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MOTION to Stay Discovery re 11 Motion to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction filed by Barbara Cherry, Michael Evans, Texas

Pickett v. Texas Tech University Health Sciences Center (TTUHSC) et al, No. 5:20-cv-00232-H-BQ (N.D. Tex.) · Dkt. 22 · 2021-03-26 · PDF

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

Case 5:20-cv-00232-H-BV

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
AMY PICKETT,
Plaintiff,

§
§
§
v.
§
§
TEXAS TECH UNIVERSITY HEALTH
§
SCIENCES CENTER; BARBARA CHERRY, §
individually and in her official capacity as
Department Chair of Leadership Studies; and
MICHAEL EVANS, individually and in his
official capacity as Dean of School of Nursing,
Defendant.

Civil Action No. 5:20-CV-00232-H-BQ

DEFENDANTS’ OPPOSED MOTION TO STAY DISCOVERY
TO THE HONORABLE D. GORDON BRYANT, JR.
Defendants Texas Tech University Health Sciences Service Center (TTUHSC), Barbara
Cherry, individually and in her official capacity as Department Chair of Leadership Studies, and
Michael Evans, individually and in his official capacity as Dean of School of Nursing respectfully file
this Motion to Stay Discovery in light of the threshold question of subject matter jurisdiction posed
by Defendants in their Motion to Dismiss—Dkts. 11–12. Plaintiff Amy Pickett, proceeding pro se,
sued Defendants under the American’s with Disabilities Act, 42 U.S.C. § 12101 et seq., the
Rehabilitation Act, 29 U.S.C. § 701 et seq. and the Due Process Clause of the Fourteenth Amendment
to the U.S. Constitution, but all of these claims are subject to dismissal as stated in Defendants’ Motion
to Dismiss and Brief in Support.

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I. INTRODUCTION
1.

On January 22, 2021, Defendants filed their Motion to Dismiss under Federal Rules

of Civil Procedure 12(b)(1) and 12(b)(6). As a state entity, and state employees sued in their official
capacities, Defendants assert sovereign immunity to suit under the Eleventh Amendment. See Dkt. 12
at 16–18. Defendants Cherry and Evans also asserted the defense of qualified immunity from suit. Id.
at 15–16.
2.

Because Defendants have asserted sovereign and qualified immunities from suit, and

claims that are barred by sovereign immunity are not within the subject matter jurisdiction of this
Court, it would be an abuse of discretion for the Court to allow discovery against them prior to ruling
on their dispositive motion. For these reasons, which are explained in more depth below, the Court
should stay all discovery in this case pending a ruling on Defendants’ motion to dismiss.
II. MOTION TO STAY
3.

Pursuant to Fed. R. Civ. P. 26(c), Defendants request that this Court stay all discovery

in this lawsuit pending the resolution of threshold issues of immunity and jurisdiction. The law does
not allow Defendants to be forced into the discovery process when Pickett cannot establish the subject
matter jurisdiction of this Court by overcoming sovereign immunity.
A. Legal Standard
4.

“A trial court has broad discretion and inherent power to stay discovery until

preliminary questions that may dispose of the case are determined.” Petrus v. Bowen, 833 F.2d 581, 583
(5th Cir.1987). A district court properly exercises this discretion to stay discovery upon a showing of
good cause. Fed. R. Civ. P. 26(c). Good cause exists when the party from whom discovery is sought
shows that it would suffer “annoyance, embarrassment, oppression or undue burden or expense”
absent a stay. Von Drake v. National Broadcasting Co., No. 3:04-CV-0652-R, 2004 WL 1144142 at *1
(N.D. Tex. May 20, 2004) (Kaplan, J.) (citing Fed. R. Civ. P. 26(c)). Some of the factors informing the
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court's discretion are: “(1) the breadth of discovery sought; (2) the burden of responding to such
discovery; and (3) the strength of the dispositive motion filed by the party seeking a stay.” Id. (citing
Spencer Trask Software and Information Services, LLC v. RPost International Limited, 206 F.R.D. 367, 368
(S.D.N.Y. 2002) (citations omitted)).
B. Stay of discovery is proper.
5.

Defendants’ sovereign and qualified immunities, and Pickett’s failure to state a claim,

urge a stay of discovery in order to avoid needless, burdensome distractions for Defendants from their
duties to ensure the competent training of Texas’s health professionals. Here, the disposition of
Defendants’ motion to dismiss would preclude the need for discovery given Defendants’ immunity
and Pickett’s failure to state a claim. Furthermore, even if the Court allows some claims to survive
Defendants’ motion to dismiss, discovery should not ensue prior to resolving the proper scope, which
would be dependent on establishing which claims remain.
6.

The defense of qualified immunity provides immunity from suit, not merely from

liability. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100–02 (1984); Edelman v. Jordan, 415
U.S. 651, 662– 63 (1974); see also Pearson v. Callahan, 555 U.S. 223, 237 (2009) (citing Mitchell v. Forsyth,
472 U.S. 511, 526 (1985)). The burden of enduring suit, or even the discovery process, on officials
who have a probable entitlement to immunity is very high as a matter of law. See Mitchell, 472 U.S. at
525–26 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 817 (1982)) (“even such pretrial matters as discovery
are to be avoided if possible, as ‘[i]nquiries of this kind can be peculiarly disruptive of effective
government’”).
7.

The Supreme Court has noted the importance of such protection of government time

and witnesses in the context of qualified immunity. Ashcroft v. Iqbal, 556 U.S. 662, 685 (2009) (quoting
Siegert v. Gilley, 500 U.S. 226, 236 (1991) (Kennedy, J., concurring in judgment)) (“The basic thrust of
the qualified immunity doctrine is to free officials from the concerns of litigation, including ‘avoidance
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of disruptive discovery.’”). In considering the Court’s discretion to stay discovery, “the trial court must
exercise its discretion in a way that protects the substance of the qualified immunity defense” and
“must exercise its discretion so that officials are not subjected to unnecessary and burdensome
discovery or trial proceedings.” See Crawford El v. Britton, 523 U.S. 574, 597–98 (1998); see also Iqbal,
556 U.S. at 685; Mitchell, 472 U.S. at 526.
8.

Stays of discovery pending review of immunity questions are proper. E.g., Williamson

v. U.S. Dep't of Agriculture, 815 F.2d 368, 382–83 (5th Cir.1987); Petrus v. Bowen, 833 F.3d 581, 583 (5th
Cir. 1987). Indeed, engaging in discovery on the merits is not necessary, nor is it proper, prior to a
ruling on immunity from suit. See, e.g., Zapata v. Melson, 750 F.3d 481, 484–85 (5th Cir. 2014) (quoting
Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012)) (“One of the most salient benefits of qualified
immunity is protection from pretrial discovery, which is costly, time-consuming, and intrusive.”)
(internal quotation marks omitted). In Petrus, the plaintiff filed suit against defendants who responded
with a motion to dismiss pursuant to Fed. R. Civ. P 12(b)(1) and 12(b)(6). In affirming the trial court’s
decision to stay discovery until the motion to dismiss was ruled upon, the Fifth Circuit said:
Nothing that Petrus could have learned through discovery could have affected the
resolution of the defendants’ 12(b)(6) motion. We hold that the district court properly
deferred discovery while deciding whether the defendants were proper parties to the
action.
Petrus, 833 F.2d at 581.
9.

Defendants should not be called to defend claims in litigation including discovery

where the Court lacks subject matter jurisdiction over the claims against it or the claims would be
subject to a qualified-immunity defense. Drs. Cherry and Evans must be able perform their duties to
the public as state officials. Discovery in this case would unduly burden Defendants by forcing them
to endure needless discovery prior to the resolution of threshold immunity issues that have been
raised. Defendants have demonstrated to this Court that Defendants are immune from Pickett’s suit.
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Dkt. 12 at 7–18. As such, Defendants assert the right to avoid the burden of discovery.
10.

In the event that the Court does not stay the proceedings in this case based on the

reasoning supra, analysis of additional factors favors staying the case. Considerations involving the
prejudice to the non-moving parties, the burden on Defendants, the general public’s interest, and the
convenience of the Court all weigh in favor of staying discovery.
11.

With respect to the merits of Pickett’s claims, there is no prejudice to Pickett if the

requested stay is granted. As with the Petrus case, allowing Pickett to conduct discovery will not provide
Pickett with any response, as a matter of law, to immunities of the Defendants. Nor will discovery
countermand the doctrines depriving the Court of subject matter jurisdiction or cure Pickett’s failure
to establish standing and plead legally cognizable claims against Defendants.
12.

Conversely, the burden on Defendants of proceeding with discovery is considerable.

Berry and Evans’s entitlement to immunity from Pickett’s lawsuit is forfeited if they are not free to
perform the duties of their office and must instead respond to the burdens of litigation. See Mitchell,
472 U.S. at 525–26; Zapata, 750 F.3d at 484–85. Discovery in this case would unduly burden the
Defendants by forcing them to endure needless discovery prior to the resolution of the threshold
immunity issues they timely raised.
13.

Considering the defects of the action Pickett seeks to bring, there is no harm to non-

parties if the Court addresses the threshold jurisdictional matters before discovery. There is no
advantage to the public interest in proceeding at this point. The general public is unaware of this
action, and the matter is not likely to generate public interest. Considering the strain on the taxpayer,
the Court would do a disservice to the interests of the public if non-parties and the Defendants are
ordered to proceed with needless discovery in pursuit of litigation which is fatally flawed by threshold
immunity issues.
14.

Because consideration of these factors weigh in Defendants’ favor and the staying of

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discovery and related proceedings is appropriate in this circumstance, discovery should be stayed as
discussed supra, and any scheduling order or conference should be abated until such a time as this
Court rules on their Motion to Dismiss.
III. CONCLUSION
15.

The law allows the staying of discovery and related proceedings while threshold issues

are addressed. The instant case is obviously an appropriate one for staying of discovery. Presently,
Defendants have raised immunity from suit and Pickett’s suit is barred under the jurisdictional and
pleadings-based defenses asserted in Defendants’ Motion to Dismiss. See generally Dkt. 11–12.
16.

As there are no advantages to proceeding with discovery, and Defendants have

identified serious disadvantages with respect to the Court, the general public, and Defendants in
proceeding, Defendants respectfully ask this Court to stay all proceedings with respect to discovery
until their Motion to Dismiss (Dkt. 11) has been ruled on by this Court. Defendants further pray this
Court grant them such other and further relief to which they may show themselves to be justly entitled.

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Respectfully submitted,
KEN PAXTON
Attorney General of Texas
BRENT WEBSTER
First Assistant Attorney General
GRANT DORFMAN
Deputy First Assistant Attorney General
SHAWN COWLES
Deputy Attorney General for Civil Litigation
THOMAS A. ALBRIGHT
Chief for General Litigation Division
/s/ Cory A. Scanlon
CORY A. SCANLON
State Bar No. 24104599
Assistant Attorney General
General Litigation Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Telephone (512) 463-2120
Facsimile: (512) 320-0667
cory.scanlon@oag.texas.gov
COUNSEL FOR DEFENDANTS

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CERTIFICATE OF CONFERENCE
I certify that on March 24 and 26, 2021, I conferred with Plaintiff Pro Se regarding the contents
of this motion by email (apickett1010@yahoo.com) and by phone (682-258-4558), respectively. As of
the filing of this Motion, I did not receive a response to either my email or the voicemail I left on
Plaintiff Pro Se’s phone. I therefore assume she is opposed to the relief sought herein.
/s/ Cory A. Scanlon
CORY A. SCANLON
Assistant Attorney General

CERTIFICATE OF SERVICE
I hereby certify that on March 26, 2021, a true and correct copy of the foregoing document
was served in compliance with the Federal Rules of Civil Procedure to the following:
Amy Pickett
PO Box 543
Buffalo Gap, Texas 79508
apickett1010@yahoo.com
(682) 258-4558

/s/ Cory A. Scanlon
CORY A. SCANLON
Assistant Attorney General

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