                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 19 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                           FOR THE NINTH CIRCUIT



THE ANSEL ADAMS PUBLISHING                       No. 11-16120
RIGHTS TRUST, a California partnership,
                                                 D.C. No. 3:10-cv-03740-JSW
             Plaintiff - Counter-defendant,

  v.                                             MEMORANDUM *

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.



                    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



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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.


         **
             The Honorable William E. Smith, District Judge for the U.S. District
Court for the District of Rhode Island, sitting by designation.


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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

                                          3
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



                                            4
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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