John Doe v. Belmont Univ., 3:17-cv-01245

• Decision Date: 13 March 2019
• Docket Number: NO. 3:17-cv-01245,3:17-cv-01245
• Court: U.S. District Court — Middle District of Tennessee
• Parties: John DOE, Plaintiff, v. BELMONT UNIVERSITY, Defendant.

367 F.Supp.3d 732

John DOE, Plaintiff,

v.BELMONT UNIVERSITY, Defendant.

NO. 3:17-cv-01245

United States District Court, M.D. Tennessee, Nashville Division.

Filed March 13, 2019

Michelle B. Owens, Agee Owens & Cooper, LLC, McMinnville, TN, Lynn Allen Agee, Murfreesboro, TN, for Plaintiff.

Casey M. Parker, Timothy A. Palmer, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Nashville, TN, Samantha K. Smith, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Birmingham, AL, for Defendant.

MEMORANDUM OPINION

WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE

John Doe ("Doe"), a former Belmont University ("Belmont") student, brings this action arising out of Belmont's investigation of accusations of sexual misconduct made against him by a female student ("Student S.").¹ Doe brought suit under Title IX of the Educational Amendments Act of 1972, 20 U.S.C. § 1681 et seq. ("Title IX"), as well as Tennessee state law. On September 27, 2018, the Court dismissed all of Counts I, IV, IX, X, and most of Count II of the Complaint. (Doc. Nos. 40, 41.) Now before the Court is Belmont's Motion for Summary Judgment on all remaining allegations of the Complaint. (Doc. No. 44.) Doe has responded in opposition (Doc. No. 50) and Belmont has replied (Doc. No. 58). The parties have filed statements of facts and responses thereto (Doc. Nos. 51, 59) and numerous exhibits (Doc. Nos. 47-1 to 47-12, 48-1 to 48-9, 51-1 to 51-13, 63-1 to 63-12, 66-1 to 66-4.) In addition, Belmont has filed a Motion to Strike Exhibit A to Doe's Response (Doc. No. 60) that is opposed by Doe (Doc. No. 66). For the following reasons, Belmont's motions will be granted.

I. Belmont's Motion to Strike

The Court must first resolve Belmont's Motion to Strike because it will determine, in part, the evidence before the Court for purposes of summary judgment. Belmont moves to strike Exhibit A to Doe's response to the motion for summary judgment because (1) Doe did not timely identify that document without substantial justification and (2) his failure to do so resulted in harm when Doe relied upon that document to oppose Belmont's dispositive motion. Doe calls the motion "strange." It is not.

As discussed at length in the Court's Memorandum Opinion on Belmont's motion for judgment on the pleadings (Doc. No. 40), this case involves Belmont's Sexual Misconduct Policy, the relevant version of which was contained in the 2016-2017 Belmont Student Handbook ("Bruin Guide"). Page 21 of the Bruin Guide contains specific language that is relevant to the disposition of certain claims in this case. The Complaint, filed in 2017, did not attach the Bruin Guide, but Belmont attached it in PDF version to its Amended Answer prior to filing the motion for judgment on the pleadings. (Doc. No. 21-2.) Exhibit A to Doe's summary judgment response is page 21 of the Bruin Guide that is slightly different than the PDF version produced by Belmont so long ago. Doe contends that this is the online version (i.e., "magazine version") of the Bruin Guide that he and his counsel have relied on since 2016. But Exhibit A is a December 8, 2018 screenshot of the online version of the Bruin Guide. (See Doc. No. 63-1.) Doe has never before disclosed the purported existence of any alternate version of Page 21 or any theory of liability relying on it. Doe argues that, because Belmont should be familiar with its own materials, Doe cannot be at fault for not disclosing his purported reliance on an alternate version of the Bruin Guide prior to his response to the motion for summary judgment. As discussed below, the Court finds very significant problems with Doe's position.

Even if Doe had put Belmont on notice that he generally intended to rely on the Sexual Misconduct Policy, at no point prior to the response to the motion for summary judgment did Doe or his counsel disclose or describe the purported alternate page 21 (i.e., Exhibit A) or discuss any legal theories based upon purported differences between versions of the Bruin Guide in existence in 2016-2017. Doe did not identify the purported alternate page 21 in his initial disclosures or in response to interrogatories concerning bases for liability. (Doc. No. 61.) Moreover, in the briefing on the motion for judgment on the pleadings, Doe made no mention of any purported reliance on a purported alternate version of the 2016 Bruin Guide even though the text of the Sexual Misconduct Policy was at issue. (Doc. No. 26.)

These failures to disclose in discovery and motion practice were compounded when Doe was deposed. Counsel for Belmont asked Doe numerous questions regarding Belmont's handling of his investigation. (Doc. Nos. 61, 71.) At no point did Doe refer to the purported alternate Exhibit A specifically (or even the "magazine version" of the Bruin Guide generally), nor did Doe espouse a theory of liability based upon either. (Id.) This was particularly evident regarding Doe's negligence claims, where Exhibit A has the most potential impact. At his deposition, Doe responded that, aside from the sanction he received, he could not think of any other asserted breach of care. (Doc. No. 71.) In the response to the motion for summary judgment, citing Exhibit A for the first time, Doe now argues a breach of care related to purportedly different versions of page 21 of the Bruin Guide. (See Doc. No. 50 at 18-20.)

Equally compelling is that Belmont has – to put it mildly – substantially undermined Doe's claim that Exhibit A (i.e., the screenshot of page 21 of the Bruin Guide taken in December 2018) was in existence in 2016. Counsel for Doe submitted a Declaration asserting, without any corroboration, that Exhibit A is "consistent in all ways" with the Bruin Guide in use in 2016-2017. (Doc. No. 50-2.) Belmont, however, has offered the sworn Declaration of Lori Chadoin, the current Director of Title IX Compliance and Prevention Programs, stating that Exhibit A contains revised language that was authored in August of 2018 and published online in October of 2018 and thus could not have appeared before then for reliance by Doe or his counsel in 2016-2017. (Doc. No. 62-2.) Ms. Chadoin, who supports her declaration with email correspondence and explanatory references to specific provisions, therefore states her view that the Declaration of Doe's counsel that Exhibit A is "consistent in all ways" with the 2016-17 version is necessarily "false." (Id. at 2.) Specifically, Ms. Chadoin explains that (1) she authored the relevant changes to the Sexual Misconduct Policy in August of 2018, (2) the changes were implemented "on or about October 1, 2018," and (3) after conducting a search, "there is no record of any [relevant] change ... prior to my change in August of 2018."² (Id. at 3-4.) The Declaration concludes that "[i]t is not possible that plaintiff or his counsel relied upon the current version ... of Belmont's Sexual Misconduct Policy [i.e., Exhibit A] in this case because the language in question did not exist in the 2016-2017 timeframe."³ (Id. at 4 (emphasis added).)

Federal Rule of Civil Procedure 26(a)(1)(A)(ii) requires a party to timely disclose "all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment." The Federal Rules also require that a party who has made a disclosure under Rule 26(a), or who has responded to an interrogatory, request for production, or request for admission, must supplement or correct its disclosure or response "in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing." Fed. R. Civ. P. 26(e)(1)(A). "If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1).

" Federal Rule of Civil Procedure 37(c)(1) requires absolute compliance with Rule 26(a), that is, it "mandates that a trial court punish a party for discovery violations in connection with Rule 26 unless the violation was harmless or is substantially justified." Roberts ex rel. Johnson v. Galen of Va., Inc., 325 F.3d 776, 782 (6th Cir. 2003) (citing Vance v. United States, No. 98-5488, 1999 WL 455435, at *3 (6th Cir. June 25, 1999) ); see also, e.g., Salgado v. General Motors Corp., 150 F.3d 735, 742 (7th Cir. 1998) (noting that "the sanction of exclusion is automatic and mandatory unless the sanctioned party can show that its violation of Rule 26(a) was either justified or harmless"). In order to assess whether a party's omitted or late disclosure is "substantially justified" or "harmless," the Court of Appeals for the Sixth Circuit considers five factors: (1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence; and (5) the non-disclosing party's explanation for its failure to disclose the evidence.⁴ Howe v. City of Akron, 801 F.3d 718, 748 (6th Cir. 2015) (citing Russell v. Absolute Collection Servs., Inc., 763 F.3d 385, 396-97 (4th Cir. 2014) ).

The Court takes these factors in order, beginning with the surprise to Belmont. Belmont essentially maintains that Doe's reliance on Exhibit A in the response to the motion for summary judgment is a complete and unfair surprise because (1) during initial disclosures or discovery, Doe never produced a copy of page 21 from a 2016-2017 magazine version of the Bruin Guide with purportedly different language than the PDF version of the Bruin Guide produced by...