The opinion of the court was delivered by: Austin, District Judge.
MEMORANDUM OPINION and ORDER
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
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
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
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 ...