                                                          [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT           FILED
                        ________________________ U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                              JUNE 4, 2009
                                No. 08-13935
                                                            THOMAS K. KAHN
                          ________________________
                                                                CLERK

                     D. C. Docket No. 05-00585-CV-UWC

BOARD OF TRUSTEES OF THE UNIVERSITY OF ALABAMA,

                                          Plaintiff-Counter-Defendant-Appellant,

                                    versus

NEW LIFE ART, INC.,
DANIEL A. MOORE,

                                       Defendants-Counter-Claimants-Appellees,

                                    versus

ROBERT E. WITT,
President, University of Alabama,
FINUS P. GASTON,

                                             Counter-Defendants-Appellants.
                          ________________________

                  Appeal from the United States District Court
                     for the Northern District of Alabama
                        _________________________
                                (June 4, 2009)

Before WILSON, KRAVITCH and ANDERSON, Circuit Judges.
PER CURIAM:

       Appellants, the Board of Trustees of the University of Alabama (“the

Board”), Robert E. Witt, and Finus P. Gaston appeal from the district court’s June

10, 2008 order striking the affirmative defenses in their Reply to Counterclaim.

Appellants Witt and Gaston also appeal from the district court’s July 2, 2008 order

striking their summary judgment motion. For the reasons described below, we

affirm the June 10th order striking Appellants’ affirmative defenses, but we vacate

the July 2nd order striking Witt and Gaston’s summary judgment motion and

remand to the district court for consideration of the summary judgment motion.1


       1
                Witt and Gaston asserted state agent immunity as an affirmative defense in both
the Reply to Counterclaim, struck on June 10, 2008, and in the summary judgment motion,
struck on July 2, 2008. The denial of state agent immunity under Alabama law is immediately
appealable to this Court. Taylor v. Adams, 221 F.3d 1254, 1260 n.9 (11th Cir. 2000); Sheth v.
Webster, 145 F.3d 1231, 1238 (11th Cir. 1998). The dismissal of an immunity defense on
grounds of untimeliness is immediately appealable because it denies the defendant the benefit of
immunity from suit. McElroy v. City of Macon, 68 F.3d 437, 438 n.* (11th Cir. 1995); Hill v.
Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1183-84 (11th Cir. 1994), abrogated on other
grounds by Hope v. Pelzer, 536 U.S. 730, 739, 122 S. Ct. 2508, 2515 (2002). The June 10th
order striking the Reply to Counterclaim and the July 2nd order striking the summary judgment
motion constituted a denial of Witt and Gaston’s asserted state agent immunity defense on
procedural grounds. We therefore have jurisdiction over the striking of the state agent immunity
defenses in the June 10th and July 2nd orders. Because the issues on appeal with respect to
whether the district court abused its discretion in the June 10th and July 2nd orders are the same
with regard to all of the defenses struck by those orders, we conclude that all of the defenses
raised in the Reply to Counterclaim and in the summary judgment motion are inextricably
intertwined with the state agent immunity defense for the purposes of this appeal. Therefore, we
have pendent appellate jurisdiction over the entirety of the June 10th and July 2nd orders. Swint
v. Chambers County Comm’n, 514 U.S. 35, 115 S. Ct. 1203 (1995); Summit Med. Assocs., P.C.
v. Pryor, 180 F.3d 1326, 1335 (11th Cir. 1999). Accordingly, Appellees’ motion to dismiss this
appeal for lack of jurisdiction is DENIED.

                                                 2
                            I. STANDARD OF REVIEW

      District courts “enjoy broad discretion in deciding how best to manage the

cases before them.” Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1366 (11th

Cir. 1997). “[W]e will reverse the trial court’s decision to follow the pre-trial order

only where the trial court has so clearly abused its discretion that its action could

be deemed arbitrary.” Morro v. City of Birmingham, 117 F.3d 508, 513 (11th Cir.

1997) (internal quotation marks omitted).

                                  II. DISCUSSION

      A. June 10th Order Striking the Affirmative Defenses in the Reply to
      Counterclaim

      The pretrial conference in this case was held on June 9, 2008; the pretrial

order was entered on June 10, 2008. Also on June 10, the Board, Witt, and Gaston

filed their first responsive pleading to Appellees Daniel A. Moore and New Life

Art’s (hereinafter “the Moore defendants”) counterclaim, in which the Appellants

asserted fifty-nine affirmative defenses, including “sovereign, qualified, absolute,

discretionary function immunity, and state agent immunity.” On the same day, the

district court sua sponte struck all of the affirmative defenses as untimely because,

among other reasons, the affirmative defenses “are not included in the Counter

Defendants’ Statement of Position in Pretrial Order submitted jointly by the



                                           3
parties.”

      The district court has broad discretion with respect to interpretation and

enforcement of the pretrial order. “We are not inclined to disturb the district

court’s interpretation of a stipulation agreed upon by the parties during pretrial

proceedings and approved by the court.” Hodges v. United States, 597 F.2d 1014,

1017 (5th Cir. 1979) (upholding a district court’s interpretation of a pretrial order

as barring a defense that the defendant attempted to assert at trial). The pretrial

order in this case did not reference any of the affirmative defenses asserted by the

Board, Witt, and Gaston in their Reply to Counterclaim, nor did it reference their

intention to file the Reply to Counterclaim and the affirmative defenses. While the

timing and complexity of the procedural history in this case makes this a fairly

close issue, we cannot conclude that the district court abused its discretion in

interpreting the pretrial order as barring the Reply to Counterclaim and

consequently striking the affirmative defenses.

      B. July 2nd Order Striking the Motion for Summary Judgment

      On June 11, 2008, the day after the district court entered the pretrial order,

Witt and Gaston filed a motion for summary judgment in which they asserted a

state agent immunity defense as well as several other affirmative defenses. The

district court ordered a show cause hearing to determine whether it should impose

                                           4
sanctions on Witt and Gaston for filing their summary judgment motion in

contravention of the pretrial order. The district court determined after the show

cause hearing that no sanctions against Witt and Gaston would be imposed, but the

district court struck Witt and Gaston’s motion for summary judgment as untimely

on July 2, 2008.

      The district court’s July 2nd order striking the summary judgment motion

stated only that the motion was struck for being untimely. The court’s order for a

show cause hearing and the transcript of that hearing reveal that the district court

struck the motion as untimely because the district court interpreted the pretrial

order as not providing for Witt and Gaston to file a motion for summary judgment.

The pretrial order, however, clearly referenced the summary judgment motion filed

by Witt and Gaston on June 11, 2008 in the section headed “Counter-Defendants’

Position.” This section stated: “Counter-Defendants Witt and Gaston assert that

they are entitled to summary judgment based on the reasons set forth in their

motion for summary judgment and supporting memorandum of law.” The district

court assumed that this reference in the pretrial order to a motion for summary

judgment was a reference to a motion previously filed by the Board. The motion

for summary judgment by the Board, however, did not address the counterclaim

against Witt and Gaston nor did it assert any defenses on their behalf. Thus, it was

                                          5
clear that the reference in the pretrial order was not to that previous motion for

summary judgment by the Board.

      Given the plain language of the pretrial order, and the fact that the Board’s

earlier motion for summary judgment did not address the claims against Witt and

Gaston, the district court’s interpretation of the pretrial order as not providing for

Witt and Gaston’s June 11, 2008 summary judgment motion was mistaken.

Furthermore, the Moore defendants had ample notice of Witt and Gaston’s intent to

file a summary judgment motion and to assert the state agent immunity defense.

The Moore defendants should have known that Witt and Gaston would file a

motion for summary judgment asserting the state agent immunity defense and other

defenses for the following reasons: 1) the statements at the October 2005 hearing

and in the district court’s November 2005 opinion that Witt and Gaston should file

a brief on state agent immunity; 2) Witt and Gaston’s assertion in their June 6,

2008 Motion to Strike the Amended Counterclaim that they were entitled to state

agent immunity; 3) Witt and Gaston’s direct statement in their brief supporting

their Motion to Strike the Amended Counterclaim that if the district court struck

the amended counterclaim, then they would file a motion for summary judgment;

and 4) the fact that the pretrial order stated in the Counter-Defendants’ Position

that Witt and Gaston sought summary judgment based on their motion for summary

                                           6
judgment. When these reasons are combined with the obvious fact that the

reference in the pretrial order to a motion for summary judgment did not refer to

the previously filed motion by the Board, it should have been apparent to the

Moore defendants that Witt and Gaston were contemplating filing the motion for

summary judgment that they filed on June 11, 2008. Also because of this ample

notice, the Moore defendants suffered no prejudice from any delay in the filing of

Witt and Gaston’s motion for summary judgment.

      The district court’s discretion to manage the cases before it “is not

unfettered.” Chudasama, 123 F.3d at 1367. Thus, despite the broad discretion

given to district courts in interpreting and enforcing their pretrial orders, we

conclude that the order striking Witt and Gaston’s summary judgment motion is an

abuse of discretion. Because the district court was simply mistaken in its

interpretation of the pretrial order, because it should have been apparent to the

Moore defendants that Witt and Gaston would file the motion for summary

judgment, and because the Moore defendants suffered no prejudice, we hold that

the district court abused its discretion in striking Witt and Gaston’s motion for

summary judgment. Therefore, we vacate the July 2, 2008 order, and remand for

consideration of the summary judgment motion.

      Accordingly, the judgment of the district court in the June 10, 2008 order

                                           7
(striking Appellants’ Reply to Counterclaim) is AFFIRMED, but the judgment of

the district court in the July 2, 2008 order (striking Witt and Gaston’s summary

judgment motion) is VACATED.




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