
    Stephen WOJCIECHOWSKI, Plaintiff, v. Richard HARRIMAN, et al., Defendants.
    No. Civ. 84-948 BB.
    United States District Court, D. New Mexico.
    April 26, 1985.
    
      Cathrine Gordon, Duhigg & Cronin, David Duhigg, William L. Lutz, Jan Elizabeth Mitchell, Asst. U.S. Atty., Albuquerque, N.M., for Applicant in Intervention Intervenor.
    Tryon, Pompei & Baker, P.A., Jeffrey L. Baker, Albuquerque, N.M., for Simon # 3; Montoya #4; T or C Police Dept. # 7; City of T or C # 9; Cox # 10; Gurule # 11; Tremko # 13; Jukich # 16; Sierra County Sheriffs Dept. #17; County of Sierra # 18; and Sawyer # 19; E.A. Scott # 12.
   MEMORANDUM OPINION

BALDOCK, District Judge.

THIS MATTER comes on for consideration of pending motions to dismiss plaintiffs law enforcement negligence claims brought pursuant to the New Mexico Tort Claims Act, N.M.Stat.Ann. §§ 41-4-1 to 41-4-29 (1982 Repl.Pamp. and 1984 Supp.). The court, having considered any accompanying memoranda submitted by the parties, the relevant law, and otherwise being advised fully in the premises, finds that the motions are not well taken and should be denied.

This is a civil rights action brought pursuant to 42 U.S.C. § 1983 against the City of Truth or Consequences, its police department, Sierra County, its sheriffs department and various law enforcement officers employed by these entities. In addition, the complaint contains claims against these defendants brought pursuant to the New Mexico Tort Claims Act. The narrow issue before the court is whether the exclusive grant of original jurisdiction to the state district courts over tort claims brought against counties, municipalities and their officers prevents a federal district court from hearing such claims pursuant to its pendent jurisdiction. I hold that section 41-4-18, N.M.Stat.Ann. (1982 Repl. Pamp.), which purports to confine exclusive original jurisdiction for any claim under the Tort Claims Act to the district courts of New Mexico, is unconstitutional to the extent it acts to limit pendent jurisdiction of a federal district court over tort claims against counties, municipalities, and their officers.

Section 41-4-18 provides in pertinent part:

A. Exclusive original jurisdiction for any claim under the Tort Claims Act shall be in the district courts of New Mexico. •

The statute may validly limit jurisdiction on tort claims against the State of New Mexico solely because of the protections of the eleventh amendment. The statute is unconstitutional, however, when it is applied to counties and municipalities because such political subdivisions are not afforded the protections of the eleventh amendment.

The eleventh amendment of the United States Constitution bars a suit in federal court against an unconsenting state. Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984). This bar extends to suits against the state itself as well as against one of the state’s agencies or departments, absent a state waiver of sovereign immunity. Florida Department of State v. Treasurer Salvors, Inc., 458 U.S. 670, 684, 102 S.Ct. 3304, 3314, 73 L.Ed.2d 1057 (1982). The eleventh amendment bars a suit for damages in federal court when the action is in essence one for recovery of money from the state and the state is the real, substantial party in interest, notwithstanding that individual officials are nominal defendants. Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945). A narrow exception to the bar of eleventh amendment immunity occurs when a state official is sued for non-monetary injunctive relief from constitutional violations in his individual capacity. Pennhurst, 104 S.Ct. 900, 908.

A state may waive its eleventh amendment immunity and consent to be sued in federal court. Clark v. Barnard, 108 U.S. 436, 447, 2 S.Ct. 878, 882, 27 L.Ed. 780 (1883). A waiver of a state’s eleventh amendment immunity will be found only where stated by the most express language or by the overwhelming implications of such language where there is no room for any other reasonable construction. Edelman v. Jordan, 415 U.S. 651, 693, 94 S.Ct. 1347, 1369, 39 L.Ed.2d 662. Providing for a limited waiver of its sovereign immunity, the State of New Mexico has expressly reserved its immunity from suit in federal court under the eleventh amendment. N.M.Stat.Ann. § 41-4-4F (1982 Repl. Pamp.). Thus, any tort claims suit against the State would lie in the district courts of New Mexico in accordance with section 41-4-18. Essentially, the State has consented to be sued in its own courts without waiving its immunity in the federal courts. Whether counties and municipalities may also be sued in state court while claiming immunity in federal court pursuant to section 41-4-18 is another matter, however.

When an action is brought against a political subdivision of the state, the application of the eleventh amendment turns on whether it can be characterized as an arm or alter ego of the state. Mount Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977). Unified School District No. 480 v. Epperson, 583 F.2d 1118 (10th Cir.1978). “But the Court has consistently refused to construe the amendment to afford protection to political subdivisions such as counties and municipalities, even though such entities exercise a ‘slice of state power.’ ” Lake County Estates v. Tahoe Planning Agency, 440 U.S. 391, 401, 99 S.Ct. 1171, 1177, 59 L.Ed.2d 401 (1979). The -eleventh amendment, therefore, does not extend to counties and municipalities, or their agents, and will not bar a suit against them in federal court.

Because the eleventh amendment does not bar state law tort claims against counties and municipalities in federal court, a federal court may have diversity or pendent jurisdiction to hear such claims. The legislative grant of authority over diversity cases, 28 U.S.C. § 1332, is derived from the Constitution and tracks the wording in article III. Although the states have the power to prevent a federal court from granting relief in a diversity case by denying the substantive right of action asserted, they have no power directly to enlarge or contract federal jurisdiction. Markham v. City of Newport News, 292 F.2d 711, 713 (4th Cir.1961); Railway Co. v. Whittons, 13 Wall. 270, 286, 80 U.S. 270, 286, 20 L.Ed. 571 (1871). A federal district court’s diversity jurisdiction is a creature of federal law under article III and 28 U.S.C. § 1332, and state law may not control or limit federal jurisdiction. Thus, if the state waives sovereign immunity for counties and municipalities in state courts, those counties and municipalities may be sued in federal court if the court has diversity jurisdiction.

Just as a state may not limit actions against counties and municipalities to its own courts when a federal court has diversity jurisdiction, it is also prohibited from restricting a federal court’s pendent jurisdiction. The Court, in United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966), held that when a federal court obtains jurisdiction over a federal claim, it may adjudicate other related claims over which the court otherwise would not have jurisdiction. Although a judge-made doctrine, pendent jurisdiction is inferred from the general language of article III. Id. at 725, 86 S.Ct. at 1138. See also Osborne v. Bank of the United States, 9 Wheat. 738, 22 U.S. 738, 6 L.Ed. 204 (1824); Hagans v. Lavine, 415 U.S. 528, 545, 94 S.Ct. 1372, 1383, 39 L.Ed.2d 577 (1974).

Once the state legislature waives sovereign immunity for counties and municipalities and provides for the enforcement of rights and remedies in the state courts, it may not prevent the adjudication of these rights and remedies in a federal district court if that court has jurisdiction under the Constitution and laws of the United States. It is axiomatic that, pursuant to the supremacy clause, article III preempts any contrary state law. Section 41-4-18, therefore, is unconstitutional to the extent that it attempts to confine suits against New Mexico counties, municipalities, or county and municipal officers to New Mexico state district courts and will not have the effect of limiting the jurisdiction of the courts of the United States.

The elements of pendent jurisdiction are satisfied in this case. Both the state and federal claims “derive from a common nucleus of operative fact.” United Mine Workers v. Gibbs, 383 U.S. at 725, 86 S.Ct. at 1138. Although the plaintiff could “first file suit in state court under the Tort Claims Act, obtain a favorable judgment, and then proceed to federal court under section 1983,” Wells v. County of Valencia, 98 N.M. 3, 7, 644 P.2d 517 (1982), in the interest of judicial economy, it is reasonable to consider all of plaintiff’s claims in a single proceeding. The exercise of pendent jurisdiction is appropriate in this case because it will be convenient and fair to the litigants and will not raise difficult questions of state law or unduly complicate the trial to the jury. Pendent jurisdiction over the plaintiff’s state law claims, therefore, will be exercised by this court.

An order will be entered accordingly.  