Case Information
*1 Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM: [*]
Plаintiff-Appellee John Kermode was a tenured professor at the University of Mississippi Medical Center who was discharged for his alleged harassment of his former graduate student mentee. Kermode availed himself of the academic appeals process and then filed suit in federal court against the Medical Center, the Mississippi Institutions of Higher Learning, and various faculty members for federal due process violations under 42 U.S.C. § 1983 and for supplemental state lаw claims sounding in tort and contract. The parties dispute whether the state defendants waived sovereign immunity by defending the suit on the merits; whether Kermode forfeited his waiver argument by failing to raise it until after the district court granted summary judgment to the defendants; whether the district court erred in adjudicating the supplemental claims despite having dismissed most of the federal claims on immunity grounds; and whether the district court abused its discretion in denying Kermode’s discovery motion regarding the alleged sрoilation of electronic evidence. We affirm.
I.
John Kermode was a tenured professor of Pharmacology and Toxicology at the University of Mississippi Medical Center who was terminated due to his alleged harassment of Ms. Sang Won Park, a graduate student in his laboratory. Problems in the mentor-mentee relationship between Kermode and Park emerged in late 2007 when Kermode invited Park to attend an academic conference with him. Kermode’s wife beсame jealous and confronted Park. Kermode withdrew Park’s invitation to attend the conference, prompting Park’s decision to leave Kermode’s lab and sever their professional relationship. Kermode made numerous attempts to change Park’s mind, both in person and via email; he begged her to return to his laboratory and offered various incentives for her to do so in the form of authorship credits and other professional opportunities. Park repeatedly requested that he cease communicating with her about the matter, but Kermode persisted, and Park asked other faculty members to intervene.
The chair of the department, Dr. Jerry Farley, warned Kermode that his actions could be characterized as harassment and instructed him several times to honor Park’s wishes that he cease communicating with her. Kermode continued to communicate via email with Park, and he sent her a message implying that he would rescind her authorship credit on one of his laboratory’s manuscripts unless she began treating him more nicely. Farley attested that he felt the quid pro quo tenor of this email was inappropriate and unprofessional. This message, among other factors, led Farley to bring the matter to the attention of the University. The University investigated the allegations of harassment and ultimately decided to terminate Kermode with pay pending the outcome of a hearing bеfore the Academic Freedom and Faculty Responsibility Committee. After the hearing, in which Kermode was represented by counsel and allowed to present evidence on his behalf, the Committee found that Kermode had harassed Park but recommended against termination. Nevertheless, the final decision regarding employment action was vested in the Vice-Chancellor, Dr. Daniel Jones, who upheld the decision to terminate Kermode. Kermode apрealed the decision to the Mississippi Institutions of Higher Learning (MIHL), the state board that oversees Mississippi’s public universities, which also affirmed the termination.
Kermode filed suit in the United States District Court for the Southern District of Mississippi against the Medical Center, the MIHL, and Farley in his individual and official capacities. Kermode amended his complaint to add official-capacity claims against Jones and two other faculty members involved with the termination proceеdings, Drs. Helen Turner and James Dorn. [1] Kermode asserted federal causes of action under § 1983 for alleged due process violations and Mississippi claims for breach of contract, breach of the duty of good faith and fair dealing, intentional infliction of emotional distress, invasion of privacy, tortious interference with a contract, defamation, and civil conspiracy. He argues that Park’s accusations of harassment were purely vindictive, that the prоceedings were unfounded, and that the Medical Center denied him a fair hearing.
The defendants filed an answer to the complaint in which they asserted, among other defenses, the affirmative defense of Eleventh Amendment or sovereign immunity. The district court set a discovery and mediation schedule, with trial to be held six months later in June of 2011. The parties exchanged discovery on the timeline set by the district court. Meanwhile, the MIHL filed a motion to dismiss based on Eleventh Amendment immunity, which the district court granted. The Medical Center did not file a motion to dismiss on sovereign immunity grounds. Farley filed a motion to dismiss based on qualified immunity and state law immunity, which the district court granted in part as to the official-capacity claims against him. Kermode does not challenge either ruling on appeal. The district court denied Farley’s motion to dismiss as to the supplemental state law claims against him in his individual capacity for invasion of privacy, intentional interference with a contract, defamation, and civil conspiracy. After Kermode amended his complaint to add the other faculty member defendants, the defendants filed an amended answer asserting materially the same defenses as they previously asserted, including sovereign immunity.
At the end of the discovery period, the remaining defendants (the Medical Center and the faculty member defendants) filed a motion for summary judgment, again asserting, inter alia, sovereign immunity. The district court granted thе motion as to Kermode’s claims against the Medical Center and against the faculty members for money-damages claims asserted against them in their official capacities on sovereign immunity grounds. The district court [2] also granted summary judgment as to the remaining individual-capacity claims against Farley, finding on the merits that Kermode failed to establish a genuine issue of material fact as to his invasion of privacy, intentional interference with a contract, defamаtion, and civil conspiracy claims. The district court denied summary judgment as to Kermode’s due process claims in which he sought prospective injunctive relief against the faculty members in their official capacities under Ex parte Young , 209 U.S. 123 (1908) (his “ Ex parte Young claims”).
Kermode then filed a motion to alter or amend the judgment under Rule 59(e) in which he argued for the first time that the state defendants waived their immunity by evidencing an intent to defend the suit on the merits because, Kermode claimed, they failed to assert sovereign immunity in their answer or in a Rule 12 motion and because they engaged in discovery. The district court denied the motion, finding that Kermode forfeited the argument by failing to raise it in his opposition to summary judgment. Kermode then filed a motion under Federal Rule of Civil Procedure 54(b) to certify the partial summary judgment for appeal. The district court granted the Rule 54(b) motion and stayed proceedings on the only remaining claims, those under Ex parte Young , until resolution of the present appeal.
II.
The district court had federal question jurisdiction under 28 U.S.C. § 1331
аnd supplemental jurisdiction over Kermode’s Mississippi tort and contract
claims under 28 U.S.C. § 1367. This Court has jurisdiction over the final
judgments of district courts. 28 U.S.C. § 1291. State sovereign immunity
represents a jurisdictional limit on the federal courts unless a state has waived
or otherwise surrendered its immunity.
E.g.
,
Idaho v. Coeur d’Alene Tribe of
Idaho
,
The district court entered its order certifying its partial grant of summary judgment as the final judgment against Kermode on December 2, 2011. See F ED . R. C IV . P. 54(b). Kermode filed his notice of appeal on December 28, 2011, fewer than 30 days after thе district court’s Rule 54(b) order, making his appeal timely. See F ED . R. A PP . P. 4(a)(1)(A).
III.
We review de novo whether a state is entitled to sovereign immunity. E.g. ,
Hale v. King
,
A.
Kermode does not dispute that these defendants are entitled to invoke
sovereign immunity, but contends they waived or surrendered their immunity
by failing to timely invoke it. We agree that the Medical Center and the official-
capacity faculty defendants are state entities entitled to invoke sovereign
immunity against suits by individuals in federal court. Sоvereign immunity
extends to agencies of the state government and “alter egos” or “arms of the
state.”
See, e.g.
,
Cent. Va. Cmty. Coll. v. Katz
,
This Court has held that the University of Mississippi is an arm of the
state entitled to raise the defense of sovereign immunity because, under the
University’s charter, the State is “inextricably involved in all facets of the Board
[of Trustees’] operation of the University.”
Jagnandan v. Giles
,
In addition, suits against state officers in their official capacities, rather
than their personal capacities, are treated as suits against the state entity itself.
It “is well established [that] ‘a suit against a state official in his or her official
capacity is not a suit against the official but rather is a suit against the official’s
office’” and that therefore such officials are entitled to invoke the state’s
sovereign immunity.
Union Pac. R.R.
,
B.
Kermode argues that the state defendants waived their immunity by
evidencing an intent to defend the suit on the merits. Even if sovereign
immunity applies, the state may still waive immunity and consent to suit in
federal court.
See, e.g.
,
Atascadero State Hosp. v. Scanlon
,
empowered to consider an Eleventh Amendment [sovereign immunity] claim
raised for the first time on appeal, [the court] must consider whether [a state’s]
failure to raise the issue below effectively waived its claim to immunity.”
Neinast v. Texas
,
We have indicated that a state’s delay in raising the defense of sovereign
immunity at the trial level may constitute waiver if it evidences an intent to
defend the case on the merits.
See, e.g.
,
Neinast,
However, we have never held that a state has waived its sovereign immunity when it asserted sovereign immunity as an affirmative defense in its answer and again in its motion for summary judgment. A defendant’s answer is virtually the earliest time in which it may raise such a defense. Although the state defendants did not raise their sovereign immunity in a Rule 12 motion, they nevertheless put Kermode on notice from the very beginning that they intended to move to dismiss on those grounds. In addition, they vigorously reasserted the defense in their motion for summary judgment. Under the circumstances, we cannot conclude that the state defendants engaged in “gamesmanship” or otherwise evidenced an intent to waive their sovereign immunity in this case. The district court was therefore correct to grant the state defendants’ motion for summary judgment based on sovereign immunity.
In his briefing and during oral argumеnt, Kermode insisted that the
defendants did not assert their sovereign immunity in their answers but instead
waited until their motion for summary judgment. If this were true then it would
be a different situation, and one not yet addressed by our precedent.
Cf. Int’l
Truck & Engine Corp.
,
IV.
We next turn to Kermode’s alternative argument that the district court,
having dismissed his claims against the state defendants on sovereign immunity
grounds, erred in exercising supplemental jurisdiction to adjudicate his
individual-capacity claims against Dr. Farley. Federal courts may exercise
supplemental jurisdiction over state law claims when there is а federal claim
properly before the court and a state claim that arises from a “common nucleus
of operative fact.”
United Mine Workers of Am. v. Gibbs
, 383 U.S. 715, 725
(1966)
; see
28 U.S.C. § 1367(a);
Enochs v. Lampasas Cnty.
,
A.
Kermode argues that the Supreme Court’s holding in
Pennhurst State
School & Hospital v. Halderman
, 465 U.S. 89 (1984), requires that the
supplemental state law claims be dismissed along with the federal claims. We
address this issue de novo.
See Hook
, 38 F.3d at 780. In
Pennhurst
, the
Supreme Court held thаt sovereign immunity barred federal courts from hearing
state law claims brought in federal court against state entities and state officers
sued in their official capacities, including claims for injunctive relief under state
law.
See Pennhurst
,
As we explained above, the faculty members sued in their official capacities for monetary relief were entitled to invoke the state’s sovereign immunity, and the district cоurt correctly dismissed the claims against them on those grounds. However, that does not mean that those defendants were entitled to invoke sovereign immunity for all of Kermode’s claims. There are two well-settled ways in which a plaintiff may sue state officers without implicating the state’s sovereign immunity: one is to file suit against the state officers in their official capacities in which the only relief sought is federal prospective injunctive relief under Ex parte Young ; the other is to file suit against the state [6]
officers in their individual capacities for money damages to be paid by the defendant individually and not by the state. Because neither Ex parte Young [7]
claims nor individual-capacity claims implicate a state’s sovereign immunity, Pennhurst , which applies only to defendants entitled to sovereign immunity, is inapplicable to those claims.
Kermode’s reliance on Pennhurst is misplaced. His supplemental state law claims were asserted against Dr. Farley in his individual capacity. He thus sought to impose personal liability on Farley rather than on the Medical Center, and Farley was not entitled to raise the defense of sovereign immunity. See Graham , 473 U.S. at 165. Pennhurst , which involved a suit against a state officer in his official capacity, is therefore inapposite. See Pennhurst , 465 U.S. at 121; McIntosh , 540 F.3d at 325 n.13. Kermode’s supplemental state law claims are not barred under Pennhurst , and, accordingly, the district court was not obligated to dismiss the supplemental individual-capacity claims against Farley despite having dismissed other claims on sovereign immunity grounds.
B.
Having found
Pennhurst
inapplicable, we assess the propriety of the
district court’s assertion of jurisdiction over the state law claims with reference
to the basic rule governing supplemental jurisdiction—i.e., whether the state
and federal claims have a “common nucleus of operative fact,”
Gibbs
, 383 U.S.
at 725, which we review for abuse of discretion,
Enochs
,
Kermode’s federal constitutional claims against the other faculty members
under
Ex parte Young
were and are still pending in the district court, and those
claims are not barred by sovereign immunity.
See, e.g.
,
Va. Office for Prot. &
Advocacy
,
On appeal, Kermode argues only that the district court lacked jurisdiction to rule on his supplemental claims, not that the district court erred on the merits of those claims. Our review is therefore limited to the jurisdictional issue, and we affirm.
V.
Finally, Kermode argues that the district court erred in denying his motion for discоvery sanctions for the defendants’ alleged spoliation of evidence. Kermode sought various remedies, including requests for entry of default judgment and an adverse evidentiary inference against the defendants, as sanctions for the defendants’ alleged spoliation of emails exchanged by Kermode and Park. The district court denied Kermode’s motion because it was untimely and because Kermode failed to establish that any evidence had been destroyеd in bad faith. Although Kermode has appealed the district court’s ruling on his motion, we conclude that the ruling was not within the scope of the district court’s certification under Rule 54(b), which certified for appeal the district court’s disposal of “all of [Kermode’s] claims against UMMC, as well as his claims for damages against individual defendants Jerry Farley, James Dorn, Daniel Jones, and Helen Turner.” As the present appeal is interlocutory, we decline to reach the district court’s discovery rulings, but we do so without prejudice to Kermode’s ability to reassert the issue on appeal taken from a final judgment in this case.
VI.
For the foregoing reasons, we AFFIRM the district court’s order granting partial summary judgment to the Medical Center and the individual defendants.
Notes
[*] Pursuant to 5 TH C IRCUIT R ULE 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IRCUIT R ULE 47.5.4.
[1] At times, we refer to the Medical Center and the official-сapacity defendants collectively as the “state” or the “state defendants.” Only Dr. Farley was sued in both his individual and official capacities, and we refer to the individual-capacity claims against him separately.
[2] As explained more fully below, the faculty members are state officers who, when sued
in their official capacities, are entitled to raise the same sovereign immunity defense as the
Medical Center. It “is well established [that] ‘a suit against a state official in his or her official
capacity is not a suit against the official but rather is a suit against the official’s office’” and
that therefore the official-capacity defendants are entitled to invoke sovereign immunity.
Union Pac. R.R. v. La. Pub. Serv. Comm’n
,
[3] Defendants urge two kinds of immunities, “sovereign immunity” and “Eleventh
Amendment immunity.” Because there is no substantive difference between them, however,
we use the term, “sovereign immunity” in our analysis.
See Meyers ex rel. Benzing v. Texas
,
[4] In addition, Eleventh Amendment immunity may be abrogated for certain civil rights
litigation,
see Seminole Tribe of Fla. v. Florida
,
[5] Because we resolve the question of sovereign immunity waiver on the merits, we need not reach the defendants’ alternative contention that Kermode forfeited his argument that the defendants waived their immunity as a result of his failure to raise the issue until his Rule 59(e) motion to alter or amend the judgment.
[6]
See, e.g.
,
Bd. of Trustees v. Garrett
,
[7] Unlike official-capacity claims, individual-capacity claims “seek to impose personal
liability[,]” not liability against a state entity.
Graham
, 473 U.S. at 165. Because a suit
against an officer sued in his or her individual capacity is not a suit against the state itself,
sovereign immunity is not a defense in such individual-capacity suits—unless an individual-
capacity claim in effect seeks money from the state rather than the individual defendant.
See,
e.g.
,
Graham
,