[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 12, 2006
No. 05-17192 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-00146-CV-4
MISENER MARINE CONSTRUCTION, INC.,
Plaintiff-Counter-Defendant-
Counter-Claimant-Appellee,
versus
NORFOLK DREDGING COMPANY,
Defendant-Counter-Claimant-
Cross-Defendant-Cross-
Claimant-Appellee,
TRAVELERS CASUALTY AND
SURETY COMPANY OF AMERICA,
Defendant-Counter-Defendant-
Appellee,
GENERAL GAS CARRIER CORPORATION,
Defendant-Cross-Claimant-
Cross-Defendant-
Counter-Defendant-Appellee,
LPG/C STEVEN N,
Defendant-Cross-Claimant-
Counter-Defendant-Appellee,
PCS PHOSPHATE COMPANY, INC.,
Defendant-Counter-Claimant-
Third-Party Plaintiff-Appellee,
PCS NITROGEN FERTILIZER, L.P.,
Defendant-Counter-Claimant-
Third-Party Plaintiff-Appellee,
versus
GEORGIA PORTS AUTHORITY,
Third-Party Defendant-
Counter-Claimant-
Counter-Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(October 12, 2006)
Before BLACK and HULL, Circuit Judges and CONWAY,* District Judge.
PER CURIAM:
*
Honorable Anne C. Conway, United States District Judge for the Middle District of
Florida, sitting by designation.
2
Georgia Ports Authority (GPA) appeals the district court’s December 14,
2005, order denying its motion to dismiss based on Eleventh Amendment
immunity. GPA filed its motion to dismiss on June 2, 2005. On November 15,
2005, prior to the court issuing an order on the motion, GPA filed a motion for
summary judgment also based on Eleventh Amendment immunity. In a status
report filed contemporaneously with the motion for summary judgment, GPA
asked the court to supplement its motion to dismiss with the additional factual and
legal support found in its motion for summary judgment. Based on the district
court’s order, however, it appears the court only reviewed the motion to dismiss.
The order states: “[b]efore the Court is Georgia Ports Authority’s . . . Motion to
Dismiss based on Eleventh Amendment immunity (Doc. 66).” Moreover, briefing
on the motion for summary judgment was not complete at the time the district
court issued the order denying the motion to dismiss. Misener Marine responded
to the motion for summary judgment on December 13, 2005. The next day,
December 14, 2005, the court denied GPA’s motion to dismiss. GPA then filed a
reply brief in support of its motion for summary judgment on December 22, 2005.
As of this time, the district court has yet to rule on the motion for summary
judgment.
3
The parties have submitted extensive evidentiary support that will be
considered upon summary judgment. However, given the very limited record
presented initially with the motion to dismiss, we conclude only that the Georgia
Ports Authority has failed to satisfy its burden of establishing Eleventh
Amendment immunity at this procedural juncture. Accordingly, we cannot say
that the district court erred when it denied GPA’s motion to dismiss based on that
limited record. The district court also did not err in ruling on the motion to dismiss
based on only the evidence presented with the motion to dismiss and in not
considering the evidentiary support submitted with the summary judgment motion,
given that the summary judgment motion was filed over five months after the
motion to dismiss was filed and the briefing on the summary judgment motion was
not even complete when the district court denied the motion to dismiss.
Our affirmance of the denial of the motion to dismiss, however, is without
prejudice to GPA’s reassertion of the Eleventh Amendment immunity argument in
its motion for summary judgment, which remains pending before the district court.
Nothing herein shall be construed as a substantive ruling on whether the GPA is or
is not entitled to Eleventh Amendment immunity.
AFFIRMED.
4