Can a state waive its sovereign immunity under the Eleventh Amendment?

A state waives its Eleventh Amendment immunity if it unequivocally evidence[s its] intention to subject itself to the jurisdiction of the federal court. Hill v. Blind Indus. & Servs. of Md., 179 F.3d 754, 758 (9th Cir.1999). A state may waive its sovereign immunity through conduct that is incompatible with an intent to preserve that immunity. Id. We have found that state defendants engaged in conduct incompatible with an intent to preserve sovereign immunity when they raised a sovereign immunity defense only belatedly, after extensive proceedings on the merits. For example, in Hill, we determined that the state waived sovereign immunity when the state did not raise the defense until the opening day of trial, after it had filed two motions to dismiss and an answer that did not assert the defense, consented to have a magistrate judge try the case, conducted discovery, moved to compel discovery and for sanctions, participated in a pre-trial

[623 F.3d 1022]