Hernandez v. Hernandez et al
ORDER.(Signed by Judge Nelva Gonzales Ramos) Parties notified.(sscotch, )
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
MIGUEL HERNANDEZ, et al,
§ CIVIL ACTION NO. C-09-163
ADELAIDE HORN, et al,
Pending before the Court is Defendant Pena’s Motion to Dismiss and Motion for
Summary Judgment with Brief in Support (D.E. 104). In part, Defendant Marcos Pena
seeks an order pursuant to Fed. R. Civ. P. 12(c) that he is entitled to judgment on the
More specifically, he complains that the Plaintiffs have not met the
heightened pleading requirements triggered by the defense of qualified immunity.
In Schultea v. Wood, 47 F.3d 1427 (5th Cir. 1995), the Fifth Circuit addressed
conflicting pleading principles, including: (1) the “simple, concise, and direct” pleading
requirement of Fed. R. Civ. P. 8(d)(1); (2) the “deemed denied” reprieve of Rule 8(b)(6)
where no reply to a defense is required; and (3) the “heightened pleading” or “more than
conclusions” requirement of a plaintiff’s pleading against a qualified immunity defense
as required by Elliott v. Perez, 751 F.2d 1472 (5th Cir. 1985). The Fifth Circuit en banc
determined that a reply to a qualified immunity defense is not required by a strict reading
of the rules of civil procedure, but that the “deemed denied” rule would run afoul of the
heightened pleading requirement of Elliott.
Thus the Fifth Circuit prescribed the procedure to be followed in order to invoke
the correct pleading standard without ambushing the plaintiff:
First, the district court must insist that a plaintiff suing a
public official under § 1983 file a short and plain statement of
his complaint, a statement that rests on more than conclusions
alone. Second, the court may, in its discretion, insist that a
plaintiff file a reply tailored to an answer pleading the defense
of qualified immunity. Vindicating the immunity doctrine
will ordinarily require such a reply, and a district court's
discretion not to do so is narrow indeed when greater detail
might assist. The district court may ban discovery at this
threshold pleading stage and may limit any necessary
discovery to the defense of qualified immunity. The district
court need not allow any discovery unless it finds that
plaintiff has supported his claim with sufficient precision and
factual specificity to raise a genuine issue as to the illegality
of defendant's conduct at the time of the alleged acts. Even if
such limited discovery is allowed, at its end, the court can
again determine whether the case can proceed and consider
any motions for summary judgment under Rule 56.
Schultea, supra at 1433-34.
Before Defendant Pena was served, Defendants Adelaide Horn, Jon Weizenbaum,
Barry Waller, Denice Geredine, and Iva Benson filed a Rule 7(a)(7) motion with respect
to their qualified immunity defenses consistent with the Schultea requirements. Neither
the motion nor the resulting order (D.E. 14) addressed the claims against, or defenses of,
Defendant Pena. In Pena’s initial Answer, he included a qualified immunity defense and
footnoted his desire that claims against him be included in the detailed reply previously
ordered pursuant to Rule 7(a)(7). D.E. 37, p. 1, n.1. Defendant Pena did not file a Rule
7(a)(7) motion and no action was taken pursuant to the footnote.
Plaintiffs’ Fourth Amended Original Complaint (D.E. 46) reflects significant
added detail to the allegations against Defendants Horn, Weizenbaum, Waller, Geredine,
However, it does not reflect a voluntary inclusion of more detailed
allegations against Defendant Pena. Even then, Defendant Pena did not file a Rule
7(a)(7) motion. Instead, he filed an Amended Answer in which his previous footnote on
the matter was deleted. D.E. 102.
While it is tempting to find that the Defendant has waived his Rule 7(a)(7) right to
require a reply and has further waived his Rule 12(c) motion, the Schultea opinion is
cause for restraint: “First, the district court must insist that a plaintiff suing a public
official under § 1983 file a short and plain statement of his complaint, a statement that
rests on more than conclusions alone.” Schultea, supra at 1433. Moreover, the Court
may order such a reply on its own motion. Id.
The Court notes, after reading the Plaintiffs’ Response (D.E. 106), that the
Plaintiff is in possession of additional detailed factual allegations against Defendant Pena
that have not yet been added to their pleading and will not be added under the
proscriptions of the scheduling order without direction from the Court. It is only proper
that the full nature of the Plaintiffs’ allegations be considered against the qualified
immunity defense, without necessity of converting the motion for judgment on the
pleadings into a summary judgment motion, even though Defendant Pena has presented
such a motion with his motion for judgment on the pleadings.
For these reasons and in the interests of a “just, speedy, and inexpensive
determination” of this proceeding pursuant to Fed. R. Civ. P. 1, the Court sua sponte
ORDERS Plaintiffs, pursuant to Fed. R. Civ. P. 7(a)(7), to file no later than November 9,
2011, a rule 7(a)(7) reply to Defendant Marcos Pena’s qualified immunity defense stating
with particularity all material facts on which Plaintiffs contend they will establish their
right to recover against Defendant Pena.
Defendant Pena’s Motion (D.E. 104) is taken under advisement pending the
deadline for Plaintiffs to file their Rule 7(a)(7) reply.
ORDERED this 25th day of October, 2011.
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE
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