Salcido v. University of Southern Mississippi et al
ORDER denying Plaintiff's 26 Motion to Dismiss; denying Plaintiff's 66 Motion to Strike ; denying Defendants' 7 Motion to Dismiss. With respect to Defendants' Motion for Summary Judgment 9 , Plaintiff may file a sur-repl y which only addresses the new evidence and arguments contained in Defendants' reply 82 on or before May 8, 2013. If any party objects to the Court's consideration of Defendants' Motion for Summary Judgment 9 under these circumstances, they must make their objections on the record on or before May 8, 2013. The Court is disinclined to grant any extension of these deadlines. Signed by District Judge Keith Starrett on May 1, 2013 (dsl)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
CIVIL ACTION NO. 2:11-CV-173-KS-MTP
THE UNIVERSITY OF SOUTHERN
MISSISSIPPI, et al.
For the reasons stated below, the Court denies Defendants’ Motion to Dismiss
, denies Plaintiff’s second Motion to Strike ,and denies Plaintiff’s first Motion
to Strike . The Court will consider Defendants’ Motion for Summary Judgment 
after Plaintiff has the opportunity to file a sur-reply.
Motion to Dismiss 
Defendants filed their Motion to Dismiss  Plaintiff’s original Complaint on
December 21, 2011. On June 11, 2012, the Court granted Plaintiff’s Motion to Amend
 the Complaint, and Plaintiff filed an Amended Complaint  on June 18, 2012.
Therefore, as Plaintiff’s Amended Complaint is now the operative pleading,
Defendants’ Motion to Dismiss  is denied as moot.
Motion to Strike 
On November 6, 2012, Plaintiff filed her second Motion to Strike 
Defendants’ Motion to Dismiss . The Court denied the Motion to Dismiss  as moot.
Therefore, Plaintiff’s second Motion to Strike  is also denied as moot.
Motion to Strike 
On May 8, 2012, Plaintiff filed her first Motion to Strike  Defendants’ Motion
to Dismiss  and Motion for Summary Judgment . The Court already denied the
Motion to Dismiss  as moot. Therefore, Plaintiff’s first Motion to Strike  is
denied as moot insofar as it pertains to the Motion to Dismiss .
Plaintiff argues that Defendants’ Motion for Summary Judgment  should be
stricken because Defendants failed to raise immunity defenses separate from other
defenses. Local Rule 16 provides: “A motion to compel arbitration, an immunity defense
or a jurisdictional defense must be raised by a separate motion as expeditiously as
practicable after service of process.” See L.U.Civ.R. 16(b)(3)(A). This rule does not
require that immunity defenses be presented in motions separate from other defenses.
It requires that immunity defenses be asserted in a motion separate from the answer,
as indicated by the rule’s reference to service of process. In any case, Plaintiff has not
demonstrated that Defendants’ inclusion of multiple defenses in a single motion
prejudices her in any way.
Plaintiff also argues that the Motion for Summary Judgment  should be
stricken because she has not had an opportunity to conduct broader discovery. This
argument has no merit. The Fifth Circuit’s discovery procedures in cases with
immunity defenses are clear:
One of the most salient benefits of qualified immunity is protection from
pretrial discovery, which is costly, time-consuming, and intrusive.
Consequently, this court has established a careful procedure under which
a district court may defer its qualified immunity ruling if further factual
development is necessary to ascertain the availability of that defense. .
. . [A] district court must first find that the plaintiff’s pleadings assert
facts which, if true, would overcome the defense of qualified immunity.
Thus, a plaintiff seeking to overcome qualified immunity must plead
specific facts that both allow the court to draw reasonable inference that
the defendant is liable for the harm he has alleged and that defeat a
qualified immunity defense with equal specificity. After the district court
finds a plaintiff has so pled, if the court remains unable to rule on the
immunity defense without further clarification of the facts, it may issue
a discovery order narrowly tailored to uncover only those facts needed to
rule on the immunity claim.
Backe v. Leblanc, 691 F.3d 645, 648 (5th Cir. 2012) (punctuation and citations omitted).
The Court allowed this case to go wildly off-track by not strictly adhering to the
procedure outlined above. Indeed, this “is precisely the point of qualified immunity: to
protect public officials from expensive, intrusive discovery until and unless the
requisite showing overcoming immunity is made.” Id.1
Plaintiff argues that Local Rule 16(b)(3) automatically allows immunity-related
discovery. See L.U.Civ.R. 16(b)(3)(B) (“Filing . . . an immunity defense . . . motion stays
. . . all discovery not related to the issue pending the court’s ruling on the motion.”).
This argument is irrelevant, as the Court allowed Plaintiff to conduct immunityrelated discovery.
A Defendant may, however, elect to reserve some qualified immunity
arguments until after the completion of general discovery. Qualified immunity
arguments generally fall into one of two categories: Rule 12(b)(6)-type arguments
that a plaintiff has failed to allege the deprivation of a clearly established
constitutional right, or Rule 56-type arguments that a defendant’s conduct was
objectively reasonable in light of the circumstances. Generally, the former can be
addressed before discovery, while the latter can not. For this reason, Defendants
frequently elect to reserve their fact-based qualified immunity arguments until
after general discovery has been completed. See, e.g., Agreed Motion for Order
Regarding Rule 16, Immunity Defenses, and Discovery, Payne v. Univ. of S. Miss.,
No. 1:12-CV-41-KS-MTP (S.D. Miss. Mar. 22, 2012), ECF No. 6. The Court certainly
does not discourage this practice, as it consistently yields more efficient case
Plaintiff may also argue that the Motion for Summary Judgment  should be
stricken because she filed an Amended Complaint. But the filing of an amended
complaint does not necessarily render a pending motion for summary judgment moot.
See Enplanar, Inc. v. Marsh, 11 F.3d 1284, 1293 (5th Cir. 1994). Defendants here did
not file a supplemental memorandum in support of their motion, as the Emplanar
defendants did. But the Amended Complaint did not materially alter Plaintiff’s claims,
and she had an opportunity to conduct limited discovery and respond to the motion
after she had amended.
For all of these reasons, the Court denies Plaintiff’s first Motion to Strike 
as it pertains to Defendants’ Motion for Summary Judgment .
Defendants filed both a Motion to Dismiss  and a Motion for Summary
Judgment . The two motions are identical, and both rely upon the same
memorandum of law. Most of Defendants’ arguments are Rule 12(b)(6)-type arguments
in which Defendants contend that the allegations of Plaintiff’s Complaint are not
sufficient to state a claim or overcome qualified immunity. Plaintiff filed an Amended
Complaint , though, and Defendants’ arguments concerning the allegations of the
original complaint may be inapposite. The parties also conducted limited discovery
after Defendants filed their Motion for Summary Judgment .
For these reasons, presumably, Defendants included new evidence and
argument in their reply brief  to which Plaintiff was not given an opportunity to
respond. Ordinarily, the Court would not interject itself and raise a party’s objection
for them. But at this point, the Court’s chief concern is moving forward with the case
while avoiding error and/or prejudice to any party. The case can not proceed until the
Court addresses Defendants’ pending dispositive motions. Therefore, the most efficient
course of action is to allow Plaintiff to file a sur-reply2 addressing the evidence and
arguments in Defendants’ reply which were not included in Defendant’s original
motion  and memorandum .
For the reasons stated above, the Court denies Defendants’ Motion to Dismiss
, denies Plaintiff’s second Motion to Strike , and denies Plaintiff’s first Motion
to Strike . With respect to Defendants’ Motion for Summary Judgment , Plaintiff
may file a sur-reply which only addresses the new evidence and arguments contained
in Defendants’ reply  on or before May 8, 2013. If any party objects to the Court’s
consideration of Defendants’ Motion for Summary Judgment  under these
circumstances, they must make their objections on the record on or before May 8,
2013. The Court is disinclined to grant any extension of these deadlines.
SO ORDERED AND ADJUDGED this 1st day of May, 2013.
UNITED STATES DISTRICT JUDGE
“[A] district court may rely on arguments and evidence presented for the
first time in a reply brief as long as the court gives the nonmovant an adequate
opportunity to respond.” Vais Arms, Inc. v. Vais, 383 F.3d 287, 292 (5th Cir. 2004).
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