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June 8, 1990

Herbert HARVIS, Father and Next Friend of Carl A. Harvis, Missing and Presumed Dead, Plaintiff,
The BOARD OF TRUSTEES OF the UNIVERSITY OF ILLINOIS, and Kenneth Rineheart, Defendants

The opinion of the court was delivered by: NORGLE


 Before the Court is the motion of the defendants, the Board of Trustees of the University of Illinois (the "Board of Trustees") and Kenneth Rinehart, *fn1" to dismiss plaintiff's two count third amended complaint pursuant to Fed. R. Civ. P. 12(b)(6).

 On a motion to dismiss, the allegations of the complaint as well as the reasonable inferences to be drawn from them are taken as true. Doe v. St. Joseph's Hosp., 788 F.2d 411 (7th Cir. 1986). The plaintiff need not set out in detail the facts upon which a claim is based, but must allege sufficient facts to outline the cause of action. Id. The complaint must state either direct or inferential allegations concerning all of the material elements necessary for recovery under the relevant legal theory. Mescall v. Burrus, 603 F.2d 1266 (7th Cir. 1979). The court is not required to accept legal conclusions either alleged or inferred from pleaded facts. Carl Sandburg Village Condominium Ass'n No. 1 v. First Condominium Development Co., 758 F.2d 203, 207 (7th Cir. 1985). Dismissal under Rule 12(b)(6) is improper unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Papapetropoulous v. Milwaukee Transport Services, Inc., 795 F.2d 591, 594 (7th Cir. 1986).

 The case arises out of a scuba diving accident in the Atlantic Ocean. The plaintiff's decedent, Carl Harvis, a student at the University of Illinois, was a member of a crew of a vessel owned by the University of Illinois. Diving operations were conducted from the vessel as part of a course on marine life offered by the University of Illinois. Kenneth Rinehart, a professor at the University of Illinois, as the instructor of the marine life course, was responsible for supervising the diving operations from the vessel. Carl Harvis is missing and presumed to be dead, having last been seen during the diving operations conducted from the vessel. The plaintiff, who has been appointed as executor of Carl Harvis' estate, alleges negligence and seeks a judgment for monetary damages for wrongful death. His complaint pleads causes of action under the Jones Act, 46 U.S.C. App. § 688, the Death on the High Seas Act, 46 U.S.C. § 761 and general maritime law.

 The Board of Trustees, the defendant in Count I, moves to dismiss based on two ostensibly separate, but closely interrelated grounds -- the doctrine of sovereign immunity and the eleventh amendment.

 Sovereign immunity protects sovereign states from suits generally. The University of Illinois and its Board were created pursuant to "An Act to provide for the organization and maintenance of the University of Illinois," approved February 28, 1867 and subsequent acts. See Ill. Rev. Stat. ch. 144, paras. 22-48.8 (1985). The Board of Trustees consists of the Governor of the State of Illinois, two non-voting student members and nine trustees elected at state-wide general elections. See Ill. Rev. Stat. ch. 144, para. 41 (1985). The Board of Trustees has been held to be an instrumentality of the state and protected by the doctrine of sovereign immunity. See Cannon v. University of Health Sciences, 710 F.2d 351, 356 (7th Cir. 1983); Tanner v. Board of Trustees of the University of Illinois, 48 Ill. App. 3d 680, 363 N.E.2d 208, 210, 6 Ill. Dec. 679 (4th Dist. 1977).

 The eleventh amendment to the United States Constitution *fn2" protects states from suit in federal courts either by their own citizens or citizens of other states. See Hans v. Louisiana, 134 U.S. 1, 10, 33 L. Ed. 842, 10 S. Ct. 504 (1890). "The significance of the Amendment 'lies in its affirmation that the fundamental principle of sovereign immunity limits the grant of judicial authority in Art. III' of the Constitution." Welch v. State Dept. of Highways and Public Transp., 483 U.S. 468, 107 S. Ct. 2941, 2945, 97 L. Ed. 2d 389 (1987) (quoting Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 98, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984)).

 In interpreting the reach of eleventh amendment, the United States Supreme Court has stated: "The rule has evolved that a suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment." Edelman v. Jordan, 415 U.S. 651, 663, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974); see also Florida Department of State v. Treasure Salvors, Inc., 458 U.S. 670, 689-90, 73 L. Ed. 2d 1057, 102 S. Ct. 3304 (1982) (plurality opinion); Continental Insurance Co. v. Illinois Department of Transportation, 709 F.2d 471, 473 (7th Cir. 1983); McDonald v. State of Illinois, 557 F.2d 596, 600 (7th Cir. 1977); Cheng v. State of Illinois, 438 F. Supp. 917, 917 n. 1 (N.D. Ill. 1977). However, a state may waive its eleventh amendment immunity and consent to suit against it in a federal court, see Clark v. Barnard, 108 U.S. 436, 447, 27 L. Ed. 780, 2 S. Ct. 878 (1883), provided it does so expressly. See Edelman, 415 U.S. at 673 (waiver only "by the most express language or by such overwhelming implications from the text . . . ."). In addition, Congress may abrogate eleventh amendment immunity under certain circumstances, provided it too does so expressly. See Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 243, 105 S. Ct. 3142, 87 L. Ed. 2d 171 (1985); Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 49 L. Ed. 2d 614, 96 S. Ct. 2666 (1976).

 Because the plaintiff in Count I brings a claim against an instrumentality of the State of Illinois and seeks an award of damages to be paid by the Board of Trustees from state funds, his federal suit is barred by the eleventh amendment, unless either Congress has abrogated it or Illinois has waived its sovereign immunity.

 Congress did not, in enacting any of the acts under which plaintiff brings his causes of action, abrogate the eleventh amendment. As for the plaintiff's Jones Act claim, the United States Supreme Court has specifically held such claims to be barred by the eleventh amendment. See Welch, 107 S. Ct. at 2947 (plurality opinion) ("We hold today that the general language of the Jones Act does not authorize suits against the States in federal court.")

 Neither can plaintiff's Death on the High Seas Act and general maritime law claims escape the provisions of the eleventh amendment. Nothing in the Death on the High Seas Act supports a finding of abrogation. Moreover, the Supreme Court has held that: "Nor is the admiralty and maritime jurisdiction exempted from the operation of the rule . . . . It seems to us equally clear that it cannot with propriety be construed to leave open a suit against a state in the admiralty jurisdiction by individuals, whether its own citizens or not." Ex parte In the Matter of the State of New York, No. 1, 256 U.S. 490, 497-8, 65 L. Ed. 1057, 41 S. Ct. 588 (1921); see also Welch, 107 S. Ct. at 2945 n. 3 ("In Florida Dept. of State v. Treasure Salvors, Inc., 458 U.S. 670, [73 L. Ed. 2d 1057, 102 S. Ct. 3304] (1982), eight members of the Court reaffirmed the settled rule that the Eleventh Amendment bars admiralty actions against the State or its officials seeking damages to be paid from the state treasury.")

 Also illustrative is the Seventh Circuit's decision in Williamson Towing Co., Inc. v. State of Illinois, 534 F.2d 758 (7th Cir. 1976). The plaintiff there had brought an action in admiralty alleging that the State of Illinois had negligently maintained a bridge across the navigable waters (failed to turn on bridge's navigation lights), causing an accident. The Williamson Towing court, invoking Ex parte In the Matter of the State of New York, No. 1, held that the eleventh amendment barred an admiralty action in federal court against the State of Illinois. 534 F.2d at 759-60.

 Neither has there been a waiver of sovereign immunity. Under the doctrine of sovereign immunity, Illinois is immune from suits for damages, except if it has consented to such suits, and if it has so consented, only to the extent it has consented. See Edelman, supra. Illinois permits a suit for damages against ...

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