                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAR 19 2015

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

NATIONAL CONFERENCE OF                           No. 13-55545
PERSONAL MANAGERS, INC., a
Nevada non-for-profit corporation,               D.C. No. 2:12-cv-09620-DDP-RZ

              Plaintiff - Appellant,
                                                 MEMORANDUM*
  v.

EDMUND G. BROWN, Jr., Governor of
the State of California, in his official
capacity; et al.,

              Defendants - Appellees.


                   Appeal from the United States District Court
                      for the Central District of California
                   Dean D. Pregerson, District Judge, Presiding

                            Submitted March 6, 2015**
                               Pasadena California

Before: REINHARDT, N.R. SMITH, and HURWITZ, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Appellant National Conference of Personal Managers, Inc. (“NCOPM”)

sued Defendants Edmund G. Brown, Jr., Governor of the State of California, in his

official capacity; Kamala D. Harris, Attorney General of California, in her official

capacity; and Julie A. Su, California Labor Commissioner, in her official capacity.

NCOPM alleged that Defendants’ interpretation and enforcement of the California

Talent Agencies Act, Cal. Lab. Code §§ 1700-1700.47 (“TAA”), resulted in

constitutional violations. Defendants filed a motion to dismiss pursuant to Federal

Rules of Civil Procedure 12(b)(1) and(b)(6). Defendants argued that (1) the

district court lacked subject matter jurisdiction, because the Governor and the

Attorney General were entitled to sovereign immunity; (2) NCOPM lacked Article

III standing; (3) the Labor Commissioner was not an appropriate defendant; and

(4) NCOPM failed to state any claims upon which relief could be granted.

      The district court found that (1) the Governor and Attorney General likely

had sovereign immunity, (2) NCOPM likely had standing, and (3) the Labor

Commissioner was likely the appropriate party to sue for her non-adjudicatory acts.

However, the district court “declin[ed] to resolve those issues fully.” Rather, the

court granted Defendant’s motion to dismiss on the merits, agreeing that NCOPM

failed to state a claim to relief that was plausible on its face as to each of the

alleged constitutional violations. NCOPM appeals the district court’s order.


                                            2
      The Supreme Court has repeatedly stated that federal courts have an

independent obligation to determine jurisdiction before addressing the merits of a

case. Henderson v. Shinseki, 131 S. Ct. 1197, 1202 (2011); Arbaugh v. Y & H

Corp., 546 U.S. 500, 514 (2006). From the record before us, we are unable to

determine if the district court affirmatively decided the jurisdiction and standing

issues. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101 (1998)

(finding a court may not assume “hypothetical jurisdiction” in order to “resolve

contested questions of law when its jurisdiction is in doubt”).1 Our duty to

consider jurisdiction requires us to remand, so that the district court can make

definite findings as to its jurisdiction and NCOPM’s standing. See United States v.

Durham, 941 F.2d 886, 892 (9th Cir. 1991).

      Therefore, we VACATE the judgment and REMAND to allow the district

court to determine the jurisdiction and standing issues. The parties shall bear their




      1
              We take judicial notice of the requested documents. See Dkt. Nos. 10,
26. The documents are the type that a court may judicially notice in connection
with ruling on a Rule 12(b)(6) motion to dismiss without converting the motion
into a motion for summary judgment. See Lee v. City of Los Angeles, 250 F.3d
668, 688-89 (9th Cir. 2001) (a court may take judicial notice of matters of public
record and a court may also consider documents referenced in the complaint,
documents upon which the claim necessarily relies, and documents whose
authenticity is not questioned).
                                          3
own costs, because the judgment is vacated and neither party argued this issue on

appeal.




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