Preview
Electronically Filed
6/21/2019 3:28 PM
Hidalgo County District Clerks
Reviewed By: Xavier Jimenez
CAUSE NO. C-4498-18-C
SUSANA VALDEZ, IN THE DISTRICT COURT
Plaintiff;
VS.
TEXAS DEPARTMENT OF FAMILY 139T JUDICIAL DISTRICT
AND PROTECTIVE SERVICES,
Defendant.
HIDALGO COUNTY, TEXAS
DEFENDANT TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES’S
MOTION FOR PROTECTION AND MOTION TO STAY DISCOVERY
TO THE HONORABLE JUDGE OF SAID COURT:
Texas Department of Family and Protective Services (“Defendant,” “DFPS”) hereby files
this Motion for Protective Order and Motion to Stay Discovery, and in support thereof, would
show this Court the following:
I. INTRODUCTION
Plaintiff Susana Valdez (“Plaintiff,” “Valdez’”) brings three claims against Defendant: a
claim for age discrimination under Chapter 21 of the Texas Labor Code; a claim for disability
discrimination under Chapter 21 of the Texas Labor Code; and a claim for retaliation under the
Family Medical Leave Act (“FMLA”), a federal statute. Petition at {J 11, 15, 20-22. Plaintiff filed
her lawsuit on December 7, 2018, DFPS filed its answer on January 8, 2019, and Valdez served
DFPS with a request for production on April 10, 2019. DFPS served Valdez with its Responses
to that request for production on May 10, 2019, and, on June 21, 2019, it filed its Plea to the
Jurisdiction explaining that the Court had no jurisdiction to hear Valdez’s suit and must dismiss.
Because the Court lacks jurisdiction to hear Plaintiff's claims, subjecting DFPS to
discovery this early in the process before the Court resolves the dispute over jurisdiction would
DFPS’s Motion to Stay Discovery
Electronically Filed
6/21/2019 3:28 PM
Hidalgo County District Clerks
Reviewed By: XavierJ imenez
create an undue burden on DFPS. Defendant DFPS objects to any further discovery requests from
Valdez, together with any forthcoming motion to compel relating to the April 10, 2019 requests
for production, and respectfully requests that the Court enter an order of protection protecting it
from compliance with those discovery requests and any more that may issue pending its
consideration of DFPS’s Plea to the Jurisdiction.
Il. ARGUMENT AND AUTHORITIES
“Courts may limit discovery pending resolution of threshold issues like venue, jurisdiction,
forum non conveniens, and official imnumity.” In re Alford Chevrolent-Geo, 997 S.W.2d 173, 181
(Tex. 1999). It is well within a court's discretion to stay discovery pending resolution of a Plea to
the Jurisdiction. Ramon v. Teacher Retirement System of Texas, No. 01-09-00684-CV, 2010 WL
1241293, at *6 (Tex. App.—Houston [1st Dist.] April 1, 2010, pet. denied).
This Court should temporarily stay discovery because Plaintiff seeks discovery regarding
the menits of claims over which this Court possesses no jurisdiction, since the claims are barred by
sovereign immunity. Discovery of claims barred by the absence of jurisdiction is improper. See In
re CMM Const. Co., Inc., No. 09-05-096 CV, 2005 WL 913438, at *2 (Tex. App. - Beaumont
Apuil 21, 2005, orig. proceeding) (holding that trial court should not penmit discovery on matters
unrelated to determination of jurisdictional issues, prior to conducting a hearing or ruling on the
merits of a motion to abate).
Here, Plaintiff seeks documents in his requests for production to DFPS. As shown in the
Plea to the Jurisdiction, a party’s failure to show strict compliance with the statutory
prerequisites—which is needed to waive sovereign immunity—precludes a court from exercising
jurisdiction over
a cause of action. Texas A&M University v. Hole, 194 S.W.3d 591, 592-3 (Tex.
App. - Waco 2006, pet. denied) (trial court lacked jurisdiction because students failed to exhaust
DFPS's Motion to Stay Discovery
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Hidalgo County District Clerks
Reviewed By: Xavier Jimenez
university’s internal appeal process prior to filing suit).
If DFPS’s Plea to the Jurisdiction is correct, this Court lacks subject matter jurisdiction
over Plaintiff's claims, and thus possesses no basis upon which to allow further discovery. See In
re CMM Const. Co., Inc., 2005 WL 91348, at *2. There is no harm to Plaintiff if DFPS’s Plea to
the Jurisdiction is incorrect. Plaintiff is not prejudiced by a temporary stay in discovery, where it
is still very early in the case and no scheduling order has been issued yet.
Accordingly, this Court should grant the temporary stay.
Til. CONCLUSION
Defendant respectfully requests that the Court enter an order staying all discovery in this
case pending resolution of the Defendant's Plea to the Jurisdiction, and for such other and further
relief, at law or in equity, to which Defendant may show himself justly entitled.
DATED: June 21, 2019 Respectfully submitted,
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
DARREN L. MCCARTY
Deputy Attorney General for Civil Litigation
THOMAS A. ALBRIGTH
Chief - General Litigation Division
/s/ Benjamin S. Lyles
BENJAMIN S. LYLES
Assistant Attorney General
Texas Bar No. 24094808
General Litigation Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711
T. (512) 463-2120] F. (512) 320-0667
benjamin.lyles@oag.texas. gov
ATTORNEY FOR STATE DEFENDANT
DFPS’s Motion to Stay Discovery
Electronically Filed
6/21/2019 3:28 PM
Hidalgo County District Clerks
Reviewed By: Xavier Jimenez
CERTIFICATE OF SERVICE
Thereby certify that a true and correct copy of the foregoing pleading has been served on
the following counsel of record on this 21‘ day of June, 2019, in accordance with Rule 21a of the
Texas Rules of Civil Procedure, electronically through the electronic filing manager to the
following:
Daniel E. Vargas
THE VARGAS LAW OFFICE
220 S. 12th Avenue, Suite A
EDINBURG, TX 78539
Tel. (956) 287-3743
Fax. (956) 287-3992
Email: thevargaslawoffice@gmail.com
Attorney for Plaintiff
/s/ Benjamin S. Lyles
BENJAMIN S. LYLES
Assistant Attorney General
DFPS’s Motion to Stay Discovery
Preview
Electronically Filed 6/21/2019 3:28 PM Hidalgo County District Clerks Reviewed By: Xavier Jimenez CAUSE NO. C-4498-18-C SUSANA VALDEZ, IN THE DISTRICT COURT Plaintiff; VS. TEXAS DEPARTMENT OF FAMILY 139T JUDICIAL DISTRICT AND PROTECTIVE SERVICES, Defendant. HIDALGO COUNTY, TEXAS DEFENDANT TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES’S MOTION FOR PROTECTION AND MOTION TO STAY DISCOVERY TO THE HONORABLE JUDGE OF SAID COURT: Texas Department of Family and Protective Services (“Defendant,” “DFPS”) hereby files this Motion for Protective Order and Motion to Stay Discovery, and in support thereof, would show this Court the following: I. INTRODUCTION Plaintiff Susana Valdez (“Plaintiff,” “Valdez’”) brings three claims against Defendant: a claim for age discrimination under Chapter 21 of the Texas Labor Code; a claim for disability discrimination under Chapter 21 of the Texas Labor Code; and a claim for retaliation under the Family Medical Leave Act (“FMLA”), a federal statute. Petition at {J 11, 15, 20-22. Plaintiff filed her lawsuit on December 7, 2018, DFPS filed its answer on January 8, 2019, and Valdez served DFPS with a request for production on April 10, 2019. DFPS served Valdez with its Responses to that request for production on May 10, 2019, and, on June 21, 2019, it filed its Plea to the Jurisdiction explaining that the Court had no jurisdiction to hear Valdez’s suit and must dismiss. Because the Court lacks jurisdiction to hear Plaintiff's claims, subjecting DFPS to discovery this early in the process before the Court resolves the dispute over jurisdiction would DFPS’s Motion to Stay Discovery Electronically Filed 6/21/2019 3:28 PM Hidalgo County District Clerks Reviewed By: XavierJ imenez create an undue burden on DFPS. Defendant DFPS objects to any further discovery requests from Valdez, together with any forthcoming motion to compel relating to the April 10, 2019 requests for production, and respectfully requests that the Court enter an order of protection protecting it from compliance with those discovery requests and any more that may issue pending its consideration of DFPS’s Plea to the Jurisdiction. Il. ARGUMENT AND AUTHORITIES “Courts may limit discovery pending resolution of threshold issues like venue, jurisdiction, forum non conveniens, and official imnumity.” In re Alford Chevrolent-Geo, 997 S.W.2d 173, 181 (Tex. 1999). It is well within a court's discretion to stay discovery pending resolution of a Plea to the Jurisdiction. Ramon v. Teacher Retirement System of Texas, No. 01-09-00684-CV, 2010 WL 1241293, at *6 (Tex. App.—Houston [1st Dist.] April 1, 2010, pet. denied). This Court should temporarily stay discovery because Plaintiff seeks discovery regarding the menits of claims over which this Court possesses no jurisdiction, since the claims are barred by sovereign immunity. Discovery of claims barred by the absence of jurisdiction is improper. See In re CMM Const. Co., Inc., No. 09-05-096 CV, 2005 WL 913438, at *2 (Tex. App. - Beaumont Apuil 21, 2005, orig. proceeding) (holding that trial court should not penmit discovery on matters unrelated to determination of jurisdictional issues, prior to conducting a hearing or ruling on the merits of a motion to abate). Here, Plaintiff seeks documents in his requests for production to DFPS. As shown in the Plea to the Jurisdiction, a party’s failure to show strict compliance with the statutory prerequisites—which is needed to waive sovereign immunity—precludes a court from exercising jurisdiction over a cause of action. Texas A&M University v. Hole, 194 S.W.3d 591, 592-3 (Tex. App. - Waco 2006, pet. denied) (trial court lacked jurisdiction because students failed to exhaust DFPS's Motion to Stay Discovery Electronically Filed 6/21/2019 3:28 PM Hidalgo County District Clerks Reviewed By: Xavier Jimenez university’s internal appeal process prior to filing suit). If DFPS’s Plea to the Jurisdiction is correct, this Court lacks subject matter jurisdiction over Plaintiff's claims, and thus possesses no basis upon which to allow further discovery. See In re CMM Const. Co., Inc., 2005 WL 91348, at *2. There is no harm to Plaintiff if DFPS’s Plea to the Jurisdiction is incorrect. Plaintiff is not prejudiced by a temporary stay in discovery, where it is still very early in the case and no scheduling order has been issued yet. Accordingly, this Court should grant the temporary stay. Til. CONCLUSION Defendant respectfully requests that the Court enter an order staying all discovery in this case pending resolution of the Defendant's Plea to the Jurisdiction, and for such other and further relief, at law or in equity, to which Defendant may show himself justly entitled. DATED: June 21, 2019 Respectfully submitted, KEN PAXTON Attorney General of Texas JEFFREY C. MATEER First Assistant Attorney General DARREN L. MCCARTY Deputy Attorney General for Civil Litigation THOMAS A. ALBRIGTH Chief - General Litigation Division /s/ Benjamin S. Lyles BENJAMIN S. LYLES Assistant Attorney General Texas Bar No. 24094808 General Litigation Division P.O. Box 12548, Capitol Station Austin, Texas 78711 T. (512) 463-2120] F. (512) 320-0667 benjamin.lyles@oag.texas. gov ATTORNEY FOR STATE DEFENDANT DFPS’s Motion to Stay Discovery Electronically Filed 6/21/2019 3:28 PM Hidalgo County District Clerks Reviewed By: Xavier Jimenez CERTIFICATE OF SERVICE Thereby certify that a true and correct copy of the foregoing pleading has been served on the following counsel of record on this 21‘ day of June, 2019, in accordance with Rule 21a of the Texas Rules of Civil Procedure, electronically through the electronic filing manager to the following: Daniel E. Vargas THE VARGAS LAW OFFICE 220 S. 12th Avenue, Suite A EDINBURG, TX 78539 Tel. (956) 287-3743 Fax. (956) 287-3992 Email: thevargaslawoffice@gmail.com Attorney for Plaintiff /s/ Benjamin S. Lyles BENJAMIN S. LYLES Assistant Attorney General DFPS’s Motion to Stay Discovery