Hill

Defendant Blind Industries & Services of Maryland (“BISM”) appeals from a judgment in favor of plaintiff Jerry Hill (dba American Sewing & Bag Company) *756 (“Hill”) on Hill’s breach of contract claim. We affirm.

The sole issue on appeal is whether the district court properly denied BISM’s motion to dismiss this action pursuant to the Eleventh Amendment. We hold that BISM consented to jurisdiction in federal court by actively litigating this action on the merits, while waiting until trial to first assert Eleventh Amendment immunity. We therefore do not decide whether BISM is an “arm of the state” for Eleventh Amendment purposes.

BACKGROUND

BISM contracted to purchase a substantial portion of the assets of Hill’s business. When BISM failed to make payments allegedly due him, Hill brought this action in federal court for fraud and breach of contract. BISM moved to dismiss for lack of personal jurisdiction in California. The motion was denied. BISM filed an answer, and then unsuccessfully moved to dismiss the action on the ground that the amount in controversy was less than the jurisdictional minimum for diversity cases. BISM did not mention the Eleventh Amendment or sovereign…