JOHN C. COUGHENOUR, District Judge.
This matter comes before the Court on the parties' cross-motions for summary judgment. (Dkt. Nos. 10, 16.) Having thoroughly considered the parties' briefing and the relevant record, the Court hereby GRANTS Defendant's motion and DENIES Plaintiff's motion for the reasons explained herein.
In 2007, Nicholas Jenkins launched Betcha.com ("Betcha"), a person-to-person betting website that Mr. Jenkins billed as "an Ebay for bets." (Dkt. No. 16 at 3-4.) Unlike traditional gambling establishments, Betcha gave losing bettors the option of not paying their debts. (Id. at 4.) Rather, Betcha featured a feedback system to induce bettors to pay their obligations or risk negative feedback and the possibility that others would not bet with them. (Id.) Mr. Jenkins also believed that Betcha's system steered clear of Washington's online gambling prohibition. (Dkt. No. 17-1 at 3-13.) The Washington State Gambling Commission ("WSGC") disagreed, however, and issued Betcha a cease and desist order. (Dkt. No. 10 at 3.) The WSGC also instituted forfeiture proceedings after it seized property from Betcha's offices. Mr. Jenkins filed a lawsuit in state court seeking a declaratory judgment that Betcha did not violate Washington law. (Id.) The parties agreed that the forfeiture action would be resolved based upon the outcome of the declaratory judgment action. The trial court found that Betcha's conduct violated Washington's gambling prohibition, but a divided court of appeals reversed. The Washington Supreme Court then unanimously reversed the court of appeals and held that Betcha engaged in bookmaking in violation of Washington's gambling law. See Internet Cmty. Entm't Corp. v. Wash. State Gambling Comm'n, 169 Wn.2d 687, 238 P.3d 1163, 1168 (2010). The property that had been seized from Betcha was forfeited to the State as a result of this ruling.
Before the Washington Supreme Court issued its opinion, Mr. Jenkins filed a second action against the State of Washington, the WSGC, and various state employees for civil rights violations based upon the seizure of Betcha's property. (Dkt. No. 10 at 4.) Among other claims, Mr. Jenkins's complaint sought a declaration that Wash. Rev.Code §§ 9.46.240 and 9.46.0245 of concerning gambling were unconstitutional and void, though his complaint did not specify on what basis. (Dkt. No. 11-1 at 28.) Following removal to the federal district court, the court dismissed Plaintiff's claims with prejudice upon Mr. Jenkins' motion. (Id. at 30.)
After the Washington Supreme Court held that Betcha's business model violated Washington law, Plaintiff initiated this lawsuit. Mr. Jenkins seeks damages under 42 U.S.C. § 1983, injunctive relief, and a declaration that Wash. Rev.Code § 9.46.240 is unconstitutional. (Dkt. No. 1 at 11-13.) The State of Washington is the only identifiable defendant named in Plaintiff's Complaint.
A court must grant summary judgment when "the pleadings ... together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Fed.R.Civ.P. 56(a). "[W]hen parties submit cross-motions for summary judgment, `[e]ach motion must be considered on its own merits.'" Fair Hous. Council of Riverside Cnty. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir.2001) (citation omitted). To determine whether a party is entitled to judgment as a matter of law, the court must view facts and draw inferences from the record in the light most favorable to the nonmoving party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. After a party has demonstrated that it is entitled to summary judgment, the opposing party "must come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
A plaintiff may only maintain an action under section 1983 for violations of
While this conclusion is straightforward, the Court notes that Defendant argues in its brief that it cannot be sued under 42 U.S.C. § 1983 "for damages." Plaintiff similarly concedes that his § 1983 claims fail insofar as he seeks money damages, but argues that his claims for declaratory and injunctive relief escape the ramifications of this legal authority. (Dkt. No. 13 at 7.) Both parties read the law too narrowly. The relevant authority makes clear that a state is not a "person" for § 1983 purposes regardless of the nature of relief sought. Will, 491 U.S. at 71, 109 S.Ct. 2304 ("We hold that neither a State nor its officials acting in their official capacities are `persons' under § 1983."); see, e.g., Gaby v. Bd. of Trustees of Comm. Technical Colleges, 348 F.3d 62, 63 (2d Cir.2003) (claim for prospective injunctive relief barred against state entity because it was not a "person" under § 1983); McLaughlin v. Bd. of Trustees, 215 F.3d 1168, 1172 (10th Cir.2000) (same); Kaimowitz v. Bd. of Trustees, 951 F.2d 765, 767 (7th Cir.1992) (claim seeking, inter alia, declaratory relief against state entity barred because defendant was not a "person" under § 1983). The limited exception upon which Plaintiff appears to rely — the "prospective injunctive relief" exception — does not save his claim because it applies only where a plaintiff seeks such relief against an individual state official. See Will, 491 U.S. at 71 n. 10, 109 S.Ct. 2304 ("a state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because `official-capacity actions for prospective relief are
The Court next addresses the State of Washington's assertion of immunity under the Eleventh Amendment in its summary judgment motion. (See Dkt. No. 10 at 10.) Mr. Jenkins argues that (i) the State waived its immunity by removing Plaintiff's previous 2010 lawsuit to federal court; (ii) the State waived its immunity by engaging in affirmative litigation conduct, i.e., requesting costs and attorneys' fees in its Answer; and (iii) that Eleventh Amendment immunity does not bar claims for prospective injunctive relief. (Dkt. No. 13 at 13-14.) Each of Mr. Jenkins arguments is unpersuasive.
The Eleventh Amendment bars suits against a state or its agencies for all types of relief, regardless of the nature of the relief, absent unequivocal consent by the state to be sued. Pennhurst v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984); Krainski v. State ex rel. Bd. of Regents, 616 F.3d 963, 967 (9th Cir.2010); Romano v. Bible, 169 F.3d 1182, 1185 (9th Cir.1999). While the immunity is not absolute in the pure sense of the term, the Supreme Court recognizes "only two circumstances in which an individual may sue a State." College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 676, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999). The first scenario exists when Congress abrogates a state's immunity by exercising its power under the Fourteenth Amendment. The second exists when a state "waive[s] its sovereign immunity by consenting to suit." Id. A state waives its sovereign immunity only when it "voluntarily invokes [the federal courts'] jurisdiction" or "makes a `clear declaration' that it intends to submit itself to [federal] jurisdiction." The test is a "stringent one," and the State's consent to suit must be "unequivocally expressed." Id.; see Pennhurst, 465 U.S. at 99, 104 S.Ct. 900.
Plaintiff first argues that the State waived its immunity when it removed a previous state court lawsuit to federal court with other defendants and that this waiver extends to the instant lawsuit because it is "logically related" to the previous action insofar as they both involve Betcha. (Dkt. No. 13 at 12.) Plaintiff relies upon In re Lazar, 237 F.3d 967 (9th Cir.2001), in which the Ninth Circuit discussed the extent to which a state waives its immunity by filing a proof of claim in a bankruptcy action, as established in Gardner v. New Jersey, 329 U.S. 565, 67 S.Ct. 467, 91 L.Ed. 504 (1947), and codified in 11 U.S.C. § 106(b). The court held that "when a state ... files a proof of claim in a bankruptcy proceeding, the state waives its Eleventh Amendment immunity with regard to the bankruptcy estate's claims [in a subsequent mandamus action] that arise from the same transaction or occurrence as the state's claim." 237 F.3d at 978. Plaintiff offers no authority applying In re Lazar in a non-bankruptcy scenario, much less a situation where a state defendant waived immunity by removing a state court lawsuit to federal court under Lapides v. Board of Regents of Univ. Sys. of Georgia, 535 U.S. 613, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002), and where that waiver was found to extend to a subsequent action by the same plaintiff. (Dkt. No. 13 at 12-13.)
Plaintiff next contends that the State of Washington waived its immunity by engaging in affirmative litigation conduct in federal court, i.e., by requesting costs and fees in its Answer. The Ninth Circuit has articulated the general principle that a state defendant may not appear in federal court, "actively litigate the case on the merits, and only later belatedly assert its immunity from suit to avoid an adverse result." Hill v. Blind Indus. and Servs. of Maryland, 179 F.3d 754, 759 (9th Cir.1999). The Court is not persuaded that Defendant's request for fees alone demonstrates the State's clear intent to waive its immunity or is fairly construed as a voluntary invocation of this Court's jurisdiction. The State of Washington requested costs and fees in a formulaic manner, but also asserted in its Answer that it was not a "person" against whom liability could be imposed. (Dkt. No. 4 at ¶ 18.) That invocation did not expressly mention sovereign immunity, but was still a clear reference to the fact that the State is not a "person" for § 1983 purposes. That analysis fairly implicates the co-extensive nature of § 1983 and a state's Eleventh Amendment immunity. The State then raised
When considering that such actions were taken promptly to assert its immunity, it is clear that the State has not consented to waiver merely by appearing in this litigation — that Plaintiff filed in federal court — and including a basic request for fees in its responsive pleading. See Sossamon v. Lone Star State of Texas, 560 F.3d 316, 330 n. 38 (5th Cir.2009) (finding no waiver of Eleventh Amendment immunity despite state defendant's request for attorneys' fees in answer); Yakama Indian Nation v. State of Wash. Dept. of Revenue, 176 F.3d 1241, 1245 (9th Cir.1999) (rejecting argument that state entity waived immunity where it "involve[ed] itself in federal court litigation" and deposited proceeds into the court's register because the state "did not unequivocally express its assent to suit" and instead asserted immunity in its pleadings). Mr. Jenkins received fair notice of the State's intent to assert its immunity in this action and had a full opportunity to brief the issue early in the proceedings. The Court accordingly cannot conclude that the State's conduct "clearly manifested" its acceptance of federal jurisdiction or was sufficiently dilatory or unfair to Plaintiff to warrant a finding of waiver. Cf. Hill, 179 F.3d at 759 (state defendant waived immunity where it not only failed to timely raise immunity as a defense, but defended the case on the merits and proceeded to trial before raising the issue).
Finally, the Court rejects Plaintiff's renewed attempt to rely upon the Ex parte Young exception to immunity. (Dkt. No. 13 at 14.) It is true that "a suit against state officers [] does not violate a state's Eleventh Amendment immunity in certain circumstances where the claimant is seeking only declaratory and injunctive relief." Yakama Indian Nation, 176 F.3d at 1245 (citing Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 269, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997)). One such circumstance is where a plaintiff "seeks prospective [equitable] relief to end a state officer's ongoing violation of federal law." Id. (citation omitted); see Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). This limited exception applies only where a suit is maintained against a state official, however; it does not permit suits to proceed directly against a state. See Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908) (holding that federal courts have jurisdiction over suits against state officers to enjoin official actions that violate federal statutory or constitutional law even if state itself is immune from suit under the Eleventh Amendment); Southern Pac. Transport Co. v. City of Los Angeles, 922 F.2d 498, 508 (9th Cir.1990) (claims for injunctive and declaratory relief against state or its agencies are barred under Eleventh Amendment because Ex parte Young has no application where individual officials are not named as defendants).
Because the State of Washington cannot be sued under 42 U.S.C. § 1983 and is entitled to immunity from suit under the Eleventh Amendment, Defendants' motion for summary judgment (Dkt. No. 10) is GRANTED. Plaintiff's motion for summary judgment (Dkt. No. 16) is, in turn, DENIED. The Court will enter judgment accordingly. The Clerk is respectfully directed to CLOSE this case.
