from the United States District Court for the Middle District
of Alabama D.C. Docket No. 1:15-cv-00113-JA-SRW
ED CARNES, Chief Judge, HULL and WILSON, Circuit Judges.
Howe filed this lawsuit against the City of Enterprise,
Berney Partridge, Tomas Arias, Jason Anderson, Chris Hurley,
Richard Hauser, and Thomas Jones after Enterprise police
officers Partridge and Arias shot him. He asserted claims
under 42 U.S.C. § 1983 for violations of his Second,
Fourth, and Fourteenth Amendment rights. He also asserted
federal and state law claims for malicious prosecution. The
defendants filed a motion to dismiss for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6) and
asserted federal and state law immunity, and in response Howe
filed an amended complaint. In that amended complaint, Howe
asserted the same claims raised in his initial complaint
along with additional state law claims for assault, battery,
excessive force, trespass, negligence, wantonness, and
Howe filed that amended complaint, the defendants again filed
a Rule 12(b)(6) motion to dismiss for failure to state a
claim, asserting qualified immunity and state law sovereign
immunity. In his response in opposition to that motion, Howe
conceded that "to the extent any of [his] claims allege
liability against the Defendants under the Fourteenth
Amendment of the United States Constitution, " those
claims "as stated anywhere in the [amended]
Complaint" were due to be dismissed. Howe also conceded
away his state law negligence, wantonness, and unlawful
seizure claims. After the parties had fully briefed the
defendants' second motion to dismiss, the district court
on March 31, 2016, entered an order that did two things.
First, it denied without prejudice the defendants' second
motion to dismiss and instructed Howe to file a second
amended complaint clarifying which claims he had not
conceded. Second, it instructed the parties to "confer
and develop a proposed discovery plan pursuant to [Federal
Rule of Civil Procedure] 26(f), " setting deadlines by
which the parties were to develop and file their Rule 26(f)
defendants now appeal the district court's order denying
their second motion to dismiss and instructing them to
develop and file their Rule 26(f) report. Howe contends that
we lack jurisdiction to consider the order because it is not
appealable as a "final decision" under 28 U.S.C.
§ 1291. See 28 U.S.C. § 1291 ("The
courts of appeals . . . shall have jurisdiction of appeals
from all final decisions of the district courts of the United
States . . . ."). "[A] district court's denial
of a claim of qualified immunity, to the extent that it turns
on an issue of law, is an appealable 'final decision'
within the meaning of 28 U.S.C. § 1291 notwithstanding
the absence of a final judgment." Mitchell v.
Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817 (1985).
Our jurisdiction in this case turns on whether the district
court's order denying without prejudice the
defendants' second motion to dismiss and directing the
parties to confer and file a report under Rule 26(f) was, in
effect, a "denial of a claim of qualified
defendants point to two cases in which we held that we had
jurisdiction to review district court orders that reserved
ruling on a defendant's claim to immunity. See
Bouchard Transp. Co. v. Fla. Dep't of Envtl. Prot.,
91 F.3d 1445 (11th Cir. 1996); Collins v. Sch. Bd.,
981 F.2d 1203 (11th Cir. 1993). Both of those cases involved
district court orders that required the defendants, who had
asserted qualified or sovereign immunity, to further litigate
the underlying merits of the lawsuit without having first
received a ruling as to their immunity. Bouchard Transp.
Co., 91 F.3d at 1447 (addressing a district court's
order instructing the parties to mediate the claims and
deferring ruling on the defendants' entitlement to
immunity until after mediation had taken place);
Collins, 981 F.2d at 1204-05 (addressing a district
court's decision to reserve "pending the trial"
a ruling on the defendants' qualified immunity defenses).
of those decisions we 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." Bouchard Transp. Co., 91 F.3d at
1448 (quoting Mitchell, 472 U.S. at 526, 105 S.Ct.
at 2815); Collins, 981 F.2d at 1204-06; see
Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 536
(1991) ("[B]ecause '[t]he entitlement is an
immunity from suit rather than a mere defense to
liability, ' we repeatedly have stressed the importance
of resolving immunity questions at the earliest possible
stage in litigation.") (second alteration in original)
(citation omitted) (quoting Mitchell, 472 U.S. at
526, 105 S.Ct. at 2815).
present case, the district court's order not only
reserved ruling on the defendants' claims to immunity
until after Howe filed a second amended complaint, it also
instructed the parties to confer and develop their Rule 26(f)
report. Under Rule 26(f), the parties must confer and develop
a proposed discovery plan, and "[i]n conferring, the
parties must consider the nature and basis of their claims
and defenses and the possibilities for promptly settling
or resolving the case . . . ." Fed.R.Civ.P.
26(f)(2) (emphasis added). The part of the order requiring
the parties to confer and discuss settlement before the court
ruled on the defendants' motion to dismiss on immunity
grounds is inconsistent with our decision in Bouchard
Transportation. And the part of the order requiring the
parties to develop their Rule 26(f) report before the court
ruled on the immunity defenses is also inconsistent with
Bouchard Transportation and other decisions which
establish that immunity is a right not to be subjected to
litigation beyond the point at which immunity is asserted.
district court's order of March 31, 2016, is vacated
except to the extent that it denies without prejudice the
motion to dismiss on immunity grounds and directs Howe to
amend his complaint again. After Howe has filed his second
amended complaint, the defendants may file another motion to
dismiss that includes assertions of immunity from
suit. If they do so, the district court
should decide those immunity issues before requiring that the
parties litigate Howe's claims any further.
IN PART AND REMANDED.
 Despite the defendants'
contention, responding to Howe's second amended complaint
is not a burden of litigation from which the immunity