concurring in part and dissenting in part.
I concur fully in parts I and II of the Court’s judgment and opinion but dissent with respect to part III.
Although our circuit’s current precedent mandates the outcome the Court reaches in parts I and II, I write separately to express my concern about the Eighth Circuit’s judicially-created suggestion that “section 1983 litigants wishing to sue government agents in both capacities should simply use the following language: ‘Plaintiff sues each and all defendants in both their individual and official capacities.’ ” Nix v. Norman, 879 F.2d 429, 431 (8th Cir.1989) (quoting Rollins by Agosta v. Farmer, 731 F.2d 533, 536 n. 3 (8th Cir.1984)). Since Nix, this suggestion has mutated into a bright-line presumption that “[i]f a plaintiffs complaint is silent about the capacity in which she is suing the defendant, we interpret the complaint as including only official-capacity claims.” Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615, 619 (8th Cir.1995). This presumption had its genesis in Nix based upon our perception of Federal Rule of Civil Procedure 9(a) and the Eleventh Amendment’s limitations on federal court jurisdiction. Rule 9(a) provides, “[i]t is not necessary to aver the capacity of a party to sue or be sued ... except to the extent required to show the jurisdiction of the court.” Coupled with the observation that “[t]he Eleventh Amendment presents a jurisdictional limit on federal courts in civil rights cases against states and their employees,” Nix concluded that “Rule 9(a) appears to require Nix to make a capacity stipulation in the complaint.” Nix, 879 F.2d at 431. A close inspection of the cases in which we have required litigants to specify the capacity in which a defendant is being sued have, with few exceptions, involved state actors arguably entitled to an Eleventh Amendment immunity defense.5
As at least one other circuit has pointed out, the logic laid out in Nix supporting our presumption may be faulty in its premise. See Biggs v. Meadows, 66 F.3d 56, 59-60 (4th Cir.1995). Unlike subject matter jurisdiction, Eleventh Amendment immunity is not “jurisdictional in the sense that it must be raised and decided by [a] Court on its own motion.” Patsy v. Bd. of Regents, 457 U.S. 496, 515 n. 19, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982). Also unlike subject matter jurisdiction, a party entitled to sovereign immunity may waive it. See Grand River Enters. Six Nations, Ltd. v. *927Beebe, 467 F.3d 698, 701 (8th Cir.2006). While the operation of Rule 9(a) in § 1983 cases with Eleventh Amendment issues may be debatable, it appears that Rule 9(a) has no express application in cases like this one, where the defendants cannot assert Eleventh Amendment immunity. See N. Ins. Co. of N.Y. v. Chatham County, 547 U.S. 189, 126 S.Ct. 1689, 164 L.Ed.2d 367 (2006) (noting that the Supreme Court “has repeatedly refused to extend sovereign immunity to counties”). The overwhelming majority of our sister circuits uniformly take a different approach to capacity-pleading issues, see Powell v. Alexander, 391 F.3d 1, 22 & n. 25 (1st Cir.2004) (adopting the “course of proceedings” test used in the Second, Third, Fourth, Sixth, Seventh, Ninth, Tenth, Eleventh and D.C. Circuits), and our rule seems to be swimming against recent currents from the Supreme Court regarding notice pleading, see Smerkiewicz v. Sorema N.A., 534 U.S. 506, 512-14, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); Doe v. Cassel, 403 F.3d 986, 989 (8th Cir.2005) (recognizing that Swierkiewicz has abrogated Eighth Circuit § 1983 heightened pleading requirements).
With respect to part III of the Court’s opinion, I respectfully dissent. In my view, dismissal of the state law claim with prejudice is an abuse of discretion where the movants did not address the state law claim in their summary judgment motion and the district court was similarly silent on the claim. “It is well settled the party seeking summary judgment .must first identify grounds demonstrating the absence of a genuine issue of material fact.” Robinson v. White County, 459 F.3d 900, 902 (8th Cir.2006) (quotation and alteration omitted) (reversing the district court’s dismissal of state law claims because the party seeking summary judgment failed to identify grounds demonstrating the absence of a genuine issue of material fact with respect to those claims and the district court failed to articulate a basis for dismissing those claims). In Ivy v. Kim-brough, the district court did address the state law claims at issue there when it concluded that there was no evidence to support them or the § 1983 claims, which relied on the same core facts. 115 F.3d 550, 553 (8th Cir.1997). Here, I do not find it particularly relevant that the state law claim at issue “arose out of the same core of operative facts” as the federal claims because the federal claims were dismissed on limitations and immunity grounds, and it is not clear that an immunity analysis under Arkansas law would reach the same result.6
Even assuming that we should review this issue under a plain error standard,7 the movants here failed to meet their predicate burden of establishing their entitlement to summary judgment on the state law claim, and the district court’s dismissal of that claim with prejudice leaves Baker worse off for having pled the claim in federal court.8 See Olson v. Ford Motor Co., 481 F.3d 619, 627 (8th Cir.2007) (“Under [the plain error] standard, a verdict should be reversed only if the error has *928prejudiced the substantial rights of a party and would result in a miscarriage of justice if left uncorrected.”).
Under these circumstances, I would direct the district court to dismiss the state law claim without prejudice.
. Among the exceptions are Johnson v. Outboard Marine Corp., 172 F.3d 531 (8th Cir.1999) and Artis v. Francis Howell N. Band Booster Ass’n, Inc., 161 F.3d 1178 (8th Cir.1998). Because these cases have applied our bright-line presumption to § 1983 cases not involving Eleventh Amendment immunity, I believe that they are controlling as to the instant case.
. The parties neither briefed nor argued Arkansas immunity issues.
. I am not convinced that plain error review is appropriate here where the defendants' motion for summary judgment failed to address the state law claim at all and where they only requested "the summary dismissal of Plaintiff's Complaint,” without clearly requesting that the dismissal be with prejudice. The nonmoving party should not have a duty to "preserve” an issue that the moving party has not specifically put at issue.
.Although Baker would have faced a statute of limitations issue with respect to the state law claim, he also might have had recourse to tolling of the limitations period. See Ragland v. Alpha Aviation, Inc., 285 Ark. 182, 686 S.W.2d 391, 393 (1985).