DeBose v. USF Board of Trustees et al

RESPONSE in Opposition re MOTION for sanctions

M.D. Fla.July 9, 2018

IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION ANGELA DEBOSE, Plaintiff, v. UNIVERSITY OF SOUTH BOARD OF TRUSTEES, UNIVERSITY OF SOUTH FLORIDA, AND ELLUCIAN, L.P., Defendants. ___________________________________/ CASE NO. 8:15-cv-02787-EAK-AEP DEFENDANT ELLUCIAN COMPANY L.P.’S RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION FOR SANCTIONS Former Defendant ELLUCIAN COMPANY L.P. (“Ellucian”), 1 by and through its undersigned counsel, hereby files its response in opposition to Plaintiff ANGELA DEBOSE’S (“Plaintiff”) Motion for Sanctions (Dkt. No. 280; Motion for Sanctions). I. INTRODUCTION As set forth in the pleadings and in more detail below, Ellucian provided software and related services to the University of South Florida (“USF”) pursuant to a contract. Ellucian never denied the existence of a contract between the parties – and refers to the contractual relationship one or more times in its Answer, other pleadings, and discovery responses. The contract relevant to this dispute was produced in discovery. While Plaintiff moved to compel based on other alleged deficiencies, no motion to compel against Ellucian sought production of any contract, and the order deciding the discovery motions directed Ellucian to produce a limited set of documents that included Plaintiff’s name, which Ellucian did. This Court knew there was a 1 All counts against Ellucian were dismissed with prejudice by this Court’s September 27, 2017 Order (Dkt. No. 210). At this Court’s direction (see Dkt. No. 284), Ellucian hereby submits its brief in opposition to Plaintiff’s Motion for Sanctions. Case 8:15-cv-02787-EAK-AEP Document 286 Filed 07/09/18 Page 1 of 13 PageID 4477 2 contract between the parties when it decided the parties’ summary judgment motions, based on the record. Nonetheless, this Court granted Ellucian’s summary judgment motion because the existence or non-existence of a contract between the parties is irrelevant – what matters is whether there was a contract between the parties establishing they would work together to effectuate Plaintiff’s termination, and there was none. Whether Plaintiff now has different contract(s) between the parties related to Ellucian’s services as a software vendor is completely immaterial. Put differently, what Plaintiff had to prove to survive summary judgment was the existence of an agreement between the parties to get Plaintiff fired, not simply the existence of a contract between the parties generally. This she did not do. II. PROCEDURAL HISTORY On December 11, 2015, Plaintiff filed a 20-count Complaint against Ellucian and the University of South Florida Board of Trustees (“USFBOT”) stemming from alleged discriminatory and retaliatory actions related to her alleged wrongful termination from employment as the Registrar of the University of South Florida (“USF”). The operative complaint is the Third Amended Complaint (see Doc. No. 45), which alleges 10 causes of action –only two of which were against Ellucian: tortious interference with a business relationship (i.e., Ms. DeBose’s employment relationship with USFBOT) (Count VIII) and civil conspiracy (Count X). Specifically, Plaintiff alleged Ellucian, a company that licenses software and provides related services to colleges and universities, provided USFBOT a Services Engagement Report for a Post Implementation Assessment (“Ellucian Report”) pursuant to a contract for consulting services, which ultimately caused her termination. See ¶¶ 75, 83, 205, 230. Third Am. Compl. Ellucian denied Plaintiff’s allegations and asserted defenses. See Doc. No. 46. Case 8:15-cv-02787-EAK-AEP Document 286 Filed 07/09/18 Page 2 of 13 PageID 4478 3 On January 31, 2017, Ellucian filed a Motion for Summary Judgment (Dkt. No. 68), arguing the undisputed record established Ellucian did not conspire with USFBOT regarding Ms. DeBose’s termination of employment and did not otherwise intentionally and unjustifiably interfere with Ms. DeBose’s relationship with USFBOT. Based on the foregoing, Ellucian argued, as a matter of law, this Court should enter summary judgment in favor of Ellucian on both counts against it. See generally Motion for Summary Judgment. On September 27, 2017, this Court entered an Order (Dkt. No. 210; Order) granting Ellucian’s Motion for Summary Judgment as to all remaining claims Plaintiff filed against Ellucian. With respect to Plaintiff’s tortious interference claim against USF and Ellucian, this Court found “despite DeBose’s plethora of allegations concerning USF and Ellucian’s improper behavior,” the record contained absolutely no evidence “either party intentionally interfered with Plaintiff’s existing or prospective rights of employment.” See Order at 23. Regarding Plaintiff’s civil conspiracy claim, this Court found Plaintiff failed to establish one of the elements of her civil conspiracy claim, namely, the existence of an agreement between Ellucian and USF to include information critical of the Registrar’s Office in the Ellucian Report. See id. at 25. With respect to this finding, this Court noted the following: There are no emails, letters, or alleged oral statements that show any anti-DeBose collusion between USF and Ellucian. Any belief by DeBose that such collusion occurred is pure conjecture and has not been properly supported for purposes of opposing the Defendants’ summary judgment motions. Id. Accordingly, this Court granted Ellucian’s Motion for Summary Judgment effectively dismissing Ellucian from the instant action. See id. at 26. In the instant Motion for Sanctions, Plaintiff asserts Ellucian and USBOT knowingly asserted a false and meritless defense to the civil conspiracy charge and withheld evidence from Case 8:15-cv-02787-EAK-AEP Document 286 Filed 07/09/18 Page 3 of 13 PageID 4479 4 the Court. See generally Motion for Sanctions. First, Plaintiff contends that, in their answers, both Defendants improperly “denied the existence of contracts or agreements between USFBOT and Ellucian, including the Ellucian Report.” Id. at 1. Plaintiff maintains these denials were inappropriate and sanctionable under Rules 11 and 37, Federal Rules of Civil Procedure, because she recently obtained, through a third party public records request, contract documents that exist between USF and Ellucian. See id. at 6. Second, Plaintiff alleges, after Ellucian and USFBOT knowingly asserted this false and meritless defense, they furthered their fraud upon the Court by failing, during discovery, to produce any signed, executed contract or agreement that existed between USFBOT and Ellucian. See id. at 2-3. While Plaintiff acknowledges she received a document titled “Degree Works Post-Implementation Assessment Scope of Services,” she maintains this production was in bad faith, because this document does not contain basic contract terms or signatures. See id. at 2. Third, Plaintiff raises the serious charge that counsel for Ellucian “lied repeatedly to the federal magistrate judge [when counsel for Ellucian asserted] that Ellucian had produced all relevant documents.” Id. at 3-4. Plaintiff maintains that, as a result of the foregoing acts, Ellucian and USFBOT were able to fraudulently obtain summary judgment on Plaintiff’s civil conspiracy claim. Plaintiff requests this Court impose sanctions pursuant to Rules 11 and 37, Federal Rules of Civil Procedure, 28 U.S.C. § 1927, and/or the Court’s inherent authority, including but not limited to reinstating her civil conspiracy claim against Ellucian and USFBOT. See id. at 5. As set forth below, Plaintiff’s motion should be denied, and this Court should consider using its discretion to impose sanctions against her. Simply put, Plaintiff is now objecting – again, belatedly – that Defendants’ document production during the discovery period was deficient because she recently has purportedly obtained copies of contract documents between Case 8:15-cv-02787-EAK-AEP Document 286 Filed 07/09/18 Page 4 of 13 PageID 4480 5 the Defendants that she claims were sought and improperly withheld from her. However, even if that were true – which it is not – nowhere in those contract documents is there an iota of evidence that Defendants conspired with one another to unlawfully terminate Plaintiff’s employment. III. ARGUMENT Rule 11 provides for the imposition of sanctions when a filing is frivolous, legally unreasonable, without factual foundation, or is brought for an improper purpose. Specifically, Rule 11(b) provides: By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; [and] (3) the factual contentions have evidentiary support or, if specifically so identified, will likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or lack of information. Fed.R.Civ.P. 11(b). Rule 11 imposes an affirmative duty on each attorney to conduct a reasonable inquiry into the viability of a pleading before it is signed. See Collins v. Walden, 834 F.2d 961 (11th Cir. Case 8:15-cv-02787-EAK-AEP Document 286 Filed 07/09/18 Page 5 of 13 PageID 4481 6 1987); Touron v. Dade County, Florida, No. 86-2547-CIV, 119 F.R.D. 41, 1988 U.S. Dist. LEXIS 1217, *43-44 (S.D. Fla. 1988). In addition, an attorney is required “to perform a reasonably thorough and objective investigation of the facts before asserting them as bases for [the] causes of action.” Byrne v. Nezhat, 261 F.3d 1075, 1115 (11th Cir. 2001); Fed R. Civ. P. 11(b). Once a pleading is filed, there also is a continuing duty on the part of counsel to ensure there continues to be a reasonable factual and legal basis for the claims made in the pleading. Rhinehart v. CBE Group, Inc., 714 F. Supp. 2d 1183, 1186 n. 5 (M.D. Fla. 2010) (emphasizing “counsel’s obligations are not measured solely at the time of filing because a party or counsel has a continuing obligation to advise the court of any changes regarding the veracity of information before the court”) (emphasis added). Courts utilize a two-prong inquiry to determine whether a filing is frivolous and subject to Rule 11 sanctions: (1) whether the challenged contention is objectively frivolous; and, if so, (2) whether a reasonable inquiry would have revealed the contention as frivolous. See, e.g., Jones v. Int’l Riding Helmets, Ltd., 49 F.3d 692, 695 (11th Cir. 1995). As to the first prong, the objective standard for testing conduct under Rule 11 is “reasonableness under the circumstances.” See Baker v. Alderman, 158 F.3d 516, 524 (11th Cir. 1998). Sanctions for an objectively frivolous claim are proper in circumstances where: (1) the party files a pleading that has no reasonable factual basis; (2) the party files a pleading that is based upon a legal theory that has no reasonable chance of success and that cannot be advanced as a reasonable argument to change existing law; or (3) the party files a pleading in bad faith for an improper purpose. Id. If the first prong of the analysis is met, then the court will move to analyze the second prong, which focuses on whether the non-moving party should have been aware the claim was frivolous. Id. With respect to the second prong, the court will look to the amount of time that Case 8:15-cv-02787-EAK-AEP Document 286 Filed 07/09/18 Page 6 of 13 PageID 4482 7 was available for investigation before filing the document in question, whether the signing attorney had to rely on a client for the underlying facts at issue, and whether the document was based upon a plausible view of the law. See Jones, 49 F.3d 692 at 695. A district court also has the authority to issue sanctions for attorney misconduct under 28 U.S.C. § 1927, and this authority is either broader than or equally as broad as the district court’s authority to issue a sanctions order under its inherent powers. See Amlong & Amlong, P.A. v. Denny's, Inc., 500 F.3d 1230, 1239 (11th Cir. 2007) (citing Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1178 n. 6 (11th Cir. 2005)). Section 1927 provides, “[a]ny attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.” 28 U.S.C. § 1927. The plain language of the statute requires the following conditions be met before a district court may award sanctions: (1) “the attorney must engage in ‘unreasonable and vexatious’ conduct; (2) “[t]hat ‘unreasonable and vexatious’ conduct must be conduct that ‘multiplies the proceedings’”; and (3) “the dollar amount of the sanction must bear a financial nexus to the excess proceedings, i.e., the sanction may not exceed the “costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.” See Amlong & Amlong, P.A., 500 F.3d at 1239. In the instant case, Ellucian has not filed a single document or made any representation to the Court that is objectively frivolous, legally unreasonable, or without factual foundation. Moreover, neither Ellucian nor its counsel has engaged in any conduct that unreasonably or vexatiously multiplied the proceedings in this case. First, Plaintiff misrepresents the nature of Case 8:15-cv-02787-EAK-AEP Document 286 Filed 07/09/18 Page 7 of 13 PageID 4483 8 the denial Ellucian made to her allegations in Paragraph 228 of operative Complaint. In paragraph 228, Plaintiff alleges: During the relevant time period, Defendant Ellucian and Defendant USFBOT had an agreement in place to engage in shared business practices from time to time including but not limited to the creation of the Ellucian Report. See ¶ 228 of Third Am. Compl. While Plaintiff now maintains that, in responding to Paragraph 228, Ellucian “denied the existence of contracts or agreements between USFBOT and Ellucian, including the Ellucian Report,” this allegation is patently untrue and wholly unsupported by the record. In its Answer, in responding to paragraph 228, Ellucian denied it had “an agreement in place to engage in shared business practices from time to time” with USFBOT in the context of a conspiracy against Plaintiff which is the very heart of Plaintiff’s case. Ellucian has never denied it had a contract with USF to provide services to the University. To read Ellucian’s response as a denial of the existence of any contract between the Defendants is absurd. Indeed, Ellucian has always acknowledged USF engaged Ellucian’s services to perform a Post-Implementation Assessment of USF’s current usage of the Degree WorksTM solution. In its Third Defense, Ellucian provided: “Plaintiff’s claims are barred because any actions undertaken with regard to the Ellucian Report were taken pursuant to a contractual relationship, in good faith, and were based on lawful and legitimate non-discriminatory, non-harassing, and non-retaliatory business reasons.” Dkt. No. 46 at 25.2 (emphasis added). Ellucian also produced the Ellucian Report to Plaintiff during discovery. Similarly, Plaintiff disingenuously cites partial sentences from Ellucian and USFBOT’s motions for summary judgment and this Court’s order on same in an effort to further her fraud upon the court theory. For example, Plaintiff cites page 5 of Ellucian’s Motion for Summary 2 In purported support of sanctions under 28 U.S.C. § 1927, Plaintiff recognizes Ellucian admits a contract existed between Defendants. See Motion at 10. Plaintiff erroneously argues this is the first time Ellucian admits to same. Case 8:15-cv-02787-EAK-AEP Document 286 Filed 07/09/18 Page 8 of 13 PageID 4484 9 Judgment to show Ellucian allegedly falsely stated Plaintiff had failed to produce any evidence regarding an agreement between the parties when it was Ellucian and USFBOT (she argues) that failed to produce the contracts between them. However, the complete sentence from the motion provides: “Additionally, Plaintiff has failed to produce any evidence regarding an agreement between Defendants to work together to effectuate her termination.”3 (emphasis added). Plaintiff also applies her distortion of the record to this Court’s summary judgment order, which she quotes as saying “The problem for DeBose, however, is that there is absolutely no record of evidence of any agreement between USF and Ellucian,” but fails to include the end of the sentence. The complete sentence reads: “The problem for DeBose, however, is that there is absolutely no record evidence of any agreement between USF and Ellucian to include information critical of the Registrar’s Office in the Ellucian Report.” (emphasis added). This remains true today. There never was any agreement, much less a contract, between Defendants to effectuate Plaintiff’s termination and none of the documents or contracts Plaintiff has produced proves otherwise. The contract merely shows the same thing the Degree Works Post- Implementation Assessment Scope of Services provided: USFBOT hired Ellucian to perform a service (a post implementation assessment resulting in the Ellucian Report). This is not new information and does not serve as the basis to resurrect the misguided notion that Defendants engaged in a conspiracy to end Plaintiff’s employment. Moreover, Ellucian never stated either in its response to Request No. 30 of Plaintiff’s First Request for Production, or through its counsel’s representations to this Court in hearings on motions to compel, that it had produced every contract or other document exchanged between 3 The complete sentence from USFBOT’s Motion for Summary Judgment provides: “DeBose cannot establish a claim for civil conspiracy because there is no evidence of an agreement between USF and Ellucian to include remarks critical of the Registrar’s Office in the Ellucian Report.” USFBOT MSJ at 14 (Dkt. No. 75) (emphasis added). Case 8:15-cv-02787-EAK-AEP Document 286 Filed 07/09/18 Page 9 of 13 PageID 4485 10 Defendants. Instead, Ellucian has consistently maintained its counsel produced all documents relevant to the claims in this action or proportionate to the needs of this case, namely, Plaintiff’s allegations Ellucian conspired with USFBOT regarding Plaintiff’s termination of employment and intentionally and unjustifiably interfered with Plaintiff’s relationship with USFBOT. For example, in Request No. 30 of her First Request for Production, Plaintiff requests the following: All documents comprising any and all contracts or services agreement in effect between USF and Ellucian on January 1, 2014 or on any date through December 31, 2015. Include all amendments, addendums, supplemental documents. Ellucian responded to this Request by raising the following objection and response: OBJECTION: Defendant objects to this Request as overly broad in scope and time, vague and ambiguous, unduly burdensome, and to the extent it seeks documents that contain privileged, confidential and proprietary financial and business information and documents that are not relevant to the claims in this action or reasonably calculated to lead to the discovery of admissible evidence. RESPONSE: Subject to and without waiving the foregoing objection and the general objections above, see the Degree Works Post-Implementation Assessment Scope of Service produced contemporaneously herewith. See Motion for Sanctions at 2-3.4 Moreover, while not acknowledged by Plaintiff, the very discussion counsel for Ellucian had with this Court involved Ellucian’s very limited Court-ordered production of documents “referencing [P]laintiff for the period beginning in January 2014 which had not yet been produced.” See Motion for Sanctions, Ex. C at 13 (Dkt. No. 281-3). MS. DOUD: Thank you, your Honor. paragraph 44 of the order said that Ellucian shall produce any documents referencing plaintiff for the period beginning in January 2014 which have not yet been produced. Plaintiff did not object to the 4 Notably, as evidenced by the case header on the document, Plaintiff already had a copy of the Degree Works Post- Implementation Assessment at the time she served the First Request for Production of Documents and USF also produced the document. See Exhibit “A.” None of the motions to compel filed by or on behalf of Plaintiff sought to compel production of any other contracts. See Dkt. Nos. 64 (related to Ellucian’s Response to Plaintiff’s Second RFP), 99 (related to Ellucian’s Response to Plaintiff’s Third RFP) and 132 (related to Ellucian’s production pursuant to this Court’s Order at Dkt. No. 122). Case 8:15-cv-02787-EAK-AEP Document 286 Filed 07/09/18 Page 10 of 13 PageID 4486 11 language in the order. Based on that language in the order, Ellucian searched its records beginning January 1st, 2014. We did not put an end date on it as plaintiff suggests. we produced documents from 2014 and 2015. The documents that had previously been produced were not produced for a third time based on my understanding of the order saying which have not yet been produced I did not cherrypick anything. With the search terms Angela DeBose and DeBose, there were over 5,000 documents that came back from that search and that is why I needed time, because I was personally going through this search to make sure all of the documents were produced. And because of other people's names and the way that the documents came back, because of other clients who had Registrars and students and other people with the last name of DeBose, there was a large quantity of documents that had to be gone through and I personally went through them. I did not withhold any document except for the documents that had already been produced twice. Id. at 13-14.5 Additionally, none of the newly obtained documents Plaintiff relies on to support her Motion for Sanctions references Plaintiff’s name. See Motion for Sanctions at Exhibit D. Therefore, Plaintiff’s very own filing demonstrates her serious allegation against Ellucian’s counsel as having lied to this Court is misleading and devoid of any merit. Finally, Plaintiff has failed to support, and indeed, cannot support her position Ellucian and USFBOT fraudulently obtained summary judgment on Plaintiff’s civil conspiracy claim. As noted above, in granting Ellucian’s Motion for Summary Judgment, this Court found Plaintiff failed to establish an agreement existed between Ellucian and USF to include information that was critical of the Registrar’s Office in the Ellucian Report. See Order at 25. However, Plaintiff appears to believe she can establish her civil conspiracy claim merely by producing evidence of any contract between Ellucian and USFBOT, which is simply not the case. See Motion for Sanctions at 4-6. As acknowledged by this Court, to defeat summary judgment with respect to her conspiracy claim, Plaintiff would have had to produce emails, letters, or alleged oral statements showing anti-DeBose collusion between USF and Ellucian. As Plaintiff failed to 5 Notably, the transcript excerpts Plaintiff attached to her Motion for Sanctions as Exhibit C do not even include the passages she cites in her Motion for Sanctions. Case 8:15-cv-02787-EAK-AEP Document 286 Filed 07/09/18 Page 11 of 13 PageID 4487 12 produce any evidence of the foregoing, this Court granted Ellucian’s motion for summary judgment on this claim. Notably, none of the new documents Plaintiff relies on to support her Motion for Sanctions even references Plaintiff. See id. at Exhibit D. Therefore, these new documents do not cure the flaw this Court found to be fatal to Plaintiff’s conspiracy claim, namely, the lack of any evidence of collusion between Ellucian and USF to include information that was critical of Plaintiff in the Ellucian Report. Quite simply, there is no smoke or fire in this case.6 Ellucian was merely a software vendor to USF. As part of its services and after software implementation, an Ellucian employee who lives in Pennsylvania performed one assessment (with no ongoing interaction with USF). Since that time, Plaintiff has filed three different meritless lawsuits against Ellucian (including a writ of mandamus in state court, this case, and Case No. 8:18-cv-00473-EAK-AAS in which Plaintiff now attempts to sue the individual employee along with Ellucian for claims raised or which should have been raised in this case), with countless, baseless motions and appeals. This Court cautioned Plaintiff in its May 25, 2018 Order (Dkt. No. 275) that “any motions directed at the Court’s Summary Judgment Order that otherwise fail to raise meritorious bases for reconsideration will be denied without further consideration, and the Plaintiff may face sanctions.” Ellucian respectfully submits the instant motion is another attempt by Plaintiff to re-litigate not only discovery issues, but this Court’s Order granting Ellucian’s motion for summary judgment. III. CONCLUSION For the foregoing reasons, Defendant ELLUCIAN COMPANY L.P. respectfully requests this Court deny Plaintiff ANGELA DEBOSE’s Motion for Sanctions (Dkt. No. 280), and subject 6 Plaintiff’s Motion for Sanctions is also due to be denied under this Court’s inherent authority and 28 U.S.C. § 1927. Case 8:15-cv-02787-EAK-AEP Document 286 Filed 07/09/18 Page 12 of 13 PageID 4488 13 to this Court’s discretion, impose sanctions against Plaintiff in the form of an award of Ellucian’s attorneys’ fees spent in the defense of the instant motion. Dated this 9th day of July, 2018. Respectfully submitted, LITTLER MENDELSON, P.C. 111 North Magnolia Avenue, Suite 1250 Orlando, Florida 32801 Telephone: (407) 393-2900 Facsimile: (407) 393-2929 By: /s/ Kimberly J. Doud Kimberly J. Doud, Esquire Florida Bar No.: 0523771 Email: kdoud@littler.com Attorneys for Defendant Ellucian Company L.P. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 9th day of July, 2018, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send a copy via email to the following: Angela DeBose, Plaintiff pro se, 1107 West Kirby Street, Tampa, Florida 33604 – email: awdebose@aol.com; and Richard C. McCrea, Jr., Greenberg Traurig, P.A., 101 East Kennedy Boulevard, Suite 1900, Tampa, Florida 33602-5148; email: mccrear@gtlaw.com, Cayla Page, Esquire, pagec@gtlaw.com, FLService@gtlaw.com, meyerp@gtlaw.com /s/ Kimberly J. Doud Kimberly J. Doud, Esquire Firmwide:155712244.1 071459.1015 Case 8:15-cv-02787-EAK-AEP Document 286 Filed 07/09/18 Page 13 of 13 PageID 4489