ORDER: The Court grants the defendants motion to stay discoverywithrespect to all claims and defendantsuntil the Court resolves Dr. Prien and Dr. Penrose's Motion to¶

Wells v. Texas Tech University, et al, No. 5:23-cv-00060 (N.D. Tex.) · Dkt. 33 · 2023-07-19 · PDF

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
CARA WELLS,
Plaintiff,
v.

No. 5:23-CV-060-H

TEXAS TECH UNIVERSITY, et al.,
Defendants.
ORDER
Before the Court is the defendants’ Motion to Stay Discovery. Dkt. No. 22.
Exercising its discretion to promote judicial economy and efficiency—and to remain
consistent with Fifth Circuit precedent—the Court grants the motion to the extent it seeks to
stay discovery pending resolution of Dr. Prien and Dr. Penrose’s Motion to Dismiss
Plaintiff’s First Amended Complaint (Dkt. No. 25). Additionally, the Court vacates the
July 21, 2023 deadline for the parties to submit their joint report concerning scheduling
matters (see Dkt. No. 21 at 2) until further notice.
1.

Factual and Procedural Background
Wells filed suit against the defendants in March 2023. Dkt. No. 1. The defendants

moved to dismiss her claims (Dkt. Nos. 15; 16), and Wells timely filed an amended
complaint (Dkt. No. 19). In short, the amended complaint alleges that Wells suffered
sexual discrimination and harassment at the hands of her professor, Dr. Prien, and his
associate, Dr. Penrose, while a student under their direction and that Texas Tech University
(TTU) failed to protect her from this misconduct. The amended complaint further alleges
that Dr. Prien and Dr. Penrose have since tried to derail Wells’s career by taking credit for

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her work, interfering with her job prospects, and pursuing financial opportunities to which
they were not entitled.
Wells raises a variety of claims against the defendants. Against TTU, Wells brings
sexual-harassment, hostile-work-environment, and retaliation claims under Title VII and a
deliberate-indifference claim under Title IX. Dkt. No. 19 ¶¶ 118–49. As for Dr. Prien and
Dr. Penrose, Wells similarly alleges harassment and unequal treatment on the basis of sex
under Title IX and the Equal Protection Clause, in addition to claims that they deceptively
removed her as a listed author on a patent to which she contributed, breached a fiduciary
duty owed to her, knowingly received unjust enrichment from the patent subject to this
action, fraudulently concealed material facts related to the intellectual property rights at
issue, and intentionally caused her emotional distress. Id. ¶¶ 118–59, 180–210. Wells
additionally alleges that Dr. Prien tortiously interfered with a contract that existed between
her and third parties, misappropriated trade secrets from her research, and made defamatory
statements about her to third parties. Id. ¶¶ 169–79, 211–17.
The defendants have since moved to dismiss Wells’s amended complaint. Dkt. Nos.
24; 25. In its motion, TTU argues that the claims against it are time-barred and fail to state
a plausible claim for relief. Dkt. No. 24. Separately, Dr. Prien and Dr. Penrose contend
that (1) the state-law claims against them are barred by official immunity; (2) the Equal
Protection, correction-of-ownership, and patent-invalidity claims are barred by sovereign
immunity; (3) the Title IX claim cannot be brought against individuals; (4) the tort claims
must be automatically dismissed pursuant to a state-law provision; and (5) the trade-secretmisappropriation claim fails to state a plausible claim for relief. Dkt. No. 25.

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Meanwhile, after the defendants responded to the original complaint, the Court
ordered the parties to confer and submit a joint report regarding scheduling matters by no
later than July 21, 2023. Dkt. No. 21. The defendants then jointly moved to stay discovery,
arguing that because they have asserted immunity and other defenses that may require
dismissal of Wells’s claims as a matter of law, they should not be subject to discovery until
the Court rules on their motions to dismiss. Dkt. No. 22. Due to the forthcoming statusreport deadline, the Court ordered expedited briefing. Dkt. No. 23. In her response, Wells
concedes to a stay on discovery for the claims to which the defendants assert sovereign
immunity but insists that discovery should proceed for all other claims. Dkt. No. 28. The
defendants replied in opposition. Dkt. No. 30. Their motion is ripe for review.
2.

To streamline the discovery process and preserve Dr. Prien and Dr. Penrose’s
assertion of sovereign immunity, the Court in its discretion stays discovery until
resolution of Dr. Prien and Dr. Penrose’s motion to dismiss.
“The stay of a pending matter is ordinarily within the trial court’s wide discretion to

control the course of litigation, which includes authority to control the scope and pace of
discovery.” In re Ramu Corp., 903 F.2d 312, 318 (5th Cir. 1990). In particular, “a trial court
may properly exercise its discretion to stay discovery pending a decision on a dispositive
motion.” Corwin v. Marney, Orton Invs., 843 F.2d 194, 200 (5th Cir. 1988) (citing Scroggins v.
Air Cargo, Inc., 534 F.2d 1124, 1133 (5th Cir. 1976)). When, however, a motion to dismiss is
pending, courts have generally treated a stay of discovery as “the exception rather than the
rule.” Griffin v. Am. Zurich Ins. Co., No. 3:14-CV-2470-P, 2015 WL 11019132, at *2 (N.D.
Tex. Mar. 18, 2015) (quoting Glazer’s Wholesale Drug Co., Inc. v. Klein Foods, Inc., No. 3:08CV-0774-L, 2008 WL 2930482 at *1 (N.D. Tex. July 23, 2008)).

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Nonetheless, the Fifth Circuit has recognized that “trial court[s] ha[ve] 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) (citing Landis
v. N. Am. Co., 299 U.S. 248, 254 (1936) and Scroggins, 534 F.2d at 1133). And the Supreme
Court “has described immunity as a threshold question, to be resolved as early in the
proceedings as possible.” Boyd v. Biggers, 31 F.3d 279, 284 (5th Cir. 1994) (citing Siegert v.
Gilley, 500 U.S. 226, 231–33 (1991)); see also Longoria v. Paxton, No. 22-50110, 2022 WL
832239, at *2 (5th Cir. 2022) (stating that “whether sovereign immunity bars [a plaintiff’s]
claim” is a “threshold jurisdictional question[]”). That is because the various immunity
defenses are meant to provide “immunity from suit (including discovery), not just liability.”
See Russell v. Jones, 49 F.4th 507, 514 (5th Cir. 2022) (citing Mitchell v. Forsyth, 472 U.S. 511,
526 (1985)) (emphasis in original). The Fifth Circuit has therefore indicated that a “district
court act[s] properly in staying discovery . . . pending resolution of [] immunity issues.”
Williamson v. U.S. Dep’t of Agric., 815 F.2d 368, 383 (5th Cir. 1987); see also Wells v. State Att’y
Gens. of La., 469 F. App’x 308, 310 (5th Cir. 2012) (“[D]iscovery generally is not allowed
until the resolution of immunity issues in the case.”).
Consistent with this reasoning, courts throughout the Fifth Circuit have routinely
“f[ound] it appropriate to stay discovery until resolution of [a] pending motion[] to dismiss”
that raises a threshold immunity challenge. Massey v. Willard, No. CV 22-3924, 2023 WL
1102595, at *2 (E.D. La. Jan. 30, 2023) (staying discovery against all defendants pending
resolution of one defendant’s sovereign-immunity defense); Stollings v. Texas Tech Univ., No.
5:20-CV-250-H, 2021 WL 4171815, at *2 (N.D. Tex. Apr. 13, 2021) (staying discovery for
all claims until resolution of qualified- and sovereign-immunity defenses); J.A. b/n/f Alvarez

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v. Tex. Educ. Agency, No. 1:19-CV-921-RP, 2020 WL 3270834, at *2 (W.D. Tex. June 17,
2020) (staying discovery “until the [c]ourt’s ruling on the threshold sovereign immunity and
jurisdictional challenges raised in the [m]otion to [d]ismiss”).
Wells does not challenge the Court’s authority to stay discovery for claims to which
the defendants have asserted sovereign immunity. Dkt. No. 28 at 3. But she contends that
the Court should allow discovery to proceed for the remaining claims. Id. She also suggests
that it would be impractical for the Court to permit discovery only as to the claims against
TTU because such would “necessarily entail facts and circumstances concerning Dr. Prien
and Dr. Penrose,” specifically regarding their alleged “discriminatory and harassing
conduct” towards Wells. Id. at 4. Exercising its broad discretion to regulate discovery,
however, the Court reaches the opposite conclusion.
Although Dr. Prien and Dr. Penrose have asserted sovereign immunity to only some
of the claims against them, 1 the Court finds that the interests of judicial economy and
efficiency also support staying discovery for the remaining claims against them. See
Stollings, 2021 WL 4171815, at *2. Because this suit, despite the various claims alleged,
centers on the related efforts of Dr. Prien and Dr. Penrose to subvert Wells’s educational
and career advancement, bifurcating discovery would likely require duplicative depositions

1

The Court notes that Dr. Prien and Dr. Penrose have also asserted official immunity to the statelaw claims against them. Texas courts have likewise recognized that “[t]he procedure for invoking
the defense of official immunity for government employees renders the official immune from suit,
not just immune from liability.” Teran v. Valdez, 929 S.W.2d 37, 38 (Tex. App.—Corpus Christi
1996, no writ). Texas courts have also suggested that “[b]ecause of the strong policy arguments in
favor of limiting discovery of officials claiming immunity, . . . a prudent trial court might choose to
look to the federal practice for guidance in ruling on [] discovery issues.” State v. Sims, 871 S.W.2d
259, 263 (Tex. App.—Amarillo 1997, orig. proceeding). Nonetheless, Texas courts have not
adopted a clear approach to handling discovery where a defendant asserts official immunity;
therefore, the Court declines to rely on Dr. Prien and Dr. Penrose’s assertion of official immunity
as a basis for staying discovery.

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and informational requests. Further, Dr. Prien and Dr. Penrose have raised several other
grounds that, if successful, could dispose of all of the claims against them. And a court acts
within its discretion by staying discovery “where the disposition of a motion to dismiss
‘might preclude the need for the discovery altogether thus saving time and expense.’” Von
Drake v. Nat’l Broad. Co., No. 3-04-CV-0652R, 2004 WL 1144142, at *1 (N.D. Tex. May 20,
2004) (quoting Landry, 901 F.2d at 436). Therefore, to streamline the discovery process, the
Court finds it appropriate to resolve Dr. Prien and Dr. Penrose’s motion to dismiss before
allowing discovery to proceed as to any of the claims against them.
As for the claims against TTU—who does not assert immunity at all—the Court
finds the Fifth Circuit’s recent, related opinion in Carswell v. Camp, 54 F.4th 307, 309 (5th
Cir. 2022), to be instructive. There, the Fifth Circuit addressed the permissibility of
discovery after some defendants had asserted qualified immunity. Id. at 311. Citing the
well-settled principle that qualified immunity is “an immunity from suit,” not “a mere
defense to liability,” id. at 310 (quoting Pearson v. Callahan, 555 U.S. 223, 237 (2009)), the
Fifth Circuit confirmed that a plaintiff suing a defendant who asserts qualified immunity
“must survive [a] motion to dismiss without any discovery,” id. at 311 (citing Ashcroft v.
Iqbal, 556 U.S. 662 (2009)) (emphasis in original). Further, the court extended this rule to
the claims of non-qualified-immunity-asserting defendants, reasoning that “[i]t [wa]s quite
likely that, when discovery as to [those defendants] proceed[ed], it would prove necessary
for [the qualified-immunity-asserting defendants] and their counsel to participate in the
process to ensure the case d[id] not develop in a misleading or slanted way that causes
prejudice to their position.” Id. at 313 (quoting Iqbal, 556 U.S. at 685). In other words,
“[e]ven if [the qualified-immunity-asserting defendants] [we]re not yet themselves subject to

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discovery orders, . . . they would not be free from the burdens of discovery” if discovery
proceeded for the other defendants. Id. (quoting Iqbal, 556 U.S. at 685–86).
Although Dr. Prien and Dr. Penrose have raised the defense of sovereign—not
qualified—immunity, Carswell’s reasoning applies here. Sovereign immunity, like qualified
immunity, serves as an immunity from suit—not just liability. Russell, 49 F.4th at 514
(citing Mitchell, 472 U.S. at 526). And to allow discovery as to claims against TTU—who
has not asserted immunity—would nonetheless require Dr. Prien and Dr. Penrose to police
the process to ensure that it does not intrude into forbidden subject matter or otherwise
prejudice their position. In fact, Wells has admitted that her claims against TTU “overlap
factually with” and “necessarily” implicate her claims of harassment and discrimination
against Dr. Prien and Dr. Penrose. Therefore, it would be impossible to allow discovery as
to one without also demanding discovery as to the other. See Dkt. No. 28 at 4. That is
especially concerning because Dr. Prien and Dr. Penrose have asserted sovereign immunity
to Wells’s Equal Protection claim, which specifically involves those allegations. Therefore,
despite Carswell’s lack of binding authority in this context, the Court in its discretion
additionally finds it prudent to stay discovery as to the claims against TTU until resolution
of Dr. Prien and Dr. Penrose’s assertion of sovereign immunity.
3.

Conclusion
For these reasons, the Court grants the defendants’ motion to stay discovery—with

respect to all claims and defendants—until the Court resolves Dr. Prien and Dr. Penrose’s
Motion to Dismiss Plaintiff’s First Amended Complaint (Dkt. No. 25). Additionally, the
deadline for the parties to submit their joint report concerning scheduling matters (see Dkt.
No. 21 at 2) is vacated until further notice.

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So ordered on July 19, 2023.

JAMES WESLEY HENDRIX
UNITED STATES DISTRICT JUDGE

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