Alice L. Ex Rel. R.L. v. Dusek

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS 12, 2007
July
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk

No. 07-50440

ALICE L, as next friend of R L, a minor; KATHY P,
individually and as next friend of L P, a minor,

Plaintiffs - Appellees
v.

JENNIFER DUSEK,

Defendant - Appellant

Appeal from the United States District Court
for the Western District of Texas

Before GARZA, BENAVIDES, and PRADO, Circuit Judges.
PER CURIAM:
The appellant, Jennifer Dusek, seeks to stay all district court proceedings
in this case pending her interlocutory appeal of the district court’s denial of
qualified immunity))which Dusek sought in defense from the plaintiffs’ claim
under 42 U.S.C. § 1983. Dusek’s primary concerns are discovery requests the
plaintiffs made related to their 20 U.S.C. § 1681 (“Title IX”) claims against
Dusek’s co-defendant, Eanes ISD. These discovery requests require Dusek to
answer certain interrogatories and produce certain documents. The district
court denied Dusek’s request to stay these proceedings and has ordered Dusek’s
compliance even while her interlocutory appeal is pending.
 No. 07-50440

Dusek argues that the district court has no authority to compel her
compliance with these discovery orders because her interlocutory notice of
appeal on the denial of qualified immunity divests the district court of
jurisdiction over all claims in this case, including the plaintiffs’ Title IX claim
against Eanes ISD, or, at the very least, Dusek claims the district court is
divested of jurisdiction over her personally.
A notice of appeal from an interlocutory order does not produce a complete
divestiture of the district court’s jurisdiction over the case; rather, it only divests
the district court of jurisdiction over those aspects of the case on appeal. Our
caselaw makes this point clearly: “It is the general rule that a district court is
divested of jurisdiction upon the filing of the notice of appeal with respect to any
matters involved in the appeal. However, where an appeal is allowed from an
interlocutory order, the district court may still proceed with matters not involved
in the appeal.” Taylor v. Sterrett, 640 F.2d 663, 667-68 (5th Cir. 1981); see also
Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982) (“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.”) (emphasis added).
How broadly a court defines the aspects of the case on appeal depends on
the nature of the appeal. Dusek argues that her appeal of the district court’s
denial of qualified immunity is so broad as to divest the district court of
jurisdiction to compel her compliance with discovery requests made related to
the Title IX claims against Eanes ISD. We disagree. Although qualified
immunity is “an entitlement to be free from the burdens of time-consuming pre-
trial matters and the trial process itself,” Williams v. Brooks, 996 F.2d 728, 730
n.2 (5th Cir. 1993), it is “a right to immunity from certain claims, not from
litigation in general,” Behrens v. Pelletier, 516 U.S. 299, 312 (1996) (emphasis in
original). Even though the factual basis of the Title IX claims and the § 1983

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 No. 07-50440

claim overlap, the claims are legally distinct))notably, Dusek does not and
cannot assert qualified immunity from the Title IX claim against Eanes ISD. To
the extent that Dusek is subject to discovery requests on claims for which she
does not or cannot assert qualified immunity, such discovery requests do not
implicate her right to qualified immunity. The district court may compel
discovery disclosures related to the plaintiffs’ Title IX claims because doing so
does not interfere with any aspect of Dusek’s appeal.
Additionally, Dusek requests a stay of trial on the Title IX claim. Dusek
made no argument before the district court for a stay of trial, so we will not
consider the argument now. See Fed. R. App. P. 8(a)(1). In any event, the
district court has given no indication that it intends to proceed to trial on the
Title IX claim while Dusek’s qualified immunity claim is still being appealed.
Finally, Dusek asserts that the district court improperly granted the
plaintiffs permission to file an amended complaint after Dusek had filed her
notice of appeal. Dusek did not raise this argument until her reply, therefore we
will not consider it. See Morin v. Moore, 309 F.3d 316, 328 (5th Cir. 2002).
We further note that the district court denied Dusek’s request to stay
proceedings on April 19, 2007. Yet, Dusek waited until July 2 to file her motion
in this court and requested that it be treated as an emergency, seeking a
decision before July 13. This court strongly disfavors the practice of creating an
“emergency” by waiting to file a motion.
IT IS ORDERED that Dusek’s motion to stay district court proceedings
pending appeal is DENIED.

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