Dalton v. Town of Silver City et al

Filing 124

ORDER GRANTING OPPOSED MOTION TO STAY PENDING RESOLUTION OF QUALIFIED IMMUNITY APPEAL by Magistrate Judge Gregory J. Fouratt. (mm)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
KARRI DALTON as the Personal Representative of the
Estate of NIKKI BASCOM, deceased, and Next Friend to
M.B., a minor child, and A.C., a minor child,
Plaintiffs,
v.

Civ. No. 17-1143 WJ/GJF

TOWN OF SILVER CITY, ex rel. SILVER CITY
POLICE DEPARTMENT, et al.,
Defendants.
ORDER GRANTING OPPOSED MOTION TO STAY
PENDING RESOLUTION OF QUALIFIED IMMUNITY APPEAL
Pending before the Court is the “Opposed Motion to Stay Pending Resolution of Qualified
Immunity Appeal” (“Motion”) [ECF 113], filed by Defendants Town of Silver City, Ed Reynolds,
and Ricky Villalobos. The Motion is fully briefed. See ECFs 119 (response), 120 (reply). Because
the general rule is that a district court stays all proceedings in a case in which any defendant has
taken an interlocutory appeal of the denial of qualified immunity, and there being no sufficiently
persuasive reason to deviate from that rule in the instant case, the Court will GRANT the motion. 1

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The Court observes that this case is already stayed and has remained so for nearly eleven months. See Order Granting
County Defendants’ Mot. to Stay, ECF 39. This order stayed all discovery and all pending deadlines pending a
decision on the County Defendants’ Motion for Summary Judgment [ECF 29] that was based in part on qualified
immunity. Id. at 5. On November 14, 2018, Chief Judge William P. Johnson granted that motion in part and denied
it in part. See Mem. Op. and Order, ECF 89. On December 4, 2018, Defendant Frank Gomez moved to reconsider
that decision to the extent it denied him qualified immunity. See Mot. to Reconsider, ECF 96. At a status conference
held December 6, 2018, Plaintiff’s counsel agreed that the stay should remain in place until Chief Judge Johnson has
ruled on the Motion to Reconsider. See Clerk’s Mins., ECF 98 at 2. As the Motion to Reconsider remains pending,
the original stay of all discovery and all deadlines imposed in this case remains in place. Consequently, the Court
construes the instant motion to be requesting a continuation of the stay with its expiration linked to the Tenth Circuit’s
decision on the interlocutory appeal.

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Relevant Procedural History
In a Memorandum Opinion and Order [ECF 110] filed March 7, 2019, Chief Judge Johnson
granted in part and denied in part the Motion for Partial Summary Judgment filed by Defendants
Town of Silver City, Ed Reynolds, and Ricky Villalobos [ECF 59]. As part of the motion,
Defendants Reynolds and Villalobos sought the dismissal of certain equal protection and due
process claims against them on the basis of qualified immunity. See ECF 59 at 28-31. The
Memorandum Opinion and Order denied dismissal with respect to the equal protection claim and
in so doing rejected the qualified immunity defense. See ECF 110 at 20-22.
On March 20, 2019, Defendants Reynolds and Villalobos filed a Notice of Appeal [ECF
112] of the Memorandum Opinion and Order to the extent it denied them qualified immunity on
the equal protection claim. On the same day, Defendants Town of Silver City, Reynolds, and
Villalobos filed the instant Motion, in which they seek an order staying all proceedings as against
all defendants in this case.
Defendants’ Motion
In their Motion, the Silver City Defendants (hereafter “Defendants”) remind the reader that
the denial of qualified immunity is an immediately appealable order. See Mot. to Stay 1-2.
Defendants then contend that their appeal “relates to the entire action. . . and divests the District
Court of jurisdiction to proceed with any part of the action until the qualified immunity appeal is
resolved.” Id. at 2 (citing Stewart v. Donges, 915 F.2d 572, 576 (10th Cir. 1990)) (internal
quotations omitted) (emphasis added). Defendants conclude with a request global in scope:
“Given the nature of the qualified immunity defense, these Defendants are entitled to take an
immediate interlocutory appeal, and as such, the Silver City Defendants request that this case be
stayed while that appeal is pending.” Id. at 3 (emphasis added).

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Plaintiff’s Response
In opposing the Motion, Plaintiff makes three principal arguments. First, she asserts that
the interlocutory appeal is frivolous, an infirmity that should result in the district court retaining
rather than losing jurisdiction over the particular claim being appealed. 2 Pl.’s Resp. 1-2. Second,
Plaintiff emphasizes that the only defendants who are even eligible to appeal are the individual
defendants – Reynolds and Villalobos – whose qualified immunity invocations were denied.
Consequently, the remaining claims against all remaining defendants, particularly the Town of
Silver City, remain pending and are and will be unaffected by the ongoing appeal or its eventual
result. Id. at 2-4. Finally, Plaintiff contends that the Court should deny the stay on the basis of
judicial estoppel because Defendants’ counsel agreed to litigate an unrelated discovery issue
during the originally-imposed stay in these proceedings. Id. at 4-6.
Defendants’ Reply
Relying heavily on Ashcroft v. Iqbal, 556 U.S. 662 (2009) and its progeny, Defendants
argue that the great weight of authority in this district is that an entire case should be stayed when
an issue of qualified immunity is pending before this Court or on interlocutory appeal. Defs.’
Reply 2-5. Defendants point out that the vast majority of cases cited in Plaintiff’s opposition predate the Iqbal decision and its clear instruction that issues of qualified immunity are important
enough such that discovery should be stayed until the issues are resolved. Id. at 2-5. In addition,
Defendants specifically deny that the interlocutory appeal is frivolous, id. at 5-11, or that they are
barred by judicial estoppel from requesting the stay. Id. at 11-12.

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In addition to raising frivolousness in her response to the instant Motion, Plaintiff filed a separate Motion to Certify
Defendants’ Notice of Appeal as Frivolous. ECF 118. That motion awaits full briefing.

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Legal Standard
“Qualified immunity balances two important interests - the need to hold public officials
accountable when they exercise power irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform their duties reasonably.” Pearson v.
Callahan, 555 U.S. 223, 231 (2009). The Supreme Court has repeatedly highlighted the broad
protection that this defense provides and has stressed that it protects officials not only from having
to stand trial, but from having to bear the burdens attendant to litigation, including pretrial
discovery. See Iqbal, 556 U.S. at 685; see also Saucier v. Katz, 533 U.S. 194, 200 (2001). Because
qualified immunity protects against the burdens of discovery as well as trial, the Supreme Court
has also emphasized that trial courts should resolve the issue before discovery if at all possible.
See Siegert v. Gilley, 500 U.S. 226, 231-33 (1991); Harlow v. Fitzgerald, 457 U.S. 800, 818-19
(1982) (“Until this threshold immunity question is resolved, discovery should not be allowed.”);
accord Jones v. City and Cnty. of Denver, 854 F.2d 1206, 1211 (10th Cir. 1988).
As a consequence, the Tenth Circuit holds that when defendants file a dispositive motion
based on qualified immunity, they are ordinarily entitled to a stay of discovery. Jiron v. City of
Lakewood, 392 F.3d 410, 414 (10th Cir. 2004); Workman v. Jordan, 958 F.2d 332, 336 (10th Cir.
1992). Moreover, once a single defendant raises the issue of qualified immunity in a dispositive
motion, discovery for all defendants should generally be stayed. See Iqbal, 556 U.S. at 685-86.

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Analysis
1.

This Court Retains Jurisdiction over All Claims Not the Subject of Appeal

As an initial matter, the Court is obliged to clarify the bounds of its continuing jurisdiction,
if for no other reason than to correct a misunderstanding set forth in Defendants’ Motion.
Defendants contend that their appeal “relates to the entire action. . . and divests the District Court
of jurisdiction to proceed with any part of the action until the qualified immunity appeal is
resolved.” Defs.’ Mot. 2 (citing Stewart v. Donges, 915 F.2d 572, 576 (10th Cir. 1990)) (internal
quotations omitted) (emphasis added).
It is enough to stay that Stewart does not reach nearly as far as Defendants attempt to stretch
it. Stewart makes clear that the filing of a notice of appeal “‘is an event of jurisdictional
significance – it confers jurisdiction on the court of appeals and divests the district court of its
control over those aspects of the case involved in the appeal.’” Stewart, 915 F.2d at 575 (quoting
Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982)) (emphasis added). Invoking
an earlier Tenth Circuit case, Stewart explained: “‘[W]hen an interlocutory appeal is taken, the
district court [only] retains jurisdiction to proceed with matters not involved in that appeal.” Id.
at 576 (quoting Garcia v. Burlington Northern R.R. Co., 818 F.2d 713, 721 (10th Cir. 1987))
(brackets and emphasis in original). Perhaps to drive home the point, Stewart emphasized that an
order denying qualified immunity only “divests the district court of jurisdiction to proceed with
any part of the action against an appealing defendant.” Id. (citations omitted).
Accordingly, this authority establishes that the only claim and the only defendants over
whom this Court has temporarily lost jurisdiction is the equal protection claim against Defendants
Reynolds and Villalobos. As a matter of law, the proceedings as against them – including any
additional discovery – must be stayed pending the outcome of the interlocutory appeal and/or

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Plaintiff’s motion to certify the appeal as frivolous. Notwithstanding Defendants’ suggestion to
the contrary, this Court retains jurisdiction over all other claims against all other defendants.
Whether to stay the proceedings as against all other defendants, therefore, is principally a matter
of discretion, not jurisdiction.
2.

Post-Iqbal, the General Rule Is to Stay All Proceedings Against All Defendants

The Court incorporates its reasoning from the order it filed overruling Plaintiff’s objections
and granting the original stay back in May 2018. See ECF 39. This Court again affirms its
understanding that Iqbal clearly implies that proceedings in a case should be stayed when any
defendant raises a qualified immunity issue before a district court or files an interlocutory appeal
of the denial of qualified immunity. See Iqbal, 556 U.S. at 685-86. The Court further agrees that
this general rule obtains irrespective whether there are multiple defendants in a particular case,
including one or more who cannot or have not also invoked qualified immunity. See id. Persuasive
case law from this District has recognized that “after Iqbal, the law is clear that discovery should
be stayed upon assertion of qualified immunity, even for those defendants not asserting the
defense.” Tenorio v. Pitzer, No. CIV 12-1295 JCH/KBM, 2013 WL 12178001 at *3 (D.N.M. July
27, 2013). Plaintiff has not persuaded the Court that it should deviate from Iqbal’s rule that once
one defendant has asserted qualified immunity, discovery for all defendants should be stayed. 3
3. Staying Proceedings Promotes Sound Case Management
The Court believes that the temporary continuation of the stay of the proceedings imposed
by this Order will best serve the efficient management of this case. The Court sympathizes with
Plaintiff’s concerns about how long this litigation has been pending and the increasing span of

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In its discretion, this Court will not address the merits of Plaintiff’s contention that the interlocutory appeal is
frivolous. That matter is the subject of a separate motion that will be fully briefed and decided in due course. In the
event that the presiding judge certifies the appeal as frivolous, Plaintiff may move the Court to reconsider this order
and lift the stay.

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time from the tragedy that gave rise to it. No doubt Plaintiff’s experienced counsel cautioned her
that amending her state court lawsuit to add federal claims would work a substantial delay in the
resolution of this case, given the virtual certainty of removal to federal court, the ubiquity of
motions practice based on qualified immunity, and the specter of interlocutory appeals. See Defs.’
Notice of Removal, ECF 1 (discussing Plaintiff amending her then-pending state lawsuit to add
federal claims).
By invoking 42 U.S.C. § 1983 and seeking money damages from individual defendants,
Plaintiff assumed the risk that these defendants might seek to be dismissed on qualified immunity
and might take an appeal if they did not obtain the relief they sought from the district court. In
addition, by pleading federal claims, Plaintiff further accepted the reality that invocations of
qualified immunity normally trigger sometimes lengthy stays of the proceedings while the
qualified immunity issues are decided. And these risks were exacerbated in this case, where
Plaintiff sought money damages from multiple law enforcement officers in two different agencies
represented by different counsel. The prospect of sequential motions accompanied by sequential
stays and the possibility of sequential appeals – not to mention all of the associated delay – was
occasioned by the manner in which Plaintiff has pleaded her claims.
In the Court’s view, it would make little sense to stay the proceedings only as they relate
to Defendants Reynolds and Villalobos. Splintering this case at this stage by staying it as to them
but allowing it to proceed against the Town of Silver City and the County Defendants would invite
dueling scheduling orders and perhaps even separate trials. 4 The Court also is concerned that

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It is worth remembering that Defendant Frank Gomez has also invoked qualified immunity. His motion to reconsider
the partial denial of the same [ECF 89] is fully briefed and awaiting decision. See ECFs 96, 99, 102. Defendant
Gomez conceivably could appeal if the motion to reconsider is denied, another possible circumstance that counsels
against anything other than a stay of the entire case at this juncture.

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permitting any part of the case against the Town of Silver City to proceed would require the
significant participation by Defendants Reynolds and Villalobos, a discovery burden that the
Supreme Court expressly warned against in Iqbal. In the final analysis, of the available options,
the Court believes that staying all discovery and all pending deadlines against all defendants to be
the most prudent. 5
For the foregoing reasons, IT IS ORDERED that Defendants’ Opposed Motion to Stay
Pending Resolution of Qualified Immunity Appeal [ECF 113] is GRANTED. IT IS FURTHER
ORDERED that all discovery and all pending deadlines in this case are STAYED pending the
outcome of the appeal.

_________________________________________
THE HONORABLE GREGORY J. FOURATT
UNITED STATES MAGISTRATE JUDGE

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The Court declines Plaintiff’s invitation to deny the stay on the basis of judicial estoppel. By an order filed this same
day, the Court has resolved the pending motion to compel [ECF 56] that Plaintiff suggests should form the basis of
the estoppel. Consequently, the Court considers Plaintiff’s estoppel argument to be moot.

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