Kermode v. University of Mississippi Medical Center et al

Filing 82

ORDER denying 73 Motion to Strike; denying 75 Motion to Stay Determination of Defendants' Motion for Summary Judgment or Deny Said Motion; finding as moot 78 Motion to Strike; granting in part and denying in part 80 Motion for Extension of Time to File as set out in the order. Signed by District Judge Daniel P. Jordan III on July 1, 2011. (SP)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
JOHN C. KERMODE, Ph.D
V.

PLAINTIFF
CIVIL ACTION NO.: 3:09-CV-584-DPJ-FKB

UNIVERSITY OF MISSISSIPPI MEDICAL CENTER, et al.

DEFENDANTS

ORDER
This wrongful-termination case is before the Court on several motions. The Court will
address each in turn.
I.

Plaintiff’s Motion to Strike and Motion for Default Judgment, or in the alternative,
Motion for Evidentiary Hearing Regarding Spoliation [73]
Kermode’s Motion is predicated on three separate theories. First, Kermode argues that

Defendants’ Answers were not timely filed. Second, Kermode seeks sanctions for Defendants’
alleged discovery violations. Third, Kermode seeks an evidentiary hearing to explore the extent
of Defendants’ alleged spoliation of electronic evidence. As discussed below, none of these
theories are persuasive.
A.

Defendants’ Allegedly Untimely Answers

On May 21, 2010, the Court granted Kermode leave to amend his Complaint, which he
accomplished May 26, 2010. In addition to some minor alterations, the Amended Complaint
[32] added Defendants Helen Turner, Daniel W. Jones, and James E. Dorn. All
defendants—new and original—filed Answers [55–59] on November 4, 2010, and Kermode now
moves the Court, under Rule 55(b)(2) of the Federal Rules of Civil Procedure, to strike the
Answers and enter default judgment. This request is frivolous and not well taken.
As an initial point, the service and response rules under the Federal Rules of Civil
Procedure are different for original and newly added defendants. Defendants who have

previously answered and are represented by counsel are generally served under Rule 5. See Fed.
R. Civ. P. 5(b)(2)(E) (permitting service by electronic means); accord L.U. Civ. R. 5(c)
(adopting administrative procedures for electronic case filing). Upon service, Rule 15(a)(3)
gives original defendants 14 days to answer amended complaints. But new defendants are
entitled to service of the summons and complaint according to Rule 4. See Ransom v. Brennan,
437 F.2d 513, 518 (5th Cir. 1971) (“[W]hen an amended complaint, normally served in
conformity with Rule 5, asserts an additional claim against a party who has not appeared in the
original suit, the pleading must be served in accordance with Rule 4 in order that the court obtain
personal jurisdiction over the new party.”); accord 48 Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 1146 (3d ed. 1998) (“[A]mended or supplemental pleadings
must be served on parties who have not yet appeared in the action in conformity with Rule 4.”).
In this case, Kermode apparently lumped the two groups together, assuming that service of all
Defendants was required under Rule 4.
In this vein, Plaintiff’s counsel e-mailed defense counsel on October 14, 2010, stating:
“As we have previously discussed, attached are the waivers for each of the Defendants in this
case. I think then that all you need to do is sign them, scan them, and then file them
electronically with the Court.” Defs.’ Resp. [74] Ex. A (emphasis added). Plaintiff’s counsel
provided waivers for all Defendants—original and newly added—stating that an answer was due
“60 days from 10/13/2010, the date this request was sent.” See Defs.’ Waivers of Service
[48–52]. All Defendants signed and docketed the Waivers on October 14, and all filed their
Answers on November 4—well within the referenced 60 days.

2

The newly added Defendants waived service and were not in default because they filed
their Answers well within the deadline imposed by Rule 4(d)(3). The original Defendants,
however, may be in a different boat since, under Rule 5, they were arguably served on May 26.
If so, their answers were due June 9, 2010—14 days after the date Kermode filed his Amended
Complaint. See Fed. R. Civ. P. 15(a)(3). But given the circumstances, the Court will not strike
the Answers and grant default judgment as Kermode hopes.
“Federal courts generally disfavor default judgments, preferring to resolve disputes
according to their merits.” Harper Macleod Solicitors v. Keaty & Keaty, 260 F.3d 389, 393 (5th
Cir. 2001) (citations omitted). In the context of a duly entered default judgment, the Court
would have discretion to set aside the default upon consideration of whether the default was
“willful, whether setting it aside would prejudice the adversary, and whether a meritorious
defense is presented.” United States v. One Parcel of Real Prop., 763 F.2d 181, 183 (5th Cir.
1985) (citations omitted). In the present case, Kermode discussed service under Rule 4 with the
defense, provided waivers indicating that answers were due 60 days from October 13 (i.e.,
December 16), and then sought default when Defendants answered on November 4, more than a
month before the deadline Kermode provided. Clearly both sides contemplated service under
Rule 4. There has been no willfulness or prejudice, and because defenses exist, Kermode’s
Motion is denied.
B.

Sanctions for Alleged Discovery Violations

Kermode alternatively seeks default judgment as a sanction for alleged disclosure and
discovery violations. In particular, Kermode contends that Defendants failed to preserve certain
e-mails between Kermode and his former student, Sung Won Park; failed to produce other e-

3

mails between the professor and his student in their native format as part of Defendants’ prediscovery disclosures; and subsequently failed to produce the emails in response to Kermode’s
written discovery requests.
Kermode’s request faces several procedural hurdles. First, Kermode raises this issue for
the first time in a Motion for Sanctions filed after the conclusion of discovery and one day after
the motions deadline expired. Regarding pre-discovery disclosures, Local Rule 26(a)(3) states in
relevant part:
If a party fails to make a disclosure required by this section, any other party must
move to compel disclosure and for appropriate sanctions under FED.R.CIV.P.
37(a). The failure to take immediate action and seek court intervention when a
known fact disclosure violation other than as to expert witnesses occurs will be
considered by the court in determining the appropriate sanctions to be imposed
regarding a subsequent motion filed under FED.R.CIV.P.37(c).
Kermode made no such motion.
As for the alleged discovery violaions, Kermode seeks Rule 37(b) sanctions, but again he
raised these issues for the first time in a Motion for Default Judgment filed after the close of
discovery and after the motions deadline expired. Under Local Rule 7(b)(2)(B), a party must file
motions compelling discovery “sufficiently in advance of the discovery deadline to allow
response to the motion, ruling by the court and time to effectuate the court’s order before the
discovery deadline.” The failure to bring these issues to the Court in a timely manner supports
denial of the requested sanctions.
Kermode also cites Rules 37(d), which addresses a party’s failure to attend its own
deposition, serve answers to interrogatories, or respond to a request for inspection. But sanctions
under Rule 37(d) “must include a certification that the movant has in good faith conferred or
attempted to confer with the party failing to act in an effort to obtain the answer or response
4

without court action.” Fed. R. Civ. P. 37(d)(1)(B). No such certificate was filed. Thus, even
assuming a violation, which is not apparent, the Motion is defective.
Kermode’s Motion pursuant to Rule 37(b)(2)(B), presumably for alleged failure to
produce deponents, is likewise deficient. Pl.’s Mot. [73] at 1. Rule 37(b)(2)(B) provides
sanctions for failure to “comply with an order under Rule 35(a),” which in turn relates to
physical and mental examinations. There have been no such orders, and neither rule is
applicable.
These procedural defects aside, Rule 37(e) presents a more serious impediment to
Kermode’s Motion for Sanctions. The Rule states: “Failure to Provide Electronically Stored
Information. Absent exceptional circumstances, a court may not impose sanctions under these
rules on a party for failing to provide electronically stored information lost as a result of the
routine, good-faith operation of an electronic information system.” As discussed below, the
subject e-mails were apparently deleted as part of the e-mail system before reason existed to
preserve them in another format. Thus, Rule 37(e) sanctions are not available.
C.

Evidentiary Hearing on the Issue of Spoliation

As an alternative to sanctions, Kermode moved for an evidentiary hearing, and ultimately
an adverse inference against Defendants, alleging that Defendants committed evidentiary
spoliation by destroying certain e-mails relevant to the termination of Kermode’s employment.
He further questions the authenticity of paper copies of other e-mails produced in discovery on
the basis that the original e-mails were not preserved in the proper format. Neither of Kermode’s
arguments is sufficient to warrant an evidentiary hearing, let alone an adverse inference.

5

1.

The Allegedly Missing E-mails

Kermode does not identify—even generally—the number or nature of the allegedly
missing e-mails. And there is no dispute that Defendants have produced copies of all e-mails
relied upon by UMMC personnel in making and upholding the decision to terminate Kermode’s
employment. But Kermode asks this Court to assume that the University spoliated other relevant
e-mails between Kermode and Park and to infer that these e-mails would have been detrimental
to Defendants’ case. Such an inference should be drawn, Kermode claims, from the following
facts: (1) despite Kermode’s June 9, 2009 request, Defendants have never certified that they
“preserved and protected” the e-mails in question from spoliation, (2) Defendants did not
disclose any further e-mails in their required disclosures or in response to Kermode’s requests
for production, (3) University officials never engaged the school’s IT department to preserve the
e-mails, and (4) the University switched e-mail systems after Kermode initiated this suit. Pl.’s
Mot. [73] at 3–4, 7–9.
Spoliation is “[t]he intentional destruction, mutilation, alteration, or concealment of
evidence.” Black’s Law Dictionary 1531 (9th ed. 2009). But “[a] party can only be sanctioned
for destroying evidence that it had a duty to preserve, and such duty arises when ‘the party has
notice that the evidence is relevant to litigation or when a party should have know that the
evidence may be relevant to future litigation.’” Consol. Aluminum Corp. v. Alcoa, Inc., 244
F.R.D. 335, 339 (M.D. La. 2006) (quoting Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212, 216
(S.D.N.Y. 2003)).1 When spoliation is the result of a litigant’s bad-faith actions, it gives rise to
1

Federal courts in Mississippi have recognized the Zubulake decisions as “setting the
benchmark standards for modern discovery and evidence-preservation issues.” Maggette v. BL
Dev. Corp., No. 2:07-CV-181-M-A, 2009 WL 4346062, at *1 (N.D. Miss. Nov. 24, 2009); see
also PIC Group, Inc. v. LandCoast Insulation, Inc., No. 1:09-CV-662-KS-MTP, 2011 WL
6

an adverse inference that the evidence was detrimental to the spoliating party’s case. Vick v.
Tex. Emp’t Comm’n, 514 F.2d 734, 737 (5th Cir. 1975). “The party requesting an adverse
inference must first show that the documents in question exist or existed and were within the
control of the opposing party.” Jobe v. ATR Mktg., Inc., 189 F.3d 466, at *6 n.3 (5th Cir. 1999)
(unpublished table decision) (citation omitted). “Moreover, a party seeking to obtain an adverse
inference based on non-production or destruction of documents must show bad faith.” Id. (citing
Vick v. Tex. Emp. Comm’n, 514 F.2d 734, 737 (5th Cir. 1975) (“[T]he circumstances of the act
must manifest bad faith. Mere negligence is not enough, for it does not sustain an inference of
consciousness of a weak case.”)). Kermode has failed to establish either prong of the adverseinference test used in the Fifth Circuit.
a.

No Showing that Evidence Actually Existed

Kermode has not shown that there were, in fact, relevant e-mails between Park and
himself other than those produced by Defendants. As either a sender or a recipient of these
alleged e-mails, Kermode can reasonably be expected to identify what content, if any, is missing
from the e-mails produced or to show, at least circumstantially, that other e-mails actually
existed but were not produced. Simply submitting an affidavit or sworn declaration to this end
would have sufficed, but Kermode submitted neither. Cf. Zubulake v. UBS Warburg LLC, 217
F.R.D. 309, 313 (S.D.N.Y. 2003) (“Zubulake knew that there were additional responsive e-mails
that UBS had failed to produce because she herself had produced approximately 450 pages of
e-mail correspondence.”).

711581, at *1–2 (S.D. Miss. Feb 18, 2011) (relying in part on Maggette and citing Zubulake). In
the absence of binding Fifth Circuit precedent, this Court also considers Zubulake and its
progeny persuasive as to the standards for preserving electronic evidence.
7

Moreover, Kermode had more than nine months to develop an evidentiary record on this
issue and to seek the Court’s assistance if necessary. Defendants served their initial disclosures
on December 14, 2009. Though the Court stayed discovery pending a determination on the issue
of qualified immunity on December 22, it lifted the stay less than three months later. See Text
Order, Mar. 9, 2010 (lifting stay). The discovery deadline in this case was then set for December
17, 2010. Case Mgt. Order [15] Mar. 11, 2010. While Kermode complains of challenges in
conducting discovery, never did he move the Court to compel discovery or otherwise sanction
Defendants for failing to participate in discovery. The Court will not grant an evidentiary
hearing to allow Kermode to develop a spoliation theory he had ample opportunity to develop
during discovery.
Kermode’s unsupported allegation that “UMMC . . . has destroyed, lost or otherwise
corrupted vital emails, which are necessary for the Plaintiff to meet his burden of proof and to
otherwise counter the woeful lack of due process by the Defendants in the termination of his
tenured contract with UMMC,” made two weeks after the discovery deadline, is insufficient to
warrant an evidentiary hearing on the matter of spoliation. Pl.’s Mot. [73] at 4.
b.

No Showing of Bad Faith

Even if Kermode had met the “actually existed” prong of the spoliation test, he has not
sufficiently shown bad faith on the part of Defendants and is thus not entitled to an adverse
inference or further investigation of the matter. Vick, 514 F.2d at 737. Rather, Kermode
acknowledges facts establishing that Defendants’ duty to preserve electronically stored
information did not arise until after much of the information had been automatically deleted from
the University’s e-mail server.

8

Defendants admit that Park e-mailed Department Chair Dr. Jerry Farley and Graduate
Program Director Dr. Bob Kramer with complaints about Kermode as early as June 26, 2008.
Defs.’ Mem. Supp. Summ. J. [68] at 2. They similarly admit that Kramer first advised Kermode
to back off on July 1. Id. at 2. And Farley testified that he instructed Park to personally archive
her e-mails sometime in July. Pl.’s Mot. [73] Ex. 4, Farley Dep. 3–4. But despite several
meetings in July 2008 where Kramer and/or Farley admonished Kermode not to pursue Park any
further, see Defs.’ Mem. [68] at 35, there is no evidence to suggest that either professor should
have reasonably anticipated litigation at that time. See Zubulake, 220 F.R.D. at 217 (“Merely
because one or two employees contemplate the possibility that a fellow employee might sue does
not generally impose a firm-wide duty to preserve.”). Indeed, Farley did not even threaten
further action until August 16, when he warned Kermode that any further contact with Park
could be considered harassment and would be reported to Assistant Vice Chancellor Dr. Helen
Turner. Eventually Farley did report the matter to Turner, but not until September 2008, at
which time Dr. Turner made the decision to terminate Kermode. Defs.’ Mem. [68] at 5.
In his May 25, 2010 deposition, Dr. Farley revealed that the e-mail system used in 2008
automatically deleted e-mails that were not saved after 60 days. Pl.’s Mot. [73] Ex. 4, Farley
Dep. 23:16–18. Thus, even if Dr. Turner should have anticipated litigation in September of
2008, it does not appear the e-mails in question—if they ever existed—would have survived the
automatic purging. Assuming Turner informed University counsel of the potential for litigation
arising from her termination decision, and assuming University counsel instituted a litigation
hold on all e-mail correspondence between Park and Kermode, only e-mails from July 27, 2008
and later would have been preserved. Since the events of which Park complained transpired

9

prior to this date, the allegedly relevant correspondence would have already been deleted. See,
e.g., id. Ex. 2, Park Dep. 60:7–15 (describing Kermode’s July 1 or 2 e-mail as “very shocking
and terrifying”).2
In sum, Kermode alleges that “UMMC wilfully and blatantly has allowed vital and
probative evidence to be destroyed.” Pl.’s Mot. [73] at 9. Yet he fails to show what that
evidence might be or that its destruction resulted from Defendants’ bad faith. Moreover, he
seeks evidence that he had an equal opportunity to preserve. Kermode has not met his spoliation
burden and is thus not entitled to an adverse inference against Defendants.
2.

The Form and Content of E-mails Produced

The Federal Rules of Civil Procedure require litigants to disclose copies “of all
documents, electronically stored information, and tangible things” in the disclosing party’s
possession that may be used to support that party’s claims or defenses. Fed. R. Civ. P.
26(a)(1)(A)(ii). Such disclosures are to be made “without awaiting a discovery request.” Id.
After the parties have conferred in accordance with Rule 26(f), and upon request by the opposing
party, a litigant must also disclose reasonably accessible, nonprivileged, electronically stored
information in its possession “that is relevant to any party’s claim or defense.” Id. 26(b)(1)–(2),
26(d). When the parties do not “specify a form for producing electronically stored information,”
Rule 34 requires a party responding to a request for production of such information to “produce
2

At one point, Kermode suggests that the University’s failure to preserve e-mails in the
face of a notice of intent to sue, as required under the Mississippi Tort Claims Act (“MTCA”),
was particularly egregious, given that Defendants “kn[ew] full-well, that all such data and emails
were of paramount significance.” Pl.’s Mot. [73] at 7. But as noted, this date falls well beyond
the time in which recovery of e-mails would have been possible. Kermode sent his MTCA
notice and request for preservation of evidence on June 19, 2009, more than nine months after
the University terminated his employment. Pl.’s Mot. [73] Ex. 1, MTCA Notice Letter. The emails in question would have been long deleted at that time.
10

it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or
forms.” Id. 34(b)(2)(E)(ii) (emphasis added).
Kermode argues the e-mails between Park and himself that are now retained in paper
format are unreliable because they are “clearly not the original emails.” Pl.’s Mot. [73] at 6.
These e-mails, Kermode claims, “are clearly subject to egregious and malicious manipulation by
a vindictive graduate student.” Id. He further argues that “no one has taken the responsible and
prudent action of verifying and authenticating the emails or their source and whether the emails
are even complete.” Id.
Obviously, e-mails are not “ordinarily maintained” in paper format. See Fed. R. Evid.
34(b)(2)(E)(ii). But Kermode has not demonstrated, indeed has not even alleged, that the form
of the e-mails chosen by Defendants is not “reasonably usable.” See id. Moreover, even if such
a claim could be made, Kermode has not complied with either the procedural requirements for
discovery motions. See Fed. R. Civ. P. 37 (requiring that a motion to compel disclosure include
a good faith certificate); accord id. 34(b) advisory committee notes (explaining that where the
parties cannot agree to the form of electronically stored information produced, they must first
“confer under Rule 37(a)(2) in an effort to resolve the matter before the requesting party can file
a motion to compel”); L.U. Civ. R. 37(a) (requiring movant to attach a good faith certificate, or
alternatively, an affidavit or declaration “detailing the lack of cooperation” by a party, to all
discovery motions); id. 37(c) (“Failure to comply with subsections (a) or (b) of this rule will
result in a denial of the motion without prejudice . . . .”); see also id. 7(b)(2)(B) (“A party must
file a discovery motion sufficiently in advance of the discovery deadline to allow response to the

11

motion, ruling by the court and time to effectuate the court’s order before the discovery
deadline.”).
Kermode had ample opportunity to dispute the authenticity of the e-mails at his hearing
before the Academic Freedom and Faculty Responsibility Committee. See, e.g., Defs.’ Resp.
[74] Ex. 2, Hr’g Tr. 67, 70–71, 74–75, 77, 79, 92–93. And he had a nine-month window in
which to conduct and challenge discovery. This was not an issue that arose at the eleventh hour;
Kermode’s original and amended Complaints vaguely dispute the authenticity of “documentary
evidence” and generally allege that Defendants “spoliated, falsified, manufactured and corrupted
evidence.” Pl.’s Amd. Compl. [32] at 16–17; Pl.’s Compl [1] at 13. Kemode never substantiated
those claims nor filed a timely evidentiary motion. And instead of submitting an affidavit or
declaration disputing the contents of the messages on which the University admittedly relied in
making its termination decision, Kermode continues to acknowledge their contents, all the while
contending that the words were simply taken out of context.
Thus, to the extent Kermode seeks an adverse inference or an opportunity to further
develop his spoliation theory for Defendants’ failure to preserve the e-mails in their native
format, his Motion must be denied. And while generally Kermode would be permitted to re-file
a discovery motion after complying with Rule 37 of the Federal and Local Rules, doing so here
would be fruitless. The discovery deadline was December 17, 2010—two full weeks before
Kermode filed his original Motion. Kermode’s opportunity to challenge the form or the contents
of the e-mails produced by Defendants has passed.

12

II.

Defendants’ Motion for Summary Judgment [68] and Plaintiff’s Rule 56(d) Motion [75]
On December 30, 2010—the motion deadline in this case—Defendants moved for

summary judgment on several grounds. Kermode never responded. But nearly three months
later, Kermode filed a Motion [75] under Rule 56(d) of the Federal Rules of Civil Procedure,3
asking the Court to stay its determination of the summary judgment Motion pending the outcome
of Kermode’s previously filed Motion [73]. Defendants promptly responded. Kermode never
replied, and the time to do so has passed.
Rule 56(d)(1) permits the Court to defer considering a summary judgment motion or
deny it when a nonmovant “shows by affidavit or declaration that, for specified reasons, it
cannot present facts essential to justify its opposition” to the motion. Alternatively, the Court
may “allow time to obtain affidavits or declarations or to take [additional] discovery.” Id.
56(d)(2).
To establish a right to relief, Kermode must show “by affidavit or declaration” that there are
“specific reasons” he cannot present essential facts to oppose Defendants’ Motion. In other
words, he “must set forth a plausible basis for believing that specified facts, susceptible of
collection within a reasonable time frame, probably exist and indicate how the emergent facts, if
adduced, will influence the outcome of the pending summary judgment motion.” Raby v.
Livingston, 600 F.3d 552, 561 (5th Cir. 2010) (citations and quotations omitted).
As an initial matter, the Rule 56(d) Motion was filed about three months after
Defendants’ Summary Judgment Motion and was untimely. See Luera v. Kleberg County, Tex.,
3

Defendants contend that Rule 56(d) is inapplicable, but Kermode cites the proper rule.
Rule 56 was amended effective December 1, 2010, and “[s]ubdivision (d) carries forward
without substantial change the provisions of former subdivision (f).” Fed. R. Civ. P. 56 advisory
committee’s note.
13

Civ. Action No. C-10-369, 2011 WL 2551038, at 5 (S.D. Tex. June 27, 2011) (“A Rule 56(f)
motion cannot be filed after the deadline set for filing of the opponent’s response brief and
affidavits.”) (citations and quotations omitted). Regardless, Kermode’s Motion seeks a
continuance so that Kermode may further develop his spoliation theory through an evidentiary
hearing. The Court denied Kermode’s request for an evidentiary hearing and finds no basis for
granting Rule 56(d) relief.4
III.

Defendants’ Motion to Strike [78]
Defendants also moved to strike Kermode’s Rule 56(d) Motion for the same reasons they

opposed the Motion. See generally Defs.’ Mot. [78]. Because Kermode’s Rule 56(d) Motion is
denied, Defendants’ Motion to Strike is moot.
IV.

Plaintiff’s Motion for Time [80]
Finally, on May 10, 2011, Kermode filed his Motion for Enlargement of Time to Present

Supplemental Facts and Briefing in Support of his Motion to Strike Defendants’ Answers and for
Default Judgment, or, alternatively, Motion for an Evidentiary Hearing Regarding Defendants’
Spoliation of Evidence; and in Response to the Defendant’s Motion for Summary Judgment [80].
The Motion seeks relief under Rule 6(b) of the Federal Rules of Civil Procedure.
Rule 6(b) allows a court to extend a party’s deadline after its expiration on the basis of
excusable neglect. Fed. R. Civ. P. 6(b)(1). To establish “excusable neglect,”courts consider
4

To the extent Kermode may have wished to assert a broader request under Rule 56(d), he
failed to attach an affidavit or a declaration as required by the Rule. Courts routinely deny such
unaccompanied motions. See, e.g., Shoemaker v. Robinson, No. 3:09-CV-645-DPJ-FKB, 2011
WL 679206, at * 3 (S.D. Miss. Feb. 16, 2011) (denying plaintiff’s Rule 56(d) motion, in part,
because it was not accompanied by a supporting affidavit or declaration); Kyle v. Epps, No.
3:09CV125 DPJ-FKB, 2010 WL 3747820, at *2 (S.D. Miss. Sept. 20, 2010) (same). Finally, the
discovery was not diligently pursued. See Wichita Falls Office Assocs. v. Banc One Corp., 978
F.2d 915, 919 (5th Cir. 1993)
14

“the danger of prejudice to the [non-movant], the length of the delay and its potential impact on
the judicial proceedings, the reason for the delay, including whether it was within the reasonable
control of the movant, and whether the movant acted in good faith.” Adams v. Travelers Indem.
Co. of Conn., 465 F.3d 156, 162 n.8 (5th Cir. 2006).
Kermode premises the requested relief on a newly signed affidavit which, according to
him, demonstrates Park’s attempt to “‘corruptly persuade’ [sic] a witness, Nancy Stubbs, from
providing any testimony in this case.” Pl.’s Mot. [80] at 4. Stubbs is one of Kermode’s former
students. In her April 30, 2011 affidavit, Stubbs states:
In the Spring of 2010, I encountered Sang Won in the hallway at UMMC,
and I simply asked her what had happened to Dr. Kermode. She stated that “he’s
gone; he’s long gone.” She stated that she had heard that I testified at Dr.
Kermode’s hearing before the faculty grievance committee, and I confirmed that I
had, as stated above. Sang Won then told me that Dr. Kermode had sent her a
bunch of emails and had repeatedly called her house. She also stated that he
repeatedly came into Dr. Ma’s laboratory, where she did research, and harrassed
her there. She then pointedly stated that “you got involved in something that you
do not know anything about.” Although I explained to her that Dr. Kermode had
always been professional to me and that I had only been asked to testify about my
view of Dr. Kermode’s character, this explanation did not please her. In
retrospect, I believe that Sang Won was seeking to prevent me from providing
any testimony regarding Dr. Kermode.
Pl.’s Mot. [80] Ex. 3, Stubbs Aff. ¶ 7. Aside from the fact that Stubbs approached Park, her
assessment of Park’s intent constitutes rank speculation—as does much of her affidavit.
Regardless, the affidavit regarding alleged witness intimidation offers no grounds for granting a
Rule 6(b)(1) extension to supplement or develop evidence regarding the alleged destruction of emails. The lack of nexus raises concern that the Motion is not in good faith.5

5

To the extent the Motion could be read as a request to supplement the record with this
new affidavit, it is granted. But the affidavit would not alter the Court’s ruling on spoliation
because it is speculative and otherwise insufficient.
15

Aside from the lack of an apparent nexus between requested relief and the new evidence
upon which it is based, Kermode has not demonstrated excusable neglect pursuant to Rule
6(b)(1). First, Kermode has failed to establish a basis for non-compliance that was beyond his
control. The Court previously acknowledged the personal and medical challenges Kermode’s
attorney faced during this case, see Order [64] Dec. 16, 2010, and accepts the reasons proffered
for the interruption of Park’s and Farley’s depositions. See Pl.’s Mot. [80] at 3 (explaining that
Park was in an automobile accident); id. at 6 (explaining that Farley suffers from Parkinson’s
disease). But these facts alone are insufficient to justify the request to extend this specific
deadline. See Adams, 465 F.3d at 162 n.7 (affirming denial of Rule 6(b) motion where attorney
offered personal, medical, and financial reasons for failing to comply with court-ordered
deadlines). The Court is certainly sympathetic to counsel’s medical condition and the loss of his
father, but there was ample time before and after the death of his father in July 2010 in which
counsel was capable of conducting the disputed discovery. To the extent he was not, Kermode
could have sought another continuance of the discovery and motions deadlines.
Looking back, Kermode began deposing Park on June 25, 2010, but adjourned before
completing the deposition. Despite several delays, the parties agreed to reconvene the deposition
on December 22, 2010—five days after the discovery deadline had passed and without leave of
Court. Unfortunately, Park was involved in an automobile accident on December 21 for which
she was hospitalized. Her deposition was cancelled as a result of the accident. Kermode could
have immediately filed a motion seeking another extension of the discovery deadline to conclude
the deposition out-of-time. Instead, the December 30 motion deadline expired and the next day
Kermode filed a meritless Motion to Strike Defendants’ Answers and for Default Judgment [73].

16

Meanwhile, Defendants filed a timely Motion for Summary Judgment on December 30, 2010,
but Kermode failed to file a timely response or seek an extension of time within which to do so.
Nearly three months after Defendants’ dispositive Motion, Kermode filed a delinquent Rule
56(d) Motion.
Although certain delays in the matter were unavoidable, and Kermode could not
unilaterally conduct discovery, other delays were not and the case is well off track. We are three
months past the original trial date, yet Plaintiff has not responded to Defendants’ Motion for
Summary Judgment, which has been pending for over six months. And Kermode’s current
Motion [80] was filed five months after the extended discovery deadline expired. Aside from
mere delay, reopening discovery now would necessitate new rounds of briefing on all of the
pending motions except the Rule 6(b)(1) Motion—whether the newly discovered evidence helps
or hurts Kermode. Allowing Kermode to reopen discovery at this late date will adversely impact
the judicial proceedings. Adams, 465 F.3d at 162 n.8. Consequently, Kermode’s Rule 6 Motion
is denied.6
IV.

CONCLUSION
The Court recognizes that counsel has faced obstacles and that this Order may seem

harsh. It is not the Court’s intent to pick at capable attorneys, but the Court must state the basis

6

Kermode does raise one issue of concern, although it is speculative. He contends that
Park may leave the country when she concludes her education. Because Park is a key witness
and her deposition was recessed, the parties will be allowed to take her trial deposition if she
plans to leave the country prior to trial. The Court recognizes that defense counsel does not
represent Park, but defense counsel is instructed to contact the witness and determine if and
when she intends to leave the country. Counsel shall docket a status report no later than July 15,
2011, summarizing the results of this effort. If Park intends to leave the country, then the parties
are instructed to set a telephonic conference with the undersigned to determine a trial date and
whether a trial deposition must occur.
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for its rulings. Ultimately, this result is dictated by the fact that Kermode waited too long to seek
the Court’s assistance in completing discovery. At some point the Court must control its docket
and move cases toward resolution. The present case has reached that stage.
For the reasons explained herein, Kermode’s Motion to Strike and Motion for Default
Judgment, or in the alternative, Motion for Evidentiary Hearing Regarding Spoliation [73] is
DENIED, Kermode’s Rule 56(d) Motion [75] is DENIED, Defendants’ Motion to Strike [78] is
MOOT, and Kermode’s Rule 6(b) Motion [80] is DENIED in part and GRANTED in part. No
later than July 15, 2011, Kermode must respond to Defendants’ Motion for Summary Judgment.
SO ORDERED AND ADJUDGED this the 1st day of July, 2011.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE

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