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Eleventh Circuit rules that defendant's claim of sovereign and qualified immunity must be resolved before defendant can be required to participate in developing Rule 26(f) report

On July 6, 2017, in Howe v. City of Enterprise, No. 16-11453, the Eleventh Circuit Court of Appeals reversed a district court order requiring a defendant municipality in a 42 U.S.C. Section 1983 case to participate with the plaintiff in developing a Fed. R. Civ. P. 26(f) discovery plan prior the district court’s ruling on the defendant’s motions to dismiss on the basis of sovereign immunity and qualified immunity. The Eleventh Circuit held that appellate review and reversal at this juncture of the lawsuit was appropriate, citing prior cases in which the Court had reasoned that by requiring the defendants to further defend from liability while the immunity issue remained pending, the district court had effectively denied immunity, which provides “an entitlement not to stand trial or face the other burdens of litigation.”

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