Page:Arkansas Lottery Commission v. Alpha Marketing.pdf/5

 infringement and is continuing to do so with each act of infringement." Additionally, it argued that the Commission acted in bad faith and in an ultra vires manner because it "failed to follow [the] proper statutory procedure set forth in [Arkansas Code Annotated section] 4-71-209(3)(c) and (4) to invalidate the trademarks referenced in the original and amended complaint, and rather, [the Commission] acted in bad faith and in [an] ultra vires manner by simply sending a cease[-]and[-]desist letter by and through the Attorney General's office." With respect to the takings claim, Alpha requested an injunction until the Commission first deposited an amount sufficient to cover its damages with the court and declaratory relief regarding the validity of and the exclusive right to use the trademarks, as well as any other just and proper relief.

Again, the Commission filed a motion to dismiss, this time the second amended complaint, arguing in part that the "second amended complaint should be dismissed in its entirety because the Commission was entitled to sovereign immunity." It also filed an answer to the second amended complaint again asserting sovereign immunity. Subsequently, the court filed an order denying the motion to dismiss. In the order denying the motion to dismiss the second amended complaint, the court denied the motion because it determined that Alpha had pled sufficient facts for certain exceptions to sovereign immunity—ultra vires acts, an unconstitutional taking, and waiver of the doctrine by the Commission's request for affirmative relief of its original answer. The court further stated, "Though the Court did not make any specific ruling on any of the substantive claims, the Court finds that [Alpha] pled sufficient facts for each exception to sovereign immunity to withstand a Motion to Dismiss." The Commission appealed.