Biomed. Patent Mgmt. Corp. v. State of California

The issue presented in this appeal is whether a State is entitled to assert its sovereign immunity under the Eleventh Amendment where the State intervened in an earlier, related action that was dismissed for improper venue. The district court concluded that a State was entitled to assert its Eleventh Amendment sovereign immunity in those circumstances and, accordingly, granted a motion to dismiss on that ground filed by Defendant-Appellee State of California, Department of Health Services (“DHS”). Plaintiff-Appellant, Biomedical Patent Management Corporation (“BPMC”), appeals that decision. Because we agree that DHS’s initial waiver of Eleventh Amendment sovereign immunity does not extend to this case or judicially estop DHS from asserting immunity in this case, we affirm.

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