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How to Assert State Sovereign Immunity Under the Federal Rules of Civil Procedure

Posted by on Tuesday, April 19, 2016 in Notes, Volume 69, Volume 69, Number 3.

How to Assert State Sovereign Immunity Under the Federal Rules of Civil Procedure


For the past twenty years, the Supreme Court has charted a broader course for its state sovereign immunity doctrine, which immunizes states and their officers from suit. But while the Court has broadened the doctrine’s substantive elements, it has neglected how state sovereign immunity should operate under the Federal Rules of Civil Procedure. As a result of this oversight, lower federal courts have inconsistently applied state sovereign immunity claims to the Federal Rules, often at the expense of both plaintiffs’ and states’ rights.

Creating this inconsistency is a series of questions that the Supreme Court has not answered in its state sovereign immunity jurisprudence. First, whether state sovereign immunity is or is not jurisdictional. Second, how and when state sovereign immunity claims should be raised in litigation. And third, how state sovereign immunity should be reconciled in multiparty lawsuits.

This Note first addresses these questions and then proposes a framework for asserting state sovereign immunity. The type of motion depends upon the court’s jurisdiction and the types of defendants to the case: Rule 12(b)(1) motions are appropriate in diversity cases; Rule 12(b)(6) motions are appropriate in all other suits solely against state entities; and Rule 12(b)(7) motions are appropriate in suits brought against multiple defendants, including the state or its officials. But while this Note’s proposal makes sense of the Court’s current precedents, it also retains flexibility should those precedents or the Court’s ideological composition change in the future.


J.D. Candidate, 2016, Vanderbilt University Law School; B.A., History, 2010, University of California, Berkeley. I would like to thank Judge James V. Selna for allowing me to write the footnote that prompted this Note; Professors Brian Fitzpatrick and Alistair Newbern for their insightful feedback to make this Note better; the Vanderbilt Law Review staff for all their help and talent afforded me throughout this process; my family and friends for their begrudging support and tolerance of my inane commentary on this Note; and finally, Melissa Peck, for being my companion on this journey and willingly learning more about suits against states than she ever could have desired.