     Case: 17-11234      Document: 00514519466         Page: 1    Date Filed: 06/19/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit


                                      No. 17-11234
                                                                               FILED
                                                                           June 19, 2018
                                                                          Lyle W. Cayce
RAJIN PATEL,                                                                   Clerk

                     Plaintiff-Appellee

v.

TEXAS TECH UNIVERSITY; DUANE JONES, Individually and in his Official
Capacity as Adjunct Professor; WILLIAM PASEWARK, Individually and in his
Official Capacity as Texas Tech University Rawls College of Business
Associate Dean of Graduate Programs and Research; ROBERT RICKETTS,
Individually and in his Official Capacity as Area Coordinator in Accounting;
BRITTANY TODD, Individually and in her Official Capacity as Associate
Director of the Office of Student Conduct,

                     Defendants-Appellants


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 5:17-CV-174


Before JOLLY, JONES, and HAYNES, Circuit Judges.
PER CURIAM: *
       Defendant Texas Tech University appeals from the district court’s denial
of its motion to dismiss Plaintiff Patel’s state-law breach of contract claim for
lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1). Defendants


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                   No. 17-11234

Jones, Pasewark, Ricketts, and Todd appeal the district court’s decisions to
decline ruling on their motion to dismiss all claims against them in their
individual capacities and to allow the case to proceed to full discovery. Because
Patel filed a motion to withdraw his breach of contract claim pursuant to Fed.
R. Civ. P. 41(a)(1)(A)(i), we need only address the district court’s decisions
regarding qualified immunity.        We VACATE and REMAND for further
proceedings consistent with this opinion.
      “Qualified immunity questions should be resolved ‘at the earliest
possible stage in litigation.’” Porter v. Epps, 659 F.3d 440, 445 (5th Cir. 2011)
(quoting Pearson v. Callahan, 555 U.S. 223, 232, 129 S. Ct. 808, 815 (2009)).
“[T]his court has established a careful procedure under which a district court
may defer its qualified immunity ruling if further factual development is
necessary to ascertain the availability of that defense.” Backe v. LeBlanc,
691 F.3d 645, 648 (5th Cir. 2012). The plaintiff “must plead specific facts that
both allow the court to draw the reasonable inference that the defendant is
liable for the harm he has alleged and that defeat a qualified immunity defense
with equal specificity.” Id. “After the district court finds a plaintiff has so pled,
if the court remains ‘unable to rule on the immunity defense without further
clarification of the facts,’ it may issue a discovery order ‘narrowly tailored to
uncover only those facts needed to rule on the immunity claim.’” Id. (quoting
Lion Boulos v. Wilson, 834 F.2d 504, 507-08 (5th Cir. 1987) (emphasis in
original).   “An order that simultaneously withholds ruling on a qualified
immunity defense while failing to constrain discovery to develop claimed
immunity is by definition not narrowly tailored.” Id. at 649.
      It appears that the district court did not follow this court’s “careful
procedure.” The record shows that the court held that the qualified immunity
defense had been improperly raised in a Rule 12(b)(6) motion to dismiss, and



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                                  No. 17-11234

should instead be raised in a later motion for summary judgment. Whether
this decision intimated further that Appellants’ motion was not well taken,
because Plaintiff sufficiently carried his pleading burden, we cannot discern.
In any event, the district court further failed “to constrain discovery to develop
claimed immunity” after apparently refusing to pass on qualified immunity in
the first instance. Id. The record, in sum, does not demonstrate that the court
followed the procedures laid out in Backe v. LeBlanc and Lion Boulos v. Wilson.
It must do so on remand.
      Without taking a position on the merits of the pleadings or the immunity
defense, we VACATE and REMAND to the district court for further
proceedings consistent with this opinion.




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