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Israel v. University of Utah

United States District Court, D. Utah

April 18, 2017

ESTHER ISRAEL, Plaintiff,
v.
UNIVERSITY OF UTAH, DONALD STEVEN STRASSBERG, JORDAN ELIZABETH RULLO, JULIA MACKARONIS, KELLY KINNISH and MICHAEL MINER, Defendants.

          MEMORANDUM DECISION AND ORDER GRANTING DEFENDANT UNIVIERSITY OF UTAH'S MOTION TO DISMISS

          Ted Stewart United States District Judge

         This matter is before the Court on Defendant University of Utah's Motion to Dismiss. For the reasons discussed below, the Court will grant the Motion and dismiss Plaintiff's claims against the University without prejudice.

         I. BACKGROUND

         Pro se Plaintiff Esther Israel was admitted to the Clinical Psychology program at the University of Utah in the fall of 2002. Defendant Strassberg was Israel's assigned research advisor. While pursuing a doctoral degree, Israel conducted two research projects, one regarding the appeal of sexually explicit pictures and the other on viewing time as a measure of sexual interest. The latter research became the basis of her master's thesis. For her study, Plaintiff selected and arranged a set of pictures, wrote instructions, and created the syntax necessary for the study to be administered largely by computer program. Her original work included the pictures, text, and syntax. She stored her research materials on a computer in a lab controlled by Defendant Strassberg. Israel's thesis was approved in June of 2006.

         In 2007, Defendant Strassberg allegedly denied Israel access to the lab where her original materials were stored. At some point, Israel claims that University of Utah faculty and/or graduate students began using her materials and including her name on publications without obtaining permission. Plaintiff complained to faculty, but the issues were allegedly not resolved to Israel's satisfaction. In 2008, Plaintiff registered a copyright for the original work she had done for her research.[1] In 2009, Plaintiff left the University on contentious terms with her master's degree.

         Israel filed this suit in October, 2015, alleging that individual Defendants Strassberg, Rullo, Mackaronis, Kinnish and Miner violated her intellectual property rights by producing peer-reviewed publications, academic papers, posters, or presentations based on her copyrighted materials without her consent. Israel also alleges that the University of Utah repeatedly failed to address her reports of copyright infringement.

         The University of Utah has filed a Motion to Dismiss Plaintiff's claims for violations of the Copyright Act, Lanham Act, unfair competition laws, and various state laws based on sovereign immunity under the Eleventh Amendment to the U.S. Constitution.

         II. MOTION TO DISMISS STANDARD

         A claim “of Eleventh Amendment immunity concerns the subject matter jurisdiction of the district court.”[2] Federal Rule of Civil Procedure 12(b)(1) permits dismissal for “lack of subject-matter jurisdiction.” A motion to dismiss based on sovereign immunity may come in one of two forms.

First, a party may make a facial challenge to the plaintiff's allegations concerning subject matter jurisdiction, thereby questioning the sufficiency of the complaint. In addressing a facial attack, the district court must accept the allegations in the complaint as true. Second, a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends.[3]

         In a “factual” attack, a party may go beyond allegations contained in the complaint, and the court has “wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts.”[4]

         III. DISCUSSION

         The University of Utah argues that Eleventh Amendment immunity bars Israel's claims against it.[5] The Eleventh Amendment guarantees that “non-consenting states may not be sued by private individuals in federal court.”[6] The Eleventh Amendment's jurisdictional bar extends to “arms of the state.”[7] The Tenth Circuit has recognized the University of Utah as an arm of state.[8] Therefore, Eleventh Amendment immunity extends to the University of Utah. However, sovereign immunity is subject to three exceptions. First, federal courts may enjoin ...


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