Case No. CIV-97-113-B

DOUGLAS G. DRY, JUANITA
MCCONNELL and ROSIE BURLISON,

Plaintiffs,

VS.

UNITED STATES OF AMERICA, et al.,

Defendants.

This matter comes before the Court on Federal Defendants' Motion with Supporting Brief to Suspend Discovery, To Vacate Scheduling Order Including Trial Date and to Strike Jury Trial Setting filed July 3, 1997 (Docket Entry #111); Plaintiffs' Response thereto filed July 31, 1997 (Docket Entry #137); the various responses by the Defendants to this action (Docket Entry #Is 134, 135, and 136); and the Federal Defendants' Reply to the responses filed August 8, 1997 (Docket Entry #142). Through the pending motion, Defendant United States of America and the other Defendants that entity represents (the "Federal Defendants") request that the Scheduling Order entered in this case be suspended pending a ruling upon various requests for qualified immunity. The Federal Defendants contend that Plaintiffs made claims under the Federal Tort Claims Act which may not be tried to a jury and therefore request that the matter be stricken from this Court's jury trial docket. The remaining Defendants concur in the Federal Defendants' request. Plaintiff opposes the request, contending that there are issues of fact on the question of qualified immunity which require discovery and additional development of information. Plaintiffs also contend that some of the officers upon whom discovery will be served have been separated from their employ with the entities that have been sued in this action and that if this continues, their discovery efforts will he hampered.

To the extent the qualified immunity is claimed by some or all of the Defendants, suspension of the Scheduling Order would appear to be prudent since immunity in this context is one from suit, including discovery, in addition to as liability. Lutz v. Weld County School District, 784 F.2d 340, 342-43 (10th Cir. 1986). Further, some of the requests for dismissal challenge the jurisdiction of this Court to consider Plaintiffs' claims. Until this jurisdictional foundation has been determined through the pending motions, further discovery would appear to be futile. Accordingly, this Court will suspend the Scheduling Order that has been entered in this case to permit an opportunity for ruling on the pending motions.

Although not specifically addressed by Plaintiffs in their Response, the Federal Defendants request that the matter be stricken from any jury trial setting because Plaintiffs' claims are grounded in the Federal Tort Claims Act will be considered if and when it should become necessary to reinstate a Scheduling Order in this matter.

IT IS THEREFORE ORDERED THAT Federal Defendants' Motion to Suspend Discovery, to Vacate Scheduling Order Including Trial Date and to Strike Jury Trial Setting filed July 3, 1997 (Docket Entry #111) is hereby GRANTED. Accordingly, the Scheduling Order entered May 31, 1997 (Docket Entry #79) is hereby VACATED. A new Scheduling Order will be established, if necessary, after a ruling upon the pending motions. Additionally, the determination of whether Plaintiffs are entitled to a jury trial will be considered at that time.

IT IS SO ORDERED THIS 18TH day of August, 1997.