DECISION AND ORDER
This action arises out of a dispute over ownership and control of the Weis Earth Science Museum, which is housed on the campus of the University of Wisconsin-Fox Valley (“UWFox”)in Menasha, Wisconsin. Plaintiffs Leonard Weis (now deceased) and Weis Earth Science Museum, Inc., have asserted state and federal unconstitutional takings claims, along with various other state law claims, against the Board of Regents of the University of Wisconsin System, UWFox Dean James W. Perry, and University of Wisconsin-Fox Valley Foundation, Inc. (“the Foundation”). Plaintiffs also seek declaratory and injunctive relief. Winnebago and Outagamie Counties are named as necessary parties because they are allegedly owners of the real estate and improvements upon and within which the Museum and its assets are located.
Though originally filed in state court, the ease was removed pursuant to 28 U.S.C. § 1441 with an assertion of federal jurisdiction under 28 U.S.C. §§ 1331 and 1343. The case is before the Court on the motion of Board of Regents and Dean Perry (collectively, “the State Defendants”) for partial dismissal pursuant to Fed.R.Civ.P. 12(b)(1), (2), and (6). As to the Board of Regents, the motion seeks dismissal of each of the state law claims on the ground of sovereign immunity. It
I. BACKGROUND
The allegations of the complaint, taken as true for now, provide the facts upon which the motion to dismiss must be decided. See United States v. Grossman,
Weis prohibited his donations from being owned or used for the benefit of UWFox or the UW System. Weis’ donations were also conditioned upon the Museum being operated independently of UWFox except for certain cooperative agreements. One such agreement concerned the Museum Director. Weis agreed to pay the salary of the Director and established an endowment that made periodic payments to the Foundation that were to be used for that purpose. The Director was to be employed by UW System, however, so that he would be eligible for health care and other employee benefits from the State. Notwithstanding this arrangement, the Museum Director was recognized as an employee of the Museum who was hired by the Museum’s Board of Directors. (Compl. ¶¶ 21, 22, 24, 25.)
For the first ten years, the Museum operated as an independent unincorporated non-profit association. Significant decisions concerning the Museum’s operations were made by the Museum Director, subject to the approval of the Museum’s Board of Advisors. Prospective donors to the Museum were instructed to make their donations via the Foundation for tax purposes, but the funds would then be turned over to the Museum Director who would then send thank you letters on Museum stationary acknowledging the donations and noting that the money would be used for tax exempt purposes. Pursuant to another cooperative agreement, the UWFox treasurer maintained the Museum’s funds in segregated financial accounts used only for the benefit of the Museum. In sum, the complaint alleges that the Museum building, financial accounts, exhibits, specimens, intellectual property, and other assets are owned by the Museum or the Foundation for the benefit of the Museum. (Compl. ¶¶ 26-31.)
Based on these allegations, Plaintiffs have asserted claims against Dean Perry and the Board of Regents for unconstitutional taking without compensation, conversion, and unjust enrichment. Additional claims for breach of contract, and promissory estoppel are asserted against the Foundation, as well as Dean Perry and the Board of Regents, and a claim seeking the imposition of a constructive trust on the Museum assets is asserted against the Board of Regents and the Foundation. Finally, Plaintiffs have listed as separate claims a request for punitive damages (Fifth Cause of Action), a request for an injunction enjoining the defendants from disposing of Museum assets (Sixth Cause of Action) and a request for a declaration of the Museum’s right to possession and control Museum assets and funds donated for its use, and to operate at its present location in perpetuity (Seventh Cause of Action).
Plaintiffs’ assertion of separate claims for punitive damages, and injunctive and declaratory relief are confusing. Punitive damages, injunctions and declarations are forms of relief or remedies, not stand-alone claims, and a plaintiffs right to any one of these remedies is dependent on proof of a cognizable claim or a legal theory entitling him to such relief. A bare claim for injunctive relief apart from the legal claim or theory which entitles one to such relief is not cognizable. See Kartman v. State Farm Mut. Auto. Ins. Co.,
The motion to dismiss filed by the State Defendants, as noted above, is directed to the complaint in its entirety against Dean Perry, and only to the non-takings claims against the Board of Regents. With respect to these claims, the State Defendants argue the Board of Regents is immune from suit under the Eleventh Amendment to the United States Constitution and Article IV, section 27 of the Wisconsin Constitution. As to Dean Perry, they argue that
II. ANALYSIS
A. Claims Against the Board of Regents
The State Defendants first argue that Plaintiffs claims against the Board of Regents are barred by the Eleventh Amendment. The Eleventh Amendment states: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or Citizens or Subjects of any Foreign State.” U.S. Const, amend. XI. The Amendment reflects the system of federalism so much a part of the structure of the government:
The very object and purpose of the 11th Amendment were to prevent the indignity of subjecting a State to the coercive process of judicial tribunals at the instance of private parties ..... The Amendment is rooted in a recognition that the States, although a union, maintain certain attributes of sovereignty, including sovereign immunity .... It thus accords the States the respect owed them as members of the federation.
Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy,
The fact that the State Defendants waived Eleventh Amendment immunity does not fully dispose of the issue. For the State Defendants also argue they are immune from suit under Art. IV, Section 27 of the Wisconsin Constitution. The Seventh Circuit has repeatedly noted that “state rules of immunity are binding in federal court with respect to state causes of action.” Benning v. Bd. of Regents of Regency Univs.,
The foundational state rule of sovereign immunity in Wisconsin is set forth in Article IV, section 27 of the Wisconsin Constitution, which reads: “[t]he legislature shall direct by law in what manner and in what courts suits may be brought against the state.” “This language has been construed repeatedly to mean that unless the Wisconsin Legislature consents to a suit against the state sovereign immunity will apply.” State v. P.G. Miron Const. Co., Inc., 181 Wis.2d 1045, 1052,
The Wisconsin legislature has given consent to suits brought against it for a certain class of claims:
Actions against state; bond. Upon the refusal of the legislature to allow a claim against the state the claimant may commence an action against the state by service as provided in s. 801.11(3) and by filing with the clerk of court a bond, not exceeding $1,000, with 2 or more sureties, to be approved by the attorney general, to the effect that the claimant will indemnify the state against all costs that may accrue in such action and pay to the clerk of court all costs, in case the claimant fails to obtain judgment against the state.
Wis. Stat. 775.01 (2009-10). The Wisconsin Supreme Court has construed this statute to apply to only a narrow class of claims. “The statute applies only ‘to claims which, if valid, render the state a debtor, and not to equitable claims or claims for tort.’ ” Trempealeau County v. State,
Moreover, as to those claims on which suit against the state is allowed, the claimant must, as a condition precedent to commencing an action against the state, present a claim to the state Claims Board, which first holds a hearing and then makes a recommendation to the legislature to grant or deny the claim. Erickson Oil Products, Inc. v. State,
It follows from the foregoing that Plaintiffs’ non-takings claims against the Board of Regents must be dismissed. Plaintiffs’ claim for conversion is barred because conversion is a tort, and the Wisconsin legislature has not consented to be sued in tort. See Carlson v. Pepin County,
B. Claims Against Defendant Perry
Plaintiffs have also asserted several claims against Dean Perry, including unconstitutional taking, conversion, unjust enrichment, breach of contract, and promissory estoppel. Plaintiffs concede that the takings claims under the state and federal constitutions, which concern the use of the governmental power of eminent domain, do not apply to Dean Perry (Pl.’s Opp. at 6), and they will therefore be dismissed. As to the remaining claims, the State Defendants argue that Plaintiffs’ claims sounding in contract and quasi contract fail to state a claim against Dean Perry and should be dismissed.
The Court agrees. It is clear from the complaint that with respect to any agreement entered into with the Plaintiffs, Dean Perry was acting on behalf of the University, not for any private purpose. It is well established that “where an agent merely contracts on behalf of a disclosed principal, the agent does not become personally liable to the other contracting party.” Benjamin Plumbing, Inc. v. Barnes,
The same is true of Plaintiffs’ claims for promissory estoppel and unjust enrichment. Any promises made by Dean Perry were made in his capacity as dean, not as an individual, and the only party that was conceivably enriched as a result of the transaction, was the University. There is no allegation that Dean Perry benefitted personally from the decision to assert authority over the Museum and its assets. Based on these facts as alleged in the complaint, there is no basis in equity to impose liability on Deán Perry. Accordingly, Plaintiffs’ claims for breach of contract, unjust enrichment and promissory estoppel will be dismissed.
That leaves Plaintiffs’ claim against Dean Perry for conversion. Section 893.82 of the Wisconsin Statutes governs the procedure for asserting tort actions against state employees. A claimant must serve the attorney general with a written notice of claim within 120 days of the event giving rise to the civil action and notice must be served by certified mail. Wis. Stat. § 893.82(3), (5). Strict compliance with these statutory requirements is required. Wis. Stat. § 893.82(2m). Defendants argue that Plaintiffs failed to strictly comply with this statute in two ways, either of which warrants dismissal: the notice of claim was not served on time and it was not served via the proper method of service.
Regarding timeliness the parties dispute what constitutes the “event giving rise to the civil action” under Wis. Stat. § 893.82(3). On the one hand, Defendants contend that the Plaintiffs’ cause of action stems from events occurring in the middle of 2009 when “Perry began to hint that the System’s Fox Valley campus would begin to take over and assert control over the Museum and its assets.” (Compl. ¶ 32.) Plaintiffs argue that the “event ... giving rise to the civil action” was not Perry’s
Defendants further argue that the manner in which Plaintiffs’ notice was served was improper. Plaintiffs personally served the Attorney General with notice of claim. (Doc. 4-2.) The statute states, however, that the notice “shall be served on the attorney general at his or her office in the capítol by certified mail.” Wis. Stat. § 893.82(5). The State Defendants argue that personal service does not constitute strict compliance, and the claim must therefore be dismissed.
Certified mail is “mail for which the sender requests proof of delivery in the form of a receipt signed by the addressee.” Black’s Law Dictionary 963 (7th ed. 1999). The Notice of Claim served by Plaintiffs on the Attorney General bears a receipt of copy and acknowledgment stamp that appears to have been signed by the Attorney General or his designee. (It also appears to have been served on the Attorney General at his office at the Risser Office Building where the Wisconsin Department of Justice is housed, as opposed to the Capitol as the statute requires, but the State Defendants do not object on that ground.) The State Defendants argue that “the certified mail requirement facilitates the identification of that particular type of legal filing” (Reply at 6), but offer no explanation why signing a receipt for an envelope delivered by a U.S. Postal employee is different from signing an acknowledgment of receipt on a copy of a notice of claim delivered by a deputy sheriff or other process server. Seeing no difference between the two, I conclude that Plaintiffs strictly complied with the notice of claim statute.
The Wisconsin Court of Appeals addressed a similar issue in Patterson v. Board of Regents of University of Wisconsin System,
I conclude that the Plaintiffs strictly complied with the notice of claim statute. The State Defendants have failed to show
C. Injunctive and Declaratory Relief
Plaintiffs also argue that even if the State Defendants are immune from liability for damages on some of the claims asserted, Plaintiffs still may be entitled to declaratory or injunctive relief. They note that there are exceptions to the bar of sovereign immunity where the only relief sought is for declaratory or injunctive relief. An action for declaratory relief will lie, for example, against state officials and agencies to resolve controversies as to the constitutionality or proper construction and application of statutory provisions. Lister,
Neither exception is applicable to the claims on which I have found the defendants immune, however. Plaintiffs do not seek in those claims a declaration as to the constitutionality or proper construction of any statutory provision, and they do not seek to prevent a state actor or agency from taking action beyond its constitutional or jurisdictional authority. The dispute between the parties is over the ownership and control of Museum assets, not the authority of the state agency involved. This is not the kind of dispute that the exceptions carved out of the state’s sovereign immunity for injunctive and declaratory relief were created to address.
CONCLUSION
For the reasons set forth above, the motion to dismiss (Dkt. 2) is granted in part. Specifically all claims except the takings claims are dismissed as to the Board of Regents, and all claims except the conversion claim are dismissed as to Dean Perry.