Kermode v. University of Mississippi Medical Center

Case: 12-60010 Document: 00512055881 Page: 1 Date Filed: 11/16/2012

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

November 16, 2012

No. 12-60010 Lyle W. Cayce

Clerk

JOHN C. KERMODE, PH.D.,

Plaintiff-Appellant

v.

UNIVERSITY OF MISSISSIPPI MEDICAL CENTER; JERRY M. FARLEY,

SR., PH.D.; MISSISSIPPI INSTITUTIONS OF HIGHER LEARNING;

DANIEL W. JONES; HELEN R. TURNER; JAMES E. DORN,

Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Mississippi

3:09-CV-584

Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Plaintiff-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

*

Pursuant to 5TH CIRCUIT RULE 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not be published and is not precedent except under the limited circumstances set forth in 5TH

CIRCUIT RULE 47.5.4.

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for federal due process violations under 42 U.S.C. § 1983 and for supplemental

state law 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 spoilation 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 became 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

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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 before 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 appealed 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 proceedings, 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

1

At times, we refer to the Medical Center and the official-capacity 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.

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of privacy, tortious interference with a contract, defamation, and civil

conspiracy. He argues that Park’s accusations of harassment were purely

vindictive, that the proceedings 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 the motion as to Kermode’s claims against the Medical Center and

against the faculty members for money-damages claims asserted against them

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in their official capacities on sovereign immunity grounds.2 The district court

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, defamation, 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.

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, 662 F.3d 336, 340 n.3 (5th Cir. 2011) (quoting Will

v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989)).

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The district court had federal question jurisdiction under 28 U.S.C. § 1331

and 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, 521 U.S. 261, 267 (1997).

The district court entered its order certifying its partial grant of summary

judgment as the final judgment against Kermode on December 2, 2011. See FED.

R. CIV. P. 54(b). Kermode filed his notice of appeal on December 28, 2011, fewer

than 30 days after the district court’s Rule 54(b) order, making his appeal

timely. See FED. R. APP. P. 4(a)(1)(A).

III.

We review de novo whether a state is entitled to sovereign immunity. E.g.,

Hale v. King, 642 F.3d 492, 497 (5th Cir. 2011).3 “Sovereign immunity is the

privilege of the sovereign not to be sued without its consent.” Va. Office for Prot.

& Advocacy v. Stewart, 131 S. Ct. 1632, 1637 (2011). “[S]tate sovereign

immunity ‘has two parts: first, that each State is a sovereign entity in our

federal system; and second, that it is inherent in the nature of sovereignty not

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,

410 F.3d 236, 240-41 (5th Cir. 2005) (citing Alden v. Maine, 527 U.S. 706, 713 (1999)); see also,

e.g., Va. Office for Prot. & Advocacy v. Stewart, 131 S. Ct. 1632, 1637-38 (2011) (internal

citations omitted) (“The language of the Eleventh Amendment only eliminates the basis for

our judgment in the famous case of Chisholm v. Georgia, 2 U.S. 419 (1793), which involved a

suit against a State by a noncitizen of the State. Since Hans v. Louisiana, 134 U.S. 1 (1890),

however, we have understood the Eleventh Amendment to confirm the structural

understanding that States entered the Union with their sovereign immunity intact, unlimited

by Article III’s jurisdictional grant.”).

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to be amenable to the suit of an individual without its consent.’” Meyers ex rel.

Benzing v. Texas, 410 F.3d 236, 240 (5th Cir. 2005) (citing Alden v. Maine, 527

U.S. 706, 713 (1999) and quoting Fla. Prepaid Postsecondary Educ. Expense Bd.

v. Coll. Savings Bank, 527 U.S. 627, 634 (1999)). Despite the principle of

sovereign immunity, a state may still be subject to suit in federal court if it

“consents to suit or [if] Congress has clearly and validly abrogated the state’s

sovereign immunity.” Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 326 (5th

Cir. 2002) (citations omitted).

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. Sovereign 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, 546 U.S. 356, 360 (2006); Alden

v. Maine, 527 U.S. 706, 756 (1999); Union Pac. R.R. v. La. Pub. Serv. Comm’n,

662 F.3d 336, 340 n.3 (5th Cir. 2011); United Carolina Bank v. Bd. of Regents of

Stephen F. Austin State Univ., 665 F.2d 553, 556-67 (5th Cir. Unit A 1982);

Perez, 307 F.3d at 326. State colleges and universities may be considered “arms

of the state,” but they are not automatically entitled to sovereign immunity.

Compare, e.g., Hander v. San Jacinto Junior Coll., 519 F.2d 273, 278 (5th Cir.

1975) (declining to grant sovereign immunity because the junior college districts

in the city were “primarily local institutions, created by local authority and

supported largely by local revenues”), with Clay v. Tex. Women’s Univ., 728 F.2d

714, 715 (5th Cir. 1984) (accepting on appeal the district court’s undisputed

finding that Texas Women’s University is an arm of the state entitled to

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immunity). In addressing whether an institution is an arm of the state and

thus entitled to sovereign immunity, “we examine the powers, characteristics[,]

and relationships created by state law in order to determine whether the suit is

in reality one against the state.” United Carolina Bank, 665 F.2d at 557.

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, 538 F.2d 1166,

1174-75 (5th Cir. 1976). In an unpublished decision, a panel of this Court

concluded that the University of Mississippi Medical Center is an arm of the

University of Mississippi and as such is entitled to raise the state’s sovereign

immunity as well. McGarry v. Univ. of Miss. Med. Ctr., 355 F. App’x 853, 856

(5th Cir. 2009); see also Sullivan v. Univ. of Miss. Med. Ctr., 617 F. Supp. 554,

557 (S.D. Miss. 1985) (same). We agree and conclude that as an arm of the

University of Mississippi, the University of Mississippi Medical Center is

entitled to assert the defense of sovereign immunity.

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., 662 F.3d at 340 n.3 (quoting Will v. Mich.

Dep’t of State Police, 491 U.S. 58, 71 (1989)); see also, e.g., Alden, 527 U.S. at 756

(“Some suits against state officers are barred by the rule that sovereign

immunity is not limited to suits which name the State as a party if the suits are,

in fact, against the State.”); Kentucky v. Graham, 473 U.S. 159, 165-67 (1985)

(“Official-capacity suits . . . ‘generally represent only another way of pleading an

action against an entity of which an officer is an agent.’”). This extends to

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faculty administrators of a state university that qualifies as an arm of the state.

See United Carolina Bank, 665 F.2d at 555-57. Thus, sovereign immunity

extends to both the Medical Center itself and to its faculty administrators sued

in their official capacities.

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, 473 U.S. 234, 238

(1985), superseded on other grounds by Rehabilitation Act Amendments of 1986,

§ 1003, Pub. L. No. 99-506, 42 U.S.C. § 2000d-7.4 “Although [the court is]

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, 217 F.3d 275, 279 (5th Cir. 2000) (citing Calderon, 523 U.S. at

745 n.2); see also, e.g., Edelman v. Jordan, 415 U.S. 651, 677-78 (1974) (holding

a court may consider sovereign immunity issue raised for the first time on

appeal). “A state’s waiver of immunity must be unequivocal.” Neinast, 217 F.3d

at 279 (citing Atascadero, 473 U.S. at 241). A state “may evidence that waiver,

however, through action other than an express renunciation[,]” including by

demonstrating “an intent to defend the suit against it on the merits.” Id. (citing

Hill v. Blind Indus. & Servs. of Md., 179 F.3d 754, 763 (9th Cir. 1999)). “But the

decision to waive that immunity must be voluntary on the part of the sovereign.

4

In addition, Eleventh Amendment immunity may be abrogated for certain civil rights

litigation, see Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 56-59 (1996), but these do not

include § 1983 suits, see Quern v. Jordan, 440 U.S. 332, 345 (1979). Abrogation principles are

therefore not applicable in this case.

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Generally, the [c]ourt will find a waiver either if (1) the state voluntarily invokes

federal court jurisdiction, or (2) the state makes a ‘clear declaration’ that it

intends to submit itself to federal court jurisdiction.” Benzing, 410 F.3d at 241

(holding a state voluntarily invokes federal jurisdiction by removing the case to

federal court).

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, 217 F.3d at 279 (noting that a

“state cannot simultaneously proceed past the motion and answer stage to the

merits and hold back an immunity defense,” including the defense of sovereign

immunity) (citing Hill, 179 F.3d at 758); Int’l Truck & Engine Corp. v. Bray, 372

F.3d 717, 720 n.4 (5th Cir. 2004) (noting that “[b]y seeking summary judgment

on the merits before raising sovereign immunity, the [state] did exactly” what

the court warned against in Neinast). Thus, a state defendant may waive its

immunity “by conduct that is incompatible with an intent to preserve that

immunity.” Hill, 179 F.3d at 758. This rule was established in recognition that

without it, a state entity might have an unfair advantage if it could wait until

the eve of trial to assert its immunity. See id. at 757; cf. Union Pac., 662 F.3d

at 341-42 (holding that the state entity defendant did not waive its sovereign

immunity notwithstanding the fact that it was raised for the first time on appeal

because there was no evidence of “gamesmanship” as it was not “attempting to

use immunity to void an unfavorable judgment”).

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

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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 argument, 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., 372 F.3d at 720 n.4 (finding waiver where defendant

waited until after summary judgment to raise sovereign immunity). However,

Kermode’s assertion is plainly contradicted by the record. The state defendants

asserted the affirmative defense of sovereign immunity in their answers and

amended answers before asserting it again in their motion for summary

judgment. We affirm the district court’s dismissal of Kermode’s complaint

against the state defendants on sovereign immunity grounds.5

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 a federal claim

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.

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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., 641 F.3d 155, 158

(5th Cir. 2011). We review the legal basis for supplemental jurisdiction de novo,

e.g., Hook v. Morrison Milling Co., 38 F.3d 776, 780 (5th Cir. 1994), and we

review a district court’s refusal to relinquish jurisdiction over supplemental state

claims for abuse of discretion, e.g., Enochs, 641 F.3d at 158.

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 that 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, 465 U.S. at 117. The Court reasoned that such claims could

not be maintained against the state entity because the supplemental jurisdiction

doctrine did not abrogate state entities’ sovereign immunity. See id. at 119-21.

Accordingly, the reasoning in Pennhurst is applicable only if sovereign immunity

is at issue—it is not applicable where the supplemental state law claims are

asserted against a defendant who is not entitled to sovereign immunity. See id.;

see also, e.g., McIntosh v. Partridge, 540 F.3d 315, 325 n.13 (5th Cir. 2008)

(explaining that Pennhurst established that federal courts may not “hear[] state

law claims against state officials in their official capacity under supplemental

jurisdiction”).

As we explained above, the faculty members sued in their official

capacities for monetary relief were entitled to invoke the state’s sovereign

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immunity, and the district court 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;6 the other is to file suit against the state

officers in their individual capacities for money damages to be paid by the

defendant individually and not by the state.7 Because neither Ex parte Young

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.

6

See, e.g., Bd. of Trustees v. Garrett, 531 U.S. 356, 374 n.9 (2001); Ex parte Young, 209

U.S. at 155-56. The Ex parte Young exception to a state’s sovereign immunity rests on the

premise (or legal “fiction”) that when a federal court enjoins a state official’s illegal or

unconstitutional actions, the official is deemed to be stripped of state authority and is

therefore not treated as the state for sovereign immunity purposes. E.g., Va. Office for Prot.

& Advocacy, 131 S. Ct. at 1638.

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, 473 U.S. at 165-67; Ford Motor Co. v. Dept. of Treasury of Ind., 323 U.S. 459,

464 (1945), overruled on other grounds by Lapides v. Bd. of Regents, 535 U.S. 613 (2002).

Nothing in the record or the parties’ briefing indicates that this exception would apply in this

case.

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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, 641 F.3d at 158.

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, 131 S. Ct. at 1638; Garrett, 531 U.S. at 374 n.9; Ex parte Young, 209

U.S. at 155-56. Kermode does not dispute that the federal constitutional claims

and the state law individual-capacity claims arose from the same course of

conduct and events, namely, the faculty members’ alleged wrongdoing in

connection with the investigation and proceedings leading up to Kermode’s

termination. We conclude that the two claims have a “common nucleus of

operative fact.” Gibbs, 383 U.S. at 725. The district court properly had federal-

question jurisdiction over Kermode’s Ex parte Young claims and supplemental

jurisdiction over the state law claims; it did not abuse its discretion by retaining

jurisdiction over the state law claims.

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.

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V.

Finally, Kermode argues that the district court erred in denying his

motion for discovery 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 destroyed

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.

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