Hanfling

ORDER

This matter is before the Court upon the motion of the State Compensation Insur-anee Fund of California (herein the “Fund”) to dismiss the Chapter 7 Trustee’s underlying complaint to recover an alleged preference. The Fund moves pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, and Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted, as those Rules are incorporated by Federal Rule of Bankruptcy Procedure 7012. The Motion asserts that the Eleventh Amendment to the U.S. Constitution confers immunity on the Fund from this lawsuit.

The Fund bears the burden of proving it is entitled to Eleventh Amendment immunity. ITSI TV Productions, Inc., v. Agricultural Associations, 3 F.3d 1289, 1292 (9th Cir.1993). In claiming such immunity here, the Fund merely asserts that it was established under the California Constitution, is a division of the California Department of Industrial Relations, and an agency of the State of California. The Fund fails to address the well-established five-part test for evaluating whether it is an “arm of the State” entitled to Eleventh Amendment immunity, as set…