No Waiver by Over-Broad Motion: Tenth Circuit Clarifies That a State Official Does Not Waive Eleventh-Amendment Immunity Merely by Filing a Comprehensive Rule 12 Motion

Introduction

In Williams v. Gordon, No. 24-8067 (10th Cir. June 10, 2025), the United States Court of Appeals for the Tenth Circuit addressed the intersection of (i) Eleventh-Amendment sovereign immunity, (ii) the Ex parte Young exception, and (iii) the procedural requirements of Federal Rule of Civil Procedure 4. Bruce B. Williams—an atheist resident of Gillette, Wyoming, and adherent of the “Hypatian Society”—sought to give invocations at City Council meetings and to install a monument of his group’s “21 Rules” alongside an existing Ten Commandments monument. After losing in state court, he filed a pro se federal civil-rights suit against the Wyoming Governor and a slew of city entities and officials.

The district court dismissed all claims with prejudice, citing Eleventh-Amendment immunity (Governor) and defective service of process (City defendants). On appeal, the Tenth Circuit affirmed the dismissals on the merits but held that the form of dismissal was improper. Because jurisdiction was lacking, the dismissals had to be without prejudice. In doing so, the Court articulated two important rules:

A state official does not waive Eleventh-Amendment immunity simply by submitting a Rule 12(b) motion that happens to address claims beyond those asserted against the official.
Where service of process is defective, a federal court lacks personal jurisdiction and must dismiss without prejudice, even if it also believes the underlying pleading fails to state a claim.

Summary of the Judgment

Governor Mark Gordon: The Tenth Circuit agreed that Eleventh-Amendment immunity barred the claim, found no valid Ex parte Young pathway, and held that the Governor’s expansive Rule 12 motion did not waive immunity. Nevertheless, because the immunity issue is jurisdictional, dismissal must be without prejudice.
City of Gillette & City Officials: Service was fatally defective—summons lacked the clerk’s signature and court seal, and no individual officials were served at all—so the district court had no personal jurisdiction. Consequently, the claims must again be dismissed without prejudice.
Disposition: Judgment vacated and remanded with instructions to enter dismissal without prejudice as to all defendants.

Analysis

Precedents Cited

K.A. v. Barnes, 134 F.4th 1067 (10th Cir. 2025) – Reiterates the fundamental bar of the Eleventh Amendment and frames the Court’s immunity analysis.
Lapides v. Board of Regents, 535 U.S. 613 (2002) & Pettigrew v. Oklahoma DPS, 722 F.3d 1209 (10th Cir. 2013) – Explain how a state may waive immunity by voluntary invocation of federal jurisdiction (e.g., by removal or intervention).
Ex parte Young, 209 U.S. 123 (1908) – The anchor exception allowing federal courts to enjoin state officers prospectively.
Free Speech Coalition v. Anderson, 119 F.4th 732 (10th Cir. 2024) – Requires a “particular duty to enforce” the challenged law to satisfy Ex parte Young.
Omni Capital Intl. v. Rudolf Wolff & Co., 484 U.S. 97 (1987) – Personal jurisdiction hinges on proper service of process.
Ayres v. Jacobs & Crumplar, 99 F.3d 565 (3d Cir. 1996) – Summons lacking clerk’s signature/seal is void, depriving court of jurisdiction.
Hollander v. Sandoz Pharmaceuticals, 289 F.3d 1193 (10th Cir. 2002) – Dismissals for lack of personal jurisdiction are without prejudice.
Procedural guidance cases: Garrett v. Selby, 425 F.3d 836 (10th Cir. 2005) (liberal pro se construction); Shrum v. Cooke, 60 F.4th 1304 (10th Cir. 2023) (Rule 8 specificity).

Legal Reasoning

Eleventh-Amendment Immunity Not Waived
The Court engaged the two recognized methods of waiver: (a) explicit waiver by the state, and (b) voluntary invocation of federal jurisdiction. It drew a bright line: filing a defensive Rule 12 motion is not “voluntary invocation”; a defendant does not choose the forum—plaintiff does. Therefore, even though Governor Gordon’s motion swept broadly across claims not aimed at him, no waiver occurred.
Ex parte Young Inapplicable
To fit within Ex parte Young, a plaintiff must show that the defendant officer has (i) a particular duty to enforce the challenged provision and (ii) a demonstrated willingness to do so. Williams argued only a generalized gubernatorial duty to “faithfully enforce laws,” which the Tenth Circuit deemed insufficient under its 2024 precedent in Free Speech Coalition.
Defective Summons Equals Lack of Personal Jurisdiction
Rule 4(a)(1)(F)–(G) demands the clerk’s signature and the court’s seal. Because the summons served on Gillette lacked both, service was null. As for individual city officials, there was no service at all. Under Omni Capital, absent valid service the court lacks personal jurisdiction.
Form of Dismissal: Without Prejudice
Jurisdictional defects—whether subject-matter (Eleventh Amendment) or personal (service)—require dismissal without prejudice so that the plaintiff, if able, may refile in an appropriate forum or cure service deficiencies. The panel cited Albert v. Smith’s Food & Drug, 356 F.3d 1242 (10th Cir. 2004) and Rule 4(m).

Impact of the Decision

Clarifies Waiver Doctrine – Litigants—and particularly plaintiffs suing state actors—must recognize that routine defensive motions by those actors will not dispose of immunity defenses.
Signal to District Courts – Jurisdictional dismissals must be without prejudice; conflating merits deficiencies with jurisdictional ones risks reversible error.
Service-of-Process Rigor – Even sympathetic courts cannot overlook non-compliance with Rule 4; pro se status offers no immunity from procedural rules.
Strategic Guidance for Plaintiffs – Plaintiffs challenging state laws must identify a specific enforcement nexus (agency/official + statute) or risk dismissal under Free Speech Coalition.
Practical Caution for Government Counsel – When moving to dismiss for the entire slate of defendants, counsel should watch for potential appearances of waiver, though Williams now provides a protective precedent.

Complex Concepts Simplified

Eleventh-Amendment Immunity: A constitutional doctrine barring federal suits against a state or state officials (in their official capacity) without the state’s consent, unless a recognized exception applies.
Ex parte Young Exception: Allows plaintiffs to seek prospective (forward-looking) injunctive or declaratory relief against state officials who enforce unconstitutional laws. It targets the officer’s “enforcement conduct,” not the state’s treasury.
Waiver by “Voluntary Invocation”: A state waives immunity when it chooses the federal forum (e.g., by removing a case filed in state court, intervening, or filing a federal claim). Defensive conduct within a case the plaintiff filed in federal court is not waiver.
Service of Process: The formal delivery of court papers that establishes a court’s authority over a defendant. A summons missing the clerk’s signature or court seal is legally ineffective.
Dismissal “With” vs. “Without” Prejudice: Dismissing with prejudice ends the case permanently on the merits; without prejudice preserves a plaintiff’s right to refile (subject to limitations statutes and other defenses).

Conclusion

Williams v. Gordon is less about the substance of Establishment-Clause or Free-Exercise rights and more about procedural rigor. The Tenth Circuit curtailed a district court’s over-expansive “with prejudice” dismissal, emphasizing two doctrinal guardrails: (1) a state officer’s broad defensive motion does not waive sovereign immunity, and (2) jurisdictional dismissals must be without prejudice. The decision fortifies the procedural architecture that frames constitutional litigation against states and serves as a cautionary tale for pro se plaintiffs to master service rules and immunity principles before wading into federal court.