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                                                              [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 16-15567
                             Non-Argument Calendar
                           ________________________

                      D.C. Docket No. 1:15-cv-02357-LMM



TAREON KELSEY,
ANGELIQUE HILL,
BRIANNA TRIMBLE,
STEPHANIE BURNS,
individually and as representatives of proposed class,
YAKEISHA REID, et al.,



                                                  Plaintiffs - Appellees,

versus

NELLY F. WITHERS,
TROY M. THOMPSON,

                                                  Defendants - Appellants,

JOHN DOE I, et al.,

                                                  Defendants.
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                            ________________________

                     Appeal from the United States District Court
                        for the Northern District of Georgia
                           ________________________

                                 (December 4, 2017)

Before MARTIN, JORDAN and ANDERSON, Circuit Judges.

PER CURIAM:

      Nelly Withers, a judge of the DeKalb County Recorders’ Court, and Troy

Thompson, the Court Administrator, appeal the district court’s order striking their

second motion for summary judgment asserting defenses of absolute judicial and

quasi-judicial immunity. The district court determined that, due to the parties’

agreed-upon scheduling order, which bifurcated class and merits discovery, it

would be unfair to require the plaintiffs to respond to a motion for summary

judgment without first conducting merits discovery relevant to the judicial

immunity issues. Upon review of the record and consideration of the parties’

briefs, we affirm.

                                          I

      Because we write for the parties, we assume their familiarity with the

underlying record and recite only what is necessary to resolve this appeal.

      On June 19, 2014, Tareon Kelsey, Angelique Hill, Brianna Trimble,

Stephanie Burns, and Yakeisha Reed, individuals who had received traffic citations


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and appeared in DeKalb County Recorders’ Court, brought various state law

claims against Recorders’ Court employees, alleging that errors they committed

caused them to suffer unlawful arrests. A second amended complaint raising

claims under the Fourth and Fourteenth Amendments to the United States

Constitution was filed on January 30, 2015. After the state court denied their

motion to dismiss on sovereign and judicial immunity grounds, Judge Withers and

Mr. Thompson removed the case to the United States District Court for the

Northern District of Georgia and attached a copy of their previous motion to

dismiss. The district court refused to consider the motion to dismiss, noting that it

“ha[d] been ruled on in the state court.” D.E. 114 at 3. The district court then

asked the parties to meet and confer and propose a scheduling order.

      As instructed, the parties agreed upon and submitted a Joint Scheduling

Order, which the district court entered on September 21, 2015.            The Joint

Scheduling Order contemplated bifurcated discovery, with discovery on class

certification issues proceeding first. Only after “the Court determination whether

class certification [was] or [was] not appropriate” would the parties “plan future

merits discovery.” D.E. 32 at 2. Although specific deadlines were extended, no

parties sought to modify the bifurcated nature of the discovery plan.

      The parties proceeded with class discovery, as contemplated by the Joint

Scheduling Order.     The parties stipulated to this agreement on the record at


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depositions, noting that the depositions were taken only for the purpose of class

discovery and reserving the right to re-depose witnesses on merits issues at another

time. The record reflects that this was the understanding of both parties. See, e.g.,

D.E. 116 at 4:18–20 (counsel for Judge Withers and Mr. Thompson stating “[w]e

did have in place an agreement regarding this case as far as initial discovery”).

Indeed, at Mr. Thompson’s deposition, the plaintiffs’ counsel forgot to note that

the deposition was for the limited purpose of discovery. Before the first question,

Mr. Thompson’s counsel noted that the deposition was being taken “for the limited

purposes of class discovery.” Appellees’ Supp. Appx. Part III at 4:17–22.

      On May 17, 2016, before class discovery had concluded, Judge Withers and

Mr. Thompson filed their first motion for summary judgment on the grounds of

absolute judicial and quasi-judicial immunity. The district court held a status

conference to discuss discovery disputes and the filing of the first motion on June

1, 2016. The district court struck the motion, citing the parties’ agreement to

bifurcate discovery and complete merits discovery only after class certification was

determined.

      About two months later, but before merits discovery, Judge Withers and

Mr. Thompson filed a second motion for summary judgment on the same

immunity grounds. At the plaintiffs’ request, the district court held another status

conference on August 18, 2016. Judge Withers and Mr. Thompson argued that no


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further discovery could change the outcome of the judicial immunity issue and,

therefore, the filing was appropriate. The district court disagreed, again citing the

“conscious decision to use this tier discovery approach” and reasoning that it

would be unfair to require the plaintiffs to respond on an issue for which there had

not been discovery. D.E. 115 at 16:19–22. It accordingly struck the second

motion for summary judgment. Judge Withers and Mr. Thompson then filed this

appeal.

                                            II

       We review the district court’s management of pre-trial activities, including

discovery and scheduling, for abuse of discretion. See Johnson v. Bd. of Regents,

263 F.3d 1234, 1269 (11th Cir. 2001); Chudasama v. Mazda Motor Corp., 123

F.3d 1353, 1366 (11th Cir.1997). “Discretion means the district court has a range

of choice, and that its decision will not be disturbed as long as it stays within that

range and is not influenced by any mistake of law.” Josendis v. Wall to Wall

Residence Repairs, Inc., 662 F.3d 1292, 1306–07 (11th Cir. 2011) (internal

quotation marks and citation omitted). 1

                                            III



1
  Judge Withers and Mr. Thompson contend that we should review the merits of the motion for
summary judgment de novo. Appellants’ Br. at 9–10. But because their challenge is to the
district court’s enforcement of the scheduling order to strike the second motion for summary
judgment as premature, we review for an abuse of discretion.
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      The district court’s decision to strike Judge Withers’ and Mr. Thompson’s

second motion for summary judgment was well within the range of choice

available to it. “District courts have unquestionable authority to control their own

dockets,” including “broad discretion in deciding how best to manage the cases

before them.”    Smith v. Psychiatric Sols., Inc., 750 F.3d 1253, 1262 (11th Cir.

2014) (internal quotation marks omitted). Here, the parties agreed to conduct

bifurcated discovery. Judge Withers and Mr. Thompson never asked the district

court to modify the scheduling order to allow discovery on judicial immunity

issues, even after the possibility of modification was expressly raised by the district

court following the filing of the first motion for summary judgment.

      As the district court explained, “I will strike this [second] motion for

summary judgment because I don’t believe that it is fair to [ ] tier discovery in this

matter and then leave plaintiffs with the obligation to respond to this motion when

I have prevented them from a court order in conducting this kind of discovery.”

D.E. 115 at 17:20–25. See also id. at 18:11–15 (“This motion for summary

judgment is not proper . . . because it’s unfair as to the way it tiers discovery and it

prevents plaintiffs from conducting discovery on issues while at the same time

defendant utilizing a limited set of discovery in response to its motion.”). This was

not an abuse of discretion. Indeed, “we have often held that a district court's

decision to hold litigants to the clear terms of its scheduling orders is not an abuse


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of discretion.” Josendis, 662 F.3d at 1307. See also Knight through Kerr v.

Miami-Dade Cty., 856 F.3d 795, 811 (11th Cir. 2017) (citing Josendis, 662 F.3d at

1307).

      This well-established principle does not vanish when the district court denies

a motion for summary judgment on immunity grounds, filed in violation of a

scheduling order. See Torres v. Puerto Rico, 485 F.3d 5, 11 (1st Cir. 2007)

(“District courts have wide discretion to set reasonable deadlines for asserting such

defenses, and they may impose condign sanctions on parties who do not comply.”);

Guzman-Rivera v. Rivera-Cruz, 98 F.3d 664, 668 (1st Cir. 1996) (“The trial judge

retains discretion not only to set cut off dates for discovery but to cut off motions

for summary judgment, even those which may challenge the plaintiff’s right to go

to trial on the basis of absolute or qualified immunity.”) (quoting Kennedy v. City

of Cleveland, 797 F.2d 297, 301 (6th Cir. 1986)); McCabe v. Macaulay, 545 F.

Supp. 2d 857, 866 (N.D. Iowa 2008) (“While law enforcement officers are

permitted to raise the defense of qualified immunity repeatedly throughout a

litigation, they are not permitted to ignore a court’s trial management orders.”).

      Moreover, the district court’s concern about unfairness to the plaintiffs was

consistent with precedent from the Supreme Court and our circuit. When striking

the motions for summary judgment, the district court recognized that the bifurcated

discovery contemplated by the scheduling order limited discovery into merits


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issues. Relying on that schedule, the parties limited deposition questioning to

those issues affecting class certification. The plaintiffs could not have been on

notice that, despite the parties’ agreement and defense counsel’s representations at

deposition, they would be required to come forward with evidence on the merits of

the immunity issues before merits discovery even began. Cf. Celotex Corp. v.

Catrett, 477 U.S. 317, 326 (1986) (“[D]istrict courts are widely acknowledged to

possess the power to enter summary judgments sua sponte, so long as the losing

party was on notice that she had to come forward with all of her evidence.”).

      Further, we have cautioned that “summary judgment may only be decided

upon an adequate record.” Snook v. Tr. Co. of Ga. Bank of Savannah, 859 F.2d

865, 870 (11th Cir. 1988) (quoting WSB-TV v. Lee, 842 F.2d 1266, 1269 (11th Cir.

1988)). See also Jones v. City of Columbus, Ga., 120 F.3d 248, 253 (11th Cir.

1997) (“The law in this circuit is clear: the party opposing a motion for summary

judgment should be permitted an adequate opportunity to complete discovery prior

to the consideration of the motion.”).       Here, the district court appropriately

recognized that the scheduling order prevented plaintiffs from obtaining that

necessary discovery.

      We are mindful that the Supreme Court has repeatedly “stressed the

importance of resolving immunity questions at the earliest possible stage in

litigation.” Pearson v. Callahan, 555 U.S. 223, 232 (2009). Indeed, the district


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court raised the possibility of prioritizing discovery on the judicial immunity issues

at its initial scheduling conference.          See D.E. 114 at 5 (“So what I’m more

interested in … [is] the parties trying to get together on a detailed scheduling order

that would take into account what needs to be done in terms of the class

certification discovery, the issues relating to qualified immunity. And it may be

that this particular case, some kind of tiered way of dealing with some of the

summary judgment issues would make sense.”). Yet, the parties did not heed that

recommendation. Instead, they made a decision to proceed with only discovery on

class certification.2

       Importantly, the second motion for summary judgment did not accept the

facts as pled in plaintiffs’ complaint as true. Instead, it was based, at least in part,

on the class certification discovery obtained. For example, the second motion for

summary judgment cited Judge Withers’ deposition several times, including her

testimony that the administrative tasks at issue were performed by the clerk, not

her, and that she was not responsible for supervision of the Clerk’s Office.

Likewise, the second motion for summary judgment cited Mr. Thompson’s

testimony to support that his role as Court Administrator was separate from the


2
  See also D.E. 115 at 7:22–8:4 (“What I’m having difficulties with is that this idea to go to this
tier discovery where the plaintiffs were not going to do the merit-based discovery at this point in
time, was something that all the parties agreed upon, so this isn’t something that the court has
imposed on the parties. It’s something that the parties have come to the court with an agreement
to handle it this way. And if it was a normal case where just discovery was conducted, [then]
this might be a different situation.”).
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administrative role of the Clerk’s Office and, therefore, he was entitled to quasi-

judicial immunity.     But, as noted, plaintiffs were prohibited by the parties’

bifurcated discovery agreement from obtaining discovery into the merits at those

same depositions.     Therefore, this is not a case where, despite the parties’

agreement to bifurcate discovery, a motion for summary judgment argued that

judicial immunity was appropriate accepting the facts pled in the complaint as true.

In such a case, additional discovery may be unnecessary.

      Just as judicial immunity can be waived entirely, see Boyd v. Carroll, 624

F.2d 730, 732–33 (5th Cir. 1980), litigants may also waive their right to immunity

from discovery.      See English v. Dyke, 23 F.3d 1086, 1090 (6th Cir. 1994)

(considering qualified immunity and noting “a defendant who fails to timely assert

the defense prior to discovery may waive the right to avoid discovery but may

nonetheless raise the issue after discovery on summary judgment or at trial”). Cf.

Sec’y, U.S. Dep’t of Labor v. Preston, No. 17-10833, — F.3d —, 2017 WL

4545962, at *7 (11th Cir. Oct. 12, 2017) (“With respect to all manner of personal

rights, the Supreme Court has long adhered to what it has called a ‘presumption of

waivability.’”). Such is the case here, and the district court did not abuse its




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discretion by holding Judge Withers and Mr. Thompson to their prior agreement.

See Josendis, 662 F.3d at 1307. 3

                                             IV

       Because the district court’s decision to adhere to the parties’ scheduling

order was well within the “range of choice” afforded to it, we affirm its decision to

strike the second motion for summary judgment. 4

       AFFIRMED.




3
  It bears emphasis that “[t]his decision does not imply, however, that the defense has been
waived for other stages of the litigation.” Guzman-Rivera, 98 F.3d at 669.
4
  We decline to consider Judge Withers’ and Mr. Thompson’s arguments in support of their
stricken motions for summary judgment at this juncture, as those issues are more properly
considered in the first instance by the district court upon an appropriate record and briefing.
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