ITSI TV Productions, Inc. v. Agricultural Associations

We must decide a question of apparent first impression: who bears the burden of persuasion when a putative state entity claims immunity from suit in federal court under the Eleventh Amendment?

I

ITSI T.V. Productions, Inc. (“ITSI”) sued California State Fail’ and Exposition (“Cal Expo”) and various District Agricultural Associations (“the DAAs”) for copyright infringement. At issue were broadcasts of horse races created by ITSI and used by Cal Expo and the DAAs in connection with state and local fairs they had organized. Both Cal Expo and the DAAs moved to dismiss on the ground that they are “arms of the state” of California, and, as such, immune from suit under the Eleventh Amendment. The district court ruled that this motion presented a jurisdictional issue separate from the merits of the case, and thus permitted limited discovery and held an evidentiary hearing to determine the facts relevant to that issue. The court thereafter issued an order in which it granted the motion to dismiss as to Cal Expo, and denied the motion as to the DAAs. 785 F.Supp. 854 . The disappointed parties appeal.

II

The district court assigned Cal Expo and the DAAs the burden of proving their…