Dougherty v. University of Oklahoma Board of Regents , 415 F. App'x 23 ( 2011 )


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  •                                                                         FILED
    United States Court of Appeals
    Tenth Circuit
    February 3, 2011
    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    Clerk of Court
    TENTH CIRCUIT
    LINDA A. DOUGHERTY,
    Plaintiff-Appellant,
    v.                                                       No. 09-6068
    UNIVERSITY OF OKLAHOMA                          (D.C. No. 5:05-CV-01341-F)
    BOARD OF REGENTS, State of                             (W.D. Okla.)
    Oklahoma ex rel., a constitutional
    state agency,
    Defendant-Appellee.
    ORDER AND JUDGMENT *
    Before LUCERO, BALDOCK, and HOLMES, Circuit Judges. **
    Plaintiff Linda A. Dougherty appeals from the district court’s denial of her
    motion to enforce a settlement agreement against Defendant University of Oklahoma
    Board of Regents. Because we conclude the district court lacked subject matter
    jurisdiction, we remand this case to the district court with instructions to remand to
    the state court.
    *
    This order and judgment is not binding precedent except under the doctrines
    of law of the case, res judicata, and collateral estoppel. It may be cited, however,
    for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
    **
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist in the determination of
    this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is,
    therefore, submitted without oral argument.
    I.
    The parties are familiar with the facts of this case, and we do not recite them
    at length here. In 2005, Plaintiff sued Defendant in Oklahoma state court, alleging
    breach of contract. Defendant removed the action to federal district court, alleging
    subject matter jurisdiction on the basis of diversity of citizenship.       28 U.S.C.
    § 1332(a)(1). Plaintiff is a citizen of Alabama, and both parties appear to have
    assumed Defendant, a “Constitutional body of the State of Oklahoma,” was
    considered a citizen of Oklahoma. Defendant also alleged an amount in controversy
    exceeding $75,000. 1
    After the complaint and answer were filed in federal district court, the parties
    reached a settlement agreement. 2 In a short order, the district court administratively
    closed the case but retained jurisdiction for the purpose of enforcing the settlement
    agreement. Plaintiff became dissatisfied with Defendant’s actions pursuant to the
    settlement agreement and filed a motion to enforce the settlement agreement in 2008.
    The district court concluded the agreement was unambiguous and that Defendant had
    complied with it. The court, therefore, denied her motion to enforce. Plaintiff
    appealed. We subsequently issued an order to show cause why we should not
    1
    Because we conclude diversity of citizenship does not exist in this case, we
    do not reach the question whether the amount in controversy requirement is satisfied.
    2
    In her amended complaint before the federal district court, Plaintiff alleged
    negligent supervision, training and retention claims in addition to her breach of
    contract claim against Defendant.
    2
    remand to the district court with instructions to remand to the state court for lack of
    subject matter jurisdiction. In simultaneous briefings, both parties concede we lack
    subject matter jurisdiction. 3
    II.
    In every case, we must “satisfy ourselves not only of our own jurisdiction, ‘but
    also that of the lower courts in the cause under review.’” Estate of Harshman v.
    Jackson Hole Mountain Resort Corp., 
    379 F.3d 1161
    , 1164 (10th Cir. 2004) (quoting
    Mitchell v. Maurer, 
    293 U.S. 237
    , 244 (1934)). Thus, “‘[w]e have jurisdiction to
    determine our jurisdiction.’” Hamilton v. Gonzales, 
    485 F.3d 564
    , 565 (10th Cir.
    2007) (quoting Schroek v. Gonzales, 
    429 F.3d 947
    , 950 (10th Cir. 2005)).
    The only defendant in this case is the University of Oklahoma Board of
    Regents. The Board of Regents, like the University of Oklahoma itself, is an arm of
    the state of Oklahoma. Cornforth v. Univ. of Okla. Bd. of Regents, 
    263 F.3d 1129
    ,
    1131 n.1 (10th Cir. 2001); Hensel v. Office of Chief Admin. Hearing Officer, 
    38 F.3d 505
    , 508 (10th Cir. 1994); see also Okla. Const. Art. XIII-A, XIII-B (2006);
    Okla. Stat. tit. 70, §§ 3301–3305 (2005). “A state, or the arm or alter ego of a state,
    3
    Defendant notes: “[I]t would seem that an incorrect presumption was shared
    by all–counsel for the University, counsel for Dougherty, the District Court, and
    even this honorable Court, at least for some period of time–that the University’s
    status constituted that of a ‘citizen’ for purposes of diversity jurisdiction.”
    Counsel’s candid admission of his mistake is well-warranted, but his implication that
    this court has made the same mistake is not. It cannot be said that the court which
    ordered the parties to explain why the district court had jurisdiction allowed “the
    issue of subject matter jurisdiction . . . to slip through the cracks.”
    3
    however, does not constitute a ‘citizen’ for diversity purposes.” State Ins. Fund v.
    Ace Transp. Inc., 
    195 F.3d 561
    , 563 (10th Cir. 1999); see also Stone v. South
    Carolina, 
    117 U.S. 430
    , 433 (1886) (“There is no statute which authorizes the
    removal of a suit between a state and citizens on the ground of citizenship, for a state
    cannot, in the nature of things, be a citizen of any state.”); Okla. ex rel. Williams v.
    Okla. Natural Gas Corp., 
    83 F.2d 986
    , 988 (10th Cir. 1936) (“[A] state is not a
    citizen for the purpose of constituting the requisite diversity.”). Because Defendant
    cannot be considered a citizen for diversity purposes, the district court lacked subject
    matter jurisdiction. Accordingly, we remand this action to the district court with
    instructions to remand to the state court.
    Entered for the Court,
    Bobby R. Baldock
    United States Circuit Judge
    4