Doe v. University of Texas Health Science Center At San Antonio et al

Western District of Texas, txwd-5:2019-cv-00248

Opposed MOTION to Stay Discovery by MARCEL NOUJEIM, UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT SAN ANTONIO.

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION JANE UTHSCSA-AS DOE, § § Plaintiff, § § v. § CASE NO. 5:19-CV-00248-DAE § THE UNIVERSITY OF TEXAS HEALTH § SCIENCE CENTER AT SAN ANTONIO § and MARCEL NOUJEIM, § § Defendants. § DEFENDANTS' OPPOSED MOTION FOR STAY OF DISCOVERY Defendants University of Texas Health Science Center at San Antonio ("UTHSC") and Dr. Marcel Noujeim file this Opposed Motion for Stay of Discovery and respectfully show the Court as follows: INTRODUCTION Jane UTHSC-AS Doe ("Doe") filed her lawsuit (Doc. 2) against UTHSC and Dr. Marcel Noujeim under Title IX of the Educational Amendments of 1972 ("Title IX") and 42 U.S.C. § 1983 ("Section 1983"). Doc. 2 at ¶¶2, 47-66. For good measure, Doe added that UTHSC alone violated her rights under the Texas Constitution and breached an unidentified "Educational Contract." Id. at ¶¶2, 67-75. Defendants seek to dismiss Doe's claims in their entirety because her lawsuit is barred by res judicata. Doc. 8. Additionally, Doe failed to state a claim against UTHSC under Title IX. Her Title IX claim against Dr. Noujeim is not actionable. Doe's Section 1983 claim against both Defendants must be dismissed for lack of subject matter jurisdiction based on the Eleventh Amendment's sovereign immunity protections. As to her state law claims, Doe failed to allege a waiver of UTHSC's sovereign immunity. Even if she could overcome this obstacle, Doe failed to state a claim for "breach of Educational Contract" because a university catalog is not a contract. Accordingly, Defendants now ask this Court to stay discovery pending resolution of these foundational matters. ARGUMENT AND AUTHORITIES Pursuant to Federal Rule of Civil Procedure 26(c)-(d), Defendants respectfully ask this Court to stay all discovery in this lawsuit pending the resolution of threshold jurisdictional challenges. A. Discovery should not proceed until threshold immunity issues are resolved. Until a "threshold immunity question is resolved, discovery should not be allowed." Harlow v. Fitzgerald, 457 U.S. 800 (1982); see also Mitchell v. Forsyth, 472 U.S. 511, 526 (1985); Criss v. City of Kent, 867 F.2d 259, 261 (6th Cir. 1988) ("discovery in litigation against government officials should be halted until the threshold question of immunity is resolved"). Eleventh Amendment immunity confers immunity from suit, not merely from liability. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100-02 (1984); Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). The U.S. Supreme Court has expressly acknowledged the importance of protecting government time and witnesses in the context of immunity from suit. Ashcroft v. Iqbal, 556 U.S. 662, 684-86 (2009). Established law protects Defendants from being forced into the discovery process when Doe cannot establish subject matter jurisdiction or overcome Eleventh Amendment immunity obstacles. Indeed, the burden of enduring suit—or even the discovery process—is very high as a matter of law. Mitchell, 472 U.S. 511. This Court should stay discovery proceedings because Doe already filed a nearly identical lawsuit in state court, which dismissed her lawsuit with prejudice, Defendants' Opposed Motion for Stay of Discovery 2 and because several of Doe's claims are barred by sovereign immunity. B. Additional factors favor a Court-mandated stay of discovery in this case. 1. Doe is not prejudiced by a stay of discovery. Permitting Doe to conduct discovery will not overcome Eleventh Amendment immunity obstacles. Discovery will not evade the lack of subject matter jurisdiction, nor will it cure Doe's failure to plead legally cognizable claims. There is thus no prejudice to Doe that could result from granting a stay of discovery. 2. The burden placed on Defendants is considerable and unnecessary. UTHSC administrators and personnel must perform the day-to-day duties and functions of their respective offices. Defendants maintain that they are immune from Doe's claims, and her lawsuit therefore cannot meet threshold requirements. Forcing Defendants to proceed headlong into the discovery process, without first resolving foundational immunity and jurisdictional issues, would impose an undue burden by inviting needless and costly discovery. 3. A stay of discovery serves the Court's interests. If Defendant's Motion to Dismiss (Doc. 8) is granted, then any discovery conducted prior to that ruling will have been superfluous. A ruling on threshold issues prior to green-lighting the discovery process will conserve the resources of all parties. 4. Non-parties will not be harmed by a stay of discovery. There is no advantage to the public interest in proceeding with discovery at this stage. It cannot be in the interest of the public to require Defendants to proceed with needless discovery in pursuit of litigation that is fatally flawed by threshold immunity and jurisdictional shortcomings. When considering a case like this one, the Court "must exercise its discretion so that officials are not subjected to unnecessary and burdensome discovery or trial proceedings." See Crawford-El Defendants' Opposed Motion for Stay of Discovery 3 v. Britton, 523 U.S. 574, 597-98 (1998); see also Mitchell at 526. CONCLUSION Defendants respectfully ask this Court to grant its Opposed Motion for Stay of Discovery and thereby stay discovery pending a resolution of threshold jurisdiction and immunity challenges raised in Defendants' Motion to Dismiss. On this basis, Defendants also request that the Court vacate its August 28 Order requiring scheduling recommendations. Doc. 9. Respectfully submitted, KEN PAXTON Attorney General of Texas JEFFREY C. MATEER First Assistant Attorney General DARREN L. MCCARTY Deputy Attorney General for Civil Litigation THOMAS A. ALBRIGHT Chief, General Litigation Division /s/ Matthew A. Deal MATTHEW A. DEAL Texas Bar No. 24087397 Assistant Attorney General General Litigation Division P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 matthew.deal@oag.texas.gov (512) 475-4651 PHONE (512) 320-0667 FAX ATTORNEYS FOR DEFENDANT Defendants' Opposed Motion for Stay of Discovery 4 CERTIFICATE OF CONFERENCE I hereby certify to the Court that I contacted Counsel for Plaintiff, Mr. Gorman, via email on Thursday, September 19, 2019, and he stated that he opposes this motion. /s/ Matthew A. Deal MATTHEW A. DEAL Assistant Attorney General CERTIFICATE OF SERVICE I hereby certify that on September 20, 2019, a true and correct copy of the foregoing document was served via the Court's CM/ECF system to all counsel of record: Terry P. Gorman, Esq. tgorman@school-law.co 901 Mopac Expressway South, Suite 300 Austin, TX 78746 Phone: (972) 235-4700 Fax: (512) 597-1455 ATTORNEY FOR PLAINTIFF /s/ Matthew A. Deal MATTHEW A. DEAL Assistant Attorney General Defendants' Opposed Motion for Stay of Discovery 5