MEMORANDUM OPINION AND ORDER

MADELINE HUGHES HAIKALA, District Judge.

This declaratory judgment action began in state court. Plaintiff Alabama Space Science Exhibit Commission d/b/a U.S. Space and Rocket Center or ASSEC believes that the case should remain in a state forum. For a second time, ASSEC has asked the Court to remand the action to state court. ASSEC argues that the Court lacks subject matter jurisdiction over this action because ASSEC is not a citizen for purposes of diversity of citizenship jurisdiction under 28 U.S.C. § 1332(a)(2).1 The Court disagrees.

As the Court explained in its order denying ASSEC's first motion to remand, diversity jurisdiction exists when "the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between — (2) citizens of a State and citizens or subjects of a foreign state . . ." 28 U.S.C. § 1332(a)(2); see also Underwriters at Lloyd's, London v. Osting-Schwinn, 613 F.3d 1079, 1085 (11th Cir. 2010) ("For federal diversity jurisdiction to attach, all parties must be completely diverse, and the amount in controversy must exceed $75,000, 28 U.S.C. § 1332(a).") (citations omitted). ASSEC contends that it is not a citizen for purposes of § 1332 because it is an arm of the State of Alabama. "[I]f a party is deemed to be `an arm or alter ego of the State,' then diversity jurisdiction must fail;" however, a "public entity or political subdivision of a state, unless simply an `arm or alter ego of the State'" is "a citizen of the state for diversity purposes." Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 412 (11th Cir. 1999) (quoting Moor v. Alameda Cnty., 411 U.S. 693, 717-718 (1973)). The Court's task then is to determine whether ASSEC is an arm or alter ego of the State of Alabama.

"Although the question of diversity jurisdiction is distinct from that of immunity," the Court must conduct an Eleventh Amendment immunity analysis to determine whether ASSEC is an arm or alter ego of the State of Alabama "for the purpose of diversity jurisdiction." Univ. of S. Ala., 168 F.3d at 412; see also Coastal Petroleum Co. v. U.S.S. Agri-Chemicals, A Div. of U. S. Steel Corp., 695 F.2d 1314, 1318 (11th Cir. 1983). To determine whether ASSEC is an "arm of the state" for Eleventh Amendment immunity purposes, the Court considers the following factors: "(1) how the state law defines the entity; (2) the degree of state control over the entity; (3) where the entity derives its funds; and (4) who is responsible for judgments against the entity." Nichols v. Alabama State Bar, 815 F.3d 726, 732 (11th Cir. 2016); see also Lightfoot v. Henry Cty. School Dist., 771 F.3d 764, 769 (11th Cir. 2014); Manders v. Lee, 338 F.3d 1304, 1309 (11th Cir. 2003.

"The issue of whether an entity is an `arm of the state' for Eleventh Amendment purposes is ultimately a question of federal law. But the federal question can be answered only after considering provisions of state law." Manders, 338 F.3d at 1309. When determining whether a state entity is entitled to Eleventh Amendment immunity, "the most important factor is how the entity has been treated by state courts." Versiglio v. Bd. of Dental Exam'rs of Ala., 686 F.3d 1290, 1292 (11th Cir. 2012). The Court has located no opinion in which an Alabama state court has determined whether ASSEC is an arm of the state entitled to Eleventh Amendment immunity. Therefore, the Court turns its attention to the remaining Eleventh Amendment immunity factors.

A. Degree of Control the State Maintains Over ASSEC

The Alabama legislature established ASSEC by statute in 1965 to operate the U.S. Space and Rocket Center. Ala. Code §§ 41-9-430-4-9-439. The enabling statute provides:

Ala. Code § 41-9-430. The State empowered ASSEC to engage in activities to maintain the U.S. Space & Rocket Center, and the State granted to ASSEC numerous independent powers. See generally Ala. Code § 41-9-432.2

When the Alabama legislature created ASSEC, it retained little control over the public corporation, choosing instead to vest ASSEC with significant fiscal and managerial autonomy.3 The first sentence of the enabling statute explains that ASSEC "shall be a public body corporate with all the powers and privileges of a corporation . . . ." Ala. Code § 41-9-430. The State of Alabama maintains some limited control over ASSEC; however, for the most part, ASSEC operates like a private corporation.

For example, ASSEC makes its own hiring and employment decisions. Alabama Code § 41-9-432(13) states:

Id. Although the Governor appoints the public corporation's 18 members (i.e. directors in corporate lingo) and may remove any member "for just cause," see Ala. Code § 41-9-431, this limited state oversight is not dispositive. Tex. Dep't of Housing Cmty. Affairs v. Verex Assurance, Inc., 68 F.3d 922, 927 (5th Cir. 1995), partially overruled on other grounds by Mullins v. TestAmerica, Inc., 564 F.3d 386, 412 n.19 (5th Cir. 2009) (holding that the state-created agency with directors appointed by the governor was a citizen for purposes of, and subject to, the federal court's jurisdiction).

ASSEC independently manages most financial matters affecting the Commission. For example, ASSEC is liable for obligations related to revenue bonds that the Commission issues. See Ala. Code § 41-9-435 ("All revenue bonds issued by [ASSEC] shall be solely and exclusively the obligations of [ASSEC] and shall not create an obligation or debt of the state or of any county or of any municipality within the state."). Additionally, "general obligation bonds shall also be payable from and secured by a pledge of the revenues and income of [ASSEC] remaining after the payment of the reasonable and necessary expenses of operating and maintaining the facilities to be constructed by [ASSEC]." Ala. Code § 41-9-434.

The state's role in ASSEC's financial matters is extremely limited. The Governor must approve ASSEC's decision to sell or issue "interest-bearing general obligation bonds not in excess of $1,900,000.00 in principal amount as authorized by constitutional amendment," and these bonds are "general obligations of the State of Alabama." Ala. Code § 41-9-432(5). Otherwise, ASSEC may raise, borrow, and allocate funds without State approval or oversight. See Ala. Code § 41-9-432(4);4 Ala. Code § 41-9-432(8);5 Ala. Code § 41-9-432(11);6 Ala. Code § 41-9-436(1).7 "[ASSEC]'s relative independence in controlling its operations and managing its finances" demonstrates that ASSEC, not the State of Alabama, is the real party in interest in this action. See Tex. Dep't of Housing & Cmty. Affairs,, 68 F.3d at 928; compare Nichols, 815 F.3d at 732 (holding that the Alabama State Bar is an arm of the State in part because "[t]he State Bar's collection of fees is authorized by the Alabama legislature, those fees are deposited into the state treasury and can be spent only as appropriated by the Alabama legislature, and the Alabama Department of Finance supervises the State Bar's finances.").

In addition to its relative financial independence, ASSEC is legislatively authorized to contract in its own name. See Ala. Code § 41-9-432(3).8 Indeed, ASSEC, and not the State of Alabama, entered into the contract that forms the basis of this litigation. (See Doc. 1-1, p. 3, ¶ 9 ("Effective March 20, 2006, the ASSEC and Odysseia entered into an agreement, called an Offer to Enter into Licensing Agreement (the `Option'), pursuant to which Odysseia was to pay ASSEC certain fees and to engage in certain activities related to the potential development of a Space Camp® program in South Korea. . .")).

ASSEC also owns the property at issue — the Space Camp® program. See Ala. Code § 41-9-432(15) (providing that ASSEC is authorized "[t]o expend funds of [ASSEC] in the development, operation, promotion and expansion of the programs and activities of [ASSEC] including the franchising, nationally and internationally, of the United States Space Camp, a youth science program developed and owned by [ASSEC]"). Because ASSEC entered into the contract at issue and owns the property that is the subject of this dispute, this lawsuit does not affect a "state contract or property right." Armory Comm'n of Alabama v. Staudt, 388 So.2d 991, 993 (Ala. 1980); see also Coastal Petroleum Co., 695 F.2d at 1318 (holding that a state agency was a citizen for purposes of diversity jurisdiction when the "state [] vested title of the" property at issue in the agency); Tex. Dep't of Housing & Cmty. Affairs, 68 F.3d at 928 (recognizing that the state agency's "power to enter into its own contracts" weighed in favor of finding that the agency was subject to diversity jurisdiction in federal court); compare Centraal Stikstof Verkoopkantoor, N.A. v. Ala. State Docks Dep't, 415 F.2d 452, 457 (5th Cir. 1969) (finding that a state agency was an alter ego of the State of Alabama in part because the legislation creating the agency allowed the agency to "develop and harbor facilities in the name of the State," and "title to all property vests in the State of Alabama").9

With respect to property, ASSEC can acquire, sell, convey, transfer, mortgage, lease, or donate property in its own name without approval from the State of Alabama. See Ala. Code § 41-9-432(10) (ASSEC is authorized "[t]o acquire property by purchase, lease, gift or license, such power not to include the purchase of a site for the facility"); Ala. Code § 41-9-432(12) (ASSEC is authorized "[t]o sell, convey, transfer, mortgage, lease, or donate any property, franchise, grant, easement, license or lease or interest therein which it may own and to transfer, assign, sell, mortgage, convey, or donate any right, title or interest to which it may have in any lease, contract, agreement, license, or property").

Beyond having property rights, ASSEC can sue and be sued in its own name as evidenced by ASSEC filing this action on its own. In addition to this action, ASSEC is or has been a party-defendant in a number of actions in this judicial district. See Parker v. Alabama Space Science Exhibit Commission, 2:15-cv-40-AKK; Stroik v. U.S. Alabama Space Exhibit Commission, No. 5:10-cv-00071-CLS; Mullin v. Alabama Space Science Exhibit Commission; et al., No. 5:99-cv-00301-UWC. Citing a letter dated November 25, 2014 from the Commission's procurement manager to outside counsel explaining that the Legislative Contract Review Oversight Committee had approved a contract between the Commission and outside counsel in this case, ASSEC argues that the State of Alabama oversees this litigation. (Doc. 35-1). The critical point though is that ASSEC engaged outside attorneys to represent it in this lawsuit; the Alabama Attorney General's Office does not represent ASSEC. See C.H. Leavell & Co., 424 F.2d at 767 (in holding that the state agency at issue was subject to diversity jurisdiction in federal court, the court noted that the state agency had engaged its own counsel "rather than being represented by the State's legal officer, the Attorney General").

Because ASSEC hires its own personnel; raises and spends money with limited State oversight; contracts in its own name; owns property, including the property at the center of this lawsuit; can sue and be sued in its own name; and is not limited to representation by the State Attorney General's Office, the Court finds that ASSEC operates like a private corporation and is an entity separate from the State of Alabama. Dep't of Health and Rehab. Servs., State of Fla. v. Davis, 616 F.2d 828, 833 (5th Cir. 1980) ("There is . . . authority in this Circuit to support jurisdiction in a diversity suit between a state agency and a citizen of another state where the agency is invested with the power to sue and be sued, and possesses generally recognized corporate powers."); Texas Dep't of Housing and Cmty Affairs, 68 F.3d at 928 ("[T]he fact that the agency had the authority to hold and use property, the authority to sue and be sued in its corporate name, the power to enter into its own contracts, and the power to make its own hiring decisions, and the fact that it managed its own finances and was responsible for its own debts weigh in favor of finding that THA is an independent agency.").

B. Where the Entity Derives its Funds

The record indicates that ASSEC derives most, if not all, of its funds from sources other than the State treasury. The enabling legislation neither requires the State to appropriate funds to ASSEC nor suggests that the State might do so under certain circumstances. The enabling legislation authorizes ASSEC to raise money to support its operations. For example, ASSEC is legislatively authorized to "accept public or private gifts, grants and donations." Ala. Code § 41-9-432(9). The statute also empowers ASSEC to operate concessions at the U.S. Space & Rocket Center to provide revenue. Ala. Code § 41-9-436(3).10 And ASSEC derives revenue from the operation of lodging facilities at the Space and Rocket Center. See Ala. Code § 41-9-435.11

In 2014, the U.S. Space & Rocket Center was the top tourist attraction in the State for which visitors paid admission fees. (Doc. 41, p. 8; Tr. p. 5).12 Information that ASSEC publishes on its website demonstrates that the Commission raises significant revenue from, among other sources, admission and special camp fees, membership packages, souvenirs and other merchandise, and facility rentals.13

C. Who is Responsible for Judgments Against the Entity

ASSEC's enabling statute does not state explicitly whether ASSEC or the State of Alabama is responsible for judgments against the Commission; however, ASSEC has its own treasury and may "allocate and expend funds from all donations, income and revenue from any source whatsoever coming into its treasury for the fulfillment and accomplishment of its duties and responsibilities . . . ." Ala Code. § 41-9-432(11). This provision suggests, and ASSEC has not disputed, that the Commission, and not the State of Alabama, is responsible for judgments against ASSEC. The Court has no information before it to suggest that any entity other than ASSEC would be responsible for paying a judgment against the Commission. Accordingly, the Court finds that a judgment against ASSEC would not "adversely affect the state treasury." Staudt, 388 So. 2d at 994; but see Nichols, 815 F.3d at 732-33 (11th Cir. 2016) ("Judgments against the State Bar will be paid out of its state treasury fund, but only `as budgeted and allotted' by the Alabama legislature, potentially affecting the treasury as a whole.") (internal citation omitted).

II. CONCLUSION

On the record before it, the Court concludes that ASSEC is not an arm of the State of Alabama. Rather, ASSEC is "a separate and distinct entity from the state." Coastal Petroleum Co., 695 F.2d at 1318. Therefore, ASSEC is a citizen for purposes of diversity of citizenship jurisdiction, and ASSEC and Odysseia are completely diverse.14 Accordingly, the Court DENIES ASSEC's second motion to remand. By separate order, the Court will set a briefing schedule on ASSEC's motion to dismiss Odysseia's counterclaim. (See Doc. 43).

DONE and ORDERED.