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BIOMEDICAL PATENT MANAGEMENT v. CALIFORNIA, DHS

No. 2006-1515.

505 F.3d 1328 (2007)

BIOMEDICAL PATENT MANAGEMENT CORPORATION, Plaintiff-Appellant, v. State of CALIFORNIA, DEPARTMENT OF HEALTH SERVICES, Defendant-Appellee.

United States Court of Appeals, Federal Circuit.

October 23, 2007.

Attorney(s) appearing for the Case

Andrew J. Dhuey, of Berkeley, CA, argued for plaintiff-appellant. With him on the brief was Richard Kirk Cannon.

Susan J. King, Deputy Attorney General, United States Department of Justice, of San Francisco, CA, argued for defendant-appellee.

Before RADER and GAJARSA, Circuit Judges, and O'MALLEY, District Judge.

O'MALLEY, District Judge.*

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...

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