UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 99-31325
Summary Calendar
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NORTHWEST LOUISIANA FISH & GAME PRESERVE COMMISSION,
Plaintiff-Appellant,
v.
RED RIVER WATERWAY COMMISSION,
Defendant-Appellee.
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Appeal from the United States District Court
for the Western District of Louisiana
No. 97-CV-1984
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June 6, 2000
Before SMITH, BARKSDALE and PARKER, Circuit Judges.
PER CURIAM:*
This case comes before us on appeal from the district
court’s grant of summary judgment for defendant Red River
Waterway Commission (“RRWC”) on plaintiff Northwest Louisiana
Fish & Game Preserve Commission’s (“NLF&GPC”) inverse
condemnation claim. Since we agree with the district court’s
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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determination that RRWC established that it was entitled to
judgment as a matter of law and that NLF&GPC failed to establish
that there existed a genuine material issue of fact for trial, we
AFFIRM.
I.
This case arose from an engineering project aimed at
reducing flooding and accommodating navigation along the Red
River basin. The United States Army Corp of Engineers
constructed a series of five locks and dams along the Red River.
The RRWC was established by the Louisiana legislature to aid in
the project. According to its legislative charter, the RRWC was
empowered “to establish, operate, and maintain the waterway,” and
to acquire the property rights necessary to complete that task.
Despite this broad charter language, the RRWC’s participation in
the project has been limited to the acquisition of property
rights, and it does not appear that broader participation was
ever actually contemplated.
The original design for the project established the water
level in pool three at 85 feet. In January of 1995, the level in
the pool was raised to 95 feet. Prior to that time, either the
RRWC or the Corp of Engineers had acquired most of the property
rights to accommodate the rise in water level, except no
agreement had been reached for the acquisition property owned by
NWF&GPC.
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The NWF&GPC filed suit in state court against the RRWC
claiming that the Commission was responsible for raising the
water level in the pool and causing damage to NWF&GPC’s land
bordering the pool. Thus began the tortured procedural history
of this case. The defendant answered, filed a third-party demand
against the United States through the Army Corp of Engineers, and
removed the case to federal court. The case was remanded to
state court for failure to show any basis for federal subject
matter jurisdiction, only to be removed again, this time by the
United States. See 28 U.S.C. § 2679(d) (2) (1994). The
presiding judge denied plaintiff’s second motion for remand of
the entire case and its alternative motion to sever and remand
the principal demand. This determination was based on the
judge’s conclusion that the principal demand against RRWC and the
third-party demand were not “separate and independent” claims.
The judge similarly rejected plaintiff’s contentions that the
case could not be heard in federal court because the defendant
was vested with immunity under the Eleventh Amendment. Plaintiff
sought certification for interlocutory appeal, which the district
court denied. Plaintiff then filed a writ of mandamus, which we
denied.
Finally, more than two and one half years after the initial
suit was filed, defendant moved for summary judgment. After
concluding that the defendant was entitled to judgment as a
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matter of law and that no genuine issues of fact existed, the
court granted summary judgment in favor of defendant. Plaintiff
appealed, and now challenges (1) the grant of summary judgment,
(2) the trial court’s rejection of plaintiff’s attempt to compel
remand by invoking the Eleventh Amendment, and (3) the court’s
refusal to sever and remand the principal demand to state court.
II.
Plaintiff appeals the district court’s grant of summary
judgment for the defendant; we review a district court’s grant of
summary judgment de novo. See Matsushita Elec. Industrial Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986); Todd v. AIG Life
Ins. Co., 47 F. 3d 1448, 1451 (5th Cir. 1995). Summary judgment
is appropriate if the record discloses “that there is no genuine
issue as to any material fact and moving party is entitled to a
judgment as a matter of law.” FED. R. CIV. P. 56 (c). In making
this determination, we must evaluate the facts in the light most
favorable to the non-moving party. See Matsushita, 475 U.S. at
587; Todd, 47 F. 3d at 1451.
Plaintiff appeals the district court’s determination that
this suit was not barred by the Eleventh Amendment. We review
Eleventh Amendment immunity determinations, like other questions
of subject matter jurisdiction, de novo as a question of law.
United States v. Texas Tech Univ., 171 F. 3d 279, 288 (5th Cir.
1999).
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Finally, Plaintiff appeals the district court’s denial of
its motion to sever and remand. A trial court has broad
discretion to sever and remand, we review only for abuse of that
discretion. See Brunet v. United Gas Pipeline Co., 15 F. 3d 500,
505 (5th Cir. 1994).
III.
A.
The district court’s summary judgment order details all of
the relevant summary judgment proof adduced by the parties.
Through its submissions, including federal and state legislative
materials concerning the Red River project and other similar
undertakings, Defendant established that its role in the project
was limited to the acquisition of property rights. Operational
control over the project was exercised solely by the Corp of
Engineers. The Project Management Plan and affidavit evidence
from the Executive Director of the RRWC further clarifies that
any operational decision, such as the decision to raise the water
level in pool three, could only have been undertaken by the Corp
of Engineers, not the RRWC.
Plaintiff’s submissions included ten letters containing
correspondence between the Corp of Engineers, the Louisiana
Department of Wildlife and Fisheries, and the RRWC. The court’s
summary judgment order addressed each piece of evidence
individually. Ultimately, the court concluded that none of the
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letters established a fact question as to the operational
authority to raise the water level in pool three. The plaintiff
also submitted two reports concerning the project. Of the two,
only one was deemed relevant to the case, and it only served to
buttress defendant’s case.
The district court determined that RRWC’s role was limited,
and did not extend to operational control of the project. The
RRWC did not cause the damage to Plaintiff’s property, and
therefore, Plaintiff cannot recover under Louisiana’s law of
inverse condemnation. We AFFIRM the district court’s grant of
summary judgment.
B.
Plaintiff’s argument that the Eleventh Amendment bars this
suit from federal court can be quickly dispatched. The criteria
by which we determine whether an entity is an arm of the state
entitled to Eleventh Amendment immunity were set forth in Clark
v. Tarrant County, Texas, 798 F.2d 736, 744-45 (5th Cir. 1986)
and United Carolina Bank v. Board of Regents, 665 F.2d 553 (5th
Cir. 1982). The six factors that guide our determination are as
follows:
(1) whether the state statutes and case law
characterize the agency as an arm of the state;
(2) the source of the funds for the entity;
(3) the degree of local autonomy the entity enjoys;
(4) whether the entity is concerned primarily with
local, as opposed to state-wide problems;
(5) whether the entity has authority to sue and be sued
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in its own name; [and]
(6) whether the entity has the right to hold and use
property.
Richardson v. Southern University, 118 F.3d 450, 452 (5th Cir.
1997). In its single appellate brief, Plaintiff fails to address
any of these factors. Conversely, Defendant conclusively
establishes that all six factors counsel against a determination
that RRWC is an arm of the State of Louisiana. We conclude that
the district court did not err when it rejected Plaintiff’s
attempt to invoke the Eleventh Amendment on Defendant’s behalf.
C.
The district court refused to sever and remand the principal
demand because the third-party demand was not a separate and
independent claim. The court reasoned that since the “third-
party complaint seeks indemnity based on allegations that the
third-party’s negligence caused the plaintiff’s damage, the claim
is not separate and independent” citing American Fire & Casualty
Co. v. Finn, 341 U.S. 6, 14 (1951). The court went on to note
that even if the third-party demand were a separate and
independent claim, judicial economy and fairness would be best
served by keeping the entire action in federal court.
The statutory authority to sever and remand is set forth at
28 U.S.C. § 1441(c):
Whenever a separate and independent claim or cause of
action within the jurisdiction conferred by section
1331 of this title is joined with one or more otherwise
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non-removable claims or causes of action, the entire
case may be removed and the district court may
determine all issues therein, or, in its discretion,
may remand all matters in which State law predominates.
28 U.S.C. § 1441(c)(1994).
Plaintiff asserts simply that “[t]here is clear and
pervasive authority which supports a sever and remand.” However,
the cases Plaintiff cites are not solidly on point, and Plaintiff
fails to set forth how any factual distinction can be made
between the principal and the third-party demand. Accordingly,
we conclude that the third-party demand against the United States
was not a separate and independent claim or cause of action. The
district court correctly recognized that it was without
discretion to sever and remand under § 1441(c).
IV.
For the reasons set forth above, we AFFIRM.
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