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November 20, 1972


The opinion of the court was delivered by: Austin, District Judge.


Plaintiff has moved to strike and dismiss the counterclaims on the ground that they are prohibited by the eleventh amendment to the United States Constitution and the Illinois Constitution and statutes.

The recent case of Parden v. Terminal Railway, 377 U.S. 184, 186, 84 S.Ct. 1207, 1210, 12 L.Ed.2d 233 (1964), noted that a state's eleventh amendment immunity "may of course be waived; the State's freedom from suit without its consent does not protect it from a suit to which it has consented." The issue then is has the state waived its immunity.

The eleventh amendment to the United States Constitution provides:

  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 by Citizens
  or Subjects of any Foreign State.

Ratification of the amendment was completed on February 7, 1795. In one of the first cases to discuss that amendment, United States v. Peters, 9 U.S. (5 Cranch) 115, 139, 3 L.Ed. 53 (1809), Chief Justice Marshall noted:

    The right of a state to assert, as plaintiff, any
  interest it may have in a subject, which forms the
  matter of controversy between individuals, in one of
  the courts of the United States, is not affected by
  this amendment; nor can it be so construed as to oust
  the court of its jurisdiction, should such claim be
  suggested. The amendment simply provides, that no
  suit shall be commenced or prosecuted against a

In Clark v. Barnard, 108 U.S. 436, 447-448, 2 S.Ct. 878, 883, 27 L.Ed. 780 (1883), where the assignees of a bankrupt railroad and the treasurer of the state of Rhode Island contested ownership of a certificate of indebtedness issued by the City of Boston, the Court held;

  The immunity from suit belonging to a state, which is
  respected and protected by the constitution within
  the limits of the judicial power of the United
  States, is a personal privilege which it may waive at
  pleasure; so that in a suit, otherwise well brought,
  in which a state had sufficient interest to entitle
  it to become a party defendant, its appearance in a
  court of the United States would be a voluntary
  submission to its jurisdiction; while, of course,
  those courts are always open to it as a suitor in
  controversies between it and citizens of other
  states. In the present case the state of Rhode Island
  appeared in the

  cause and presented and prosecuted a claim to the
  fund in controversy, and thereby made itself a party
  to the litigation to the full extent required for its
  complete determination. It became an actor as well as
  defendant, as by its intervention the proceeding
  became one in the nature of an interpleader, in which
  it became necessary to adjudicate the adverse rights
  of the State and the appellees to the fund, to which
  both claimed title.

A number of cases has cited Clark v. Barnard for the proposition that immunity can be waived. Parden, supra, 377 U.S. at 186, 84 S.Ct. 1207; Petty v. Tennessee-Missouri Bridge Commission, 359 U.S. 275, 276, 79 S.Ct. 785, 3 L.Ed.2d 804 (1959); Gardner v. New Jersey, 329 U.S. 565, 574, 67 S.Ct. 467, 91 L.Ed. 504 (1947); Ford Motor Co. v. Department of Treasury of Indiana, 323 U.S. 459, 465, 65 S.Ct. 347, 89 L.Ed. 389 (1945); Great Northern Life Insurance Co. v. Read, 322 U.S. 47, 54, 64 S.Ct. 873, 88 L.Ed. 1121 (1944); Gunter v. Atlantic Coast Line Railroad, 200 U.S. 273, 284, 26 S.Ct 252, 50 L.Ed. 477 (1906).

This court believes that plaintiff has waived its immunity in this case. It has come into a federal court and invoked this court's jurisdiction pursuant to article III, § 2 of the United States Constitution and 28 U.S.C. § 1333. In the language of Clark v. Barnard, it has made a "voluntary submission" to the court's jurisdiction. 108 U.S. at 447, 2 S.Ct. 878. Were the court to hold otherwise, the result would at the least be inequitable and perhaps would result in a lack of a real "case" or "controversy." The complaint and the counterclaim, at least as to Count I, involve one occurrence. The only issue apparently is which party was at fault when the barges and the bridge collided. Were the counterclaim to be dismissed, plaintiff would be in the enviable position of "heads I win, tails you lose." If defendants were found to have been negligent, the plaintiff would win. If defendants were found not to have been negligent, then presumably the accident was the fault of plaintiff's agents, yet under plaintiff's theory, defendants would not be able to recover for their loss. The court would not be able to make a "complete determination" of the case. Clark v. Barnard, supra, 108 U.S. at 448, 2 S.Ct. 878. To hold otherwise would leave the court with only half a case, raising the issue of whether it is a "case" or controversy", which are the only disputes over which this court has jurisdiction. United States Constitution article III, § 2. Therefore, this court finds that plaintiff has waived its immunity.

Plaintiff next argues that Count I of the counterclaim should be restricted to set-off and that Count II be dismissed because it is not germane to the complaint.

The law in regard to the definitions of "set-off" and "recoupment" and to the effect of allowing each seems to be unclear. Plaintiff contends that only a set-off be allowed, yet apparently it probably ...

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