Unopposed Motion for Extension of Time to File Answer and Opposed Motion for Temporary Abatement filed by Joel A. Daboub, Jay Hartzell, Claudia F. Lucchinetti, Steve¶

Stewart v. Texas Tech University Health Sciences Center et al, No. 5:24-cv-00169-H (N.D. Tex.) · Dkt. 13 · 2023-03-01 · PDF

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
GEORGE STEWART, on behalf of himself and
others similarly situated,
Plaintiffs,
v.

Case No. 5:23-CV-00007-H

TEXAS TECH UNIVERSITY HEALTH
SCIENCES CENTER, et al.,
Defendants.

UNOPPOSED MOTION OF DEFENDANTS THE UNIVERSITY OF TEXAS
AT AUSTIN, JAY HARTZELL, CLAUDIA LUCCHINETTI, STEVE SMITH, AND
JOEL DABOUB FOR AN EXTENSION OF TIME TO FILE A RESPONSIVE
PLEADING AND OPPOSED MOTION FOR TEMPORAY ABATEMENT

Defendants The University of Texas at Austin, UT Austin President Jay Hartzell, Dell
Medical School Dean Claudia Lucchinetti, Dell Medical School Associate Dean of Student Affairs
Steve Smith, and Dell Medical School Director of Admissions Joel Daboub (collectively, “the UT
Austin Defendants”) hereby move pursuant to Federal Rules of Civil Procedure 6(b)(1)(A) and
7(b)(1) for a 60-day extension of time to file their first responsive pleading and to temporarily
abate these proceedings pending the U.S. Supreme Court’s decision in two cases involving the
consideration of race as a factor in university admissions. Plaintiff, George Stewart, is unopposed
to the motion to stay but is opposed to the motion to abate. The Court should grant both motions
for the following reasons.

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FACTUAL BACKGROUND
Plaintiff filed his Original Complaint on January 10, 2023, alleging that the defendant
institutions unlawfully consider race and sex in their medical school admissions processes. Compl.
(Dkt. #1) at 8. That same day, Plaintiff’s counsel sent to the attorneys in the Office of General
Counsel (“OGC”) for the University of Texas System (“UT System”) a request seeking a waiver
of service of process from each defendant in this lawsuit that is a component institution of the UT
System or who is an official of a component institution. Fed. R. Civ. P. 4(d)(1). Each request
specified a 30-day deadline to return the waiver request form. Fed. R. Civ. P. 4(d)(1)(F).
The UT Austin Defendants and the other defendants are all state universities or employees
of state universities. Compl. (Dkt. #1) at 3-8. On January 12, OGC attorney Ana Vieira Ayala sent
via electronic mail to Sean Cowles, Deputy Attorney General for Civil Litigation in the Office of
the Attorney General of Texas (“OAG”) a letter requesting legal representation for the UT Austin
Defendants and the other UT System defendants. Ex. A. Copied on the letter was Kimberly Gdula,
a Deputy Chief of OAG’s General Litigation Division.
In the following weeks, OGC attorneys (Tamra English and Ana Vieira Ayala) contacted
Ms. Gdula numerous times—via phone calls and emails—in an effort to ascertain the status of
OGC’s request for representation. Mindful of the duty to avoid unnecessary expenses of serving a
summons, see Fed. R. Civ. P. 4(d)(1), OGC expressed concern that the deadline for returning the
waiver-of-service forms was nearing, and that failing to timely return the waiver-of-service forms
could result in service of process and assessment of the attendant costs against the defendants. Ms.
Gdula indicated that the decisionmakers at the OAG were aware of the circumstances but were
still considering the request for representation.

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As the deadline for returning the waiver-of-service forms approached, in-house counsel for
UT Austin asked Plaintiff’s counsel Jonathan Mitchell for an extension of the deadline for
returning the waiver-of-service forms. Mr. Mitchell agreed to extend that deadline by 30 days for
all of the UT System defendants.
On February 9, 2023, the undersigned counsel returned executed copies of the waiver-ofservice forms for the UT Austin Defendants to Mr. Mitchell. Under Fed. R. Civ. P. 4(d)(3), the
answer deadline for a defendant who timely returns a waiver-of-service form is 60 days after the
request was sent. Because the waiver forms were sent January 10, 2023, by operation of Fed. R.
Civ. P. 6(a)(1)(C), the answer deadline for the UT Austin Defendants is Monday, March 13.
On February 14, 2023—more than one month after receiving OGC’s request for
representation—Mr. Cowles sent Ms. Ayala a letter stating:
Dear Ms. Ayala,
Thank you for your patience as we consider your request for representation
and for outside counsel in the above-referenced case.
Our Agency has long taken the position that the central arguments advanced
by the plaintiffs here are fundamentally correct: “using race and sex preferences in
student admissions [is] a practice that violates the clear and unequivocal text of
Title VI and Title IX, as well as the Equal Protection Clause of the Fourteenth
Amendment.” Complaint at 3.
What’s more, this issue is likely to be resolved in a pair of cases argued
before the United States Supreme Court in October 2022: Students for Fair
Admissions v. Univ. of North Carolina, et al. (No. 21-707) and Students for Fair
Admissions v. President & Fellows of Harvard College (No. 20-1199). The Court
will issue its decision and opinion sometime this spring. Our Agency has filed
amicus briefs in support of petitioners in these cases, which urge the Court to make
clear that race-based admissions are abhorrent to the Constitution and the concept
of Equal Protection.
For these reasons, we are choosing at this time to withhold a decision on
your request for representation and for outside counsel. We advise you that as of
the date of this letter, we do not represent you in this litigation, and there is no
attorney-client relationship between your institution and the Office of the Attorney
General regarding this litigation unless and until we determine to accept your
request for representation.

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However, we understand that court deadlines are approaching. By this
letter, you are authorized to self-represent for the limited purpose of seeking an
extension of time to file a responsive pleading, citing this letter as the basis for
those requests. We would be happy to provide examples of previously filed motions
for extension of time from other cases upon request.
Please contact me with any additional questions.
Sincerely,
Shawn E. Cowles
Deputy Attorney General
For Civil Litigation
A copy of that letter is attached as Exhibit B.
ARGUMENT AND AUTHORITIES
I.

The Court Should Extend the UT Austin Defendants’ Answer Deadline by 60 Days to
Give Them Sufficient Time to Obtain Counsel.
A.

Good Cause Exists for an Extension Because the OAG Has Neither Provided
Representation for the UT Austin Defendants nor Approved Outside Counsel.

The UT Austin Defendants seek a 60-day extension under Federal Rule of Civil
Procedure 6(b)(1) of their March 13, 2023 deadline to file a pleading in response to Plaintiff’s
Original Complaint. “An application under Rule 6(b)(1) normally will be granted in the absence
of bad faith or prejudice to the adverse party.” Koehler v. Dodwell, No. 99-1776, 2000 WL
709578, at *3 (4th Cir. June 2, 2000) (quoting 4A CHARLES ALAN WRIGHT & ARTHUR R.
MILLER, FEDERAL PRACTICE AND PROCEDURE § 1165, at 475 (2d ed. 1987)). The Court has
broad discretion to extend non-statutory deadlines imposed under the Federal Rules of Civil
Procedure, including the deadline to answer the plaintiff’s complaint. And federal district courts,
including courts in the Northern District of Texas, will grant extensions of answer deadlines for
good cause shown. See, e.g., Franciscan Alliance, Inc. v. Burwell, No. 7:16-cv-00108-O, 2017
WL 2964088, at *1 (N.D. Tex. Jan. 24, 2017); Flores v. Koster, No. 3:11-CV-0726-M-BH, 2012
WL 6850976, at *2 (N.D. Tex. Dec. 21, 2012), rec. adopted, 2013 WL 145885 (N.D. Tex. Jan.

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14, 2013); Hilseweck P’ship v. E. Energy Res., Inc., No. 3:11-CV-0186-D, 2011 WL 3501719,
at *1 & * (N.D. Tex. Aug. 9, 2011); EMI Apr. Music Inc. v. Know Group, LLC, No. 3:05-CV1870-M, 2006 WL 3203276, at *1 (N.D. Tex. Nov. 6, 2006). Good cause for an extension exists
in this case because the OAG has neither provided legal representation to the UT Austin
Defendants (or any of the other UT System Defendants) nor authorized them to obtain outside
counsel.
Under Texas law, “[t]he attorney general shall provide legal services for a state agency for
which the attorney general determines those legal services are appropriate and for which the
attorney general denies approval for a contract for those services under this subsection.” TEX.
GOV’T CODE § 402.0212(a). Further, “[e]xcept as authorized by other law, a contract for legal
services between an attorney, other than a full-time employee of the agency, and a state agency in
the executive department, other than an agency established by the Texas Constitution, must be
approved by the attorney general to be valid.” Id.
UT Austin has a long history of collaboration with the OAG, including the OAG’s defense
of UT Austin against the claims of Abigail Fisher. 1 However, in this case, the OAG appears to
contend that it is the sole authority to approve (and implicitly deny) a contract for legal services
for UT Austin when the OAG also withholds its response to a request to provide legal services.

1. See Fisher v. Univ. of Tex. at Austin, 645 F. Supp. 2d 587, 589 (W.D. Tex. 2009) (UT Austin’s
attorneys of record composed only of OAG employees), aff’d, 631 F.3d 213, 216 (5th Cir. 2011)
(case argued by the Texas Solicitor General). Nonetheless, the OAG has declined to represent the
UT Austin Defendants here, possibly because of (1) its apparent assumption that Plaintiff’s factual
allegations concerning Dell Medical are true, and (2) its apparent belief that the legality of past
admissions decisions is governed by the anticipated outcome in cases currently pending before the
U.S. Supreme Court rather than by existing Supreme Court precedent.

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At this time, and for the limited purposes of this motion only, the UT Austin Defendants do not
challenge the OAG’s claim of authority. 2
The OAG does, however, authorize UT Austin defendants to “self-represent for the limited
purpose of seeking an extension of time to file a responsive pleading.” When the UT Austin
Defendants later file their answer, they will deny Plaintiff’s allegation that race and gender are
factors considered in admissions made at UT Austin’s Dell Medical School. Notably, Plaintiff’s
complaint does not describe Dell Medical’s admissions process or discuss any of the factors that
Dell Medical considers when making admissions. See Compl. (Dkt. #1) at 10.
Granting the requested extension of time allows UT Austin Defendants an opportunity to
assess their options for securing adequate representation before they respond to the merits of the
case, it will also avoid the serious adverse consequences of a potential default judgment awarding
public funds for alleged compensatory and punitive damages, costs and attorneys’ fees, declaratory
and injunctive relief, and appointment of a court monitor for an indefinite period of time.
B.

Courts Regularly Extend Answer Deadlines To Give Defendants Time To
Secure Legal Representation.

Difficulties with obtaining counsel is a common justification for extending a defendant’s
answer deadline. See, e.g., United States ex rel. Holsey v. Elite Healthcare Enters., Inc., No.
1:18-CV-2318-JPB, 2023 WL 1993781, at *1 (N.D. Ga. Feb. 13, 2023) (noting that answer
deadline was extended by nearly four months where defendant sought additional time “to seek
and retain proper legal representation”); Cytrynbaum v. John Francis Baxter, No. 11-21715CIV-LENARD/O’SULLIVAN, 2012 WL 12865261, at *4 n.7 (S.D. Fla. Aug. 30, 2012) (noting

2. Assuming this claim of authority is valid, by declining to issue a decision on the request for
representation, the OAG could potentially deny the UT Austin Defendants any litigation counsel
whatsoever.

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extensions of answer deadline totaling approximately four months); Super 8 Worldwide, Inc. v.
JNR Hotels, LLC, No. 09-3302-JLL, 2009 WL 4911942, at *4 (D.N.J. Dec. 11, 2009) (granting
30-day “extension of time for all defendants to answer and retain local counsel”); Carter v.
Ozoeneh, No. 3:08-cv-614, 2009 WL 1383307, at *3 (W.D.N.C. May 14, 2009) (extending
defendant’s answer deadline by 30 days “so that he may secure representation in this matter”).
This problem is particularly acute for governmental officials and other defendants who may be
entitled to representation from a state attorney general’s office. See Morehouse v. Vasqus, No.
17-CV-4836-KMK, 2018 WL 4211320, at *1 n.1 (S.D.N.Y. Sept. 4, 2018) (extending answer
deadline for defendant “who is not currently represented by the New York Attorney General’s
Office”); Albritton v. Morris, No. 13-CV-3708, 2016 WL 1267799, at *8 (S.D.N.Y. Mar. 3,
2016) (extending answer deadline “until 30 days after the last-named Defendant had been served
and requested representation from the Office of the Attorney General”).
Accordingly, courts have extended answer deadlines for defendants in the situation of
awaiting a decision from a state attorney general regarding a request for representation. See
Patrick v. N.J. State Prison, No. 18-17324-FLW, 2023 WL 1420444, at *1 & n.2 (D.N.J. Jan.
31, 2023) (granting 60-day extension where attorney general’s office was “engaged in the
process of determining representation for the various individual defendants”); Gough v. Sines,
No. RBD-20-3349, 2022 WL 204639, at *2 (D. Md. Jan. 24, 2022) (noting extension of answer
deadline for defendant who had “requested representation from the Office of the Attorney
General and was awaiting a determination from that office regarding whether they would
represent him”); Moquin v. Wise, No. ELH-18-1107, 2020 WL 6263423, at*2 (D. Md. Oct. 22,
2020) (noting grant of 60-day extension when defendant’s answer deadline would otherwise
expire while “the Office of the Maryland Attorney General was in the process of investigating

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whether it would represent him in this suit”); see also Brown v. New Jersey, No. 09-434-JBSAMD, 2009 WL 1411099, at *2 (D.N.J. May 18, 2009) (granting 60-day extension of answer
deadline when deputy attorney general was not assigned to represent defendants until after their
answer deadline had passed).
In one case, a court even extended the answer deadline of a defendant who did not
request representation from her state attorney general until one month after she had been served
with the complaint. See Oxendine-Bey v. Bertie Corr. Inst., No. 5:10-CT-3140-FL, 2011 WL
4899693, at *2 (E.D.N.C. Oct. 13, 2011). Here, by contrast, the OGC requested representation
from the OAG only two days after the lawsuit was filed. In short, the current situation did not
arise due to delay or negligence on the part of the OGC or the UT Austin Defendants.
C.

Plaintiff Will Not Be Prejudiced by, and Is Unopposed to, a 60-Day Extension
of the UT Austin Defendants’ Answer Deadline.

In this lawsuit, Plaintiff complains that he was denied admission to six public medical
school programs in Texas. Compl. (Dkt. #1) at 9 (¶ 36). On behalf of himself and a putative class
of “white and Asian men who stand ‘ready and able’ to apply for admission to any of these six
medical schools,” id. at 17 (¶ 54), Plaintiff seeks declaratory relief, permanent injunctive relief,
and compensatory and punitive damages, id. at 23-24 (¶ 86).
Plaintiff will not be materially prejudiced by, and is unopposed to, a 60-day extension of
the UT Austin Defendants’ answer deadline. To the extent he is seeking damages as a remedy for
past decisions denying him admission to Dell Medical Center and the other defendant medical
schools, a delay of a few months will not impair his ability to seek that relief. Similarly, a 60-day
extension of the UT Austin Defendants’ answer deadline will not impair Plaintiff’s efforts to obtain
forward-looking injunctive relief. Plaintiff does not seek a temporary injunction or a temporary
restraining order, and it is extremely unlikely that a final judgment awarding permanent injunctive

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relief will issue before admissions decisions are made for the entering class of 2024. (Dell Medical
School accepts applications between May 2 and November 1 and conducts applicant interviews
from September to February).
II.

In Addition, or in the Alternative, the Court Should Abate the Proceedings Pending
the Outcome of the SFFA Cases in the U.S. Supreme Court.
The UT Austin Defendants further ask the Court to temporarily abate these proceedings

pending the U.S. Supreme Court’s decision in Students for Fair Admissions v. University of North
Carolina, et al. (No. 21-707), and Students for Fair Admissions v. President & Fellows of Harvard
College (No. 20-1199). The Supreme Court granted certiorari in those cases to decide whether the
Equal Protection Clause bans public universities, and whether Title VI bans federally-funded
universities, from considering race in undergraduate admissions. As noted in Mr. Cowles’s letter
of February 14, the Supreme Court is expected to issue a decision sometime this spring.
The Supreme Court’s decision in the SFFA cases is unlikely to affect admissions at Dell
Medical School, which does not consider race as a factor in its admissions process. However, to
the extent that other medical schools may consider race in their admissions processes, any such
consideration would presumably be guided by the Supreme Court’s existing precedents in Grutter
v. Bollinger, 539 U.S. 306 (2003), and Fisher v. University of Texas at Austin, 579 U.S. 365 (2016).
Plaintiff implicitly concedes as much by stating that he “also brings suit to seek the overruling of
Grutter and Fisher.” Comp. (Dkt. #1) at 19 (¶ 68).
The Supreme Court may or may not overrule Grutter and Fisher in the pending SFFA
cases. But either way, the OAG appears to believe the Court’s decision is expected to reduce the
uncertainty regarding the consideration of race in admissions that has existed since the grant of
certiorari in those cases. Accordingly, temporarily abating this lawsuit until after the SFFA cases
have been decided may be a sensible outcome. Indeed, last July a federal court in the Western

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District of Texas granted a joint motion to abate a lawsuit challenging undergraduate admissions
practices at UT Austin pending the outcome of the SFFA cases. See Order Granting Motion to Stay
Case, Students for Fair Admissions, Inc. v. Univ. of Tex. at Austin, et al., No. 1:20-cv-00763-RP
(W.D. Tex. July 21, 2022); see also Joint Motion to Stay Proceedings, Students for Fair
Admissions, Inc. v. Univ. of Tex. at Austin, et al., No. 1:20-cv-00763-RP, Dkt. #63, at 4 (July 20,
2022) (asking court to “grant the parties’ joint motion and stay this litigation pending the decisions
from the Supreme Court of the United States in Harvard and University of North Carolina”).
Plaintiff opposes a temporary abatement pending resolution of the SFFA cases.
CONCLUSION
The Court should extend UT Austin Defendants’ deadline to respond to Plaintiff’s Original
Complaint by 60 days, creating a new deadline of Friday, May 12. In the alternative, the Court
should temporarily abate the litigation pending a decision from the United States Supreme Court
in Students for Fair Admissions v. Univ. of North Carolina (No. 21-707) and Students for Fair
Admissions v. President & Fellows of Harvard College (No. 20-1199), and order that the UT
Austin Defendants’ deadline to answer Plaintiff’s complaint would be no earlier than 30 days after
the Court reinstates the case, or another period the Court may deem appropriate.

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Dated: March 1, 2023.
Respectfully submitted.
UNIVERSITY OF TEXAS AT AUSTIN
AMANDA COCHRAN-MCCALL
Deputy Vice President for Legal Affairs
/s/ Joseph D. Hughes
JOSEPH D. HUGHES
Associate Vice President for Legal Affairs
Texas Bar No. 24007410
(512) 475-7716
ESTEBAN SOTO
Associate Vice President for Legal Affairs
Texas Bar No. 24052284
2304 Whitis Avenue, Suite 438
Austin, Texas 78712
jody.hughes@austin.utexas.edu
esteban.soto@austin.utexas.edu
COUNSEL FOR DEFENDANTS
THE UNIVERSITY OF TEXAS AT AUSTIN,
JAY HARTZELL, CLAUDIA LUCCHINETTI,
STEVE SMITH, AND JOEL DABOUB
CERTIFICATE OF CONFERENCE
I hereby certify that on February 20 and 27, 2023, I conferred with Plaintiffs’ counsel
Jonathan Mitchell via email regarding the foregoing motion. Mr. Mitchell stated that he is
unopposed to a 60-day extension of the UT Austin defendants’ answer deadline but opposes a
temporary abatement of the case pending the outcome of the SFFA cases. The other defendants
are not yet parties because, to my knowledge, they have neither been served nor waived service of
process.
/s/ Joseph D. Hughes
Joseph D. Hughes

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CERTIFICATE OF SERVICE
I hereby certify that on March 1, 2023, the foregoing Unopposed Motion for Extension of
Time to File Responsive Pleading and Opposed Motion for Temporary Abatement was
electronically filed with the Clerk of the Court using the CM/ECF system which will send a notice
of electronic filing to all counsel of record.
/s/ Joseph D. Hughes
Joseph D. Hughes

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