the Ansel Adams Publishing Rights Trust, a California partnership v. THE UNIVERSITY OF ARIZONA, Counter-defendant -

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THE ANSEL ADAMS PUBLISHING
RIGHTS TRUST, a California partnership,
Plaintiff - Counter-defendant,
v.
PRS MEDIA PARTNERS, LLC, a
California limited liability company; RICK
NORSIGIAN, an individual,
Defendant - Counter-
claimants - Appellants,
v.
THE UNIVERSITY OF ARIZONA,
Counter-defendant - Appellee.
No. 11-16120
D.C. No. 3:10-cv-03740-JSW
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Jeffrey White, District Judge, Presiding
Argued and Submitted November 7, 2012
San Francisco, California
FILED
DEC 19 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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The Honorable William E. Smith, District Judge for the U.S. District**
Court for the District of Rhode Island, sitting by designation.
2
Before: BERZON and FERNANDEZ, Circuit Judges, and SMITH, District
Judge.**
PRS Media Partners, LLC and Rick Norsigian (together, PRS) appeal the
district court’s dismissal of PRS’s claim against The University of Arizona
(University) for lack of subject matter jurisdiction. We review questions of subject
matter jurisdiction de novo. Hughes v. United States, 953 F.2d 531, 535 (9th Cir.
1992).
We affirm the district court’s conclusion that the University is entitled to
sovereign immunity under the Eleventh Amendment. As a non-jural entity under
Arizona law, the University cannot be sued in its own name; rather, the Arizona
Board of Regents (Board), as the governing body for Arizona’s public universities,
is the proper defendant for all actions against the University. Whether the Board is
immune under the Eleventh Amendment is a legal question that the Ninth Circuit
has answered in Rutledge v. Arizona Board of Regents, 660 F.2d 1345 (9th Cir.
1981), and Ronwin v. Shapiro, 657 F.2d 1071 (9th Cir. 1981). Nothing has
changed since the Rutledge and Ronwin rulings that would cause the Board to lose
its immunity.

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PRS argues that this court’s decision in Mitchell v. Los Angeles Community
College District, 861 F.2d 198, 201 (9th Cir. 1989), enumerates a new test that
requires the court to re-visit its determination about the Board’s immunity.
However, Mitchell did not overrule Ronwin or Rutledge and its test uses
substantially the same factors the court considered in those cases. The Ninth
Circuit already determined that the Board is entitled to immunity as a matter of law
and nothing in Mitchell alters this conclusion.
PRS further argues that the Center for Creative Photography’s (Center)
revenue sources outside of the University negates the University’s Eleventh
Amendment immunity because a judgment against the University would be paid by
the Center and not out of the State of Arizona’s treasury. However, PRS failed to
name the Center as a defendant, so we cannot say that a judgment against the
University would be satisfied by anything other than the State’s insurance policy
that covers legal judgments incurred by “[t]he [S]tate and its departments,
agencies, boards and commissions and all officers, agents and employees thereof
and such others as may be necessary to accomplish the functions or business of the
[S]tate.” Ariz. Rev. Stat. § 41-621(A)(3). Moreover, a judgment against the
University would amount to a legal liability incurred by the State, which the
Supreme Court has held to be the most important factor in whether an agency is

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entitled to sovereign immunity. Regents of the Univ. of Cal. v. Doe, 519 U.S. 425,
430-31 (1997).
We also deny PRS’s request for leave to conduct further discovery to
determine the relationship between the Center and the University because such
discovery would be futile. “Discovery is necessary . . . only if it is possible that the
plaintiff can demonstrate the requisite jurisdictional facts if afforded that
opportunity.” St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989). The
decision of the district court to deny the request for discovery is reviewed for abuse
of discretion. Af-Cap Inc. v. Chevron Overseas (Congo) Ltd., 475 F.3d 1080, 1086
(9th Cir. 2007). PRS conceded in its First Amended Counterclaim that the Center
is “a division of the University of Arizona Libraries,” E.R. at 102, and “a public
institution [that] exists to serve the public interest, not any single vested interest,”
E.R. at 104. Therefore, a suit against the Center would amount to a suit against the
Board, which is immune. No additional discovery could change the Board’s
immunity, so the district court did not abuse its discretion by denying PRS’s
discovery request.
Finally, PRS argues that the State of Arizona lacked standing to bring the
motion to dismiss on behalf of the University because the State is not a named

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party. PRS asserts that the Board would have been the proper entity to file the
motion to dismiss in its own name. As noted above, Ninth Circuit law clearly
states that the Board is an arm of the State and the State is the real party in interest
in suits against the Board. Therefore, the State had standing to bring the motion to
dismiss.
AFFIRMED.

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