THE CHILDREN FIRST FOUNDATION, INC., a New York non-profit corporation duly… v. Diane Legreide, individually

Hon. Louis H. Pollak, Senior Judge, United States District Court for the Eastern*
District of Pennsylvania, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 06-4324
THE CHILDREN FIRST FOUNDATION, INC., a New York non-profit
corporation duly registered in the State of New Jersey; DR. ELIZABETH REX
v.
DIANE LEGREIDE, individually and in her official capacity as former Chief
Administrator of the New Jersey Motor Vehicle Commission; SHARON
HARRINGTON, individually and in her official capacity as acting Chief Administrator of
the New Jersey Motor Vehicle Commission; DARIA GERARD, individually
and in her official capacity as Director of Customer Operations for the New Jersey Motor
Vehicle Commission; STEVE ROBERTSON, individually and in his official capacity
as Director of Legal and Regulatory Affairs for the New Jersey Motor Vehicle
Commission; ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, Peter C.
Harvey, individually and in his official capacity; GOVERNOR OF THE STATE OF
NEW JERSEY, individually and in his official capacity,
Appellants
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 04-cv-02137)
District Judge: Honorable Joel A. Pisano
Submitted Under Third Circuit LAR 34.1(a)
December 14, 2007
Before: SLOVITER and AMBRO, Circuit Judges, and POLLAK, District Judge*

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(Filed: December 20, 2007)
OPINION
POLLAK, District Judge
Appellants, who are alleged to be current and former employees of the State of
New Jersey, appeal an order of the District Court denying without prejudice their motion
to dismiss on qualified immunity grounds the claims for damages brought by appellees,
Children First Foundation, Inc. and Dr. Elizabeth Rex (collectively, “Children First”).
Pursuant to the collateral order doctrine, this court has jurisdiction to review the motion’s
denial under 28 U.S.C. § 1291. See Thomas v. Independence Township, 463 F.3d 285,
290, 293 (3d Cir. 2006). For the reasons explained herein, we vacate the District Court’s
order and remand for further proceedings.
I.
Because we write primarily for the parties, we summarize only the essential facts.
Children First filed a complaint alleging violations of its rights under the First and
Fourteenth Amendments following New Jersey’s denial of its application for a specialty
license plate that included, among other features, the words “Choose Life.” Appellants
filed a motion to dismiss the complaint for failure to state a claim on which relief could
be granted or, in the alternative, to dismiss the claims for damages on qualified immunity
grounds.

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The District Court denied the motion to dismiss without prejudice in an oral
decision on July 26, 2006, and entered an order to that effect the following day. Noting
the rapidly evolving body of law implicated by Children First’s claims as well as the
likelihood that an order deciding the merits would be appealed, the District Court held
that judicial economy favored undertaking the legal analysis on “a full and complete
record” rather than on a motion to dismiss. Apparently anticipating that one or both of
the parties would shortly file a motion for summary judgment, the District Court observed
that little discovery seemed necessary, and that the parties’ extensive briefing on the
motion to dismiss would likely serve just as well at summary judgment. On September
13, 2006, the District Court denied appellants’ motion for reconsideration. On October 3,
2006, appellants filed their timely notice of appeal.
II.
In denying appellants’ motion for reconsideration, the District Court did not have
the benefit of this court’s opinion in Thomas v. Independence Township, 463 F.3d 285 (3d
Cir. 2006), published on September 14, 2006. Thomas reemphasized the line of cases
holding that, if a defendant raises a qualified immunity defense, until the “‘immunity
question is resolved, discovery should not be allowed.’” Id. at 291 (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). “Thus, ‘[u]nless the plaintiff’s allegations state a
claim of violation of clearly established law, a defendant pleading qualified immunity is
entitled to dismissal before the commencement of discovery.’” Id. (quoting Mitchell v.

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Forsyth, 472 U.S. 511, 526 (1985)).
Thomas further clarified that, although “a plaintiff has no obligation to plead a
violation of clearly established law in order to avoid dismissal on qualified immunity
grounds,” “when a plaintiff, on his own initiative, pleads detailed factual allegations, the
defendant is entitled to dismissal before the commencement of discovery unless the
allegations state a claim of violations of clearly established law.” Id. at 293 (emphasis in
original). Alternatively, where “a lack of factual specificity in a complaint prevents the
defendant from framing a fact-specific qualified immunity defense,” “[t]he appropriate
remedy is the granting of a defense motion for a more definite statement.” Id. at 289.
Under Thomas, Mitchell, and Harlow, if it appears that Children First’s allegations
— as they stand in the complaint, or as supplemented by a more definite statement — do
not state a violation of clearly established law, appellants would be entitled to forthwith
dismissal of the claims for damages on qualified immunity grounds. We will therefore
vacate, in part, the District Court’s order denying the motion to dismiss and remand to
allow the District Court to decide the qualified immunity question.
IV.
For the foregoing reasons, we vacate that portion of the District Court’s order of
July 27, 2006, denying appellants’ motion to dismiss the claims for damages on qualified
immunity grounds and remand for further proceedings consistent with this opinion.

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