Date: Feb 15, 2026

Spann v. National Conference of Bar Examiners: Preservation and Specificity Requirements for Jurisdictional Discovery and Rule 56(d) Relief; Law-of-the-Case Limits Re-Litigation

1. Introduction

Parties. Plaintiff-Appellant Doctor Perry Spann sued the National Conference of Bar Examiners (and related individuals) and the New Mexico Board of Bar Examiners (and related individuals) after failing the February 2020 New Mexico bar exam. She alleged she was approved for disability accommodations but was not provided them during the exam.

Claims (relevant on appeal). The operative pleadings asserted claims under Titles II and III of the Americans with Disabilities Act (ADA) and § 504 of the Rehabilitation Act. After multiple amendments, the district court (i) dismissed the National Conference for lack of personal jurisdiction and (ii) granted summary judgment to the State Board on the § 504 claim (no federal funding) and dismissed the remaining Title III claim on Eleventh Amendment sovereign immunity.

Key appellate issues. The Tenth Circuit addressed (1) whether the district court erred by denying post-dismissal jurisdictional discovery as to the National Conference, (2) whether Plaintiff was entitled to discovery under Fed. R. Civ. P. 56(d) before summary judgment on § 504, and (3) whether the State Board was immune from the Title III ADA claim.

2. Summary of the Opinion

The Tenth Circuit affirmed. It held that Plaintiff largely lost because she did not timely and properly preserve requests and arguments in the district court or adequately brief them on appeal:

National Conference (personal jurisdiction / discovery): Plaintiff did not properly request jurisdictional discovery before dismissal; later attempts to revive the issue were barred by law-of-the-case principles and lacked the necessary showing (including identification of specific discovery and new evidence).
State Board (§ 504): Summary judgment was affirmed because Plaintiff failed to satisfy Rule 56(d)’s requirements (including the affidavit/declaration and specificity).
State Board (Title III / sovereign immunity): Plaintiff failed to show waiver of immunity, and her appellate briefing did not meaningfully challenge the district court’s holding that Title III did not validly abrogate immunity in this context; Ex parte Young relief was not in play because she appealed only dismissal of claims against the Board itself.

3. Analysis

3.1. Precedents Cited

A. Personal jurisdiction, jurisdictional discovery, and finality

Hollander v. Sandoz Pharms. Corp., 289 F.3d 1193 (10th Cir. 2002): Cited for the procedural point that dismissal for lack of personal jurisdiction is typically without prejudice because the merits were not reached.
United Techs. Corp. v. Mazer, 556 F.3d 1260 (11th Cir. 2009): Used to support the court’s view that when a plaintiff does not take formal steps to obtain jurisdictional discovery, a district court does not abuse discretion by dismissing on the existing record.
Van Skiver v. United States, 952 F.2d 1241 (10th Cir. 1991): Supports denial of reconsideration when the motion merely re-argues issues already decided.

B. Law-of-the-case doctrine (vertical and horizontal)

Arizona v. California, 460 U.S. 605 (1983): Supplies the foundational statement that once an issue is decided, it generally governs subsequent stages of the same case.
Harris v. City Cycle Sales, Inc., 112 F.4th 1272 (10th. Cir. 2024): Provides the policy justification (ending litigation and preventing re-argument) and the vertical/horizontal framing of law-of-the-case.
Been v. O.K. Indus., Inc., 495 F.3d 1217 (10th Cir. 2007): Cited for the limited circumstances allowing departure from a higher court’s ruling in the same case (material intervening change in facts or controlling law).
Major v. Benton, 647 F.2d 110 (10th Cir. 1981): Recognizes district courts’ ability—before final judgment—to correct prejudicial errors, while also reflecting traditional limits on revisiting prior rulings.
United States v. Uccio, 940 F.2d 753 (2d. Cir. 1991) and Rimbert v. Eli Lilly & Co., 647 F.3d 1247 (10th Cir. 2011): Ground the discretionary application of law-of-the-case in avoiding prejudice, especially prejudice arising from lack of notice and opportunity to be heard.
Brokers' Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d 1081 (10th Cir. 2017): Supplies the three familiar conditions under which revisiting is ordinarily warranted: (1) substantially different new evidence, (2) later contradictory controlling authority, or (3) clear error.

C. Rule 56(d) discovery to oppose summary judgment

Hamric v. Wilderness Expeditions, Inc., 6 F.4th 1108 (10th Cir. 2021): Provides the four-part requirement for Rule 56(d) relief—probable unavailable facts, why unavailable, past steps taken, and how more time would rebut summary judgment—and the abuse-of-discretion standard of review.

D. Appellate waiver / inadequate briefing

Reedy v. Werholtz, 660 F.3d 1270 (10th Cir. 2011): Reiterates that issues can be waived by inadequate briefing; the court invoked it to avoid reaching underdeveloped arguments (including sovereign-immunity discovery and the abrogation analysis).

E. Sovereign immunity: waiver, abrogation, and Ex parte Young

Levy v. Kansas Dept. of Soc. and Rehab. Servs., 789 F.3d 1164 (10th Cir. 2015): Sets out the three paths around Eleventh Amendment immunity: state waiver, valid congressional abrogation under § 5 of the Fourteenth Amendment, or Ex parte Young, 209 U.S. 123 (1908) prospective relief against an official.
Sossamon v. Texas, 563 U.S. 277 (2011): Supplies the “stringent” requirement that waiver be unequivocally expressed and strictly construed.
Hicks v. State, 544 P.2d 1153 (N.M. 1975) and Sanders v. N.M. Corr. Dep't, 562 P.3d 572 (N.M. 2024): The panel used these to reject Plaintiff’s waiver theory: even if Hicks once suggested broader waiver, it has been superseded by the New Mexico Tort Claims Act.
Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (1985) and Griess v. Colorado, 841 F.2d 1042 (10th Cir. 1988): Emphasize that waiving Eleventh Amendment immunity requires a clear statement specifying consent to suit in federal court; general waivers are insufficient.
Springer v. Seventh Jud. Dist. Ct., No. 24-2174, 2025 WL 3121605 (10th Cir. 2025) (unpublished): Reinforces that a state-law waiver that does not mention federal-court suits does not waive Eleventh Amendment immunity.
Tennessee v. Lane, 541 U.S. 509 (2004) and United States v. Georgia, 546 U.S. 151 (2006): Provide the Supreme Court’s framework for valid § 5 abrogation, including “congruence and proportionality,” and the special context where Title II implicates access to courts.
Guttman v. Khalsa, 669 F.3d 1101 (10th Cir. 2012): Central to the district court’s approach: the Tenth Circuit previously held Title II did not validly abrogate sovereign immunity in a professional licensing context absent a Fourteenth Amendment violation; the district court extended that reasoning to Title III here, and the panel declined to reach the merits due to inadequate appellate argument.
Breakthrough Management Group, Inc. v. Chukchansi Gold Casino & Resort, 629 F.3d 1173 (10th Cir. 2010): Cited in a footnote to underscore that merely noting jurisdictional discovery may sometimes be appropriate is not enough—especially where the cited case actually affirmed denial of such discovery.

3.2. Legal Reasoning

A. The National Conference: jurisdictional discovery must be timely, preserved, and specific

The court did not revisit whether the initial personal-jurisdiction dismissal was correct because Plaintiff did not challenge it on the record as it existed at the time. Instead, she argued she should have received jurisdictional discovery after dismissal.

The panel’s reasoning turned on procedural default: Plaintiff never properly sought jurisdictional discovery when it mattered (during the motion-to-dismiss process), did not object to the discovery stay, did not request an exception to the stay when responding to the dismissal motion, and did not raise the issue in objections to the magistrate judge’s initial recommendation. Her later efforts (motion to amend, reply brief, reconsideration motion) were treated as attempts to “resurrect” an “already-closed” issue without identifying specific discovery or offering a recognized basis to revisit the ruling.

The court anchored this in law-of-the-case principles and in the pragmatic standards for reconsideration: absent new evidence, intervening authority, or clear error (as summarized in Brokers' Choice of Am., Inc. v. NBC Universal, Inc.), the district court acted within its discretion in refusing to reopen the question.

B. The State Board (§ 504): Rule 56(d) demands an affidavit/declaration and a concrete proffer

The State Board submitted evidence that it received no federal financial assistance—an essential element because § 504 reaches only federally funded entities. Plaintiff requested discovery, but she did not submit the required Rule 56(d) affidavit/declaration and, even when the magistrate judge looked past that defect, she still failed the substantive requirements described in Hamric v. Wilderness Expeditions, Inc.:

no adequate explanation why the needed facts could not be presented without more time,
no description of steps already taken to obtain them, and
no concrete showing how targeted additional discovery would rebut summary judgment.

On appeal, Plaintiff’s speculation about ways federal funding might exist did not substitute for the required Rule 56(d) showing, nor did it demonstrate an abuse of discretion.

C. The State Board (Title III): strict waiver rules, undeveloped abrogation arguments, and no Ex parte Young path

The parties agreed the State Board is an arm of the State, so Eleventh Amendment immunity applied unless an exception did. The panel addressed each:

Waiver: Plaintiff relied on Hicks v. State, but the court noted Hicks was superseded (as explained by Sanders v. N.M. Corr. Dep't). In any event, under Atascadero State Hosp. v. Scanlon and Sossamon v. Texas, waiver must be unequivocal and must specify consent to suit in federal court; she identified no such provision.
Abrogation: While Congress expressly purported to abrogate immunity in the ADA, valid abrogation requires § 5 “congruence and proportionality” under Tennessee v. Lane. The district court adopted a Guttman v. Khalsa-based approach to reject abrogation here. The Tenth Circuit declined to resolve whether Title III validly abrogates immunity in this context because Plaintiff did not brief a meaningful challenge to that specific holding (invoking Reedy v. Werholtz).
Ex parte Young: The exception did not apply because the appeal concerned dismissal of claims against the State Board itself, not a properly framed request for prospective relief against a state official.

3.3. Impact

Jurisdictional discovery is not automatic. The decision underscores that plaintiffs must request jurisdictional discovery promptly, in the correct procedural posture, and with enough specificity to show how the discovery would bear on jurisdiction—especially when a stay is in place.
Reconsideration is constrained by law-of-the-case practice. By emphasizing the Brokers' Choice of Am., Inc. v. NBC Universal, Inc. factors, the opinion signals that attempts to revive dismissed defendants or re-open resolved threshold issues will generally fail absent a concrete, recognized basis.
Rule 56(d) is a high-friction gateway. Litigants opposing summary judgment must do more than request discovery; they must satisfy Hamric v. Wilderness Expeditions, Inc. with a detailed proffer (ideally via affidavit/declaration) tying the discovery sought to disputed, outcome-material facts.
Title III abrogation remains unsettled in the Tenth Circuit, but skepticism is evident. The panel did not decide the issue, yet it noted the district court’s extension of Guttman v. Khalsa reasoning and expressed doubt about error. Future Title III suits against state arms in federal court should expect aggressive sovereign-immunity challenges and must brief abrogation with the Lane/Georgia framework in mind.
Appellate briefing discipline matters. The repeated use of Reedy v. Werholtz illustrates that undeveloped arguments can forfeit review even when the underlying legal issue is potentially substantial.

4. Complex Concepts Simplified

Personal jurisdiction: A court’s power to bind a particular defendant. If the defendant lacks sufficient contacts with the forum state, the case can be dismissed without reaching the merits.
Jurisdictional discovery: Limited discovery aimed at establishing facts relevant to jurisdiction (e.g., in-state business activities). Courts commonly require a timely request and a showing that discovery is likely to yield jurisdiction-relevant facts.
Law-of-the-case doctrine: A practice that discourages re-litigating issues already decided in the same case. It is strict when lower courts must follow higher-court rulings (the “vertical plane”) and more discretionary when a court considers revisiting its own prior rulings (the “horizontal plane”).
Fed. R. Civ. P. 54(b): Allows district courts to revise interlocutory orders before final judgment, but Spann emphasizes that courts ordinarily do so only for recognized reasons (new evidence, new controlling law, or clear error).
Fed. R. Civ. P. 56(d): A mechanism to obtain time for discovery to oppose summary judgment. The requesting party must identify what facts are missing, why they cannot be presented now, what was already done to obtain them, and how additional discovery would rebut summary judgment.
Eleventh Amendment sovereign immunity: States and their “arms” generally cannot be sued in federal court without consent. Exceptions include clear state waiver, valid congressional abrogation under § 5 of the Fourteenth Amendment, or prospective relief against an official under Ex parte Young.
Congruence and proportionality: The test from Tennessee v. Lane for whether Congress validly used § 5 power to enforce the Fourteenth Amendment: the remedy must fit the constitutional injury being addressed, without being overly broad relative to the harm.
“Arm of the State”: An entity treated as part of the State itself (here, the Board as an arm of the Supreme Court of New Mexico), so it shares the State’s immunity in federal court unless an exception applies.

5. Conclusion

Spann v. National Conference of Bar Examiners is less a merits decision about disability accommodations and more a procedural roadmap of how federal litigation can be won or lost at the threshold. The Tenth Circuit reinforced that (1) jurisdictional discovery must be timely sought and concretely justified, (2) Rule 56(d) requires a structured, evidence-backed proffer rather than speculation, (3) sovereign-immunity waiver must be unmistakably clear—especially as to federal-court suits—and (4) appellate courts will not rescue inadequately preserved or inadequately briefed arguments. The opinion’s practical legacy is a sharpened warning: procedural rigor is often dispositive, particularly in suits against state entities and out-of-state defendants.