How to Assert State Sovereign Immunity under the Federal Rules of Civil Procedure

INTRODUCTIONTwenty years have passed since Supreme Court announced dramatic changes to doctrine of state sovereign immunity in Seminole Tribe of Florida v. Florida.1 This doctrine prevents by private parties against unconsenting States2 in recognition of state's power to govern itself and its citizens freely, as well as financial impact lawsuits have on state's treasury.3 Since Seminole Tribe, Supreme Court has-in a series of contentious 5-4 decisions-increasingly allowed this doctrine to immunize states and their officers from suits arising under federal laws and sometimes even Constitution.4 But while Court has expanded state sovereign immunity's substantive doctrine, it has neglected how state sovereign immunity should operate under Federal Rules of Civil Procedure.Without guidance from Supreme Court, federal courts inconsistently apply state sovereign immunity claims to Federal Rules, each of which can negatively impact parties' substantive and procedural rights. Some courts dismiss disputes because they lack jurisdiction (some say subject-matter jurisdiction over dispute, others say personal jurisdiction over state) without ever considering underlying merits of plaintiff's claim.5 Other courts acquire jurisdiction over state defendant, thereby compelling state to appear before a different sovereign's tribunal and defend itself.6 Yet more courts will issue a judgment against a state defendant but cannot enforce that judgment because state belatedly raises its immunity after litigation's conclusion.7 And many courts raise state sovereign immunity question sua sponte, which denies both parties their right to determine how their litigation proceeds.8 But all courts diverge in their treatment of parties' rights because they inconsistently apply state sovereign immunity claims to Federal Rules, not because of specific facts at issue in any one case.If assertion of state sovereign immunity remains a series of ad hoc procedural determinations, then it threatens very reason for having a unified set of procedural rules-to secure just, speedy, and inexpensive determination of every action.9 Clear procedural rules promote accurate dispute resolution on merits, respect parties' rights, and ultimately support a just judicial system.10 Unclear procedural rules, by contrast, prejudice parties because unclear rules are inherently unpredictable, produce erroneous decisions, and undermine public's faith in justness of judicial system.11 State sovereign immunity is currently classified as latter, which is a problem for individual litigants and states alike. The judicial system should not require plaintiffs to guess when state sovereign immunity can be raised or whether it is defendant or court that raises defense. And judicial system should decide if states enjoy procedural rights of sovereigns or of individual litigants, rather than oscillate between two.The Supreme Court continuously punts on questions that could clarify state sovereign immunity's relationship to Federal Rules and how that relationship affects parties' procedural and substantive rights.12 These questions divide along three lines: foundational questions-whether state sovereign immunity is or is not jurisdictional; procedural questions-how and when to raise state sovereign immunity claims; and practical questions-how to reconcile state sovereign immunity with multiparty lawsuits.First, foundational questions ask whether state sovereign immunity affects subject-matter jurisdiction, personal jurisdiction, or acts as a quasi-jurisdictional immunity from suit. The Court has acknowledged that the Eleventh Amendment defense sufficiently partakes of nature of a jurisdictional bar,13 but it has also equivocated that doctrine is neither consistent with . . . …