[00:00:07] Speaker 03: We'll now turn to 25-3020, Jefferson versus Moore. [00:00:37] Speaker 03: Mr. Shoger. [00:00:39] Speaker 03: Yes. [00:00:39] Speaker 03: You may proceed. [00:00:58] Speaker 02: May it please the Court. [00:01:00] Speaker 02: The core issue in this case is whether a district court can prevent a defendant from using evidence to show immunity from discovery prior to discovery. [00:01:08] Speaker 03: I don't think that's the issue. [00:01:11] Speaker 03: You could have prevented that very easily. [00:01:15] Speaker 03: Let me see if I understand what happened here. [00:01:19] Speaker 03: The judge had stayed all discovery pending various motions for qualified immunity. [00:01:27] Speaker 03: The court clearly understood that when there's a pending qualified immunity issue, you should not conduct a discovery, except perhaps on the merits of qualified immunity. [00:01:39] Speaker 03: You then filed a motion which combined a motion for judgment on the pleadings and a motion for summary judgment. [00:01:46] Speaker 03: The judge said, [00:01:51] Speaker 03: It was too long, you should do it in separate motions and we'll take them up in series. [00:01:57] Speaker 03: Rather than taking a few minutes and dividing your motion into two parts and presenting it to the judge, you waited till he had ruled. [00:02:10] Speaker 03: You assumed then that discovery could continue even though there was a stay of discovery pending other motions for qualified immunity. [00:02:19] Speaker 03: You didn't seek an order staying discovery until you had a chance to file a motion for judgment on the pleadings or a motion for summary judgment on qualified immunity. [00:02:29] Speaker 03: Instead, you appeal to us when it would be so easy for you to prevent any of the problems that qualified immunity is meant to protect you. [00:02:41] Speaker 03: I can't understand any reason for you doing it the way you did, unless you just want to delay things. [00:02:46] Speaker 03: So try to justify why you decided to appeal this decision on a very procedural issue of what format you need to file your briefs in. [00:03:00] Speaker 02: Your Honor, we certainly were not trying to delay. [00:03:02] Speaker 03: If looking at the... Explain what you're trying to do then, because if you didn't want to delay, wouldn't it have been very easy for you [00:03:10] Speaker 03: divide your motion into two parts and just proceed with one motion for judgment on the pleadings and then the second motion for motion for summary judgment. [00:03:22] Speaker 03: Wouldn't that have been very easy to do? [00:03:24] Speaker 02: Your Honor, we could have done that. [00:03:25] Speaker 02: We believe we also had the right to appeal. [00:03:27] Speaker 03: We've been taking a lot of time of a lot of people to do this. [00:03:32] Speaker 03: And it seems like an abuse of the appellate process to do it. [00:03:36] Speaker 03: Also, if you're concerned about discovery, you could have said after the judge denied your motion because of the form, you didn't ask for a stay at Discovery to protect you until you got your motion filed. [00:03:54] Speaker 03: Inflictory appeals are not a great thing. [00:03:57] Speaker 03: And if you look at the... [00:04:03] Speaker 02: Practical effects of this it just seems absurd I'm asking I'm saying I'm sure this way to give you a chance to convince me what I'm missing sure your honor in the both the dire and the secret cases the court took an interlocutory appeal in the dire case of the 10th circuit secret cases Supreme Court and in my in both of those cases it was the appeal was taken from [00:04:26] Speaker 02: An order on a disposal on the summary judgment in dire the court struck the motions for summary judgment It was not taken from fine. [00:04:35] Speaker 03: Just why here? [00:04:37] Speaker 03: Why did you do it this way? [00:04:40] Speaker 03: You're right a denial [00:04:45] Speaker 03: for judgment on the pleadings under qualified immunity. [00:04:50] Speaker 03: Is it ordinarily a proper introductory appeal? [00:04:55] Speaker 03: But what's really going on here isn't that you were denied qualified immunity. [00:05:01] Speaker 03: It was that you didn't like the judge telling you you have to divide up your motion into two separate motions. [00:05:07] Speaker 03: That's the only issue you're appealing. [00:05:10] Speaker 03: That's the only thing you're arguing in your brief. [00:05:12] Speaker 02: No, Your Honor. [00:05:12] Speaker 02: I don't believe that is the situation in this case. [00:05:15] Speaker 03: The court's order... You're not arguing the merits of qualified immunity in your briefs, are you? [00:05:19] Speaker 02: We're not. [00:05:20] Speaker 02: That's correct. [00:05:21] Speaker 02: We're asking the court to reverse and remain for immediate consideration of the motion because the reasons given in the court's order is not that the court is asking us to do a motion for judgment on the pleadings and then a motion for summary judgment prior to discovery. [00:05:37] Speaker 02: The court said a motion for summary judgment is premature [00:05:40] Speaker 02: And actually, the last sentence of that paragraph on the second page says, thus, even without the aforementioned issue, defendant's motion for summary judgment would be denied without prejudice because it is premature. [00:05:51] Speaker 02: And so it says thus, incorporating the reasons given earlier in the paragraph. [00:05:57] Speaker 02: Earlier in the paragraph, it says early motions for summary judgment are frequently denied because the case has not yet developed, no discovery has occurred, [00:06:04] Speaker 02: And the party's claims and defenses have not yet been formalized by way of a pretrial order. [00:06:08] Speaker 03: And none of those reasons. [00:06:09] Speaker 03: If you filed a motion for judgment on the pleadings, the judge would have considered that. [00:06:14] Speaker 02: Your Honor, the judge would have considered that, but the judge had already indicated and already definitively concluded that the immunity-based protections from discovery present in the KDOC defendant summary judgment arguments were not going to be allowed prior to discovery. [00:06:30] Speaker 03: The judge had already... You're saying that the judge was going to allow discovery on issues unrelated to qualified immunity, was going to allow that discovery while your motion for judgment on the pleadings was pending? [00:06:46] Speaker 02: Not while the motion for judgment on the pleadings is pending. [00:06:49] Speaker 02: I believe we could have gotten a motion to stay on for that motion. [00:06:52] Speaker 03: So if you think you've got a decent motion for judgment on the pleadings, you just file it. [00:06:58] Speaker 03: If the judge doesn't grant that, then you file a motion for summary judgment. [00:07:03] Speaker 03: The other side might say, we need to have some discovery on a few issues to decide qualified immunity. [00:07:11] Speaker 03: And then you proceed. [00:07:14] Speaker 03: seemed clearly to understand and was supportive of the notion that until qualified immunity is resolved, either on motion to dismiss or motion for summary judgment, there's not going to be discovery on other issues. [00:07:32] Speaker 02: It may be worth pointing out that there were two different judges granting the motion to state discovery and the order that's on appeal here. [00:07:41] Speaker 03: Yeah, but I thought [00:07:44] Speaker 04: Well, in fact, I understand your concern about the judge's statement about the prematurity of the summary judgment motion. [00:07:56] Speaker 04: But he denied it without prejudice. [00:07:58] Speaker 04: And you knew there was a stay of discovery in place. [00:08:02] Speaker 04: And the court never lifted that stay of discovery. [00:08:04] Speaker 04: To date, it hasn't lifted the stay of discovery, despite other motions to dismiss being rule on. [00:08:10] Speaker 04: And the magistrate made it clear that stay of discovery was not going to be lifted. [00:08:14] Speaker 04: I can't remember what the wording was. [00:08:19] Speaker 02: It was until the pending motions to disnis were ruled on, and they all have been ruled on now. [00:08:25] Speaker 04: Yeah, until the most rules. [00:08:26] Speaker 04: I mean, there's just, as a practical matter, there was just no question that you weren't being subjected to a stay of discovery. [00:08:34] Speaker 04: So that's the only way. [00:08:36] Speaker 04: I mean, the cases that you cite, Workman, I think, is the primary one. [00:08:42] Speaker 04: You had an explicit ruling from the trial court there that said, I'm just not going to rule on these motions until trial, essentially. [00:08:54] Speaker 04: I mean, that's just entirely different than this case. [00:08:58] Speaker 04: We don't have anything like that from Judge Crouse here. [00:09:06] Speaker 02: In the both the Dyer and Seeger cases your honor the court expressed that it wanted discovery to go forward In Dyer the the court struck pre-discovery motions for summary judgment [00:09:25] Speaker 02: that had raised immunity arguments and declined to rule on them. [00:09:28] Speaker 04: Another case... And they proceeded with discovery, right? [00:09:31] Speaker 04: I mean... Yes, Your Honor. [00:09:33] Speaker 04: The issue here is the court cannot require you to proceed with discovery, but it didn't. [00:09:40] Speaker 04: It didn't. [00:09:40] Speaker 04: And in those two cases, it did. [00:09:42] Speaker 04: And that was the difference there. [00:09:44] Speaker 04: And I don't see any case that you've cited where [00:09:50] Speaker 04: other than these two cases where courts forced the defendants to proceed with discovery despite the qualified immunity issue pending. [00:10:01] Speaker 04: That's just different than what we have here. [00:10:03] Speaker 04: I understand, again, the use of the word essentially the district court seemed as though perhaps [00:10:13] Speaker 04: He thought discovery should proceed, but then he didn't. [00:10:17] Speaker 04: He didn't lift the discovery stage. [00:10:19] Speaker 04: He didn't suggest he would only rule after discovery. [00:10:23] Speaker 04: There's just nothing like that, and the case proceeded. [00:10:26] Speaker 03: What were you worried about? [00:10:28] Speaker 03: Why did you appeal? [00:10:31] Speaker 03: What bad consequence was going to result to your clients? [00:10:36] Speaker 03: by not appealing and just... Two things, Your Honor. [00:10:40] Speaker 02: There's the possibility of waiving the right to an appeal and missing the time to appeal because the appeal must be taken 30 days after the motion that ruled on it. [00:10:49] Speaker 02: In this case, there's an order ruling on [00:10:55] Speaker 02: Our ability to raise summary judgment immunity arguments prior to discovery and we did not want to waive the right to appeal that by missing that time limit Order dismissing without prejudice Your honor, it's not just about the fact that the court denied the particular motion in this case It's about the fact the court indicated that it would deny similar motions in the future and the reasons it gave for doing so and and [00:11:24] Speaker 03: You were afraid that the judge would not allow you to do what? [00:11:29] Speaker 03: You clearly could have filed the motion for judgment on the pleadings. [00:11:32] Speaker 03: Do you agree that that was possible without- Yes, Your Honor. [00:11:36] Speaker 03: You're concerned that the judge was saying if you lose on the judgment on the pleadings, then you won't be able to bring a motion for summary judgment? [00:11:46] Speaker 02: that we would not be able to raise the immunity from discovery in general, as in the Maxey case where there was a waiver held of the right to, the right, the protections from discovery. [00:12:01] Speaker 03: You don't think the judge made clear that the judge understood that you're not allowed, that it's inappropriate to allow discovery on [00:12:10] Speaker 03: issues not related to qualified immunity until qualified immunity defenses are resolved? [00:12:16] Speaker 02: Again, there are two different judges in this case and I don't think that the district judge made that clear. [00:12:24] Speaker 02: It would be nice if he directly addressed the immunity arguments in his order and explained why he was postponing on ruling on them or failing to rule on them, but he did not. [00:12:32] Speaker 02: And the parties agree that implicit [00:12:36] Speaker 02: In the alternative, Your Honor, I would ask that the court clarify when the time to appeal would occur. [00:12:54] Speaker 02: If the discovery were to proceed, there's not necessarily, what would happen? [00:13:01] Speaker 04: The stay has been in effect ever since, I mean, I checked the district court record, it's been in effect. [00:13:06] Speaker 04: You're asking us to Just speculate about what what would happen if there had been a stay of discovery in place? [00:13:17] Speaker 01: Your honor I believe the time to appeal ran from the order that made clear what the district judge was going to do I see I have the pile up the pile up of automobiles here is that is the way that you filed it with the [00:13:31] Speaker 01: judgment on the pleadings too long and now we're in a fight about the local rules and when Judge Hart says we're wasting time here and we're all busy people and jamming that in with an alternative motion for summary judgment the cure here is simply to do it differently right next time all of the problems that you're raising about what we don't know if we're going to have to still have discovery and so forth Creek got created by that initial decision to have this [00:14:02] Speaker 01: combined I Don't know the right word, but it's not a good one as far as emotion and so it I guess what I want you to think about and I'll think about some things myself that when you go home is that the right way to do it we're just going to keep coming back with this sort of stuff and to what end why I [00:14:27] Speaker 02: Your Honor, the Tenth Circuit has ruled there's nothing improper about the form of a motion to discuss. [00:14:32] Speaker 01: Okay, so that's your answer is you will see again because the courts ruled that there's nothing improper. [00:14:37] Speaker 01: That seems kind of snappy to me. [00:14:39] Speaker 02: Your Honor, we'll respect the court's ruling. [00:14:42] Speaker 02: I'm not trying to be snappy, Your Honor. [00:14:45] Speaker 01: But what you're saying is we're going to continue to do the same thing even though you're hearing that this is creating problems. [00:14:53] Speaker 02: I don't think that's what I'm saying, Your Honor. [00:14:55] Speaker 02: I think it will respect the court's ruling in future cases as well. [00:14:59] Speaker 03: What we're saying is you have nothing to fear here. [00:15:02] Speaker 03: And you filed this. [00:15:08] Speaker 03: You're expecting the judge to do something, the judge is, to do something that's clearly improper, contrary to what they're suggesting. [00:15:19] Speaker 03: And you deal with it with the, I mean, [00:15:23] Speaker 03: If you're worried about time for appeal, you can have a motion for reconsideration and say, okay, we'll follow these separately, but we don't want to be hit with any discovery requests until this is resolved. [00:15:40] Speaker 03: Would that not have been something you could have done as opposed to appealing immediately? [00:15:46] Speaker 02: Again, we could have done that, Your Honor. [00:15:48] Speaker 02: I believe that the case law provides the right to appeal. [00:15:53] Speaker 03: Yeah, but this is a pragmatic decision. [00:15:58] Speaker 03: The issue of when to allow an interlocutory appeal is a serious one because it delays things. [00:16:08] Speaker 03: And to delay it for the reasons here seems an abuse of the process. [00:16:17] Speaker 03: At most, what you'd get from us if you won the appeal is, Judge, you should have let him file the two motions together. [00:16:25] Speaker 03: Isn't that all you're asking for? [00:16:29] Speaker 03: And stay discovery in the interim? [00:16:32] Speaker 03: Isn't that all you're asking for? [00:16:35] Speaker 02: For the district court to? [00:16:36] Speaker 03: No, that's all you're asking from this court. [00:16:39] Speaker 03: is to send it back down and tell the judge, you misread your local rules, you violated your local rules, you should have allowed our motion to be filed, and then you should have considered it. [00:16:51] Speaker 03: That's all you're asking for, right? [00:16:56] Speaker 02: Your Honor, we're asking for the immunity arguments that we raised to be considered. [00:17:01] Speaker 03: By the district court, yes. [00:17:02] Speaker 02: By the district court, yes. [00:17:04] Speaker 03: I'm not sure where you're differing from the way I'm describing. [00:17:08] Speaker 03: You seem like a sincere person, but I don't think you appreciate the problems you're causing for the system by proceeding this way. [00:17:22] Speaker 02: We're not appealing because of the local rules. [00:17:25] Speaker 02: So the district court's interpretation of the local rules is not why we're appealing. [00:17:30] Speaker 02: The basis for the appeal is denial of qualified immunity by failing to consider the arguments. [00:17:39] Speaker 02: And then the local rules simply do not provide an independent basis to uphold the order. [00:17:49] Speaker 02: I see I'm out of time, Your Honor. [00:17:50] Speaker 02: May I briefly close? [00:17:53] Speaker 02: I'm sorry, what did you say? [00:17:54] Speaker 02: I see that I'm out of time. [00:17:55] Speaker 02: May I briefly close? [00:17:57] Speaker 02: Yes. [00:17:58] Speaker 02: For the reasons that I've discussed as well as the reasons in the KDOC Defendants Briefs, we urge the Court to reverse and remand the case for immediate consideration of the KDOC Defendants Motion. [00:18:10] Speaker 03: Thank you. [00:18:10] Speaker 02: Thank you. [00:18:21] Speaker 03: Ms. [00:18:21] Speaker 03: Barrett, I know you don't have to take up all your time. [00:18:31] Speaker 00: Good morning, Your Honors, and may it please the court. [00:18:33] Speaker 00: Leah Rose Barrett on behalf of plaintiff appellate, Anthony Jefferson. [00:18:37] Speaker 00: And Judge Hartz, I'll start where you started. [00:18:40] Speaker 00: What happened here? [00:18:41] Speaker 00: The district court's order in this case rejected defendant's motion for judgment on the pleadings or in the alternative for summary judgment for two reasons. [00:18:50] Speaker 00: First, it was too long under the local rules. [00:18:53] Speaker 00: And second, the court would not rule on summary judgment at this time. [00:18:57] Speaker 00: The court denied the motion without prejudice, and it offered defendants two weeks to fix the problem. [00:19:03] Speaker 00: And it did all this before my client even had a chance to respond. [00:19:08] Speaker 00: All defendants needed to do in this case was file a 15-page Rule 12 motion, like defense counsel did in a previous case, and the judge would have addressed their immunity arguments, but instead they appealed. [00:19:20] Speaker 00: This court has no jurisdiction over the district court's procedural ruling. [00:19:25] Speaker 00: The order was not an effective denial of immunity. [00:19:28] Speaker 00: It did not clearly and conclusively determine that defendants are not entitled to the benefits of immunity, that is, immunity from trial or broad-reaching discovery. [00:19:39] Speaker 00: In fact, the order was clear in the opposite direction. [00:19:42] Speaker 00: The district court showed defendants what steps they needed to take to get a ruling on immunity, but they just didn't take those steps. [00:19:50] Speaker 00: If the order was confusing to defendants, they could have quickly clarified with the district court, filed another motion, taken any institutional steps to this court. [00:19:58] Speaker 04: What about those cases, though, that the appellant here cites that do say that essentially no ruling on an immunity question when it's been raised can be essentially [00:20:15] Speaker 04: Effectively be a ruling because it imposed it subjects you to liability it subjects you to go into trial, which is a whole idea Ruling on these qualified immunity motions your honor this kid now that is he did use some language the district court did when he said this is premature and Essentially there hasn't been discovery which would seem to imply which seemed to imply that the district court might be anticipating discovery and [00:20:44] Speaker 04: So why don't those cases allow us to take this under the collateral order exception? [00:20:50] Speaker 00: Your Honor, the cases in which this court has found jurisdiction are far more clear than what we have here. [00:20:56] Speaker 00: This is not a case like Workman, as you mentioned, or Gallegos, where the district court clearly said, I'm not ruling on immunity until trial. [00:21:04] Speaker 00: And it's not a case like Dyer where the district court was clear that full discovery would happen first and summary judgment would happen later. [00:21:12] Speaker 00: It's far more like Arroyo, the case from this court, or out-of-circuit precedent like Moss from the Ninth Circuit, where courts held that because there was no order on discovery, nothing setting discovery in motion, there was no appealable decision. [00:21:27] Speaker 00: That's exactly what we have here, as you noted earlier. [00:21:31] Speaker 04: Well, we have the implication that there might be. [00:21:33] Speaker 04: Here we have the implication, and I don't think that was President Arroyo, that this is too soon, that this motion is too soon. [00:21:43] Speaker 00: Your Honor, I don't think an implication is enough to invoke this court's jurisdiction. [00:21:47] Speaker 00: We need a clear, more conclusive order that says what the district court really meant here. [00:21:53] Speaker 00: And you have to consider the context. [00:21:55] Speaker 00: Here, the district court was presented with a Rule 12 in the alternative Rule 56 motion. [00:22:01] Speaker 00: And it said, bring me the Rule 12 motion. [00:22:03] Speaker 00: We'll deal with those questions. [00:22:05] Speaker 00: We'll deal with your immunity questions on that standard first. [00:22:08] Speaker 00: And then if claims remain, we can move on. [00:22:11] Speaker 00: But as defendants have conceded, they could have presented that motion to the district court, and the district court would have addressed their immunity arguments as it did in many other cases. [00:22:21] Speaker 00: For instance, in O'Quinn, a case that defendants cite and that we cite as well, the district court... There really isn't a question, though, is it about whether they could have presented it? [00:22:32] Speaker 04: I don't think they disagree with that, and it seems obvious that they could have. [00:22:35] Speaker 04: They could have modified it to come within the page, the motion to dismiss, to come within the page limits. [00:22:40] Speaker 04: They could have done all that. [00:22:42] Speaker 04: But isn't the question whether they had a real and valid concern about whether they were going to be subjected to a stay of discovery or to a, to a, that the stay of discovery would be removed essentially and they would be subjected to discovery so they needed to decide whether, you know, they needed to appeal. [00:23:01] Speaker 00: I don't think the question is whether there is a concern. [00:23:04] Speaker 00: Some sort of inkling isn't enough. [00:23:06] Speaker 00: The district court has to clearly and conclusively decide the question. [00:23:11] Speaker 00: As this court stated in Arbogast, for instance, and then again, you're on the opinion in Ellis, the court must precisely identify whether a district court has conclusively determined the disputed question. [00:23:24] Speaker 00: The court can't go based on, essentially, defendant's concerns or vibes. [00:23:29] Speaker 00: The Arroyo case, for instance, says that qualified immunity doesn't protect against the mere trepidation at the risk of litigation. [00:23:38] Speaker 00: Here, we don't have defendants being subject to discovery in any form, and so I don't think that that is an effective denial of immunity in the way that the Supreme Court would be concerned about in Mitchell or Harlow, for instance. [00:23:53] Speaker 00: And so briefly, to return to that O'Quinn case I was about to discuss, in that case, the district court's actions show that it did not intend to postpone the immunity ruling until after full discovery, and that defense counsel knew what the district court meant when it acted here. [00:24:11] Speaker 00: So in that case, defendants filed a 30-page motion to dismiss and the alternative motion for summary judgment. [00:24:18] Speaker 00: And in a very similar order to the order in this case, both structurally and substantively, Judge Kraus denied the motion without prejudice because it was over the page limit, and in the alternative, summary judgment was premature. [00:24:30] Speaker 00: And rather than appeal, as defendants did here, the defendants filed a motion to dismiss consistent with the 15-page local rule limit. [00:24:39] Speaker 00: They re-raised the same arguments. [00:24:40] Speaker 00: They brought 11th Amendment immunity, qualified immunity. [00:24:43] Speaker 00: And before any discovery occurred, Judge Kraus granted the renewed motion to dismiss partially on 11th Amendment immunity grounds. [00:24:51] Speaker 00: So I think that shows... I'm sorry. [00:24:52] Speaker 00: Was this... This was after? [00:24:54] Speaker 00: This was prior to this case and defense counsel was involved in that case and so the same counsel was involved in that case and so counsel was on notice that a 40 page motion for judgment on the pleadings and the alternative summary judgment would be [00:25:09] Speaker 00: too long under the district court's interpretation, and counsel was on notice that this is how the district court would interpret it. [00:25:15] Speaker 00: If you filed a 15-page motion, the court would rule on your motion. [00:25:20] Speaker 00: It could grant or deny, and we could move forward with our classic qualified immunity questions. [00:25:26] Speaker 00: But that's not what they did here. [00:25:28] Speaker 04: And the order that we have here simply isn't... Well, that isn't what the district court said, either. [00:25:33] Speaker 04: The district court didn't say, if you file a 15-page motion, I'll rule. [00:25:36] Speaker 04: The court said, [00:25:37] Speaker 04: I'm not basically your motion for summary judgment. [00:25:40] Speaker 04: That portion of it in the alternative is premature. [00:25:44] Speaker 00: Right. [00:25:44] Speaker 04: That is distinct. [00:25:45] Speaker 00: Yes, Your Honor. [00:25:46] Speaker 00: The court did not say expressly, if you file a new motion, I will rule on it. [00:25:50] Speaker 00: But that's what the... A new motion to dismiss. [00:25:53] Speaker 00: Right. [00:25:53] Speaker 04: If the court has... Not the summary judgment. [00:25:55] Speaker 00: Yes. [00:25:55] Speaker 00: If the court said, sort of implied that with the without prejudice denial based on these local rules, [00:26:03] Speaker 00: you can try again. [00:26:04] Speaker 00: And that's the whole point here. [00:26:06] Speaker 00: There were future steps that the district court contemplated that defendants could take prior to the district court ruling on immunity. [00:26:14] Speaker 00: So take those steps. [00:26:15] Speaker 00: Don't ask this court for relief. [00:26:17] Speaker 00: Don't spend a year litigating this issue just to go back to the district court when you could have, within seven days, contacted the magistrate judge and say, I'm concerned about this discovery. [00:26:28] Speaker 00: Stay as it's still in place. [00:26:29] Speaker 00: The magistrate judge surely would have answered that affirmatively. [00:26:33] Speaker 00: You could have, within 14 days, as the district court envisioned, filed a renewed motion. [00:26:38] Speaker 00: You could have, like the parties did in Dyer's, moved to state discovery if you were really concerned that there was [00:26:46] Speaker 00: discovery ongoing. [00:26:48] Speaker 00: You could have, as I think Judge Hart suggested, file a motion for reconsideration. [00:26:52] Speaker 00: The District of Kansas Local Rules, Rule 7.3 expressly provides for reconsideration of nearly any motion. [00:26:59] Speaker 00: So try that out and if you're really concerned, wait the 30 days and file a protective appeal and then maybe file a motion for indicative ruling and ask the district court [00:27:09] Speaker 00: What should I have done here? [00:27:11] Speaker 00: Can you rule on this? [00:27:12] Speaker 00: Can you decide this? [00:27:13] Speaker 00: And recall the appeal so that we don't have to deal with this on appeal. [00:27:18] Speaker 00: There were so many steps that could have been taken and they just didn't take those steps. [00:27:24] Speaker 00: Now, I think we've talked a bit about Dyer, but defense counsel mentions both Dyer and Seeger a couple of times, so I want to briefly address those cases. [00:27:34] Speaker 00: In Dyer, defendants filed a motion for summary judgment, and the court held a scheduling conference at which it issued a scheduling order. [00:27:43] Speaker 00: And that order set dispositive motions for shortly before the close of discovery. [00:27:49] Speaker 00: It also ordered initial disclosures almost immediately, and it set a trial date. [00:27:54] Speaker 00: And defendants said, wait, stay discovery, I have an outstanding motion for summary judgment. [00:28:00] Speaker 00: And the district court, in a minute order, struck that summary judgment motion and said, follow the scheduling order. [00:28:06] Speaker 00: And this court made clear that that was appealable. [00:28:10] Speaker 00: And as Judge Moritz noted earlier, the difference between that case and this case is that there was a clear directive to engage in full discovery now, starting with those initial disclosures. [00:28:22] Speaker 00: And in Siegert, the facts are just way different from this case. [00:28:26] Speaker 00: Yes, there was a motion to dismiss in the alternative motion for summary judgment. [00:28:30] Speaker 00: But there, the district court, while it initially said, I need some limited discovery, on reconsideration, the district court actually ruled on the motion to dismiss based on the immunity issues. [00:28:43] Speaker 00: When on appeal, the DC Circuit addressed the motion to dismiss standard, as did the Supreme Court. [00:28:50] Speaker 00: The Supreme Court repeatedly explained at pages 233 to 34 that Seegert failed to allege a constitutional violation. [00:28:59] Speaker 00: The facts alleged by Seeger cannot be held to state a claim. [00:29:02] Speaker 00: They alleged defamation. [00:29:04] Speaker 00: The concurrence and the dissent also repeatedly invoke that motion to dismiss standard. [00:29:09] Speaker 00: And so that case says nothing about the jurisdictional question here. [00:29:13] Speaker 00: It stands for the unremarkable proposition set out in Mitchell that when a government defendant is denied a motion to dismiss based on qualified immunity, that they can appeal that. [00:29:24] Speaker 00: It says nothing else. [00:29:25] Speaker 00: And it also doesn't say anything about whether in the alternative motions are required. [00:29:30] Speaker 00: The question about whether these motions are useful, appropriate, yes, of course they are. [00:29:36] Speaker 00: But no one's disputing that. [00:29:37] Speaker 00: But it doesn't say that a district court would abuse its discretion by failing to accept such a motion. [00:29:45] Speaker 00: Your Honors, if there are no further questions, [00:29:50] Speaker 00: I would respectfully ask that this court dismiss the case for lack of a jurisdiction or affirm even if it finds jurisdiction. [00:29:56] Speaker 00: Thank you. [00:29:57] Speaker 03: Thank you, counsel. [00:30:01] Speaker 03: I don't think that's necessary to allow a reading at this time. [00:30:07] Speaker 03: OK. [00:30:07] Speaker 03: Case is submitted. [00:30:08] Speaker 03: Counselor excused. [00:30:09] Speaker 03: We're going to take a brief recess before we hear our last two arguments.