By Daniel Hare
Civil Procedure is a foundational course within the first-year curriculum of most U.S. law schools. The case of former Arizona assistant football coach Theron Aych raises several key issues a law student could find on their final exam and experienced litigators regularly address including personal jurisdiction, subject matter jurisdiction, sovereign immunity, timely serving defendants, timely filing motions and responses, and more.
The case arose when the University of Arizona (U of A) fired head football coach Kevin Sumlin on December 12, 2020 following a 9-20 record over three seasons (the 2020 season was shortened to just five games due to the COVID-19 pandemic).
Eleven days later, Arizona hired longtime NFL assistant Jedd Fisch to be its new head coach. Included among the coaching staff Fisch hired was former UCLA assistant coach James “Jimmie” Dougherty.
According to Theron Aych, an assistant coach under Sumlin who was also let go by Arizona, Dougherty was improperly in possession of a thumb drive which contained the Sumlin playbook and several other key Arizona documents. Aych sued the university, its board of regents, the athletic director, the Pac-12, UCLA, the NCAA and others on the grounds that they deliberately sent the files to opposing schools during the Sumlin era in order to sabotage the team, causing them to lose, and provide grounds to fire the coaching staff. The numerous claims ran from federal racketeering and antitrust violations to state-based defamation and fraud.
Though most of the defendants were located in Arizona, as this was the origination of the alleged conspiracy, Aych filed the lawsuit in federal district court in California. The defendants timely filed a motion to dismiss under 12(b)(1) (lack of subject matter jurisdiction / sovereign immunity), 12(b)(2) (lack of personal jurisdiction), and 12(b)(6) (failure to state a claim).
In his order and opinion, Judge Otis Wright of the United States District Court for the Central District of California noted several strategic and procedural issues with the plaintiff’s approach:
- not amending their pleading in response to the 12(b) motion as permitted by Rule 15(a)(1)(B) of the Federal Rules of Civil Procedure;
- improperly embedding a motion for leave to amend within the opposition to the 12(b) motion;
- filing the opposition to the 12(b) motion four days after the deadline to do so; and
- failing to serve UCLA or the Pac-12 within ninety days according to Rule 4(m). See Aych v. Univ. of Ariz., 2024 BL 229763, at 4 (C.D. Cal. July 5, 2024).
Specifically, after the Court had given the plaintiff an opportunity to amend the complaint rather than oppose the motion to dismiss, the Court stated, “Aych elected not to amend as permitted by Rule 15, instead filing an opposition that does not address many of the moving arguments four days after his deadline to oppose. Based on untimeliness alone, the Court could decline to consider Aych’s opposition altogether and grant the Motion.” (Id.)
The Court dismissed UCLA and the Pac-12 without prejudice based upon the plaintiff’s failure to serve them. (Id. at 3.) And though the Court could have granted the remaining defendants’ motion to dismiss based on the untimeliness of the plaintiff’s opposition, it chose to address the substance of the motion instead. (Id. at4.)
In finding that the University of Arizona and the Arizona Board of Regents are immune from suit under the Eleventh Amendment of the United States Constitution and dismissing them from the suit with prejudice, the Court wrote, “Public universities are entitled to sovereign immunity under the Eleventh Amendment as are their employees in official capacities.” (Id. citing Rounds v. Or. State Br. of Higher Educ., 166 F.3d 1032, 1035 (9th Cir. 1999)).
The Court went on: “However, the Eleventh Amendment does not bar suits seeking damages against public university employees in their individual capacities. Aych, BL 229763 at 5 citing Stoner v. Santa Clara Cnty. Off. of Educ., 502 F.3d 1116, 1125 (9th Cir. 2007) citing Hafer v. Melo, 502 U.S. 21, 30-31, 112 S. Ct. 358, 116 L. Ed. 2d 301 (1991). Aych sues Individual Defendants in their individual capacities, a fact which Defendants neglect to acknowledge, (Mot. 14–15 (arguing state employees are immune from suit while omitting that sovereign immunity applies only to suits in a state employee’s official capacity).) Therefore, Individual Defendants may not invoke sovereign immunity from Aych’s suit.” (Id. at 5.)
The Court then turned to the Individual Defendants (Fisch, Dougherty, and U of A’s athletic director at the time Dave Heeke) acting in their individual capacity. Regarding personal jurisdiction, the Court found it could not assert general personal jurisdiction since none of the defendants lived or had “continuous and systematic” affiliations with California. (Id. at 6.)
It further found that specific personal jurisdiction didn’t exist since the alleged tortious activity (disseminating the playbook) was not “expressly aimed at the forum state,” but rather at “‘one or more of the NCAA and Pac-12’ member institutions.” (Id. at 7.)
Finally, the Court addressed the plaintiff’s attempt to obtain personal jurisdiction via the Racketeer Influenced and Corrupt Organizations (RICO) statute, which in certain circumstances can permit jurisdiction anywhere in the United States. Before § 1965(a) authorizes personal jurisdiction over the conspiracy defendants, “the court must have personal jurisdiction over at least one of the participants,” and “the plaintiff must show that there is no other district in which a court will have personal jurisdiction over all of the alleged co-conspirators.” (Id. at 7 citing Butcher’s Union Local No. 498 v. SDC Inv., Inc., 788 F.2d 535, 539 (9th Cir. 1986)). Here, the Court determined that it lacked personal jurisdiction over any of the individual defendants, and that an Arizona court would have jurisdiction over all of them. So the Court could not use the RICO statute to exercise personal jurisdiction. (Id. at 7.)
Since the Court was unable to exercise either general or specific personal jurisdiction over the Individual Defendants, it dismissed them without prejudice. (Id. at 8.)
Only the NCAA, which is headquartered in Indiana, but has relationships with member institutions in all fifty states, remained as a defendant following the Court’s July 5th, 2024 order dismissing the other defendants. In what amounts to a companion order and opinion that was filed ten days later, on July 15th, the Court granted the NCAA’s Motion to Dismiss for lack of personal jurisdiction.
To arrive at its conclusion, the Court applied the Ninth Circuit Court of Appeals’ three-prong test to analyze specific personal jurisdiction: 1) purposeful availment and direction, 2) relation to forum, and 3) reasonableness. Aych v. Univ. of Ariz., 2024 BL 240495, at 3 (C.D. Cal. July 15, 2024) citing Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004).
Regarding the purposeful availment and direction prong, the Court said, “The NCAA may certainly have continuing relationships with its California member institutions. However, the NCAA does not reach out of Indiana simply because it has the authority to punish, deter, and regulate those institutions…the NCAA legislates and regulates in Indiana, and thus any decision to exercise its authority over its various member institutions would also have taken place in Indiana.” Aych BL 240495 at 4. And, “…a finding of personal jurisdiction based on its ability to regulate would mean that the NCAA could be haled into court in any state, which is plainly unreasonable.” (Id.)
The Court then looked at the second prong, “whether the plaintiff’s claim arises out of or is related to the defendant’s contact with the forum.” (Id.) It needed to see there was “an affiliation between the forum and the underlying controversy…that takes place in the forum state and is therefore subject to the state’s regulation.” (Id. citing Bristol-Myers Squibb Co. v. Superior Ct. of California, San Francisco Cnty., 582 U.S. 255, 262).
One problem with this assertion was that the Court had already found that any harm to Aych based on the NCAA’s alleged failure to regulate its member institutions arose in Indiana and not California. Further, any harm Aych alleged occurred in Arizona and not California. (Id.) So the Court found no claims related to the forum state. Given that Aych failed on both prongs one and two, the NCAA did not have the burden to establish unreasonableness under the third prong. (Id. at 5.)
The Court dismissed the claims against the NCAA, the lone remaining defendant in the case, without prejudice for lack of personal jurisdiction. (Id.)
Aych has appealed the Court’s decisions to the Ninth Circuit Court of Appeals, and a briefing schedule takes place over September and October 2024. (Aych v. University of Arizona, et al., Docket No. 24-4710 (9th Cir. Aug 01, 2024)). Perhaps the Fall 2025 entering law school class will have a Ninth Circuit opinion to consider on their Civil Procedure final exam.
Daniel Hare is the Founder and President of Varsity Search, an attorney recruitment company. He is a former NCAA Division II athletic director, an adjunct professor of sports law at Baylor University and Linfield University, and the 2024-25 Chair of the Entertainment and Sports Law Section of the State Bar of Texas.
