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Joint MOTION to Stay filed by Texas Tech University Health Sciences Center with Brief/Memorandum in Support. (Attachments: # 1 Proposed Order) (Keeney, Joseph)

Grodman v. Texas Tech University Health Sciences Center, No. 5:23-cv-00210 (N.D. Tex.) · Dkt. 26 · 2024-03-08 · 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
SCHYLER Z. GRODMAN, M.D.,
Plaintiff
v.
TEXAS TECH UNIVERSITY
HEALTH SCIENCES CENTER and
DR. SAMER ZAID-KAYLANI
Defendants

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Civil Action No. 5:23-cv-00210-H

DEFENDANTS’ JOINT MOTION TO STAY
______________________________________________________________________________
Defendants Texas Tech University Health Sciences Center (“TTUHSC”) and Dr. Samer
Zaid Kaylani (“Dr. Zaid Kaylani”) jointly file this Motion to Stay Discovery. Certain claims
against TTUHSC are barred by sovereign immunity or fail as a matter of law, based solely on the
pleadings, and should be dismissed. See (ECF No. 22). The claim against Dr. Zaid Kaylani is
barred by qualified immunity and fails as a matter of law. Accordingly, TTUHSC and Dr. Zaid
Kaylani request this Court stay discovery, the Rule 26(f) conference, and the joint report until
Defendants’ immunity defenses and other potentially dispositive legal arguments have been
resolved.
STATEMENT OF THE NATURE AND STAGE OF THE PROCEEDING
Plaintiff was a former medical resident of TTUHSC. Plaintiff filed this lawsuit against
TTUHSC only on September 7, 2023. See (ECF No. 1) (“Plaintiff’s Original Complaint”).
Defendant timely filed a Partial Motion to Dismiss Plaintiff’s Americans with Disabilities Act
claims. (ECF No. 5). Plaintiff responded by filing an untimely First Amended Complaint, which
the court struck on November 29, 2023. (ECF Nos. 10, 13). Plaintiff then filed a motion for leave
to file a First Amended Complaint, which was granted on January 17, 2024. (ECF Nos. 14, 20).

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The First Amended Complaint, which was entered on the same day, brought claims against
TTUHSC under the Rehabilitation Act. (ECF No. 21). It also asserted claims, for the first time,
against both TTUHSC and Dr. Zaid Kaylani under the due process clause, pursuant to 42 U.S.C.
§ 1983. (ECF No. 21). On January 31, 2024, TTUHSC filed its Partial Motion to Dismiss the First
Amended Complaint, raising sovereign immunity and failure to state a claim. See (ECF No. 22).
Defendant Dr. Zaid Kaylani filed his Motion to Dismiss, based on qualified immunity and failure
to state a claim, on February 20, 2024. (ECF No. 23). Because both Defendants have raised
sovereign immunity, qualified immunity, and other dispositive defenses, this Court should stay
discovery until the resolution of both Defendants’ Motions to Dismiss.
ARGUMENT AND AUTHORITIES
Generally, “[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). 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) (per curiam) (citing Siegert v. Gilley, 500 U.S. 226, 231-33 (1991)). The Fifth Circuit
follows the well-established principle that “[j]urisdiction is always first.” Carswell v. Camp, 37
F.4th 1062, 1065 (5th Cir. 2022) (citing Arulnanthy v. Garland, 17 F.4th 586, 592 (5th Cir. 2021)).
This is because both sovereign immunity and qualified immunity are an immunity from suit, not
merely an immunity from liability. See Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy,
Inc., 506 U.S. 139, 144–46 & n.5 (1993). As the Fifth Circuit explained, “[t]he Supreme Court has
now made clear that a plaintiff asserting claims against an officer must survive the motion to
dismiss (and the qualified immunity defense) without any discovery. Our prior decisions to the

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contrary are overruled.” Carswell, 37 F.4th at 1066 (emphasis in original). 1 The rule has no
exceptions. Id. at 1067 (“[W]e now make clear the rule admits of no exceptions.”).
One of the “central benefits” of immunity from suit is “avoiding the costs and general
consequences of subjecting public officials to the risks of discovery and trial.” Puerto Rico
Aqueduct and Sewer Auth., 506 U.S. at 143–44 (emphasis added). Of course, the “central benefit”
of avoiding the burden of discovery is irreparably lost when defendants are forced to move forward
with discovery before their immunity defenses have been resolved. See id. at 145 (“[T]he value to
the States of their Eleventh Amendment immunity, like the benefit conferred by qualified
immunity to individual officials, is for the most part lost as litigation proceeds past motion
practice.”).
Consistent with these basic principles regarding immunity, it is well-established in the Fifth
Circuit that immunity defenses raised by state defendants should be resolved before discovery is
permitted. See, e.g., Wells v. State Attorney Generals of La., 469 F. App’x 308, 310 (5th Cir. 2012)
(per curiam) (“[D]iscovery generally is not allowed until the resolution of immunity issues in the
case.”); Nieto v. San Perlita Indep. Sch. Dist., 894 F.2d 174, 177 (5th Cir. 1990) (“[U]ntil
resolution of the threshold question of the application of an immunity defense, discovery should
not be allowed.” (internal quotation marks omitted)); Williamson v. U.S. Dep’t of Agric., 815 F.2d

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While Carswell dealt specifically with qualified immunity, its reasoning applies with equal force
to assertions of sovereign immunity, as the interests at stake are the same. See, e.g., P.R. Aqueduct
& Sewer Auth., 506 U.S. at 145 (explaining that sovereign immunity from suit—just like qualified
immunity from suit—is “forfeited” and “effectively lost” if a trial court allows discovery or trial
to proceed before resolving the immunity issue); see also Helton v. Clements, 787 F.2d 1016, 1017
(5th Cir. 1986) (per curiam) (a “refusal to rule on a claim of immunity” deprives a defendant of
his “entitlement under immunity doctrine to be free from suit and the burden of avoidable pretrial
matters”).
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368, 383 (5th Cir. 1987) (“The district court acted properly in staying discovery in this case
pending resolution of the immunity issues.”).
District courts consistently follow the Fifth Circuit’s direction to stay discovery where state
defendants argue they are immune from suit. See, e.g., J.A. b/n/f Alvarez v. Texas Educ. Agency,
No. 1:19-CV-921-RP, 2020 WL 3270834, at *2 (W.D. Tex. June 17, 2020) (granting discovery
stay where state defendant had filed motion to dismiss arguing sovereign immunity); Hutchings v.
Cty. of Llano, Tex., No. 1:20-CV-308-LY-SH, 2020 WL 2086553, at *2 (W.D. Tex. Apr. 30, 2020)
(granting discovery stay where state judicial defendants had filed motion to dismiss arguing
judicial and qualified immunity); Carlisle v. Normand, Civil Action No. 16-3767, 2018 WL
3474715, at *2–4 (E.D. La. July 19, 2018) (granting discovery stay where state defendant had filed
motion to dismiss arguing sovereign, absolute, and qualified immunity); LeClerc v. Webb, No.
Civ. A. 03-664, 2003 WL 21026709, at *6–7 (E.D. La. May 2, 2003) (granting discovery stay
where state defendants argued they were protected by judicial, legislative, and sovereign
immunity).
Based on the fundamental principles of immunity and the well-established precedent
applying those principles to discovery stays, this Court should stay discovery in this matter until
after the Defendants’ immunity defenses have been resolved. Although Defendant TTUHSC has
not specifically raised an immunity defense against Plaintiff’s Rehabilitation Act claims, that is
not a reasonable basis for permitting discovery to proceed in this case, pending the resolution of
the sovereign immunity defense raised against all Plaintiff’s due process claim against both
Defendant. It would be practically unworkable to attempt to conduct discovery only on Plaintiff’s
Rehabilitation Act claim.

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Defendants should be entitled to avoid the burdens of discovery pending the resolution of
their immunity defenses. Further, the Court should, in its prudential discretion, stay discovery on
Plaintiff’s Rehabilitation Act claims. Finally, the Court should also stay discovery on the
remaining claims—retaliation and discrimination—under the Rehabilitation Act, for which
TTUHSC has partially sought dismissal. As an initial matter, it would be practically infeasible for
Plaintiff and TTUHSC to conduct discovery on the Rehabilitation Act claims without implicating
Plaintiff’s due process claim, which asserts he was terminated, without any meaningful
opportunity to respond in violation of the Fourteenth Amendment, because of discrimination
against his disability or in retaliation for requesting accommodations. (ECF No. 21, ¶¶ 38, 76).
The factual allegations asserted in Plaintiff’s First Amended Complaint relate to both the
Rehabilitation Act claims, as well as the due process claim. See (ECF No. 21, ¶¶ 79, 89) (showing
that Plaintiff’s allegation that the result (termination/expulsion from the program) was
predetermined implicates not only the disability discrimination, retaliation, and accommodation
claims; but also as the due process claims). Since the due process claim is so closely intertwined
with the Rehabilitation Act claims that discovery cannot be feasibly bifurcated, then granting
discovery on the Rehabilitation Act claims would essentially defeat any benefit sovereign
immunity could serve in this case.
The opposite conclusion leads to the same result. Even if discovery could be bifurcated,
permitting discovery to proceed would run counter to the interests of judicial economy and
efficiency, since bifurcating discovery would likely require duplicative depositions and written
discovery requests—separately seeking information only relevant to the due process claim and,
subsequently, discovery directed at the remaining claims not dismissed after Defendant’s Partial
Motion to Dismiss is ruled upon. Thus, the Court should, as in Carswell, require Plaintiff to

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respond to and wait for a ruling on the partial motion to dismiss “without any discovery.” 54 F.
4th at 311. Discovery should not be conducted piecemeal in this case but should await this Court’s
resolution of TTUHSC’s Partial Motion to Dismiss, as well as Defendant Dr. Zaid Kaylani’s
Motion to Dismiss.
CONCLUSION
For all the foregoing reasons, TTUHSC and Dr. Zaid Kaylani request this Court issue an
order staying all discovery in this matter, including staying a Rule 26(f) conference and joint
report, until after TTUHSC’s and Dr Zaid Kaylani’s motions to dismiss have been resolved.

Respectfully submitted.
KEN PAXTON
Attorney General
BRENT WEBSTER
First Assistant Attorney General
JAMES LLOYD
Deputy Attorney General for Civil Litigation
KIMBERLY GDULA
Chief, General Litigation Division

/s/ Joseph Keeney
Joseph Keeney
State Bar No. 24092616
Assistant Attorney General
Office of the Attorney General
General Litigation Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Telephone: (512) 475-4090
Facsimile: (512) 320-0667
Joseph.Keeney@oag.texas.gov

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ATTORNEYS FOR DEFENDANT TTUHSC
/s/ David Miracchi
DAVID MIRACCHI
Assistant Attorney General
Texas Bar No. 24122084
General Litigation Division
Office of the Attorney General
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
(512) 463-2120 | FAX: (512) 320-0667
david.miracchi@oag.texas.gov
ATTORNEY FOR DEFENDANT DR. ZAID KAYLANI

CERTIFICATE OF CONFERENCE
I hereby certify that on March 7, 2023, I conferred with Enrique Ramirez, counsel for
Plaintiff, via e-mail regarding whether Plaintiff would agree to a stay of discovery until after the
resolution of Defendants’ motions to dismiss. Mr. Ramirez informed me that Plaintiff opposes a
stay discovery.
/s/ Joseph Keeney
JOSEPH KEENEY
Assistant Attorney General
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was filed via the CM/ECF system
on March 8, 2024, to:
Jeffrey M. Tillotson
Enrique Ramirez-Martinez
TILLOTSON JOHNSON & PATTON
1201 Main Street, Suite 1300
Dallas, Texas 75202
(214) 382-3041 Telephone
(214) 292-6564 Facsimile
jtillotson@tillotsonlaw.com
Eramirez@tillotsonlaw.com

Defendants’ Joint Motion to Stay Discovery

/s/ Joseph Keeney
JOSEPH KEENEY

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Assistant Attorney General

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