ORDER denying 34 Defendants' Notice of Partial Automatic Stay and re: 37 Opposed Motion to Stay Further Proceedings. The Court is of the opinion that Defendants' Opposed¶

Patel v. Texas Tech University et al, No. 5:17-cv-00174-C (N.D. Tex.) · Dkt. 39 · 2017-11-01 · PDF

Text extracted from the PDF; scanned pages were read by OCR. The PDF is the authoritative copy.

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
RAJIN PATEL,
Plaintiff,
v.
TEXAS TECH UNIVERSITY, et aI.,
Defendants.

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Civil Action No. 5:17-CV-174-C

ORDER
On this day, the Court considered Defendants' Notice of Partial Automatic Stay and
Opposed Motion to Stay Further Proceedings, filed October 18, 2017, and Plaintiffs Opposition
to Defendants' Motion to Stay, filed October 31,2017. It appears that Defendants have
misinterpreted the Court's Order of September 26,2017, and have thus sought an interlocutory
appeal to challenge at least one "ruling" that this Court has not even made. Because the Court is
of the opinion that Defendants' interlocutory appeal is not relevant to the remaining issues before
this Court, and because the Court further concludes that the relevant factors weigh against the
issuance of a stay, Defendants' Motion should be DENIED.
I. PROCEDURAL BACKGROUND
Plaintiff, Rajin Patel, brought this civil action against Defendant Texas Tech University
and Defendants Duane Jones, William Pasewark, Robert Ricketts, and Brittany Todd (all officers
or agents of Texas Tech) in their official and individual capacities. Defendants filed ajoint
Motion to Dismiss raising numerous (and sometimes conflated) arguments under Federal Rules
of Civil Procedure 12(b)(1) and 12(b)(6). That Motion also improperly attempted to assert the

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affirmative defense of qualified immunity under Rule l2(b)(6).
On September 26,2017, the Court issued its ruling on Defendants' Motion to Dismiss.
The Court held that (1) Defendant Texas Tech was entitled to sovereign immunity from
Plaintiff s § 1983 claims under the Eleventh Amendment; (2) Plaintiff had adequately pleaded a
claim for injunctive relief against the individual Defendants in their official capacities, such that
his § 1983 claims against those Defendants should be allowed to proceed under the Ex Parte

Young exception; (3) Defendant Texas Tech had not sufficiently shown that it was entitled to
sovereign immunity on Plaintiffs breach of contract claim; 1 (4) the individual Defendants'
assertion of qualified immunity was improperly raised and would be addressed by a separate
motion for summary judgment on the issue of qualified immunity at the appropriate stage of the
litigation; and (5) Plaintiffs complaint was otherwise plausibly pleaded in a manner sufficient to
withstand Defendants' l2(b)(6) arguments. Defendants filed a Motion for Reconsideration of
that ruling, which the Court denied on October 2, 2017. Defendants then filed their Notice of
Interlocutory Appeal on October 17,2017.

II. STANDARD
A district court "has broad discretion to stay proceedings as an incident to its power to
control its own docket." Clinton v. Jones, 520 U.S. 681, 706 (1997). "The factors the court
assesses when considering a motion to stay are substantially similar to those weighted when
determining whether to grant a preliminary injunction, and the movant bears the burden of

IThe Court reserved the right to revisit this jurisdictional argument if Texas Tech later
asserted a new motion to dismiss and provided the Court with evidence that its student handbook
disclaims express or implied contracts. See Order, ECF No. 25 at 5; Tobias v. Univ. of Tex. at
Arlington, 824 S.W.2d 201,211 (Tex. App.-Fort Worth 1991, writ denied).
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showing the balance of equities weights heavily in favor of granting the stay." Sonnier v. Crain,
649 F. Supp. 2d 484, 490 (E.D. La. 2009) (citing United States v. Baylor Univ. Med. Ctr., 711
F.2d 38,39 (5th Cir. 1983)). Those factors are: (1) whether the movant has shown that he is
likely to succeed on the merits; (2) whether the movant will be irreparably harmed if a stay is not
granted; (3) whether the issuance of a stay will substantially harm the other parties; and
(4) whether granting the stay serves the public interest. Sonnier, 649 F. Supp. 2d at 490.

II. DISCUSSION
Defendants' Notice of Appeal states only that the Defendants are appealing "the Order
entered in this action on September 26,2017." The Notice does not state which portions of that
Order the Defendants are appealing or explain why the entirety of the order is even subject to an
interlocutory appeal. Defendants' present Motion to Stay sheds some clarifying light on their
appeal by stating that the Defendants have filed a Notice of Interlocutory Appeal "appealing the
Court's denial of sovereign immunity from Plaintiffs breach of contract claim and qualified
immunity from Plaintiffs constitutional tort claims arising under 42 U.S.C. § 1983." Defs.'
Opposed Mot. to Stay 3.

A. Denial of Sovereign Immunity
Defendant Texas Tech first appeals this Court's denial of its sovereign immunity defense
on Patel's breach of contract claim. Guided by published authority from the Texas state courts,
this Court concluded in its prior Order that the specific nature of Patel's relationship with Texas
Tech, combined with the provisions of Chapter 271 of the Texas Local Government Code, may
overcome the general legal proposition that the Texas Legislature has not waived immunity from
breach of contract suits. See Order, ECF No. 25, at 5. Specifically, the Court cited two cases to

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compare factual scenarios where the Texas courts have (l) found a waiver of sovereign immunity
as a result of a university student catalog and (2) found that a school catalog did not waive
sovereign immunity because it expressly disclaimed any contractual relationship between the
university and the student. See Univ. ofTex. Health Sci. Ctr. at Houston v. Babb, 646 S.W.2d
502,506 (Tex. App.-Houston [1st Dist.] 1982, no writ); Tobias v. Univ. ofTex. at Arlington,
824 S.W.2d 201,211 (Tex. App.-Fort Worth 1991, writ denied). Based on this case law, the
Court found that Patel had adequately pleaded a valid theory by which Texas Tech had waived
sovereign immunity and determined that Texas Tech was not entitled to dismissal of this claim
based on the facts currently before the Court. The Court noted, however, that it "reserves the
right to revisit this jurisdictional issue if Defendant Texas Tech can later produce evidence that it
expressly disclaimed any contract with Patel." Order, ECF No. 25, at 5. In other words, the
Court did not definitively say that sovereign immunity does not exist, but only concluded that
more evidence was required to determine whether sovereign immunity may have been waived in
this case.
Texas Tech is certainly free to take an interlocutory appeal from this Court's denial of its
sovereign immunity defense. However, the Court notes that if Texas Tech is capable of
producing the evidence previously found to be lacking from its motion to dismiss (in accordance
with the Texas cases cited above), then Texas Tech is free to renew its motion to dismiss the
breach of contract claim based on sovereign immunity. Texas Tech is capable of doing this at
any time and does not need to wait for the resolution of its interlocutory appeal to raise a properly
supported second motion to dismiss. To the extent that Texas Tech is incapable of producing
such evidence, then this Court stands by its prior ruling and acknowledges that a resolution from

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the Fifth Circuit will be necessary to determine whether this Court was correct in its decision.
Defendants are correct that any litigation on the breach of contract claim is automatically
stayed by Texas Tech's interlocutory appeal. However, the question of whether Texas Tech is
subject to sovereign immunity on the breach of contract claim under state law has no significance
to Plaintiffs federal-law claims asserted against the other Defendants. The Court finds that
Defendants have not met their burden to show that the relevant factors weigh in their favor and
concludes that there is no good cause to stay the rest ofthis litigation (related to the Plaintiffs
federal-law claims) while Texas Tech chooses to pursue an interlocutory appeal as to the breach
of contract claim.

B. "Denial" of Qualified Immunity
The Defendants are also attempting to appeal "the Court's denial of ... qualified
immunity[.]" Defs.' Opposed Mot. to Stay 3. On this point, Defendants appear to have
completely misinterpreted this Court's order. The Court clarifies, for the benefit of all parties,
that it has not denied qualified immunity to any of the Defendants; the Court has not even
reached the issue of qualified immunity at this stage of the litigation. The Court's Order of
September 26,2017, clearly stated that Defendants' Motion to Dismiss was denied without
prejudice as to any qualified immunity arguments only because those arguments were not yet ripe
for consideration. Further, the Court clearly stated that it would address qualified immunity "by
calling for a separate motion for summary judgment (in accordance with the Court's normal
procedures) after the Court has addressed Plaintiffs Motion for Preliminary Injunction." Order,
ECF No. 25, at 6.
While Defendants are correct that the denial of qualified immunity is subject to

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interlocutory appeal, the Court is of the opinion that the Defendants' appeal in this case is
premature because qualified immunity has not been denied. The law is clear that qualified
immunity is an affirmative defense that must be raised by a Defendant's answer. Harlow v.

Fitzgerald, 457 U.S. 800, 815 (1982); Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995).
Defendants have not yet properly raised that affirmative defense because they have not yet
answered Plaintiff s complaint. The Court has taken no action with regard to qualified immunity
other than refusing to allow the Defendants to improperly raise an affirmative defense in a Rule
12(b)(6) motion. See id.
The Court concludes that Defendants' interlocutory appeal as to qualified immunity is
likely premature (because it appeals from a "decision" that this Court has not even made).2
Moreover, for the reasons stated in Plaintiffs response brief, qualified immunity relates only to
the claims asserted against the individual Defendants in their individual capacities and has no
bearing on the injunctive relief that Plaintiff seeks against their official capacities. The Court
thus finds that Defendants have not met their burden of showing that they will suffer any
irreparable harm if Plaintiffs official-capacity claims are allowed to proceed, nor have they
demonstrated that the others factors weigh in favor of a stay. Accordingly, the Court concludes
there is no good reason to stay this litigation pending the interlocutory appeal.

20f course, it is for the United States Court of Appeal for the Fifth Circuit to consider the
propriety of Defendant's interlocutory appeal, and this Court acknowledges that the Fifth Circuit
must ultimately determine any questions related to its own jurisdiction over that appeal. This
Order is not meant to make any conclusive findings regarding the merits of Defendants' notice of
appeal or decide any issues of appellate jurisdiction (as both of these questions are beyond this
Court's jurisdiction to consider). Instead, the Court raises these issues only for the limited
purposes of (1) clarifying its September 26, 20 17 ruling, which appears to have been
misinterpreted by the Defendants; and (2) explaining its reasoning for denying the Defendants'
requested stay.
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IV. CONCLUSION
For the foregoing reasons, the Court is of the opinion that Defendants' Opposed Motion
to Stay Further Proceedings should be DENIED. Plaintiffs breach of contract claim is
automatically stayed pending Defendants' interlocutory appeal. Further, despite the issues
related to Defendants' interlocutory appeal discussed above, the Court will (in an abundance of
caution) presume that all claims against the Defendants in their individual capacities are stayed
until otherwise instructed by the Fifth Circuit. The remainder of this case will proceed on the
Court's docket as scheduled.

rPt

SO ORDERED this L d a y ofNovemb ,2017.

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