*1 H31 TRADIGRAIN, INC., Plaintiff-Appellee,
MISSISSIPPI STATE PORT AUTHORI
TY, Defendant-Appellant.
No. 82-4120.
United of Appeals, States Court
Fifth Circuit.
April 7, 1983.
Bryant Stennis, Roger Clark, Eaton, & T. Cottrell, Galloway Lang, Stone, & Ben H. Miss., Gulfport, Aultman, Aultman & Law Gunn, Jr., Hattiesburg, Miss., rence C. defendant-appellant. Jr., Martin, Miss.,
Ernest Gulfport, G. Jr., Sidney Provensal, La., W. Orleans, New for plaintiff-appellee. CLARK, Judge,
Before Chief THORN POLITZ, BERRY and Judges. Circuit CLARK, Judge: Chief Tradigrain, Inc., a Louisiana corporation, brought this action State Port alleging its rice damaged was while it was stored in the warehouse. Tradigrain predicated jurisdiction on diversity of citi- zenship parties. between the 28 U.S.C. 1332. The Port moved dis- miss. It сontended it that was therefore, Mississippi, of the State of diversity “citizen” for rejected The district court *2 1132 Huber, v. Archi in Hunt & Nichols but, certified outlined jurisdiction, its challenge Co., (5th 625 22 Cir. 1292(b). F.2d tectural Stone appeal. 28 U.S.C.
the issue for Huber, 1980). Hunt & Nichols was decided that the Finding the permitted appeal. We the of eleventh amendment. context pur- “citizen” for Authority is not a Port However, analysis agency’s status the reverse diversity we jurisdiction, of рoses the in virtually whether case is identical for with instructions dismiss and remand immunity under a determination of volves jurisdiction. subject lack of matter a determination the eleventh amendment or is that a state is well established jurisdiction. citizenship diversity for diversity purposes “citizen” Therefore, adopt approach the outlined Alameda, County Moor v. Huber, analysis our in Hunt & Nichols for 717, 693, 36 411 93 S.Ct. in this v. of Mil (1973); City Illinois unclear, If status is the аgency’s the 1385, 1, 91, n. 92 waukee, 406 U.S. 98 all look available court (1972); 712 Postal 1390 31 n. L.Ed.2d at 24. The court guidance. sources Id. Alabama, Telegraph Cable Co. has agency consider whether the should 192, 194, 39 231 L.Ed. 15 S.Ct. granted the to hold and use been agency an brought against suit is If express it has whether the author property, state, it ego an of the merely which alter name, corporate sue sued in its ity to and be jurisdiction is also lack follows that federal independent management the extent of its hand, an agency if the ing. On the other “a subsumes all authority, and factor that one, and distinct from independent separate others,” agency by of the the treatment state, properly the district court can Id. at 24-25. When exam state courts. Department proceed to the merits. indepen ining agency’s extent Davis, Rehabilitative Sеrvices Health and management authority, dent court (5th Cir.1980); Splendour 616 833 F.2d agency look to whether the has should v. Bd. of Enterprising Co. Shipping decisions, own hiring to make its power Orleans, 477 of New Commissioners contracts, its to enter into Cir.1973); & 122, 123 (5th F.2d C.H. Leavell engage own counsel. New Co. v. of Commissioners Port of Bd. 727; Davis, at at 833 supra supra (agency (5th Cir.1970); Orleans, 424 F.2d 765 possesses “generally recognized which cor v. Ala Verkooр., N.V. Centraal Stikstof powers” is a citizen for porate F.2d Department, bama Docks Co., jurisdiction); diversity Leavell C.H. & Cir.1969). supra examining at When the treat agency whether courts, agency by ment of the the state this indepen is an state or an ego alter fact court has taken note of the agency, question essential courts, in its own agency state sued real in inter whether the state is the of a that thе statute holding state court in Ver est the lawsuit. Stikstof Centraal limitations, which run normally did not N.V., The resolution koop., supra at 457. itself, against against the state ran question is a matter of state law. C.H. Co., supra at 766- agency. C.H. Leavell & supra Laje Leavell & at 765. Cf. might 767. Other relevant include: F.2d Hospital, R.E. Thomason General responsible whether the state is (When considering (5th Cir.1982) debt; agency agency’s whether an under the is immune agency local, аs opposed with primarily concerned amendment, the court must “ex eleventh degree problems; to statewide amine particular entity autonomy agen financial of the general its powers and characteristics as created 727; Annot., A.L. cy. Laje, supra whether the suit is law to determine (1971, supp. 1981). R.Fed. source itself.”). reality against a suit analysis the court’s found material for constitutional, stаtutory de approach to a determination the state’s proper was of the cisional law. alter status situation, Authority, typical perform- In a some factors will the course of function,” suggest ing governmental is a “citizen” while its “essential just strongly suggest carry others will as instructed to “for the the state. agency merely people benefit State of Missis- sippi.” The court must balance these each Miss.Code Ann. 59-5-7. The Au- *3 It reaching other in its conclusion. must must make reports financial to the never, however, sight primary legislature lose of the at regular each ses- question involved: whether the state is the sions. 59-5-54 It is audited at the end § year real in interest in the lawsuit nomi- of each the fiscal state auditor. brought the nally agency. With 59-5-67. § eminent mind, proceed domain. concepts these we now 59-5-39. § place weights pans the in the the balance Ann. 59-5-37 is particularly § Authority test whether the “citizen” revealing: for authority granted the outset, At the find there no consti- name, be sued “own and the or directly point. tutional decisional law on authority hereby authorized and direct- We are therefore left with the Port Author- ed to take liability oper- insurance on the enabling act, ity’s found Miss.Code Ann. ation and said and may be sued 1982). seq. (1972 59-5-1 et Under supp. by anyone the § affected to extent of such act, Authority carried; granted however, some of provided, insurance that generally recognized powers immunity inde- from is only suit waived to pendent it agency. example, may For extent of such liability sue insurance name, carried, and be sued in its own and a judgment creditor shall have recourse (1972 supp. 1982); pur- only proceeds 59-5-37 or § chase, of such liability lease and own 59-5-7 insur- property, § (facilities, ance. vessels), buildings, 59-5-31 § (public utility systems necessary ease- (emphasis added). Inferentially, the Missis- ments), (land); 59-5-37 and enter § into sippi legislature necessarily must have in- contracts to its necessary operation, 59- § tended the Authority that enjoy sovereign Authority 5-37. The is vested with “wide Otherwise, immunity. it would not have
latitude discretion” in the exercise of been waiving сoncerned with immunity that its duties. 59-5-9. to the that purchased. extent insurance was however, are many weights,
There
strongly sug
statute
go
must
side.
opposite
gests
the legislature
considered the
Authority may acquire
title to all
property,
an alter
At
ego State.
such
property
enacted,
vests
of Missis-
time
State
this statute was
State
sippi. Miss.Code Ann.
While Mississippi enjoyed
59-5-39.
sovereign immunity.
the Authority may cause
to be
City
Rоsedale,
bonds
issued See Pruett v.
421 So.2d
to provide
operational expenses,
(Miss.1982)
funds for
(abolishing doctrine of sov
the issuance of
by ereign immunity,
such bonds is controlled
but mandate not to take
commission,
the state bond
July
1984).
effect
until
59-5—
general obligations
bonds become
only
could
have been immune if it was a
part
are backed
Jagnandan
of the state.
v. Mississippi
full
faith
credit
59-5-
University,
(Miss.1979),
state.
So.2d
51. Although
denied,
enter
Authority may
into
rt.
100 S.Ct.
ce
contracts,
involving
some
(1980) (A
contracts
sums in
college
$2,500
advertised,
excess of
and the
an arm
state and is therefore im
from,
contract must be
suit.);
awarded to the lowest mune
Building
Horne
bidder. All
let
port
Commission,
contracts
water-
Miss.
So.2d
way improvements
(State
Commission,
must be
Building
advertised “as 379-381
by law
required
letting
public
with
discretionary powers
broad
to erect
contracts.”
59-5-37.
buildings,
is an instrumеntali-
maintain
however,
not,
justify the
does
immunity
immune
state, and is therefore
ty
inference
additional
suit.)
the alter
as
conceived of
our conclu
unnecessary to base
It is
Rather,
Mississippi.
of the State
language in Miss.Code
statutory
sion on the
likely
exposing
that in
much more
language,
But
alone.
arising
liability for acts
thority to limited
statutory provi
with other
in combination
activity,
Legis-
business
daily
out of its
above,
tips thе bal
discussed
sions
indepen-
as an
perceived
lature
that the Missis
finding
in favor of our
ance
than an
corporation
more like
entity
merely
sippi State
immunity
Where
government.2
arm of the
Mississippi, and as
of the State
hallmark of an
from suit
is the
of diver
a “citizen”
such is not
serves,
the state it
inseparable
reasons,
For these
sity jurisdiction.1
oper-
can
explicit waiver
*4
court
is RE
district
judgment
the state.
that
from
ate to sever
REMANDED with
case is
The
VERSED.
in
proper
focus
ana-
differently,
Stated
subject
lack of
dismiss for
instructions to
is on
of waiver
lyzing
significance
matter
waived,
un-
not on that
left
which is
that
THORNBERRY,
Judge, dissent-
Circuit
waiver.
touched
ing:
that
argue
to
be-
majority appears
I must dis-
respect,
With deference
intended
Legislature originally
cause
majority in this
opinion
sent from the
immunity
enjoy
to
absolute
Authority is
concluding that
In
suit,
аlways shall be a
it was and
1332, the
28 U.S.C. §
not a citizen under
Legis-
But if the
under
non-citizen
special empha-
singled out
majority has
were determinative
original
lature’s
intent
This sec-
59-5-37.1
sis
Ann. §
Miss.Code
issue,
complete
even a
subse-
of this
then
take
Authority may
provides
tion
would be insuffi-
immunity
waiver of
quent
operation
on
liability
insurance
status on the Author-
cient to confer citizen
in its own
facilities,
be sued
may
contrary
ity.
This is
untenable
it is covered
the” extent
name to
Parden
legal doctrine. See
long-settled
to
explicitly
The statute
insurance.
such
Railway of the Alabama State
v. Terminal
from suit
Authority’s immunity
waives the
184, 84
Department,
Docks
S.Ct.
do not exceed
damages
where claimed
(1964); Reagan
12 L.Ed.2d
carried.
of insurance
amount
Co.,
Loan & Trust
Farmers’
(1894);
1047,1052,
is the notion that
Implicit in
Cooper,
the Au-
Federal
Legislature
Wright,
intended
A. Miller & E.
3524 at 77
claiming
in suits
and Procedure
immunity
to
Practice
thority
enjoy
remaining is whether
only question
the amount of insur- The
in excess of
damages
waiver of immu-
explicit subsequent partial
reservation of
This limited
coverage.
ance
carried;
insurance
Authority places strong
ed to the extent of such
on C.H.
reliance
1. The
however,
immunity
provided,
of Port
suit
v. Bd. of Commissioners
Leavell & Co.
Orleans,
(5th Cir.1970).
liability
only
H35
mty
Board,
leaves unaffected the
non- School
534 F.2d
Cir.1976).5
complete
status.
waiver
the Authority’s liability
Since
Since
59-
immunity
explicitly
would confer citizen status on the
5-37
limited
the amount of
in
general,
only logical
coverage,
insurance
it is clear that awards
immunity
conclude that a
waiver of
partial
no
pose
threat
to the
confers citizen stаtus on the
Treasury.
Under
those cases in which
consequently
waived.3
party
not the real
in interest.
Applying the real party in interest
test of
provision
insurance
N.V.,
Centraal
Verkoop.,
Stikstof
Aftn.
59-5-37 is determinative of a more
therefore cannot be the alter
fundamental
issue raised in this appeal,
the State.
namely,
nature
state’s interest
this lawsuit.
majority
quite
cor
The same
is required by
result
appli-
reсtly
noted that
cation
those factors which this Court has
“[i]n
the agency
is the alter
of the state or
customarily
looked to in determining
an independent agency, the essential ques
agencies
whether state
are citizens for di-
tion is
versity
whether the
is the real
purposes.
case in this
interest
the lawsuit.” Centraal
directly
point,
Stikstof Circuit
C.H. Leavell & Co.
Verkoop., N. V. v. Alabama
Docks De
Board
Commissionеrs
Port of New
partment,
(5th Cir.1969). Orleans,
415 F.2d
(5th Cir.1970),
cy’s bonded
subject to
Alameda,
and can enter into contracts
County of
(1973). In the
those conditions which one would
precisely
amendment case of
autonomous
expect
govern
largely
more recent eleventh
Huber,
Nichols v. Architectural
agency.
personnel,
Hunt &
its own
employs
(5th Cir.1980),
F.2d
Stone
and furnishes them with workmen’s com-
factor, redefining it as
first
modified the
insurance and retirement bene-
pensation
property,”
and use
“right
to hold
fits. Miss.Code Ann.
59-5-37. Public
require analysis
refined the third
generally must look to the retire-
employees
[agency’s] independent man-
“еxtent of the
system
ment
established under Miss.Code
Id.,
authority.”
at 25.
agement
25-11-101 for benefits. The Au-
enjoys many
generally
thus
two of
We
the outset dismiss
recognized powers
private corporations.7
inapplicable to the facts of
these factors as
incorporation
requirement;
Formal
not
Factor
“Treatment
present
in Leavell was
the Board of Commissioners
State,” is of no help
Courts
formally
Department
incorporated.
reported
are no
decisions
because there
Davis,
of Health v.
616 F.2d
precisely
can infer
how the
from which one
Cir.1980),
is,
this Court stated: “There
how-
Authority.
Mississippi view the
courts of
ever, authority
support
in this Circuit to
Effect,” was not
Factor
“Statewide
jurisdiction in a diversity suit between a
probably
because this
parties,
briefed
state,
and a citizen of another
discounted it with the ob-
Court in Leavell
pow-
where the
is invested with the
a matter
servation that “the fact that
sued,
er
possesses
to sue and be
other
statewide effect does not mean
it has
generally recognized corporate powers.”
Leavell,
identity.”
424 F.2d at
statewide
added).
Leavell,
(emphasis
Id. at 833
Leavell,
its dismissal in
light
766. In
766;
Department
Highways
F.2d at
applied
need not be
here. This
factor
Associates,
Leavell factors to be scrutinized.
v. Morse Brothers and
211 F.2d
leaves six
(5th Cir.1954);
Highway
Louisiana
Property.
to Hold and Use
Al-
Right
*6
Farnsworth,
Commission v.
dent It is invested management authority. support factors in of its conclusion that the by statute with “wide latitude and discre- Authority Specifi- is not a 1332 citizen. § tion in the exercise of its powers cally, majority points out that the Au- duties.” 59-5-9. thority governmental has an essential func- tion, that in out this function carrying Corporate Status. people it must act for the benefit of the incorporаted, is not formally majority fur- “corporate purposes” by Mississippi. explicitly accorded ther that the oper- *7 Nash, Petitioner, obligations, bond provisions these are questionable significance in determining Authority’s citizen status UNITED 1332. STATES CONSUMER PROD COMMISSION, UCT SAFETY conclusion, provisions Respondent. Code expressly waiving 82-4218, 82-4136, Nos. from suits for 82-4311 damages not and 82-4135. excess insurance cover- age to distinguish serve United States Court of Appeals, Mississippi, rather than to con- Fifth Circuit. found the two. More important, since the April Treasury beyond the reach of court- awarded damages, As Corrected on Denial of Rehearing interest,” “real and the Author- 23,1983. June Last, ity cannot be ego. appli- its alter cation those customarily applied Court citizen status Miss.Code Ann. 59-5-7. It is to be notes Authority," Management support finding powers a These broad also supra, “Indepen- citizen F.2d at 727. status under factor 3 domain, yearly compels of eminent that it is audited U.S.C. the same State, Broadening analysis that it submit finan- conclusion. to in- by the a clude number additional reports cial to the State at each factors does change Legislature’s regular sessions. the result when these factors weight, little already implicit are of or are hard-pressed wоuld to find a state One be analysis. in the traditional The overwhelm- by was not directed its creators ing weight of the evidence favors finding people act the benefit under 28 And, represents. general language state it reasons, 1332. For these U.S.C. I must “governmental about functions” cannot respectfully opinion dissent from the Authority routinely hide fact majority. engages activity any- commercial “governmental” thing but in nаture. While it is Authority enjoys true domain, of eminent 59-5-39, the Board of Commission INSULATION, GULF SOUTH et Leavell, ers in found this Court to abe al., Petitioners, citizen under 28 this enjoyed U.S.C. § . power. same La.Rev.Stat.Ann 34:23 (West 1964). UNITED STATES CONSUMER PROD COMMISSION, UCT SAFETY The audit report provisions and financial Respondent. majority cited merely impose those accountability requirements which state COMPANY, INC., C.P. CHEMICAL agencies are customarily subject. Since al., Petitioners, et bonds are backеd the full faith and credit of the of Mississippi, CONSUMER has an PRODUCT SAFETY understandable interest COMMISSION, Respondent. exercising degree supervision some over the agency’s accounts. The audit fi- CITIZEN, Petitioner, PUBLIC report nancial provisions properly subsumed under factor “The State’s Obli- gation on the Agency’s Bonded CONSUMER Indebted- PRODUCT SAFETY ness,’’ since COMMISSION, Respondent. obligation the primary for their reason existence. Since dam- INSTITUTE, FORMALDEHYDE age paid award out of insurance INC., members, behalf of its could have little any impact if on the Au- Virgil Stewart, E. Jr. and William E. thority’s ability finances or its to honor its