Marks v. City of Manvel et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
JOHN MARKS,
Plaintiff.
V.
CITY OF MANVEL, et al.,
Defendants.
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CIVIL ACTION NO. 3:24-cv-00243
MEMORANDUM AND RECOMMENDATION
Plaintiff Freddie Douglas asks this court to certify for interlocutory appeal
two recent discovery orders. See Dkt. 111. One of those orders quashed the
deposition of Texas Ranger Aaron Arizmendi. See Dkt. 91. The other order quashed
the deposition of Brazoria County District Attorney Thomas “Tom” Selleck. See
Dkt. 108. For the reasons that follow, I recommend that Douglas’s request for
certification under 28 U.S.C. § 1292(b) be denied. 1
BACKGROUND
Douglas and John Marks (collectively, “Plaintiffs”) allege that the City of
Manvel Police Department arrested them without probable cause and charged
them with aggravated sexual assault. 2 Plaintiffs argue that if law enforcement
officials had conducted a proper investigation, they would have discovered the
allegations against Plaintiffs to be false. Plaintiffs bring claims against the City of
1 Because § 1292(b) requires an order from “a district judge,” a magistrate judge may only
issue a recommendation on a motion to certify an interlocutory appeal under § 1292(b).
See Vitols v. Citizens Banking Co., 984 F.2d 168, 169–70 (6th Cir. 1993) (“We hold that a
magistrate judge, acting pursuant to a reference under § 636(b)(1) or (3), has no authority
to issue a dispositive ruling on a motion to certify a district court order for interlocutory
appeal under § 1292(b).”).
2 On October 15, 2024, Judge Jeffrey V. Brown consolidated Douglas’s lawsuit, No. 3:24-
cv-244 (S.D. Tex.), into Marks’s lawsuit. See Dkt. 6.
United States District Court
Southern District of Texas
ENTERED
February 27, 2026
Nathan Ochsner, Clerk
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Manvel, Chief of Police Thomas “Keith” Traylor, and Detective Corporal Taner
Truitt for violations of their civil rights under 42 U.S.C. § 1983. 3
During discovery, Douglas served a subpoena on the Texas Department of
Public Safety (“TDPS”), seeking to depose Arizmendi. Arizmendi reportedly
participated in Douglas’s arrest and attended a meeting between Traylor, Truitt,
and Selleck that Douglas considers important. TDPS moved to quash Arizmendi’s
deposition, arguing that state sovereign immunity prohibits state employees, like
Arizmendi, from answering a third-party subpoena and appearing for deposition.
In its briefing, TDPS relied heavily on Russell v. Jones, 49 F.4th 507 (5th Cir.
2022), a case holding that a state and its agencies cannot be compelled to
participate in discovery as third parties. Finding Fifth Circuit precedent to be
“clear,” I granted the motion to quash Arizmendi’s deposition. See Dkt. 91 at 3. 4
On December 17, 2025, Douglas noticed a deposition for Selleck. See
Dkt. 83. On January 8, 2026, the Brazoria County Criminal District Attorney’s
Office filed a motion to quash Selleck’s deposition, arguing, among other things,
that Selleck is entitled to protection against compelled compliance based on state
3 Plaintiffs also bring claims of defamation and malicious prosecution against a civilian
woman, Amanda Zawieruszynski, for the allegedly false allegations that she made against
them, which led to their arrest.
4 The procedural history surrounding the motion to quash is a tad convoluted. TDPS filed
a motion to quash on November 20, 2025. See Dkt. 73. I granted that motion to quash on
December 1, 2025. See Dkt. 77. Douglas objected to my December 1, 2025 order. See
Dkt. 78. On December 17, 2025, Judge Brown overruled those objections. See Dkt. 84.
Because Douglas originally served Arizmendi without tendering fees, Douglas served
another subpoena on Arizmendi, this time with the proper amount of fees. TDPS then
filed a second motion to quash. See Dkt. 88. Douglas filed a substantially similar response
to the one he filed in opposition to TDPS’s first motion to quash. See Dkt. 90. On January
8, 2026, I granted TDPS’s second motion to quash. See Dkt. 91. Surprisingly, Douglas did
not object to my January 8, 2026 order granting TDPS’s second motion to quash. Thus,
even if I were to certify Douglas’s appeal of my order quashing Arizmendi’s deposition,
the Fifth Circuit would be unable to hear it. See Fed. R. Civ. P. 72(a) (“A party may not
assign as error a defect in the order not timely objected to.”); Singletary v. B.R.X., Inc.,
828 F.2d 1135, 1137 (5th Cir. 1987) (holding that “pretrial matters referred by a trial judge
to a magistrate [judge] must be appealed first to the district court,” and the Fifth Circuit
“cannot . . . address the issue of whether the magistrate’s granting of the protective order
was error” if no such objections were made).
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sovereign immunity. See Dkt. 92. Because Douglas did not timely respond to the
motion to quash, I issued a minute entry on February 3, 2026, quashing Selleck’s
deposition. See Dkt. 108. Douglas did not object to my order quashing Selleck’s
deposition.5
Douglas now moves under § 1292(b) to certify my discovery orders for
interlocutory appeal.
ANALYSIS
A district judge may certify an order for interlocutory appeal if three
conditions are met: (1) the “order involves a controlling question of law,” (2) “there
is substantial ground for difference of opinion” on that question, and (3) an
immediate appeal “may materially advance the ultimate termination of the
litigation.” 28 U.S.C. § 1292(b). “Section 1292(b) appeals are exceptional” and
should not be granted “simply to determine the correctness of a” ruling. Clark-
Dietz & Assocs.-Eng’rs, Inc. v. Basic Const. Co., 702 F.2d 67, 68–69 (5th Cir.
1983); see also Allen v. Okam Holdings, Inc., 116 F.3d 153, 154 (5th Cir. 1997)
(“Interlocutory appeals are generally disfavored,” and § 1292(b) “must be strictly
construed.”). In deciding whether or not to certify orders for interlocutory appeal
under § 1292(b), district judges are granted wide latitude. See Swint v. Chambers
Cnty. Comm’n, 514 U.S. 35, 47 (1995) (“Congress thus chose to confer on district
courts first line discretion to allow interlocutory appeals.”).
A. 	THERE I S A CONTROLLING Q UESTION OF L AW
Douglas has identified the controlling question of law as whether sovereign
immunity shields state employees from discovery in a civil lawsuit to which the
state is not a party. Although this satisfies the first requirement for § 1292(b)
certification, Douglas fails to establish the other two criteria.
5 Because Douglas failed to object to my order quashing Selleck’s deposition, he cannot
now assign error to that order, nor could the Fifth Circuit entertain an appeal of that
order, interlocutory or otherwise. See supra n.4 (citing Fed. R. Civ. P. 72(a); Singletary,
828 F.2d at 1137).
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B. 	D OUGLAS HAS NOT S HOWN THAT THERE I S A S UBSTANTIAL GROUND
FOR D IFFERENCE OF O PINION ON THE CONTROLLING Q UESTION OF L AW
The threshold for establishing a substantial ground for difference of opinion
on the controlling question of law “is a high one.” S. U.S. Trade Ass’n v.
Unidentified Parties, No. 10-1669, 2011 WL 2790182, at *2 (E.D. La. July 14, 2011)
(quotation omitted). “Disagreement with a court’s order is not enough to establish
that there is substantial ground for a difference of opinion.” Ramsey v. Indep.
Specialty Ins. Co., No. CV 23-632, 2023 WL 8559316, at *2 (E.D. La. Dec. 11,
2023). “[A] substantial ground for difference of opinion exists if there is a genuine
doubt as to the correct legal standard to be applied.” S. U.S. Trade Ass’n, 2011 WL
2790182, at *2 (quotation omitted). Such a circumstance can arise, for example, if
“the circuits are in dispute on the question and the Court of Appeals of the circuit
[encompassing the district court] has not spoken on the point, . . . or if novel and
difficult questions of first impression are presented.” Ryan v. Flowserve Corp.,
444 F. Supp. 2d 718, 723–24 (N.D. Tex. 2006) (quotation omitted).
Here, the Fifth Circuit has spoken directly on the controlling legal issue. In
a lengthy opinion, the Fifth Circuit held in Russell that sovereign immunity bars
third-party subpoenas issued on state employees. See 49 F.4th at 513–15. Just last
year, the Fifth Circuit reaffirmed this basic principle:
As an agency of Texas, TDPS receives immunity from suit. We
have recognized that “compelled compliance with a subpoena duces
tecum violates” sovereign immunity. Russell v. Jones, 49 F.4th 507,
515 (5th Cir. 2022) (quoting Alden v. Maine, 527 U.S. 706, 715
(1999)). And even though TDPS is a third party to this litigation, it still
receives protection against compelled compliance; “[w]here sovereign
immunity 	applies, 	it 	applies 	totally.” 	Id. 	at 	514. 	Furthermore,
“sovereign immunity is an immunity from suit (including discovery),
not 	just 	liability.” 	Id. 	(emphasis 	in 	original) 	(citing 	Mitchell 	v.
Forsyth, 472 U.S. 511, 526 (1985)). A state and its agencies cannot be
compelled to participate in discovery, even as third parties. Otherwise,
the sovereign’s “interests” in its “dignity and authority over its
prerogatives” would be treated as “less interesting” when it “is served
with a subpoena duces tecum instead of a complaint”—that cannot be
the case. Russell, 49 F.4th at 515.
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Thompson v. Richter, No. 24-10837, 2025 WL 1233519, at *2 (5th Cir. Apr. 29,
2025).
Noting that “[t]he First, Seventh, and Eighth Circuits have held that
sovereign immunity does not shield state officials from” discovery in federal court,
Douglas argues that “there is a substantial ground for difference in opinion
regarding the rule announced in Russell.” Dkt. 111 at 6–7. Douglas also points to a
number of district court opinions from outside the Fifth Circuit holding that state
employees can be compelled to participate in discovery as state employees. In
essence, Douglas contends that Russell was incorrectly decided and should be
revisited.
The fact that circuit courts and district courts outside the Fifth Circuit may
have a different view as to the propriety of third-party discovery on state officials
is irrelevant. “If a controlling court of appeals has decided the issue, no substantial
ground for difference of opinion exists and there is no reason for an immediate
appeal.” 4 Am. Jur. 2d App. Rev. § 124. “Here, although [Douglas] is correct that
other circuits have declined to follow the Fifth Circuit’s holding in [Russell],
leaving the circuits in dispute, the Fifth Circuit has nonetheless spoken directly on
the contested issue in [Russell]. Accordingly, there is no substantial ground for
difference of opinion.” Ishwar Krupa, LLC v. Indep. Specialty Ins. Co., No. 2:22-
cv-03240, 2023 WL 11884721, at *2 (E.D. La. May 17, 2023); see also Nairne v.
Ardoin, 715 F. Supp. 3d 808, 834 (M.D. La. 2024) (refusing to certify an order
under § 1292(b) because “[w]hile a circuit split does exist, the Fifth Circuit Court
of Appeals has spoken on the” controlling issue of law); Earl v. Boeing Co., No.
4:19-cv-00507, 2020 WL 4220887, at *3 (E.D. Tex. July 23, 2020) (“[T]here is not
a ‘substantial ground for difference of opinion’ on this issue when the Court
faithfully applied the Fifth Circuit’s binding precedent to reach its conclusion.”).
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C. 	D OUGLAS 	HAS 	N OT 	S HOWN 	THAT 	AN 	I MMEDIATE 	A PPEAL 	M AY
M ATERIALLY 	A DVANCE 	THE 	U LTIMATE 	TERMINATION 	OF 	THE
L ITIGATION
Even if Douglas could show that there is substantial ground for difference of
opinion regarding the controlling issue of law, § 1292(b) certification would still be
inappropriate because Douglas cannot show that an immediate appeal may
materially advance the termination of the litigation. To demonstrate that an
immediate 	appeal 	may 	materially 	advance 	the 	ultimate 	termination 	of 	the
litigation, Douglas must show that the appeal will “abbreviate the district court
proceedings significantly.” Silverthorne Seismic, L.L.C. v. Sterling Seismic Servs.,
Ltd., 125 F.4th 593, 601 (5th Cir. 2025) (cleaned up).
According 	to 	Douglas, 	Traylor 	and 	Truitt 	testified 	at 	their 	respective
depositions that they arrested Douglas because Selleck, acting in his capacity as
the local district attorney, told them that probable cause existed to arrest Douglas,
and they needed to conduct no further investigation. Arizmendi reportedly
participated in Douglas’s arrest and attended the meeting at which Selleck
allegedly made these statements. Douglas’s counsel says that he informally
interviewed 	Selleck 	and 	Arizmendi 	after 	Traylor 	and 	Truitt’s 	depositions.
According 	to 	Douglas’s 	counsel, 	Selleck 	and 	Arizmendi 	had 	very 	different
recollections of that meeting. Douglas says that if, as he expects, Selleck and
Arizmendi “contradict the account of that meeting [under oath at a deposition] and
deny that there was any kind of ratification, approval or green lighting of the
arrests of Douglas or Marks, that will have a seismic effect on the resolution of this
case.” Dkt. 111 at 15. Such testimony might significantly impact the ultimate
outcome of the case, but that is not the test.
The test is whether an immediate appeal will materially advance the
termination of the litigation. I fail to see how appellate review of my discovery
rulings will have an immediate impact on the course of this litigation. An appellate
determination as to whether Selleck and Arizmendi may be deposed will not
resolve any of the substantive claims in this case or eliminate the need for trial. “It
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is indeed that rare case where the issue presented in the context of discovery . . .
involves a controlling question of law and where an immediate appeal may
materially advance the ultimate termination of the litigation.” Hyde Constr. Co. v.
Koehring Co., 455 F.2d 337, 338–39 (5th Cir. 1972); see also Coleman v. Sherwood
Med. Indus., 746 F.2d 445, 446 (8th Cir. 1984) (“Review of pretrial discovery
orders has generally been denied because they can be effectively reviewed after
final judgment.”). In reasoning applicable to the present situation, the Fifth Circuit
has explained:
The parties do not need our input to proceed, and we would not speed
up the litigation by weighing in. The time spent on this appeal would
only slow the proceedings. There is no reason to buck the hallmark
rule that a party may appeal once and only after final judgment.
Silverthorne Seismic, LLC, 125 F.4th at 596.
* * *
Douglas has not shown “that exceptional circumstances justify a departure
from the basic policy of postponing appellate review until after the entry of a
final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978) (cleaned
up). This is simply not an exceptional case for which a § 1292(b) certification is
warranted.
CONCLUSION
For the reasons discussed above, I recommend that Douglas’s request for
certification under 28 U.S.C. § 1292(b) be denied.
The 	parties 	have 	14 	days 	from 	service 	of 	this 	Memorandum 	and
Recommendation to file written objections. See 28 U.S.C. § 636(b)(1)(C); Fed. R.
Civ. P. 72(b)(2). Failure to file timely objections will preclude appellate review of
factual findings and legal conclusions, except for plain error.
SIGNED this 	day of February 2026.
______________________________
ANDREW M. EDISON
UNITED STATES MAGISTRATE JUDGE
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