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Wilkerson v. University of North Texas

United States District Court, E.D. Texas, Sherman Division

June 28, 2019

DALE A. WILKERSON
v.
UNIVERSITY OF NORTH TEXAS, By and Through its Board of Regents

          MEMORANDUM OPINION AND ORDER

          AMOS L. MAZZANT UNITED STATES DISTRICT JUDGE

         Pending before the Court is Plaintiff Dr. Dale A. Wilkerson's Motion for New Trial (Dkt. #169). Having considered the motion and the relevant pleadings, the Court finds that the motion should be denied.

         BACKGROUND

         Between December 10 and 13, 2018, the parties tried this case to a jury (Dkt. #157; Dkt. #158; Dkt. #159; Dkt. #160). On December 13, 2018, the jury returned a verdict finding that Defendant the University of North Texas, by and through its Board of Regents, would not have renewed Plaintiff's employment but for Plaintiff's act of testifying, assisting, or participating in an investigation, proceeding, or hearing under Title IX (Dkt. #162). Accordingly, on December 20, 2018, the Court entered Judgment on the Jury Verdict ordering that Plaintiff take nothing. The Court then dismissed Plaintiff's case with prejudice. On January 17, 2019, Plaintiff filed his Motion for New Trial (Dkt. #169). Defendant filed a response to the motion on January 31, 2019 (Dkt. #170). Plaintiff did not file a reply to the motion.[1]

         LEGAL STANDARD

         Under Rule 59(a) of the Federal Rules of Civil Procedure, a new trial can be granted to any party to a jury trial on any or all issues “for any reason for which a new trial has heretofore been granted in an action at law in federal court.” Fed.R.Civ.P. 59(a). “A new trial may be granted, for example, if the district court finds the verdict is against the weight of the evidence, the damages awarded are excessive, the trial was unfair, or prejudicial error was committed in its course.” Smith v. Transworld Drilling Co., 773 F.2d 610, 613 (5th Cir. 1985). However, “[u]nless justice requires otherwise, no error in admitting or excluding evidence-or any other error by the court or a party- is grounds for granting a new trial . . . . At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party's substantial rights.” Fed.R.Civ.P. 61.

         To be entitled to a new trial, Plaintiff must show that the verdict was against the great weight of the evidence, not merely against the preponderance of the evidence. Taylor v. Seton Healthcare, No. A-10-CV-650 AWA, 2012 WL 2396880, at *2 (W.D. Tex. June 22, 2012) (citing Dresser-Rand Co. v. Virtual Automation, Inc., 361 F.3d 831, 838-39 (5th Cir. 2004); Shows v. Jamison Bedding, Inc., 671 F.2d 927, 930 (5th Cir. 1982)). A jury verdict is entitled to great deference. Dresser-Rand Co., 671 F.2d at 839. “Weighing the conflicting evidence and the inferences to be drawn from that evidence, and determining the relative credibility of the witnesses, are the province of the jury, and its decision must be accepted if the record contains any competent and substantial evidence tending fairly to support the verdict.” Gibraltar Savings v. LDBrinkman Corp., 860 F.2d 1275, 1297 (5th Cir. 1988).

         ANALYSIS

         Plaintiff moves for a new trial contending (1) the greater weight of the evidence; (2) a discovery abuse; (3) jury confusion; (4) erroneous evidentiary rulings by the Court; and (5) improper or inflammatory jury arguments made by Defense Counsel all warrant a new trial (Dkt. #169). Defendant opposes each of Plaintiff's arguments (Dkt. #170).

         I. Greater Weight of the Evidence

         In two sections, Plaintiff argues that the Court should grant a new trial because the verdict is against the great weight of the evidence (Dkt. #169 at pp. 3-5, 6).[2] Although Plaintiff provides authority to support his argument, Plaintiff does not cite evidence demonstrating that the verdict is against the great weight of the evidence (See Dkt. #169 at pp. 3-5). Instead, Plaintiff provides only a factual synopsis of the case (Dkt. #169 at p. 6). None of the facts alleged by Plaintiff show that the verdict-finding that Defendant did not terminate Plaintiff because he participated in a Title IX investigation-demonstrate that the verdict is against the great weight of the evidence. As a result, Plaintiff does not meet his Rule 59(a) burden in these sections. See Taylor, 2012 WL 2396880, at *2 (citing Dresser-Rand Co., 361 F.3d at 838-39; Shows, 671 F.2d at 930); Jones v. Ruiz, 478 Fed.Appx. 834, 835 (5th Cir. 2012) (quoting Sibley v. Lemaire, 184 F.3d 481, 487 (5th Cir. 1999)).

         II. Discovery Abuse

         Plaintiff next claims that Defendant failed to produce a memorandum from Dr. Kimi King (the “September Memorandum”) and other members of the “CAS Ad Hoc Committee” to Provost Warren Burggren (Dkt. #169 at pp. 7-9). “A district court also has discretion to grant a new trial on the basis of newly discovered evidence.” Randle v. Tregre, CV 15-395, 2016 WL 760770, at *2 (E.D. La. Feb. 26, 2016) (citing Diaz v. Methodist Hosp., 46 F.3d 492, 495 (5th Cir. 1995)). “In deciding whether newly discovered evidence is sufficient to warrant a new trial, the district court should consider whether the evidence: (1) would probably have changed the outcome of the trial; (2) could have been discovered earlier with due diligence; and (3) is merely cumulative or impeaching.” Diaz, 46 F.3d at 495 (citing Osburn v. Anchor Labs., Inc., 825 F.2d 908, 917 (5th Cir. 1987); Johnston v. Lucas, 786 F.2d 1254, 1257 (5th Cir. 1986); La Fever, Inc. v. All-Star Ins. Corp., 571 F.2d 1367, 1368 (5th Cir. 1978)). “The burden is on the movant to demonstrate that the new evidence ‘clearly weighs in favor of a new trial.'” Randle, 2016 WL 760770, at *2 (quoting Diaz, 46 F.3d at 495).

         Plaintiff argues Defendant's failure to produce the September Memorandum prejudiced Plaintiffs ability to develop his case:

In great detail this memo lays out what happened as reported by highly educated, competent witnesses contemporaneously with the occurrence of the events. Plaintiff was greatly handicapped by not having this document when taking the depositions of Provost Burggren and Dean Goven. Both Burggren and Goven professed to not remember significant facts about the [Plaintiffs] case, even though it fell to them to decide [Plaintiffs] fate. Therefore what they did, when they did it, what they said and heard were vital to the development of Plaintiff s case. Plaintiff was greatly handicapped in taking these depositions because the memorandum that [Plaintiff] timely requested was not produced by Defendant. Similarly the document was not available at trial to refresh memories and to impeach inaccurate testimony.

(Dkt. #169 at p. 7). Defendant responds that to the extent there is a discovery abuse, the abuse does not merit a new trial because the information contained in the September Memorandum document is simply a “recapitulation of information already contained in the College-level grievance report, packaged to address larger administrative concerns of faculty members [(the “July Report”)].” (Dkt. #170 at p. 7). The Court begins with the cumulative or impeaching factor identified in Diaz before addressing the other two factors.

         A. Cumulative or Impeaching

         When newly-discovered evidence is merely cumulative or impeaching, it is less likely to warrant a new trial. See Diaz, 46 F.3d at p. 495. Plaintiff explains that had he possessed the September Memorandum during the trial and at depositions, he would have used the document to “refresh memories and to impeach inaccurate testimony, ” not as direct evidence (Dkt. #169 at p. 7). Accordingly, the September Memorandum is impeaching.

         The September Memorandum is also cumulative of the July Report. The July Report contains findings and conclusions from the Ad Hoc College of Arts and Sciences (“CAS”) Grievance Committee (the “Committee”) formed to review Plaintiff's complaint that Department Chair Patricia Glazebrook refused to renew Plaintiff's contract (Dkt. #125-10). As Plaintiff attached the July Report to his September 28, 2018, summary-judgment response, the Court assumes Defendant timely produced the July Report.

         The September Memorandum is a letter written to Provost Burggren from former members of the Committee addressing three concerns regarding the Committee's July proceedings: (1) Glazebrook's obstructionist behavior before the Committee; (2) the CAS Dean's decision to by-pass the fact-finding function of the Committee; and (3) how Defendant's decision could affect future lecturers (Dkt. #169-2). There are many similarities between the July Report and September Memorandum.

         To begin, the authors of the documents are similar. Martin Schwartz, Rebecca Dickstein, Kimi King, Irene Klaver, and Brian Richardson authored the July Report (Dkt. #169-2). Martin Schwartz, Rebecca Dickstein, and Kimi King authored the September Memorandum (Dkt. #125-10). Although the recipients of the documents are different, they are similar in so far as they are high-level administrative staff for Defendant (Dkt. #125-10; Dkt. #169-2).[3]

         The contents of the documents are also similar. Both documents address Glazebrook's obstructionist behavior (Dkt. #125-10 ¶¶ 4(c), 5-8, and at p. 5; Dkt. #169-2 at p. 1). Moreover, both documents state the Committee's view that Plaintiffs termination was “arbitrary and capricious.” For example, in the July Report, the Committee found that “Glazebrook's actions were arbitrary an capricious given [Plaintiffs] glowing evaluations from Glazebrook herself (Dkt. #125-10 at p. 5). In the September Memorandum, the former Committee members found that the arbitrary and capricious nature of Plaintiff s termination set a precedent that reflected poorly on Defendant (Dkt. #169-2 at p. 2).

         The Court is only able to determine one difference between the contents of the documents. In the September Memorandum, the former Committee members lament the CAS Dean's decision to by-pass the Committee (Dkt. #169-2 at pp. 2-3). Although the July Report addresses Glazebrook's failure to follow Defendant's bylaws, it does not address the CAS Dean's decision to by-pass the Committee (See Dkt. #125-10). Considering the extent of the similarities between the July Report and September Memorandum, the Court finds that the September Memorandum is largely cumulative of the July Report. As the September Memorandum is cumulative and impeaching, this factor weighs against granting Plaintiffs motion.

         B. Changed the Outcome of Trial

         Plaintiff state that the September Memorandum would be “invaluable to Plaintiff s lawyers in deposing defendant's witnesses and in cross examining these witnesses at trial” and Defendant's failure to produce the document was “extremely harmful to Plaintiff in preparing and presenting his case.” (Dkt. #169 at p. 9). However, besides the impeaching value identified above, Plaintiff does not explain how the September Memorandum might have changed the outcome of the trial. Overall, the Court agrees with Defendant that much of the information contained in the September Memorandum was available to Plaintiff from other sources and Plaintiff did, or could have, presented the other sources to the jury (Dkt. #170 at p. 9). Consequently, Plaintiff does not meet his burden of showing that the September Memorandum would have changed the outcome of trial had Plaintiff possessed the document during trial.

         C. Could Have Been Discovered Earlier with Due Diligence

         It is difficult for the Court to address the final factor. Plaintiff explains that while Defendant produced nearly 1, 000 documents, it did not produce the September Memorandum (Dkt. #169 at p. 7). However, Plaintiff does not state (1) when he received the September Memorandum; (2) whether Defendant eventually produced the document; and, if not, (3) how Plaintiff discovered the document.

         Although Defendant is in the best position to clarify why the September Memorandum was not timely produced, Defendant provides no explanation. Instead, Defendant hides behind the burden of persuasion to avoid the issue:

Regardless, even [Plaintiff] admits that “Defendant produced almost 1000 documents, ” Dkt. No. 169 at p. 7, while making no effort to outline why this document failed to surface until after [Plaintiff] lost at trial. Given that [Plaintiff] bears the burden of demonstrating that the information could have been discovered earlier with due diligence, [Plaintiff] cannot meet this prong with such a conclusory analysis.

(Dkt. #170 at p. 9).

         The Court's Order Governing Proceedings required the parties to produce, “A copy of all documents, electronically stored information, witness statements, and tangible things in the possession, custody, or control of the disclosing party that are relevant to the claim or defense of any party.” (Dkt. #24 at p. 4). As Defendant produced the July Report, the Court assumes Defendant could have also discovered the September Memorandum and would have considered the document relevant. Therefore, the Court finds the September Memorandum could have been discovered with due diligence. However, as the previous two factors did not favor a new trial, the Court finds this final factor-standing alone-does not entitle Plaintiff to a new trial. As a result, Plaintiff does not meet his burden of demonstrating that Defendant's discovery abuse clearly weighs in favor of a new trial.

         III. Jury Confusion

         Plaintiff s jury confusion section contains two arguments: (1) the Court should set aside the verdict due to jury confusion and (2) the Court incorrectly charged the jury ...


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