F.B. et al v. East Stroudsburg University et al

Filing 297

MEMORANDUM OPINION - For the reasons set forth in this Memorandum Opinion, the Court will deny Plaintiffs' "Motion for Relief from a Judgment and Order and to Correct the Record" (Doc. 278). However, because afull copy of the reports b y Jeffrey Miceli, Esq. dated September 26, 2008 and February 26,2009 were delivered by Plaintiffs' counsel to the Court immediately following the pre-trial conference on October 3,2014, and these reports were relied upon by this Court in its ruling on a motion in limine, a sealed copy of the reports may be filed of record in this action as of October 3,2014. A separate Order follows.Signed by Honorable Robert D. Mariani on 1/9/17. (jfg)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

FRANTZ BERNARD, et al.,

Plaintiffs

v.

3:09·CV·00525
(JUDGE MARIANI)

EAST STROUDSBURG
UNIVERSITY, et al.,
Defendants
MEMORANDUM OPINION
I. INTRODUCTION AND PROCEDURAL HISTORY

Presently before the Court is Plaintiffs' Motion for Relief from a Judgment and Order
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and to Correct the Record" (Doc. 278).
On February 13, 2009, Plaintiffs, Frantz Bernard, Timotheus Homas, Anthony Ross,
William Brown, Jerry Salter, and Dejean Murray commenced this action, alleging violations
of Title IX of the Education Amendments Act of 1972,20 U.S.C. § 1681, et seq., as well as
violations by Defendants, East Stroudsburg University, Robert J. Dillman, Kenneth Borland
and Victoria L. Sanders (hereinafter IIESU Defendants" or "University Defendants") and
Isaac W. Sanders, pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1985. Further, the
Plaintiffs alleged violations by Defendants Dillman, Borland, and V. Sanders under 42
U.S.C. § 1986.

Both the University Defendants and I. Sanders moved for summary judgment on the

claims of Bernard, Homas, and Ross.1 (Docs. 93, 128). In response to the motions for
summary judgment, Plaintiffs submitted as an exhibit the first 24 pages of a September 26,
2008 Report written by Jeffrey B. Miceli, Esq. (hereinafter "PASSHE Report") (Doc. 113). In
April, 2014, this Court granted the University Defendants' motion for summary judgment
(Doc. 141) and granted in part and denied in part Defendant I. Sanders' motion for summary
judgment, leaving the remaining Plaintiffs' § 1983 claim for trial (Doc. 143). In May of 2014,
Plaintiffs filed a motion pursuant to Fed. R. Civ. P. 59{e} to "Alter or Amend the Judgment
Entered in Favor of Defendants East Stroudsburg University, Robert Dillman, and Victoria
Sanders" with respect to Count I {Title IX} and Count II (42 U.S.C. § 1983) (Doc. 145), which
the Court interpreted as a motion for reconsideration and denied. (Docs. 162, 163).
On September 19,2014, Defendants filed a motion in limine requesting several
rulings, including that Plaintiffs be prohibited "from using or referring to the Outside Counsel
Reports" (also known as the PASSHE Report) (Doc. 168, 1{17). On October 3,2014, the
Court held a pre-trial conference in preparation for trial. On that date, the Court informed
the parties that it did not have the full PASSHE Report, i.e. any pages beyond the 24 pages
Plaintiffs provided in Document 113. Plaintiffs' counsel stated he would provide this Court
with the PASSHE Report "in its entirety" for purposes of the Court's determination of the
motion in limine. (Doc. 223, Pre-Trial Tr., Oct. 3, 2014, at 21). Plaintiffs' counsel
1 In October, 2010, District Court Judge James Munley granted the Defendants' motions to dismiss
the claims of Plaintiffs Brown, Murray, and Salter. {Doc. 48).

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subsequently delivered to the Court's Chambers a full copy of reports by Jeffrey B. Miceli,
Esq. dated September 26,2008 and February 26,2009, totaling 71 pages. Upon review of
the full document, the Court granted the defendants' motion to preclude the use and/or
reference to the Outside Counsel Reports. (Doc. 192).
Ajury trial was held from October 27,2014 through October 31,2014. After
deliberation, the jury found in favor of Defendant I. Sanders. Following the entry of
judgment, Plaintiffs filed a "Rule 59 Motion for a New Trial or Amending a Judgment" (Doc.
220) alleging numerous pre-trial and trial errors including a brief argument that the trial court
failed to consider the PASSHE Report in analysing whether Defendant Dillman was
deliberately indifferent for purposes of summary judgment and that the Court erred in
granting the motion in limine to preclude the PASSHE Report at trial. The Court denied
Plaintiffs' Motion in its entirety. (Doc. 268). Plaintiffs then filed an appeal with the Third
Circuit Court of Appeals on March 15,2016.
On July 6, 2016, Plaintiffs filed a "Motion for Relief from aJudgment and Order and
to Correct the Record." (Doc. 278). The Third Circuit thereafter stayed Plaintiffs/Appellants'
appeal pending this Court's disposition of the present motion.
II. ANALYSIS

Plaintiffs' "Motion for Relief from a Judgment and Order and to Correct the Record"
requests relief pursuant to Federal Rules of Civil Procedure 60(a) and 60(b) and Federal
Rule of Appellate Procedure Rule 10{e) (Doc. 278, 1[ 1).

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Plaintiffs assert that on April 24, 2016, "while preparing the Appendix for the brief to
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be filed in this matter," counsel contacted the Middle District of Pennsylvania's Clerk's Office

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office representative stated that docket 113 contained only 24 pages, rather than the

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complete document, and ended abruptly mid-sentence." (Id.). Plaintiffs now request that

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to inquire about Document 113.2 (Doc. 279, at 4). To Plaintiffs' "great surprise, a clerk's

the Court "(1) inquire into the filing error or mistake (60 (a)), and (2) to determine the impact
of the error upon the case (60 (b))." (/d. at 10). Plaintiffs' motion and accompanying brief
request that Document 113, filed on July 31, 2013, be amended to include the full PASSHE

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Report and that the Court either "relieve" the plaintiffs of, or reconsider or modify, "the final

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judgment and order of the summary judgment." (Id. at 13).

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"'The general purpose of Rule 60 is to strike a proper balance between the

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conflicting principles that litigation must be brought to an end and that justice must be
done.'" Harris v. Greater Cnty. Action Comm., 2016 WL 6236377, *1 (3d Cir. 2016) (quoting
Boughnerv. Sec'yofHealth, Educ. & Welfare, 572 F.2d 976,977 (3d Cir. 1978)). The Third

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Circuit has explained:
Rule 60{a) is concerned primarily with mistakes which do not really attack the
party's fundamental right to the judgment at the time it was entered. It permits
the correction of irregularities which becloud but do not impugn it. To that end
60(a) permits, inter alia, reasonable additions to the record. In contrast, Rule

60(b) is concerned with changing a final judgment, etc. In such a case the

moving party understandably shoulders a much heavier burden.

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2 Document

113 is Plaintiffs' exhibit submitted in opposition to Defendants' motions for summary
judgment which contains pages 1-24 of a Memorandum entitled "Isaac Sanders Investigation Summary"
written by Jeffrey Miceli. Esq., otherwise referred to as the PASSHE Report.
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u.s. v. Stuart, 392 F.2d 60,62 (3d Cir. 1968).

"[A] motion to correct aclerical mistake does not affect the finality of the original
judgment," Barris v. Bob's Drag Chutes & Safety Equip. Inc., 717 F.2d 52, 55 (3d Cir. 1983),
and a Rule 60{a) motion "can only be used to make the judgment or record speak the truth
and cannot be used to make it say something other than what originally was pronounced,"

In re Diet Drugs Prods. Uab. Utig., 200 F.App'x 95,103 (3d Cir. 2006) (quoting 11 Wright,
Miller &Kane, Federal Practice &Procedure § 2854 at 240-241). Thus, Rule 60(a) "does
not authorize the District Court to correct any and all wrongly decided substantive issues
after the fact." Id. at 104. The Fifth Circuit has articulated the application of Rule 60(a) as
follows, which the Third Circuit has cited approvingly:
In sum, the relevant test for the applicability of Rule 60(a) is whether the
change affects substantive rights of the parties and is therefore beyond the
scope of Rule 60(a) or is instead a clerical error, a copying or computational
mistake, which is correctable under the Rule. As long as the intentions of the
parties are clearly defined and all the court need do is employ the judicial
eraser to obliterate a mechanical or mathematical mistake, the modification
will be allowed. If, on the other hand, cerebration or research into the law or
planetary excursions into facts is required, Rule 60(a) will not be available to
salvage the government's blunders. Let it be clearly understood that Rule
60(a) is not a perpetual right to apply different legal rules or different factual
analyses to a case. It is only mindless and mechanistic mistakes, minor
shifting of facts, and no new additional legal perambulations which are
reachable through Rule 60(a).

MatterofW. Tx. Mktg. Corp., 12 F.3d 497, 504-505 (5th Cir. 1994). See In re Diet Drugs,
200 F.App'x at 104-105 {"We have approvingly quoted the Fifth Circuit's articulation of the

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test for Rule 60(a)'s permissible application")); see e.g. Pfizer v. Uprichard, 422 F.3d 124,

130 (3d Cir. 2005).
Plaintiffs' motion pursuant to Rule 60(a) requesting that Document 113, filed on July
31,2013, be amended to include the full PASSHE Report Rule will be denied. Rule 60(a)
only provides relief to Plaintiffs as of October, 2014. At that time, it is undisputed that this
Court received the full PASSHE Report from Plaintiffs, through their delivery of a hard copy
of the 71 pages to the Court's Chambers. As the University Defendants admit, "[g]iven th[e]
filing [of the Motion in Limine seeking to preclude the PASSHE Report], it would certainly
appear that the full PASSHE Report is part of the record for purposes of this appeal." (Doc.
283, at 6). Plaintiffs will therefore be allowed to place the full PASSHE Report of record to
reflect that the full Report was available to the Court as of October, 2014, for purposes of
ruling on the motion in limine. Allowing Plaintiffs this relief is simply a clarification of the
record, does not alter the factual record or require any new legal reasoning or the renewed
resolution of any factual or legal issues. Its filing further has no effect on the final judgment
in this matter. The filing of the full PASSHE Report of record as of October, 2014, is nothing
more than a reasonable and appropriate addition to the record to reflect what was before
this Court at that time.
Nonetheless, Rule 60(a) does not provide the proper avenue of relief for Plaintiffs'
request that the record be altered to reflect that the full report was, or should have been,
before the Court in July of 2013. This request by Plaintiffs requires more than the correction

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of "mindless and mechanistic mistakes, [and/or] minor shifting of facts".3 Thus, the Court
must turn to Federal Rule of Civil Procedure 60(b).

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Rule 60(b) "is broader in scope [than Rule 60(a)] and allows district courts to relieve

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a party from ajudgment on motion and upon such terms as are just for reasons of mistake,

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inadvertence, surprise, excusable neglect, and other reasons, including 'any other reason
justifying relief from the operation of the judgment.1II In re Diet Drugs Products, 200 F.App'x
at 103 n.5.

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Here, Plaintiffs' request "to determine the impact of the error upon the case (60 (b))"

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(Doc. 279, at 10), is in essence a request that the Court reconsider a summary judgment

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decision that this Court has already thoroughly addressed in the decision itself (see Doc.

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140), in an opinion on Plaintiffs' motion for reconsideration (Doc. 162), and in the Court's
post-trial memorandum opinion (Doc. 267). On summary judgment, the Court had before it
the first 24 of 31 pages of what Plaintiffs characterize as "absolutely critical since they
contain the relevant conclusions." (Doc. 279, at 6). Thus, the import of 7 pages omitted
from Plaintiffs' exhibit is at issue. Plaintiffs' motion and accompanying brief fail to identify in
any specific terms what difference these 7 pages would have made in this Court's analysis.

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Rather, Plaintiffs' brief articulates a general belief that the additional 7 pages would

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somehow have altered this Court's analysis of whether Dillman was deliberately indifferent

3 The fact

that the full report constitutes more than a minor alteration to the record should not be
interpreted as a statement that the Court's grant of summary judgment to the ESU Defendants would have
been different had the full report been before the Court.
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under Title IX. (See Doc. 279 (citing Docs. 110, 111 4, at 35,36; Doc. 252, at 8-10; Doc.

257, at 5-8)). Although Plaintiffs argue that the importance of the first 31 pages of the
PASSHE Report is that they "fully confirmed the allegations of all six current and former
students, which differed from the Dillman report" (Doc. 279, at 11), this argument lacks merit
given that the allegations of the students are included in the 24 pages which were submitted
to the Court on summary judgment. The Court compared that part of the PASSHE Report
with Dillman/Breese's investigation and report.
Although the Court does not hold the view that Plaintiffs merit any further analysis of
its summary judgment opinion, it notes that the entire Report was reviewed in connection
with Defendants' motion in limine to exclude its admission, and the contents of the 7 pages
could have made no difference to its analysis of whether Dillman was deliberately
indifferent.
First, the Court notes that the Report at issue is dated September 26,2008.
Plaintiffs' contention is apparently that Miceli's Report creates an issue of fact that Dillman
was deliberately indifferent when he found there was insufficient evidence to support
Bernard's allegations and formal complaint over eight months earlier in January of 2008. At
the time that Dillman made his decision, only Bernard had come forward with a formal
complaint to the University. In contrast, at the time Miceli's Report was issued, Ross,
Homas, and several other students had publicly come forward alleging inappropriate
4 Although Plaintiffs cite to Documents 110 and 111, it is clear they are referencing their briefs in
opposition to summary judgment, which are Documents 107 and 108.

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conduct by I. Sanders. 5 Therefore, MiceH's investigation stemmed from allegations by a
number of students and former students. Unlike at the time Breese prepared his report and
Dillman made his decision, by the time Miceli prepared his report, it was no longer a
situation of "he said/he said."6 Further, at the time Miceli issued the Report, I. Sanders had
already been placed on administrative leave as of July, 2008. (Doc. 113, at 4). Miceli's
report was for the purpose of "mak[ing] recommendations concerning Dr. Sanders'
continued employment at ESU." (Id. at 1).
Next, the 'first 24 pages of the Report consist of several detailed summaries of the
alleged facts and any supporting evidence for the various allegations by I. Sanders'
accusers and for I. Sanders' defenses. (See Doc. 113, at 1-13). Regardless of the fact that

5 As set forth in the Court's ·Undisputed Facts of Record" in the Memorandum Opinion granting the
motion for summary judgment of ESU Defendants:
Plaintiff Ross did not report his allegations to ESU until July of 2008, after Isaac Sanders
was placed on leave. (Doc. 94, 1J 138).

William A. Brown, III ... never reported his allegations to ESU until after he came forward

in the summer of 2008 through Attorney Murray. (Doc. 94, 1J 141).

Dejean Murray ... never reported his allegations to ESU until after he came forward in the

summer of 2008 through Attorney Murray. (Doc. 94, 1J 144).

Jerry Salter ... never reported his allegations to ESU until he came forward in the summer

of 2008 through Attorney Murray. (Doc. 94, 1J 147).

(Doc. 140, at 29).
6 See

Dep. of A. Breese:
Q: But aren't you saying that it was difficult-based upon what you see it was difficult to

determine whether anything happened?

Breese: Yes.

Breese: Well, from the way I-as facts as presented by that-you know, it was one person's

word against another.

Q: He saidlhe said?
Breese: Exactly.
(Dep. of Arthur Breese, 61 :18-62:1; 63:1-5).

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these pages were indisputably of record at the time the Court considered the motions for

summary judgment, Plaintiffs' underlying complaint appears to allege that the Court did not
review any of the PASSHE Report. However, a lack of citation to the Report in the Court's
memorandum opinion granting the University Defendants summary judgment is not, as
Plaintiffs speculate, because the Court did not review the portion of the report of record, but
rather because the Report was of little use in determining whether Dillman acted with
deliberate indifference, particularly in January of 2008. The question before the Court was
not, as Plaintiffs wish it was, whether the University Defendants conducted the most
vigorous and extensive investigation possible. The fact that Attomey Miceli conducted what
Plaintiffs believe was a more thorough investigation on a broader set of claims of
misconduct does not change the factual record presented to the Court evidencing what
actions were or were not taken by Dillman, as the decision maker, in making his final
determination in January, 2008. As the Court noted in its memorandum opinion denying
Plaintiffs' Rule 59 motion, with respect to the issue of deliberate indifference on summary
judgment, "it is unclear how the PASSHE report could possibly vitiate the undisputed
actions that were, or were not, taken in response to Bernard's complaint filed against I.
Sanders on August 27,2007." (Doc. 267, at 30).
The final 7 pages, not before the Court on summary jUdgment, contain the following
information: (1) a continuation of the prior findings regarding I. Sanders' financial conduct
(PASSHE Report, at 25-26); (2) a brief summary of the "Anthony Ross Payment" and
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"Questionable Expense Items" (id. at 27-28); (3) a "Summary of Findings Regarding

Improper Contact Allegations Involving Sanders and Present and Former ESU Employees,
Students and Donors" (id. at 28-29); (4) a "Summary of Conclusions Based upon the
Findings" (id. at 29-30); and (5) "Recommendations" (id. at 30-31).
With respect to I. Sanders' alleged financial misconduct, as previously explained by
the Court, Plaintiffs did not "establishO the extent to which, if any, afurther investigation by
Breese into I. Sanders' financial transactions would have provided additional probative
information in relation to the sexual harassment allegations" (Doc. 140, at 56), and a review
of the missing two pages of Miceli's Report on this issue offers no additional guidance. As
to the payment to Ross, the Court addressed this $811 payment in its summary judgment
opinion (Doc. 140, at 38,49-50). Miceli's findings of "questionable expense items" relate to
allegations that I. Sanders used University funds to "groom the complainants or for other
personal purposes." (PASSHE Report, at 27). These findings could not have altered this
Court's summary judgment decision given that the Court found that there were triable issues
of fact regarding whether Plaintiffs were subject to quid pro quo sexual harassment (Doc.
140, at 35-41). The "Summary of Findings Regarding Improper Contact Allegations
Involving Sanders and Present and Former ESU Employees, Students and Donors" relates
to I. Sanders' improper contact with these individuals following being placed on leave in
July, 2008. (PASSHE Report, at 28-29). 1hese allegations and findings therefore could not
have been before Dillman at the time he made his decision in January of 2008 and are not
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relevant to a determination of whether Dillman was deliberately indifferent at that time.

Finally, the "Summary of Conclusions Based upon the Findings" and "Recommendations"
(id. at 29-31) are merely that - a summary of the Report and a recommendation, in

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September 2008, that I. Sanders be terminated, neither of which provide new and relevant
information that could alter a finding by this Court that there was no triable issue of fact as to
whether Dillman was deliberately indifferent in January, 2008.
Afurther review of the contours of Rule 60(b) demonstrates that Plaintiffs are not
entitled to have the entire PASSHE Report considered as being filed as of July, 2013, or to
a reconsideration of this Court's summary judgment decision. Plaintiffs broadly request
relief under Rule 60(b)(1) and (6) (Doc. 279, at 10) without citation to any case law which
may support this requesl.7 Nor do Plaintiffs specify what portion of Rule 60(b)(1) they are
relying on, i.e. mistake, inadvertence, surprise, or excusable neglect. Regardless, although
"Rule 60(b) provides for relief from judgements involving 'mistake, inadvertence, surprise, or
excusable neglect' ... , relief under Rule 60(b) is 'extraordinary,' and 'may only be invoked
upon a showing of exceptional circumstances.'" U.S. v. Tuerk, 317 F.App'x. 251, 253
(quoting Mayberry v. Maroney, 529 F.2d 332, 336 (3d Cir. 1976)}. See also, Reform Party
of Allegheny Cnty. v. Allegheny Cnty. Dept. of Elections, 174 F3d 305, 311 (3d Cir. 1999)

(quoting Martinez-McBean v. GovY of Virgin Islands, 562 F.2d 908,911 (3d Cir. 1977)

7 Plaintiffs' entire brief in support of their motion contains only two case citations, both on the last
page of Plaintiffs' "Discussion and Analysis" section and neither of which directly addresses Rule 60. (See
Doc. 279, at 12).

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(under Rule 60(b)(6), relief "is available only in cases evidencing extraordinary

circumstances")); Coltec Indus., Inc. v. Hobgood, 280 F.3d 262,273 (3d Cir. 2002) ("Rule
60(b)(6) is a catchall provision which allows a court to relieve a party from the effects of an
order for any other reason justifying relief from the operation of the judgment. However, this
court has consistently held that the Rule 60(b)(6) ground for relief from judgment provides
for extraordinary relief and may only be invoked upon a showing of exceptional
circumstances.") (internal citations and quotation marks omitted).
Here, Plaintiffs have not pointed to any "extraordinary" or "exceptional"
circumstances such that relief should be provided under either Rule 60(b)(1) or 60(b)(6).
The fact that Plaintiffs waited two years to ask that the record be supplemented and the
Court reconsider, for the third time, its opinion granting summary judgment, this time on the
grounds that the full PASSHE Report was not of record when the Court issued its summary
judgment opinions and orders, and therefore portions and in particular 7 pages, were not
considered, negates Plaintiffs' ability to claim that a simple "mistake" or "inadvertence" is to
blame for their current issue.
Specifically, although Plaintiffs claim that on April 24, 2016, to their "great surprise"
they were informed that Docket 113 contained only 24 pages (Doc. 279, at 4), this "surprise"
is disingenuous. Plaintiffs were told at the pre-trial conference on October 3,2014 that
"[p]ortions [of the Report] were submitted, but there was [sic] large parts that were redacted

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of what we [the Court] had." (Doc. 223, Pre-Trial Tr., Oct. 3, 2014, at 7). That statement
was followed by Plaintiffs' counsel's explanation that the PASSHE Report:
was to be utilized by witnesses who testi'fied in depositions and the parties,
and for no other purpose. And that, in the depositions, what was supposed to
happen is, if we questioned a witness about the report and the sUbstance of
the report, that would be submitted to the Court under seal. So what would

happen, if I asked Harry Coleman [I. Sanders' counsel] about, Did you see

this report, so and so, it makes an allegation here, and he responds to that,

that response would be submitted -- it's admissible, but submitted to the Court

under seal so that the public would not see that. For example, when we

responded to the Motions for Summary Judgment, what ends up happening is
that, if we submitted the PASSHE Report, it would be in violation of the Court

Order. So we would redact it and submit portions that were - portions just for
the Court to see but not the public to see.

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(/d. at 8). Plaintiffs' counsel then stated that he IIhad always been under the impression,

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when [Plaintiffs] filed the motions and the report, that the Court had seen and read the

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PASSHE Report, but not in its totality, the totality of the report is 71 pages. The critical
portions of the report are from Page 1to 31, which reaches the conclusions." (Id. at 8-9). In
response to Plaintiffs' counsel's statement that lI[t]he testimony from the witnesses like Dr.
Dillman and whatever that we submitted, those were submitted to the Court under seal[;
a]nd, also, it was agreed in the depositions that the PASSHE report would be admitted," I.
Sanders' counsel made clear that "[n]o one, but no one admitted in discovery depositions
what would or would not be admissible at trial[; a]t least, if they did, no one spoke on my
behalf or for my client." (/d. at 9). In any event, Plaintiffs provided the Court with the
complete PASSHE Report, including the 31 "critical" pages, immediately following the pre­
trial conference. (See Letter from Nancy Abrams, Doc. 291-1, Ex. 8). This act leaves no
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question that as of October 3, 2014, Plaintiffs' counsel was aware that Document 113
consisted of 24 rather than 31 pages. To the extent that Plaintiffs have voiced a concem
that the PASSHE Report, as docketed at Document 113, consists of only 24 pages rather
than 31 pages, that presents a concern that they should have had as of October 3,2014
when they were told the Court did not have the entire Report and thereafter provided the
Court with a copy of the full Report. Plaintiffs were therefore put on notice as of 2014 that
the Court had only received the 'first 24 pages of the PASSHE report.
Furthermore, in the Court's memorandum opinion denying Plaintiffs' Rule 59 Motion,
issued in February, 2016, the Court made the following statement:
Only a portion of the September 26, 2008 Report written by Attorney Miceli
(Doc. 113) was submitted by Plaintiffs. (See Doc. 113). The Report ends
abruptly on page 24, in mid-sentence, and it is abundantly clear that there are
multiple pages missing. At [the October 3, 2014] pre-trial conference,
Attorney Murray admitted that he "had always been under the impression,
when [Plaintiffs] filed the motions and the report, that the Court had seen and
read PASSHE Report, not in its totality. The totality of the report is 71 pages.
The critical portions of the report are from Page 1 to 31, which reaches the
conclusions." (Pre-Trial Tr., Oct. 3, 2014, at 18, [Doc. 223, at 8-9]) (emphasis
added).
(Doc. 267, at 30-31 n. 12).
Plaintiffs thus not only had been aware of the state of the record for almost two years
at the time they filed the present motion in July, 2016, they were told again in February of
2016. Yet Plaintiffs took no action to remedy this alleged docketing issue prior to filing their
appeal in March, 2016 and now claim that they were not aware of the limited contents of
Docket 113 until April, 2016. Plaintiffs are belatedly asking the Court to attempt to discover
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why, over three years ago in July of 2013, and two years after being notified that the Court

had only ever received part of the PASSHE Report, the full report was not filed of record
when Plaintiffs' absence of diligence in timely pursuing this issue and their own
responsibility for the state of the docket is manifest.
Plaintiffs have had ample opportunity to request that the Court "correct" the record
prior to the filing of the present motion, including in their post-trial motion. The delay
occasioned by Plaintiffs' failure to do so was directly in their control. To claim that they were
surprised the Report was not fully of record or that the Clerk's office made a mistake of
which they were not aware until the filing of their appeal is insincere at best. Additionally, in
light of this Court's repeated notification to Plaintiffs that it did not have the full PASSHE
Report prior to October, 2014, to now request that the Court modify the record as of July,
2013, and vacate its grant of summary judgment to the University Defendants more than
two years after summary judgment was granted in their favor is highly and unfairly
prejudicial to these Defendants,S
To the extent that Plaintiffs are making assertions of legal error on the Court's part in
granting summary judgment to the University Defendants, these are issues for appeal
8 The prejudice to Defendants is further exacerbated by the fact that Robert Dillman, an integral
defendant in the determination of whether an issue of fact existed with respect to whether the University
Defendants were deliberately indifferent, has passed away.
As the Court previously found when denying Plaintiffs' Rule 59 Motion, because Plaintiffs were
properly notified of Dillman's death and the name of his personal representative and never chose to
substitute her as a party, Dillman must be dismissed pursuant to Federal Rule of Procedure 25. (Doc. 267,
at 38 n. 15). Therefore, because Dillman is no longer adefendant in this action, even if the Court were to
vacate its grant of summary judgment in the University Defendants' favor, it would only affect the judgment
with respect to Victoria Sanders, Kenneth Borland, and ESU.

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before the Third Circuit. See Marlinez-McBean, 562 F.2d at 911 ("courts must be guided by

the well established principle that a motion under Rule 60(b) may not be used as a
substitute for appeal. It follows therefore that it is improper to grant relief under Rule
60(b)(6) if the aggrieved party could have reasonably sought the same relief by means of
appeal.") {internal citations and quotation marks omitted).9
Finally, Plaintiffs' attempt to single-rnindedly blame the Clerk of Court's office for the
fact that the full Report was not filed in July of 2013 impermissibly attempts to absolve
Plaintiffs' counsel of any responsibility that they owe to the Court and their clients. By
merely placing the documents in the mail to the Clerk of Court's Office or handing them to a
person in the Clerk's Office, Plaintiffs cannot claim that they no longer have any duty to
ensure that documents are properly filed and that their brief in opposition to summary
judgement and all accompanying exhibits were complete. Even if the Court were to accept
that the Clerk's Office failed to file the reports in their entirety, Plaintiffs should have
checked the docket not only at the time that the reports were filed to ensure they were

9 For example, Plaintiffs' Reply briefs for the first time argue that this Court should reconsider its
ruling on the motion in limine precluding the PASSHE Report. (Doc. 291, at 2,5, 11-14; Doc. 293, at 2,5,
10-14). Not only need the Court not consider this request because it is raised for the first time in a Reply
brief, the request itself is entirely outside the scope of Rule 60 and has no relevance to the issue of whether
the PASSHE Report should be of record. Furthermore, the Court has already addressed the propriety of its
ruling on the motion in limine in denying Plaintiffs' Rule 59 motion. Whether the first PASSHE Report was
properly excluded at trial is an issue for the Third Circuit if raised on appeal.

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complete, but certainly after Plaintiffs were made aware of the fact that pages were missing
from their submission in October of 2014. 10
III. CONCLUSION

For the reasons set forth in this Memorandum Opinion, the Court will deny Plaintiffs'
"Motion for Relief from a Judgment and Order and to Correct the Record" (Doc. 278).
However, because a full copy of the reports by Jeffrey Miceli, Esq. dated September 26,
2008 and February 26,2009 were delivered by Plaintiffs' counsel to the Court immediately
following the pre-trial conference on October 3,2014, and these reports were relied upon by
this Court in its ruling on a motion in limine, a sealed copy of the reports may be filed of
record in this action as of October 3,2014.
A separate Order follows.

To the extent that Plaintiffs speculate that the Court did not review their Response to University
Defendants' Statement of Material Facts, because if it had, the Court would have seen that pages which
Plaintiffs referenced were missing from the record (Doc. 291, at 10; Doc. 293, at 10), Plaintiffs' contentions
are based on a false premise. It is not this Court's duty, upon reviewing the record and noting that certain
pages or documents referenced by a party are not attached, to notify that party of the absence of such
documentation. Rather, counsel has a responsibility to check that their submissions, including briefs and
all exhibits. are properly and fully appear on the record. To shift that burden to the Court promotes judicial
inefficiency and allows attorneys to engage in lazy and careless behavior while forcing a Court to review
that attorney's work not simply for the purposes of deciding the motion before it, but to oversee, correct,
and ensure compliance with. the attorney's professional and clerical duties.
10

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