 3225 (1990) 2... 25

Smith v. Travis County Educ. Dist., 791 F.Supp.

1170 (W.D. Tex. 1992) .......... 26

Stewart v. Baldwin County Board of Education,

908 F.2d 1499 (11th Cir. re 24

Tradigrain, Inc. y. Mississi pi State Port Authority,

701 F.2d 1131 (5th Cir. ae oe re 9

Travelers Indemnity Company v. School Board of

Dade County, Fla., 666 F.2d 505 (11th

- Cir.), cert. denied, 459 U.S. 834, 103

ON TOD cio eccse. -,. 23, 24

Unified School District No. 480 y. Epperson,

583 F.2d 1118 (10th Cir. a oe ee 22

Unified School District No. 480 v. Epperson,

et al., 551 F.2d 254 (10th Cir. | en 22

Vermont v. Oncor Communications, Inc., 166

F.R.D. 313 (D. Ver. aaa 19

Viii

Statutes Cited:

La. Const. of 1974, art. 8, § 3(A) ............ 17

kn. Cat: GE PS, OE BOP 6 55 is CEN Sea j4

La. Const. of 1974, at. &,§ 13 ........ 11, 17, 18

La. Const. of 1974, art. VI, $44 .......0005. 4

eS Bee ee ee eee ee 21

ey 8 8 Serre ey ee ee se er eee 21

ve © Se Serer arr ore ei se 12, 14

NS See ee ec ee 14

ee Re Se eee 4, 5, 11, 12, 14, 16 |

Ca Te Bee oes a 4, 16

i Te cee eas WN eine des 16

Bi Bee UE le bank kha e ween eae kun 17

ee Se ee re ee 20

Le. ES Pre a es 2 oe SRO 21

WR... GS eb eRe ewes 1

RESPONDENT’S BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

The Eleventh Amendment 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.

brought by a Louisiana parish school board. Moreover,

petitioner neglects to inform the Court that the United States

2 U.S. Const. amend. XI (emphasis added).

Court of Appeals for the Fifth Circuit, in at least two cases

decided in 1979° and 1986,‘ consistently has held that

Louisiana parish school boards are not eligible for Eleventh

Amendment immunity because they are not "arms" or “alter

egos" of the State. The Fifth Circuit based its decisions in

both cases on the criteria articulated by this Court in the

leading case on the eligibility of a political subdivision for

Eleventh Amendment immunity, Mt. Healthy City School

District v. Doyle,* a case cited by petitioner as controlling

this case. If Mt. Healthy controls this case, then so do the

directly applicable Fifth Circuit precedents that were decided

on the basis of Mt. Healthy, and that petitioner did not see

fit to challenge in two previous hearings of this case by the

Fifth Circuit itself. Nor does petitioner directly challenge

the Fifth Circuit precedents in its petition to this Court.

Petitioner does not even cite or refer to them.

Every relevant factor bearing on Eleventh

Amendment immunity with regard to Louisiana parish school

boards has been considered by the Fifth Circuit and resolved

against immunity. In contrast, nothing relating either to the

responsibility of the Louisiana Board of Elementary and

Secondary Education (BESE) or to the purposes of the.

Louisiana [Educational Facilities Asbestos Detection

Program, to which petitioner refers in its petition, supports

petitioner’s contention that it should be deemed an "arm" or

“alter ego” of the State. Finally, nothing in this Court’s

recent decisions in the cases of Idaho v. Coeur d’Alene Tribe

3 Moore v. Tangipahoa Parish School Board, 594 F.2d 489 (Sth

Cir. 1979).

4 Minton v. St. Bernard Parish School Board, 803 F.2d 129 (Sth

Cir. 1986).

5 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977).

of Idaho and Prirtz v. U.S., on which petitioner relies to

explain its belated assertion of immunity, alters the test

applicable to determine eligibility of political subdivisions-for

Eleventh Amendment immunity. The Orleans Parish School

Board’s petition for writ of certiorari should be denied.

STATEMENT OF THE CASE

I, Introduction

In 1988, petitioner Orleans Parish School Board

("School Board"), filed an action in Louisiana state court

against respondent, W.R. Grace & Co.-Conn. ("Grace"),

and a multitude of other former asbestos-containing product

The School Board now has filed a petition for writ of

certiorari to this Court, asserting for the first time in eight

years that it is immune from suit in federal court based upon

the Eleventh Amendment. Petitioner asserts that the “issue

was not presented to the district court or appellate court

because it is based in large measure on the most recent

pronouncements of this Court on state sovereignty

principles," articulated in Idaho v. Coeur d’Alene Tribe of

Idaho, __ U.S. __, 117 S.Ct. 2028 (1997) and Prinzz v.

United States, __U.S. ___, 117 S.Ct. 2365, (1997).°

I. Statement of Facts

Throughout the 1950s, 1960s, and early 1970s, the

School Board constructed various elementary and secondary

school buildings through is statutory authority to buy and

own property,’ and to enter into contracts, independent of

the State, for the management of the property and

administration of the schools.* Parish school boards have

extensive authority in this area:

. . . City and parish boards may receive land

by purchase or donation for the purpose of

erecting school houses; provide for and secure

the erection of same, construct such

outbuildings and enclosures as shall be

conducive to the protection of property, and

6 See Petition for Writ of Certiorari at p.2.

7 La. R.S. § 17:87.6.

8 See La. R.S. § 17:81.

make repairs and provide for the necessary

. . . City and parish school boards have the

power to recover for any damage that may be

done to the property in their charge; they may

change the location of the school house, sell or

dispose of the old site, or of any site which for

any reason can no longer be used or which is

unused and unnecessary or unsuitable as such,

and use the proceeds thereof for procuring a

new one. Provided that the Orleans Parish

School Board shall have authority to

prescribe the rules and regulations to govern

the building, equipping and repairing of

school houses, and the dates of the meetings

of that board....°

Consistent with the accepted practice in the

construction industry at the time the schools were built, the

specifications for the schools required that the buildings be

constructed using various asbestos-containing products.

Later, beginning in 1979, the United States Environmental

Protection Agency ("EPA") advised school boards and

districts actoss the United States of the EPA's concern for

potential health effects posed by asbestos-containing products

installed in schools in prior years. In response to the EPA

information, the School Board took extensive measures to

investigate and address the alleged problem, as described in

9 La. R.S. § 17:81 (emphasis added).

the opinion of the Fifth Circuit dated May 22, 1997,'° and

the Order and Reasons of the district court dated June

1995." Because the School Board failed to file suit against

asbestos-containing product manufacturers until several years

after it began to address the presence of asbestos-containing

products in its buildings, the district court dismissed the

School Board’s claims as time barred. The Fifth Circuit

affirmed.

Ill. The Proceedings Below

The School Board admits that its alleged Eleventh

Amendment immunity is being raised for the first time

before this Court. Nevertheless, the proceedings below for

the past eight years are pertinent to put this case in

perspective.

The School Board filed its action in state court in

August 1988. The removal petition, based upon diversity of

citizenship, was filed in January 1989. Eleven months later,

in December 1989, the School Board filed a Motion to

Remand alleging that the "John Doe" architects cited but not

served as defendants, destroyed diversity jurisdiction. In

January 1990, the School Board filed a Motion for Leave to

File an Amended Complaint, attempting to name, but failing

to serve 23 non-diverse architects. The Motion for Remand

10 The Fifth Circuit’s Opinion is reprinted in the Petition for Writ

of Certiorari at App. 1.

11 The district court’s Order and Reasons are reprinted in the

Petition for Writ of Certiorari at App. 9.

was denied in March 1990.7 In May 1990, the School

Board requested an order certifying the denial of the Motion

for Remand for appeal, based upon a dismissal of the non-

diverse architects. After an initial dismissal of the appeal as

premature, the Fifth Circuit ultimately heard the appeal.

The School Board’s brief on appeal was directed to

the propriety of joining the non-diverse architects to destroy

diversity. At no point did the School Board allege that, as

an “arm” or “alter ego" of the State, diversity was destroyed

ab intitio, or raise the issue of Eleventh Amendment

immunity. In November 1993, the Fifth Circuit affirmed the

district court’s denial of the Motion for Remand.”

The School Board’s Petition for Rehearing was

_ Which resulted in a dismissal on summary judgment of the

last remaining, non-settling defendant, respondent Grace.

The dismissal was by the Fifth Circuit on May 22,

1997.'*

12 The March 26, 1990 Order and Reasons of the United States

District Court for the Eastern District of Louisiana is reprinted

herein as Appendix A. ;

13 The November 4, 1993 Per Curiam Decision of the United

States Court of Appeals, Fifth Circuit is reprinted herein as

Appendix B.

14 See Petition for Writ of Certiorari at App. 1.

REASONS TO DENY THE WRIT

The issue before this Court does not involve a

conflict among the circuits or a case of first impression

requiring resolution by this Court. Rather, the issue is the

simple analysis of the status of a parish school board in

Louisiana to determine whether petitioner is an "arm" or

“alter ego" of the State, thereby either destroying diversity

jurisdiction or invoking Eleventh Amendment imauenity.”

If the School Board is a political subdivision of the

State of Louisiana and not the “alter ego" of the State,

diversity of citizenship jurisdiction is secure." It also

follows that a political subdivision that is not an “arm” or

“alter ego" of the state does not enjoy Eleventh Amendment

immunity.”

Whether a Louisiana parish school board is the “alter

ego" of the state has been decided by the United States Fifth

Circuit Court of Appeals in Minton v. St. Bernard Parish

15 A state is not a citizen of itself. Accordingly, diversity of

citizenship jurisdiction cannot exist when the state is a party.

Moor v. County of Almeda, 411 U.S. 693, 93 S.Ct. 1785, 36

L.Ed.2d 596 (1973).

16 "[A] political subdivision of a State, unless it is simply "the arm

or alter ego of the State,’ is a citizen of the State for diversity

purposes." Moor, 411 U.S. at 717, 93 S.Ct. at 1800.

17 See Mt. Healthy City School District v. Doyle, 429 U.S. 274, 97

S.Ct. 568, 50 L.Ed.2d 471 (1977).

——“e eer 0

School Board'* and in Moore v. Tangipahoa Parish School

Board." Applying this Court’s analysis in Mt. Healthy

City School District v. Doyle,” the Fifth Circuit concluded

L The Fifth Circuit Analyses In Minton And Moore

y OIFTec Need Not EB evis

In both Minton v. St. Bernard Parish School Board

and Moore v. Tangipahoa Parish School Board,” the Fifth

Circuit reviewed the nature of Louisiana parish school

18 803 F.2d 129 (Sth Cir. 1986) (in Eleventh Amendment context).

19 594 F.2d 489 (Sth Cir. 1979) ("Mt. Healthy Straight Up").

20 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977).

22 803 F.2d 129 (Sth Cir. 1986).

23 594 F.2d 489 (Sth Cir. 1979).

boards and concluded that the parish school boards were not

"arms" or “alter egos" of the State.

Citing the analysis in Mt. Healthy, the Moore court

affirmed the district court’s conclusion that the board was

not an “arm" of the state with Eleventh Amendment

immunity, quoting from the district court opinion:

"Louisiana school boards, such as the

defendant, have the power to sue and be sued.

They have the power to contract. They have

the power to purchase, hold and sell property.

They have the power to borrow funds. They

have the power to, and in fact do, levy and

collect taxes from which back pay claims can

be met.

courts in Louisiana have consistently held that

school boards are autonomous political

subdivisions and not the alter ego of the state

from the standpoint of sovereign

immunity."

In Minton, the Fifth Circuit addressed the issue with

regard to the St. Bernard Parish School Board, a board

created and empowered under the same state laws as

petitioner, Orleans Parish School Board, and the defendant

in Moore. The Minton court noted that the analysis

performed was necessary to determine if the board enjoyed

Eleventh Amendment immunity or, rather, possessed “an -

identity sufficiently distinct from that of the State of

24 594 F.2d at 493-94 (citations omitted).

Louisiana to place it beyond that shield."*> The court cited

the relevant factors: -

(1) whether state statutes and case law

characterize the agency as an arm of the state:

(2) the source of funds for the entity; (3) the

degree of local autonomy the entity enjoys;

immunity. Although Louisiana courts have

referred to school boards as "agencies" of the

State, this characterization does not amount to

an assertion that the boards are arms of the

state within the meaning of the eleventh

amendment. School boards generate funds

for the operation of parish school districts

through local ad valorem taxation, [La.

Const. art. 8, § 13] exercise a great deal of

discretion in performing their functions and

addressing their innately local concerns, [La.

25 A political subdivision possessing an identity distinct from that

of the State supports diversity jurisdiction.

26 803 F.2d at 131.

Rev. Stat. Ann. § 17:81 (West 1986 Supp.)]

have authority to sue or be sued in their own

name, [La. Rev. Stat. Ann. §§ 17:51 and

17:81 (West 1982 and 1986 Supp.)] and can

hold, use, or sell property as each local board

determines necessary to fulfill its obligation to

the public. [La. Rev. Stat. Ann. § 17:81 (G)

& (H) (West 1986 Supp.)}] In view of the

inherently local nature of the interests of

Louisiana school boards, the wide degree of

local autonomy they are granted under state

law, and the predominantly local nature of

their funding, it cannot be said either that

these entities are mere arms of the state or

that monetary judgments against them would

represent indirect impositions on the state

treasury interfering with the state’s fiscal

autonomy. Louisiana school boards,

therefore, are not entitled to eleventh

amendment immunity to Section 1983

claims.”’

“sufficiently distinct from that of the state" to preclude any

finding that school boards such as petitioner are "arms" or

“alter egos" of the State, as is evident from a review of the

Mt. Healthy factors in relation to the specific constitutional

provisions and statutes empowering the Louisiana parish

schoo! boards.

27 Id. at 131-32 (footnotes omitted).

Il. Based Upon The Analysis Formulated In Mt.

Healthy, And The _ Specific Empowering

Constitutional Provisions And Statutes, Louisiana

Parish School Boards Are Not "Arms" Or "Alter

Egos" Of The State, _

In Mt. Healthy City School District vy. Doyle, this

Court addressed a contention by an Ohio school district that

it was entitled to Eleventh Amendment immunity as an arm

of the state.“ Noting that "[t]he answer depends, at least

in part, upon the nature of the entity created by state law,"

the Mt. Healthy court considered the status under state law

of political subdivisions such as local school districts; that

the school district was "but one of many local school boards

within the State of Ohio"; that the school district was

"subject to some guidance from the State Board of

Education"; and that the district received a "significant

amount of money from the State," but had "extensive powers

to issue bonds . . . and to levy taxes" as restricted by State

law.” Balancing these factors, the Court held that the

school district was not an arm of the state, and therefore, not

entitled to Eleventh Amendment immunity.

Applying the preceding test to Louisiana parish

school boards, it is apparent, as the Fifth Circuit consistently

has held, that Louisiana parish school boards are political

28 429 U.S. at 280, 97 S.Ct. at 572.

29 Id. at 280, 97 S.Ct. at 572-73.

subdivisions of the state and are not "arms" or “alter egos"

of the state-for any purpose.”

Parish school boards are entities established by the

Louisiana legislature at Louisiana Revised Statutes § 17:51,

et seq., pursuant to Article 8, §9 of the Louisiana

Constitution, which provides: "The legislature shall create

parish school boards and-provide for the election of their

members."

The legislature provided that a parish school board be

established for each of the state parishes, and that each

parish school board shall be a corporate entity, with the

power to sue and be sued.*’ The parish school board

members are elected by the qualified voters of a particular

parish, each city or parish school board elects from among

its members its president, vice president, and has the

authority to fix the terms of office of the president and vice

president, not to exceed four years.”

The autonomy of the parish school boards is further

defined in La. R.S. § 17:81, which provides for the general

powers of city and parish school boards. Each city and

parish school board has the power to:

. . . determine the number of schools to be

opened, the location of school houses, the

30 The School Board admits in its brief that Section 44 of Article

VI of the Louisiana Constitution defines parish school boards as

political subdivisions. See Petition for Writ of Certiorari at pp.

11-12.

31 La. R.S. § 17:51.

32 La. R.S. § 17:54.

number of teachers to be employed, and

select such teachers from nominations made

by the city or parish superintendent... .

The boards Shall have authority to employ

teachers . . . and to fix their salaries.

Each city or parish school board shall

exercise proper vigilance in securing for the

schools of the district all funds destined for

the support of the schools, including the state

_ funds apportion [sic] thereto, and all other

funds.

. . . [A] city or parish school board shall have

the authority, if otherwise applicable, to apply

for, receive, and expend funds from public

and private sources. . .

City and parish school boards may receive

land by purchase or donation for the purpose

of erecting school houses; provide for and

secure the erection of same, construct such

outbuildings and enclosures as shall be

conducive to the protection of property, and

make repairs and provide for the necessary

City and parish school boards have the power

to recover for any damage that may be done

to the property in their charge; they may

change the location of the school house, sell

or dispose of the old site, or of any site which

for any reason can no longer be used or

which is unused and unnecessary or unsuitable

as such, and use the proceeds thereof for

procuring a new one. Provided that the

Orleans Parish School Board shall have

authority to prescribe the rules and

regulations to govern the building,

equipping and repairing of school houses,

and the dates of the meetings of that

board... .*

A "school board may sell, lease or otherwise dispose

of, at public or private sale, for cash or on terms of credit,

any school site, building, facility or personal property which

is not used and, in the judgment of the school board, is not

needed in the operation of any school or schools within its

jurisdiction."** Parish school boards also have authority to

borrow money to meet their budget or expenditures for the

upcoming school year.*°

Notwithstanding the extensive degree of autonomy

established for the strictly local parish school boards,

petitioner contends that the Louisiana State Board of

Elementary and Secondary Education ("BESE") has

sufficient power and control over the "sixty-six local [parish]

school boards" to establish that the individual parish boards

33 La. R.S. § 17:81 (emphasis added).

34 La. R.S. 17:87.6.

35 La. R.S. 17:89.

A RC ee en

are “arms" or "alter egos" of the State.*° While BESE is

empowered to "supervise and control the public elementary

and secondary schools,"” Louisiana’s _ constitution

specifically excludes from BESE’s powers control at the

local level. Indeed, the drafters of the constitution

emphasized that BESE "shall have no control over the

business affairs of parish or city school board or selection or

removal of its officers and employees. "28

Rather, BESE is directed, by the constitution, to

“develop and adopt a formula which shall be used to

determine the cost of a minimum foundation program of

education in all public elementary and secondary schools as

well as to equitably allocate the funds to parish and city

school systems."°? This formula shall be developed

annually, and "shall provide for a contribution by every city

and parish school system." The "[lJocal funds for the

board of elementary and secondary schools shall be derived

from sources specified in the Constitution."

The Orleans Parish School Board is particularly

directed to "secure its revenues as provided in the

Constitution of the state."“' For the Orleans Parish School

Board, the Louisiana Constitution specifically provides:

36 See Petition for Writ of Certiorari at p.9.

37 La. Const. of 1974, Article 8, § 3(A).

38 Id.

39 La. Const. of 1974, Article 8, § 13(A) (emphasis added).

40 Id. (emphasis added).

at La. R.S. 17:127.

The Orieans Parish School Board shall levy

annually a tax not to exceed thirteen mills on

the dollar of the assessed valuation of

property within the City of New Orleans

assessed for city taxation, and shall certify the

amount of the tax to the governing authority

of the city. The governing authority shall

have the tax entered on city tax rolls. The

tax shall be collected in the manner, under the

conditions, and with the interest and penalties

prescribed by law for city taxes. The money

thus collected shall be paid daily to the

Orleans Parish School Board.“

In addition, the constitution provides:

For giving additional support to public

elementary and secondary schools, any parish,

school district, or subschool district, or any

municipality or city school board which

supports a separate city system of public

schools may levy an ad valorem tax for a

specific purpose, when authorized by a

majority of the electors voting in the parish,

municipality, district, or subdistrict in an

election held for that purpose. The amount,

duration, and purpose of the tax shall be in

accord with any limitation imposed by the

legislature.“

La. Const. of 1974, Article 8, § 13(C).

Id. (C).

Based upon the degree of autonomy of the Louisiana

parish school boards, including but not limited to a board’s

wholly local control over its business affairs and authority to

levy taxes without State intervention, the Orleans Parish

School Board plainly is not an "arm" or "alter ego” of the

State under any analysis. Without doubt, in the context of

this litigation, where petitioner, as the plaintiff, sued under

its independent status to recover alleged damages for its own

coffers and the basis for its claims arise out of the exercise

of its wholly local administrative powers to own and manage

property and construct schools independent of state

intervention, the Orleans Parish School Board acted as an

independent political subdivision and not as an "arm" of the

State.“

44 One of the primary factors consistently considered in the

analysis to determine whether a defendant is an “arm” or “alter

ego” of the state is whether the state will be called to pay the

judgment. See, e.g., Jacintoport Corp. v. Greater Baton Rouge

Port Comm'n, 762 F.2d 435 (5th Cir. 1985), cert. denied, 474

U.S. 1057, 106 S.Ct. 797 (1986) ("To shield states’ treasures

is one of the most important goals of the Eleventh Amendment

immunity."), citing Edelman v. Jordan, 415 U.S. 651, 97 S.Ct.

1347, 39 L.Ed.2d 662 (1974). With petitioner as the plaintiff

in a lawsuit with no counterclaims filed, the treasury of the State

of Louisiana will not be called to pay in response to any order

by the federal court in this proceeding. The mere fact that

petitioner is the plaintiff in this lawsuit should itself negate

application of the Eleventh Amendment, which precludes suit in

federal court against a state. See, e.g., Ames v. Kansas, 111

U.S. 449, 4 S.Ct. 437, 28 L.Ed. 482 (1884) (suit brought by

State may be removed to federal court); Vermont v. Oncor

Communications, Inc., 166 F.R.D. 313 (D. Ver. 1996)

(Eleventh Amendment does not bar removal to federal court

when the state is a plaintiff); Abrams v. Citibank, N.A., 537

F.Supp. 1192 (S.D.N.Y. 1982) (action may be removed even if

state is a plaintiff). But see Moore v. Abbott Lab., Inc., 900

F.Supp. 26 (S.D. Miss. 1995) (Eleventh Amendment bars

Il. The Orleans Parish School Board Did Not

Function As An Arm Of The State By Relying

Upon The Louisiana Educational Facilities

Asbestos Detection Program.

Petitioner contends that because this lawsuit allegedly

evolved from the School Board’s reliance upon a statutory

scheme entitled the “Louisiana Educational Facilities

Asbestos Detection Program," it was functioning as an

"arm" or “alter ego" of the State in bringing this lawsuit and

should be afforded Eleventh Amendment immunity. As

demonstrated below, however, the State of Louisiana did not

intend to and cannot create "arms" of the State out of public

and private schools throughout Louisiana by the enactment

of this group of statutes.

The Louisiana Educational Facilities Asbestos

Detection Program was enacted in 1981 in order "to provide

a mechanism by which the presence of friable asbestos in the

elementary and secondary school facilities occupied by the

school children of this state can be detected." These

statutes were intended to assist schools in Louisiana in

removal to federal court of suit brought by state in state court);

California v. Steelcase, Inc., 792 F.Supp. 84 (C.D. Cal. 1992)

(Eleventh Amendment applies to case brought by state in state

court and removed to federal court). As discussed above,

however, even if the Eleventh Amendment applies to removal

from state court of a case initiated in state court by a state or its

“alter ego" as plaintiff, the School Board is not the “arm” or

“alter ego" of the State of Louisiana and does not qualify for

Eleventh Amendment protection in this case.

45 La. R.S. § 17:3701.

Deda nese hla.

Niteeiim sith canine Sasleatieints Beste

detecting and abating, if necessary, asbestos-containing

materials in school buildings.

However, application of the statutes was not in any

way restricted to the public schools. Rather, the legislature

specifically defined "school," as used in the statute to include

public and private schools.“ By extending the assistance

afforded by the statutes to public and privaie schools, it is

clear that the legislature never intended the enactment of this

Statute to create "arms" or “alter egos" of the State,

bestowing Eleventh Amendment immunity to any school that

sued to recover expenses incurred in connection with the act.

Significantly, as noted by petitioner, the statute

provided that the Office of the State Attorney General could

furnish legal advice "’upon the request of any city or parish

school board.’"*” However, as is plain from the language

of the statute, this assistance is optional, not mandatory. In

addition, "’[w]henever any civil suit initiated and conducted

pursuant to [this section] results in the collection by the

school board of monetary damages, the school board shall

reimburse the attorney general, upon his request, for any

46 "Schools" are defined in the statute as “any elementary or

secondary school in the state which has received approval from

the department as provided in R.S. 17:10, or from the Board of

Elementary and Secondary Education, as provided in R.S.

17:11, and which is conducted in a building constructed prior to

1972." La. R.S. § 17:3702. Louisiana Revised Statute 17:10

refers to the approval of public schools, which include schools

under the supervision of Louisiana parish school boards.

Louisiana Revised Statute 17:11 includes all “private

elementary, secondary, or proprietary schools accredited in the

State of Louisiana."

47 See Petition for Writ of Certiorari at pp. 14-15, quoting La.

R.S. § 17:3713.

vouchered expenses and costs incurred in the conduct of the

lawsuit not to exceed forty percent of the amount of the

collected monetary damages.’"** Accordingly, although a

school could invoke the assistance of the State in collecting

funds for the school’s own coffers, the school would be

required to pay for any services provided by the State.”

The statute essentially authorized the schools to hire the

attorney general to assist in litigation on a contingency fee

basis. This relationship does not reflect the status of "arm"

or "alter ego" of the State. Rather, the emphasis is on the

independent and separate nature of the schools in this

context.

IV. With Few Exceptions, County, District, And City

School Boards And Districts Are Not "Arms" Or

“Alter Esos" Of Their Respective States, -—>_

With near unanimity, federal courts have found that

local county (parish), district, and city school boards cannot

be considered "arms" or "alter egos" of their respective

states. In Unified School District No. 480 v. Epperson, et

al.,© the Tenth Circuit concluded:

48 Id.

49 In this case, the School Board never elected to enlist the aid of

the State Attorney General, but rather opted to pursue any

recovery on its own.

50 551 F.2d 254 (10th Cir. 1977), revisiting Eleventh Amendment

issue on remand, Unified School District No. 480 v. Epperson,

583 F.2d 1118 (10th Cir. 1978).

Local unified school districts in Kansas can

sue and be sued, execute contracts and hold

real and personal property, and in general

possess the "useful powers of a corporation

for public purposes." For budgetary and

taxing purposes, a local unified school district

in Kansas is considered a municipality. The

State of Kansas, as does the State of Ohio,

furnishes substantial state aid to the local

school districts, though the latter fix their own

budgets and are empowered to levy and

collect taxes within the local school district

with which to fund their budget.*!

In Travelers Indemnity Company v. School Board of

Dade County, Fla.,” the Eleventh Circuit found that

Florida county school boards were not arms of the State.

Reaching the conclusion that nothing in the nature of a

county school board in Florida entitles such a board per se

to Eleventh Amendment protection, the court analyzed the

Status of the board in the particular context before the

court.** Reviewing several cases that discuss awards of

retroactive application, as opposed to prospective relief

awarded in Ex parte Young, the court concluded that: "The

more significant distinction is that Edelman makes it clear

that the Eleventh Amendment protection is available only if

satisfaction of the judgment sought against the state ’agency’

must under all circumstances, be paid out of state funds,"

51 Id. at 259-60 (citations omitted).

52 666 F.2d 505 (11th Cir.), cert. denied, 459 U.S. 834, 103 S.Ct.

77 (1982).

53 Id. at 508.

concluding that the defendant board of education was not

protected by the Eleventh Amendment.™

The Eleventh Circuit, in Stewart v. Baldwin County

Board of Education,* determined that Alabama school

boards were not “alter egos" of the state and, accordingly,

did not enjoy Eleventh Amendment immunity. The Stewart

court “placed considerable significance on the fact that the

individual school boards had the means to raise funds, so

that any judgment for the plaintiff could be paid out of local

funding rather than out of the state treasury."™

In Lester H. by Octavia P. v. Gilhool,*’ the Third

Circuit concluded that Pennsylvania school boards are not

"alter egos" of the commonwealth of Pennsylvania,

notwithstanding the fact that the commonwealth of

Pennsylvania provided significant amount of funds for the

local boards.

The Tenth Circuit, in Ambus v. Granite Board of

Education,™ concluded that Utah boards of education were

not arms of the state. The fact that the boards received

54 Id. at 509 (emphasis in original). In the case before this Court,

the issue of the potential for the state to pay any resulting

judgment does not arise because the School Board is the plaintiff

and no counterclaims have been asserted.

55 908 F.2d 1499 (11th Cir. 1990).

56 Id. at 1510.

57 916 F.2d 865 (3d Cir. 1990), cert. denied, 499 U.S. 923, 111

S.Ct. 1317 (1991).

58 975 F.2d 1555 (10th Cir. 1992), affirmed on rehearing, 995

F.2d 992 (1993).

some money from the state did not provide sufficient identity

with the state in the analysis. Addressing the issue with

regard to Wyoming school districts, in Bertot v. School

District No. 1,” the Tenth Circuit again concluded that the

school districts were not "arms" of the state to be afforded

Eleventh Amendment immunity.

In Adams v. Rankin County Board of Education,

the Fifth Circuit concluded that Mississippi school boards

were not afforded Eleventh Amendment immunity because

they were locally controlled institutions supported largely by

local revenues.

In Rosa R. v. Connelly,” the Second Circuit found

that although the state board of education had " general

supervision and control,” the Connecticut local school boards

were not "arms" of the state. The responsibility for

implementing goals and maintaining the public school

facilities themselves remain the responsibility of the local

boards.

A multitude of district courts have concluded that

State school districts possess sufficiently autonomous powers

59 613 F.2d 245 (10th Cir. 1979).

60 524 F.2d 928 (Sth Cir. 1975), cert. denied, 438 U.S. 904, 98

S.Ct. 3121 (1978).

61 889 F.2d 435 (2d Cir. 1989), cert. denied, 496 U.S. 941, 110

S.Ct. 3225 (1990).

to remain political subdivisions that are not considered

"arms" or “alter egos" of the state.

Faced with the well-founded reasoning of so many

courts considering empowerments of much less magnitude

that the administrative and financial independence afforded

the Orleans Parish School Board, petitioner cannot deny that

at least in the context of this lawsuit, petitioner is not an

"arm" or “alter ego" of the State of Louisiana.

¥. The Constitutional Principles Discussed In The

Recent Decisions In Coeur D’Alene and Printz Do

Not Change The Outcome In the Instant Case.

Petitioner contends that it is asserting its alleged

Eleventh Amendment immunity based upon recent

pronouncements of this Court in Jdaho v. Coeur D’Alene

Tribe of Idaho™ and Printz v. United States.“ Neither of

62 See Cline v. School District No. 32, 476 F.Supp. 868 (D. Neb.

1979) (although Nebraska retained some supervisory interest and

provided substantial aid, Nebraska school districts, with

authority issue bonds and levy taxes, remained political

subdivisions not immune from federal suit under the Eleventh

Amendment); Kenny v. Board of Trustees, 563 F.Supp. 95 (D.

Mont. 1983) (considering the state definition of the entity, the

entity’s autonomy, and the financial independence of the entity,

Montana school districts were not arms of the state with

Eleventh Amendment immunity); Smith v. Travis County Educ.

Dist., 791 F.Supp. 1170 (W.D. Tex. 1992) (characterization by

the state court of the school district as an “agency” of the state

did not rise to the level of "arm" of the state to equate with

Eleventh Amendment immunity for Texas districts).

63 __U.S.__,117S.Ct. 2028 (1997).

64 US. __,117S.Ct. 2365 (1997).

those cases provides any basis to revise the Mt. Healthy

analysis or to contradict the Fifth Circuit’s conclusions in

Moore and Minton.

Indeed, in Coeur D’Alene, this Court expressly stated

that it was not reconsidering its prior interpretations of the

Eleventh Amendment. Moreover, the decision in Coeur

D'Alene depended upon facts and circumstances not present

in the case now before the Court, é.g., the application of the

Ex parte Young exception to Eleventh Amendment immunity

in the context of a claim for injunctive relief against a state

and state officials to quiet title to what was claimed as state-

owned land. Though individuals were sued, the object of the

Nor does the Court’s opinion in Printz provide any

relief to petitioners. The Printz case involved not the

Eleventh, but the Tenth Amendment. The Printz court

specifically noted that "the distinction in our Eleventh

Amendment jurisprudence between states and municipalities

is of no relevance here."*

The only consideration present in Coeur D’Alene and

Printz that relates to this case is the Court’s recognition of

the dignity and status of statehood. This is nothing new.

The dignity of the state has always been the underlying

factor in this Court’s interpretation of the Eleventh

65 117 S.Ct. at 2033 ("We adhere to our precedent."); id. at 2034

(“We do not, then, question the continuing validity of the Ex

parte Young doctrine.").

66 Id. at 2034 (citation omitted).

67 117 S.Ct. at 2382, n.15.

Amendment. The dignity of the State of Louisiana is not at

issue in this proceeding, brought by a Louisiana parish

school board in the exercise of its local powers as a political

subdivision and not an arm of the State.

CONCLUSION

Although the Louisiana State Board of Elementary

and Secondary Education, BESE, has general supervision

and control of the Louisiana parish school boards, BESE is

expressly prohibited by statute from exercising any control

over administration or management. Aft all times, the

Orleans Parish School Board had complete responsibility for

maintaining the local public school facilities themselves.

This lawsuit arose out of petitioner’s exercise of that specific

local and independent authority. Moreover, the state itself

will not be called upon to pay any judgment arising out of

this lawsuit. Because under the principles articulated by this

Court in Mt. Healthy and by the Fifth Circuit in Moore and

Minton, petitioner cannot be considered an "arm" or "alter

ego" of the State for any purpose, respondent W.R. Grace

& Co.-Conn. respectfully requests that this Court deny

petitioner Orleans Parish School Board’s Petition for Writ of

Certiorari.

Respectfully submitted,

James C. Gulotta, Jr."

Barry W. Ashe

Mary L. Dumestre

Counsel for Respondent

W.R. Grace & Co.-Conn.

STONE, PIGMAN, WALTHER,

WITTMANN & HUTCHINSON

546 Carondelet Street

+ New Orleans, Louisiana 70130

(504) 581-3200

“Counsel of Record

Appendix

--—jppeprxa-

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

ORLEANS PARISH SCHOOL BOARD

VERSUS

UNITED STATES GYPSUM COMPANY, ET AL

ORDER AND REASONS

The motion for leave to amend complaint and the

motion to remand filed on behalf of plaintiff, Orleans Parish

School Board, were considered this date on memoranda.

For the following reasons, both motions are DENIED.

On August 31, 1988, plaintiff filed suit in state court

naming twenty-three manufacturers, thirteen contractors, and

five architects as defendants. All of the manufacturer

defendants were alleged to be citizens of states other than

Louisiana, while all of the contractor and architect

defendants were alleged to be citizens of Louisiana. The

contractor defendants were named only as defendants "A, B,

C, D, E, F, G, H, I, J, K, L and M."

On January 6, 1989, prior to service on any of the

defendants, National Gypsum Company, one of the

manufacturer defendants, removed the suit based on diversity

of citizenship. Although the contractor and architect

defendants were alleged to be citizens of Louisiana, National

Gypsum claimed that they were fraudulently joined;

~ therefore, compiété Giverssity existea. Since ihe date of

removal, the parties have engaged in extensive discovery and

have participated in numerous status conferences.

Plaintiff now seeks to amend its complaint to name

additional twenty-seven non-diverse architects as defendants

and to have the action remanded back to state court.

MOTION TO AMEND COMPLAINT

Plaintiff seeks to amend its complaint to add an

additional twenty-seven non-diverse architect defendants.

The applicable statute provides that "If after removal the

plaintiff seeks to join additional defendants whose joinder

would destroy subject matter jurisdiction, the court may deny

joinder, or permit joinder and remand the action to the State

court." 28 U.S.C. § 1447(e).

In Hensgens v. Deere & Co., 833 F. 2d 1179 (Sth

Cir. 1987), the Fifth Circuit set forth the principles to be

applied to determine whether the court should allow an

amendment to add non-diverse defendants, requiring the suit

to be remanded. There are three prime considerations: "the

extent to which the purpose of the amendment is to defeat

federal jurisdiction, whether plaintiff has been dilatory in

asking for amendment, [and] ee ae

significantly injured if amendment i is not allowed... ." Id.

at 1182.

Plaintiff fails all three tests: it is apparent that the

purpose of the proposed amendment at issue is to defeat

federal jurisdiction; plaintiff has been dilatory in waiting

over a year from the date that the suit was removed to file

its motion for leave to amend complaint; and plaintiff will

not be significantly injured if amendment is not allowed.

Piaintiff ts freé t file suit against the additional architects in

state court. We exercise the discretion given to us by 28

U.S.C. § 1447(e) and deny plaintiff's motion for leave to

amend.

MOTION TO REMAND

Plaintiff argues that because all defendants did not

join in the removal petition, they are now procedurally

barred from doing so, and they have no right to oppose the

motion to remand. Plaintiff chose not to serve any of the

defendants after filing suit in state court, and National

Gypsum Company removed the suit before any of the

defendants were served.

Only properly joined defendants who are served at

the time the removal petition is filed must join in it. See

Pullman Co. v. Jenkins, 305 U.S. 534, 59 S.Ct. 347 (1939).

Defendants who are not served at the time the removal

petition is filed need not join in it. Getty Oil Corp. v.

Insurance Co. of North America, 841 F.2d 1254, 1261 n.9

(Sth Cir. 1988). Unserved defendants can either accept

removal by doing nothing or, after they are served, can

move to remand pursuant to 28 U.S.C. § 1448. Id. at 1262-

63. In the instant case, no defendant has objected to

removal.

Moreover, even if there were any procedural defects

in the removal procedure, plaintiff has waived its right to

complain of such defects. The failure of all defendants to

join in the removal petition is considered a procedural

defect. Id. at 1263; Johnson v. Helmerich & Payne. Inc.,

892 F.2d 442 (Sth Cir. 1990); Santa Rosa Medical Center,

Inc. v. Converse of Puerto Rico, Inc., 706 F.Supp. 111

(D.P.R. 1988). 28 U.S.C. § 1447(c) provides, in pertinent

part, "A motien to remand the case on the basis of any

defect in the removal procedure must be made within 30

days after the filing of the notice of removal under section

1446(a)." In the instant case, plaintiff waited nearly a year

before filing its motion to remand.

Plaintiff also argues that the presence of the

fictitiously named contractor defendants in its state court

petition defeats diversity and compels remand. 28 U.S.C.

§ 1441(a) was recently amended to state, in pertinent part,

"For purposes of removal under this chapter, the citizenship

of defendants sued under fictitious shall be

While the amendment to 28 U.S.C. § 1441(a) became

effective after plaintiff filed its state court petition, the

amendment has uniformly been retroactively applied to cases

pending when the amendment took effect. Bryant v. Ford

Motor Co., 886 F.2d 1526 (9th Cir. 1989); Kruso_v.

ation: & Tel , 872 F.2d 1416

(9th Cir. 1989); Cowan v. Central Reserve Life of North

America Insurance Co., 703 F.Supp. 64 (D. Nev. 1989).

We apply the statute and disregard the fictitiously named

contractor defendants in determining that complete diversity

exists.

Finally, plaintiff argues that the suit should be

remanded, contending that the architect defendants named in

the state court petition were not fraudulently joined.

Until it filed its remand motion, plaintiff never took

issue with the allegation in the removal petition that the

architects were fraudulently joined. Instead, plaintiff

engaged in extensive discovery, participated in status

conferences, and waited almost a year to file its remand

motion. In so doing, plaintiff has tacitly conceded that the

architect defendants named in the state court petition were

fraudulently joined. We conclude that such participation in

this court constitutes a waiver of plaintiff's right to contest

defendants’ claim of fraudulent joinder. See Johnson v.

Helmerich & Payne, Inc., 892 F.2d 422 (Sth Cir. 1990);

Harris v. Edward Hyman Co., 664 F.2d 943 (Sth Cir. 1981)

(per curiam).

As an additional basis for ignoring for diversity

purposes the “architect defendants", all of which are

allegedly corporations, we note that it is undisputed that not

one of those named in the state court petition actually exists.

New Orleans, Louisiana, this 26th day of March,

1990.

/s/_ Adrian G. Duplantier

UNITED STATES DISTRICT JUDGE

APPENDIX B

November 4, 1993

MEMORANDUM TO

COUNSEL OR PARTIES LISTED BELOW

Nos. 90-3318 & 90-3421 - Orleans Parish School

Board v. U.S. Gypsum Co., et all.

Enclosed is a copy of the Court’s decision this day rendered

in the above case. A judgment has this day been entered in

accordance therewith pursuant to Rule 36 of the Federal

Rules of Appellate Procedure.

Rules 39, 40 and 41, FRAP and Local Rules 39 and 41

govern costs, a ag for gary: and mandates. A

The judgment entered provides that plaintiff-appellant pay to

defendants-appellees the costs on appeal.

Very truly yours,

CHARLES R. FULBRUGE II, Clerk

Enclosure

All counsel of record

IN THE UNITED STATES COURT OF APPEALS

—_—_ a ——

FOR THE FIFTH CIRCUIT

Nos. 90-3318 & 90-3421

ORLEANS PARISH SCHOOL BOARD,

Plaintiff-Appellant,

versus

U.S. GYPSUM CO., ET AL.,

Defendants-Appellees.

Appeals from the United States District Court

for the Eastern District of Louisiana

(CA-89-0070-"H"(2))

Before REYNALDO GARZA, HIGGINBOTHAM, and

JONES, Circuit Judges.

PER CURIAM:*

“Local Rule 47.5 provides: "The publication of opinions

that have no precedential value and merely decide particular

cases on the basis of well-settled principles of law imposes

needless expense on the public and burdens on the legal

profession." Pursuant to that Rule, the Court has determined

that this opinion should not be published.

— pee — - = ah

Defendants removed this case to federal court, relying

on the diverse citizenship of the parties. There was

complete diversity of citizenship when the case was

removed. Much later, the school board sought leave to

amend and add one or more parties whose presence would

destroy diversity and defeat federal jurisdiction. The district

court stated reasons for refusal to grant leave. See 28

U.S.C. 1447(e). We find no error and affirm.

AFFIRMED.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.