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
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Case 5:20-cv-00232-H-BV Document 22 Filed 03/26/21 Page 1 of 8 PageID 164 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. Case 5:20-cv-00232-H-BV Document 22 Filed 03/26/21 Page 2 of 8 PageID 165 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 Civil Action No. 5:20-CV-00232-H-BQ Defendants’ Opposed Motion to Stay Discovery Page 2 Case 5:20-cv-00232-H-BV Document 22 Filed 03/26/21 Page 3 of 8 PageID 166 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 Civil Action No. 5:20-CV-00232-H-BQ Defendants’ Opposed Motion to Stay Discovery Page 3 Case 5:20-cv-00232-H-BV Document 22 Filed 03/26/21 Page 4 of 8 PageID 167 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. Civil Action No. 5:20-CV-00232-H-BQ Defendants’ Opposed Motion to Stay Discovery Page 4 Case 5:20-cv-00232-H-BV Document 22 Filed 03/26/21 Page 5 of 8 PageID 168 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 Civil Action No. 5:20-CV-00232-H-BQ Defendants’ Opposed Motion to Stay Discovery Page 5 Case 5:20-cv-00232-H-BV Document 22 Filed 03/26/21 Page 6 of 8 PageID 169 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. Civil Action No. 5:20-CV-00232-H-BQ Defendants’ Opposed Motion to Stay Discovery Page 6 Case 5:20-cv-00232-H-BV Document 22 Date: March 26, 2021 Filed 03/26/21 Page 7 of 8 PageID 170 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 Civil Action No. 5:20-CV-00232-H-BQ Defendants’ Opposed Motion to Stay Discovery Page 7 Case 5:20-cv-00232-H-BV Document 22 Filed 03/26/21 Page 8 of 8 PageID 171 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 Civil Action No. 5:20-CV-00232-H-BQ Defendants’ Opposed Motion to Stay Discovery Page 8