In what circumstances will a motion to dismiss based on qualified immunity be dismissed?

MultiRegion, United States of America

The following excerpt is from Adamou v. Doyle, 14-3649-cv (2nd Cir. 2017):

Ordinarily we prefer to resolve immunity issues at the earliest possible stage of litigation. See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (explaining that qualified immunity is "an immunity from suit rather than a mere defense to liability" (emphasis in original)). This is a rare case, however, where a motion to dismiss based on immunity is denied but, at the same time, leave to file an amended complaint is granted and then an amended complaint is filed the same day that the appeal from the denial of the original motion to dismiss is filed. Typically, the complaint would remain the same following the denial of immunity. In these circumstances, however, because the facts that are alleged have changed and no new notice of appeal was filed, we lack the ability to provide any relief and thus lack jurisdiction over this appeal.

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