NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 20-1330 __________

BERNARD ANDREW ROTHMAN, Appellant

v.

STATE OF NEW JERSEY, DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT, DIVISION OF WAGE AND HOUR COMPLIANCE, GENERAL ENFORCEMENT ____________________________________

On Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 3-19-cv-13011) District Judge: Honorable Michael A. Shipp ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) May 25, 2021 Before: JORDAN, MATEY and NYGAARD, Circuit Judges

(Opinion filed May 27, 2021) ___________

OPINION* ___________

PER CURIAM

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Bernard Rothman appeals the District Court’s order dismissing his complaint under

Fed. R. Civ. P. 12(b)(1). For the reasons set forth below, we will affirm.

Rothman filed a pro se complaint against the New Jersey Department of Labor and

Workforce Development (“the Department”) alleging that it issued an invalid subpoena

against him and that its subpoena power is unconstitutional. According to Rothman, the

Department issued a subpoena demanding certain payroll information from a business that

he owns. Rothman alleged that the subpoena contained the wrong address for the business

and was overbroad. He claimed that when he complied with the subpoena and appeared to

give testimony, he was coerced into signing a prewritten statement. He also alleged that

the Department is engaging in “[m]ass [s]urveillance of every entity and individual without

any court order [or] probable cause,” in violation of the Fourth Amendment. ECF 1 at 6.

After the Department filed a motion to dismiss, the District Court dismissed the

action without prejudice on the ground that the state is immune from suit under the

Eleventh Amendment. Even though Rothman sued the Department, the District Court

concluded that the state was “the real party in interest” and the Department was thus

immune from suit. The District Court granted Rothman leave to amend his complaint,

which Rothman did not do. Instead, he appealed.

We have jurisdiction over this appeal pursuant to

We exercise

plenary review over the District Court’s dismissal of Rothman’s case. See Blanciak v.

1 We have ruled that we can exercise appellate jurisdiction over a litigant’s appeal from an order dismissing a complaint without prejudice and with leave to amend on the basis 2 Allegheny Ludlum Corp.,

(3d Cir. 1996) (reciting standard of review for

dismissal of an action on sovereign immunity grounds).

The Eleventh Amendment guarantees that nonconsenting states may not be sued by

private individuals in federal court unless Congress abrogates the state’s immunity

pursuant to a valid exercise of its power. See Bd. of Trs. of the Univ. of Ala. v. Garrett,

(2001). A suit may be barred by the Eleventh Amendment even

though a state is not named a party to the action, as long as the state is the real party in

interest. Edelman v. Jordan,

(1974); see also Pennhurst State Sch. &

Hosp. v. Halderman,

(1984) (stating “in the absence of consent a suit in

which the State or one of its agencies or departments is named as the defendant is

proscribed by the Eleventh Amendment”). “This jurisdictional bar applies regardless of

the nature of the relief sought.”2 Pennhurst State Sch. & Hosp.,

.

that the litigant failed “to move to amend within the [period of time] granted by the court.” Batoff v. State Farm Ins. Co.,

, 851 n.5 (3d Cir. 1992). By failing to file an amended complaint within the time allotted by the District Court and filing a notice of appeal instead, Rothman “elected to stand” on his complaint. See id.; see also Hoffman v. Nordic Nats., Inc.,

(3d Cir. 2016); Huertas v. Galaxy Asset Mgmt.,

, 31 n.3 (3d Cir. 2011) (per curiam). Rothman also confirmed his desire to stand on his complaint in his opening brief. See Appellant’s Br. at 8; see also Remick v. Manfredy,

(3d Cir. 2001) (concluding that appellant may declare intention to stand on complaint in this Court). 2 While a limited exception exists in which federal courts may have jurisdiction to entertain a lawsuit seeking prospective injunctive relief against a state official, see Pennhurst, 465 U.S at 102-03, Rothman has not named any state officials in this action. 3 The District Court correctly determined that the case was barred by the Eleventh

Amendment. As the District Court explained, the Department is a principal department of

the state’s executive branch and any money collected by the Department is paid to the New

Jersey state treasury. ECF 13 at 6. The State of New Jersey was thus the real party at

interest, and the District Court properly held that the Department was immune from suit.

See Fitchik v. N.J. Transit Rail Operations, Inc.,

(3d Cir. 1989) (en

banc). Further, New Jersey has not waived its immunity in federal court, see Port Auth.

Police Benevolent Ass’n, Inc. v. Port Auth.,

, 418 (3d Cir. 1987), abrogated

on other grounds by Hess v. Port Auth. Trans-Hudson Corp.,

(1994), and

Congress has not abrogated New Jersey’s immunity, see generally Quern v. Jordan,

(1979).

Accordingly, we will affirm the District Court’s judgment.

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