Israel v. University of Utah et al
MEMORANDUM DECISION AND ORDER granting Defendant University of Utah's 51 Motion to Dismiss for Failure to State a Claim. Plaintiff's claims against the University of Utah are dismissed without prejudice. University of Utah terminated. Signed by Judge Ted Stewart on 4/18/2017. (eat)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
MEMORANDUM DECISION AND
ORDER GRANTING DEFENDANT
UNIVIERSITY OF UTAH’S MOTION TO
UNIVERSITY OF UTAH, DONALD
STEVEN STRASSBERG, JORDAN
ELIZABETH RULLO, JULIA
MACKARONIS, KELLY KINNISH and
Case No. 2:15-CV-741 TS
District Judge Ted Stewart
This matter is before the Court on Defendant University of Utah’s Motion to Dismiss.
For the reasons discussed below, the Court will grant the Motion and dismiss Plaintiff’s claims
against the University without prejudice.
Pro se Plaintiff Esther Israel was admitted to the Clinical Psychology program at the
University of Utah in the fall of 2002. Defendant Strassberg was Israel’s assigned research
advisor. While pursuing a doctoral degree, Israel conducted two research projects, one regarding
the appeal of sexually explicit pictures and the other on viewing time as a measure of sexual
interest. The latter research became the basis of her master’s thesis. For her study, Plaintiff
selected and arranged a set of pictures, wrote instructions, and created the syntax necessary for
the study to be administered largely by computer program. Her original work included the
pictures, text, and syntax. She stored her research materials on a computer in a lab controlled by
Defendant Strassberg. Israel’s thesis was approved for publication in June of 2006.
In 2007, Defendant Strassberg allegedly denied Israel access to the lab where her original
materials were stored. At some point, Israel claims that University of Utah faculty and/or
graduate students began using her materials and including her name on publications without
obtaining permission. Plaintiff complained to faculty, but the issues were allegedly not resolved
to Israel’s satisfaction. In 2008, Plaintiff registered a copyright for the original work she had
done for her research. 1 In 2009, Plaintiff left the University on contentious terms with her
Israel filed this suit in October, 2015, alleging that individual Defendants Strassberg,
Rullo, Mackaronis, Kinnish and Miner violated her intellectual property rights by producing
peer-reviewed publications, academic papers, posters, or presentations based on her copyrighted
materials without her consent. Israel also alleges that the University of Utah repeatedly failed to
address her reports of copyright infringement.
The University of Utah has filed a Motion to Dismiss Plaintiff’s claims for violations of
the Copyright Act, Lanham Act, unfair competition laws, and various state laws based on
sovereign immunity under the Eleventh Amendment to the U.S. Constitution.
II. MOTION TO DISMISS STANDARD
A claim “of Eleventh Amendment immunity concerns the subject matter jurisdiction of
the district court.” 2 Federal Rule of Civil Procedure 12(b)(1) permits dismissal for “lack of
subject-matter jurisdiction.” A motion to dismiss based on sovereign immunity may come in one
of two forms.
Docket No. 43 Ex. 6.
Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002).
First, a party may make a facial challenge to the plaintiff’s allegations concerning
subject matter jurisdiction, thereby questioning the sufficiency of the complaint.
In addressing a facial attack, the district court must accept the allegations in the
complaint as true. Second, a party may go beyond allegations contained in the
complaint and challenge the facts upon which subject matter jurisdiction
In a “factual” attack, a party may go beyond allegations contained in the complaint, and
the court has “wide discretion to allow affidavits, other documents, and a limited evidentiary
hearing to resolve disputed jurisdictional facts.” 4
The University of Utah argues that Eleventh Amendment immunity bars Israel’s claims
against it. 5 The Eleventh Amendment guarantees that “non-consenting states may not be sued by
private individuals in federal court.” 6 The Eleventh Amendment’s jurisdictional bar extends to
“arms of the state.” 7 The Tenth Circuit has recognized the University of Utah as an arm of
state. 8 Therefore, Eleventh Amendment immunity extends to the University of Utah. However,
sovereign immunity is subject to three exceptions. First, federal courts may enjoin state officers
E.F.W. v. St. Stephen’s Indian High Sch., 264 F.3d 1297, 1303 (10th Cir. 2001)
(quotation marks and citations omitted).
Stuart v. Col. Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001) (quoting Holt v.
United States, 46 F.3d 1000, 1003 (10th Cir. 1995)).
Docket No. 51.
Crumpacker v. Kan. Dep’t of Human Res., 338 F.3d 1163, 1168–69 (10th Cir. 2003)
(quoting Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001)).
Peterson v. Martinez, 707 F.3d 1197, 1205 (10th Cir. 2013) (quoting Wagoner Cnty.
Rural Water Dist. No. 2 v. Grand River Dam Auth., 577 F.3d 1255, 1258 (10th Cir. 2009)).
See Watson v. Univ. of Utah Med. Ctr., 75 F.3d 569, 575 (10th Cir. 1996).
under Ex Parte Young; 9 Second, Congress may abrogate sovereign immunity; 10 and third, States
may waive sovereign immunity by consent. 11
A. EX PARTE YOUNG
The Ex Parte Young exception applies where a plaintiff is “(1) suing state officials rather
than the state itself, (2) alleging an ongoing violation of federal law, and (3) seeking prospective
relief.” 12 Because Israel is suing the University of Utah directly, the Ex Parte Young exception
does not apply even if Israel alleges ongoing violations of federal laws or seeks prospective
injunctive relief. 13
B. CONGRESSIONAL ABROGATION OF STATES’ IMMUNITY
Israel argues that Congress effectively abrogated states’ immunity to suit on copyright
grounds by enacting the Lanham Act. Congress has attempted to directly abrogate states’
immunity by amending the Copyright Act and the Lanham Act to explicitly require states to be
subject to suit in federal court. 14 However, federal courts have uniformly found that both the
Copyright Remedy Clarification Act and the Trademark Remedy Clarification Act did not
validly abrogate state sovereign immunity because the laws were passed under the Copyright
Clause, and Congress lacks authority to abrogate Eleventh Amendment immunity pursuant to
Peterson, 707 F.3d at 1205.
Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 304 (1990).
Cressman v. Thompson, 719 F.3d 1139, 1146 n.8 (10th Cir. 2013) (internal quotations
marks and citations omitted).
Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146
(1993) (holding that Ex Parte Young “has no application in suits against the States and their
See Chavez v. Arte Publico Press, 204 F.3d 601, 607 (5th Cir. 2000) (finding that
Fourteenth Amendment’s enforcement provision did not justify Congressional attempts to
abrogate state’s immunity under Copyright and Lanham Acts).
Article I power. 15 Therefore, Israel’s argument that Congress abrogated immunity in suits for
copyright infringement fails.
C. STATES’ WAIVER OF IMMUNITY BY CONSENT
States may waive Eleventh Amendment immunity by consenting to suit in federal court.
Such a waiver “must be unequivaocal, i.e., . . . ‘only where stated by the most express language
or by such overwhelming implication from the text [of a state statutory or constitutional
provision] as [will] leave no room for any other reasonable construction.’” 16 Israel argues that
the University of Utah consented to suit by “endorsing the U.S. Copyright Act, accepting federal
assistance . . . , and by placing state court litigation in federal court.” 17
First, the Supreme Court has made clear that a state department’s explicit agreement to
obey federal law does not constitute an express waiver of Eleventh Amendment immunity. 18
Second, “the mere receipt of federal funds cannot establish that a State has consented to suit in
federal court.” 19 Third, the University of Utah did not place this suit in federal court. 20 Rather,
See Chavez, 204 F.3d at 607; Wilcox v. Career Step, L.L.C., No. 2:08-CV-998 CW,
2010 WL 4968263, at *5 (D. Utah Dec. 1, 2010) (noting that federal district courts in and outside
of the Fifth Circuit have been uniform in following Chavez).
Johns v. Stewart, 57 F.3d 1544, 1553 (10th Cir. 1995) (quoting Atascadero State Hosp.
v. Scanlon, 473 U.S. 234, 239–40 (1985)) (internal quotations marks and citations omitted)
(alterations in original).
Docket No. 55, at 9.
Florida Dep’t of Health & Rehab. Servs. v. Florida Nursing Home Ass’n, 450 U.S.
147, 150 (1981).
Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 246–47 (1985).
Docket No. 59.
the University submitted a motion to dismiss the claims brought by Israel in federal court. This
does not constitute a waiver of sovereign immunity. 21
In sum, Israel’s arguments that the University of Utah waived governmental immunity
are without merit. Defendant argues that Plaintiff’s claims should be dismissed with prejudice.
However, a dismissal based on Eleventh Amendment immunity should be without prejudice. 22
It is therefore
ORDERED that Defendant University of Utah’s Motion to Dismiss (Docket No. 51) is
GRANTED. Plaintiff’s claims against the University of Utah are dismissed without prejudice.
DATED this 18th day of April, 2017.
BY THE COURT:
United States District Judge
See Sadid v. Idaho State Univ., 837 F. Supp. 2d 1168, 1175 (D. Idaho 2011) (finding
that Idaho State University did not waive immunity by filing a motion to dismiss in federal court
challenging the court’s jurisdiction).
See Colby v. Herrick, 849 F.3d 1273, 1278 (10th Cir. 2017).
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