UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

SHELLEY GIPSON,

Plaintiff,

v. No. 4:22-cv-0730-P

WEATHERFORD COLLEGE,

Defendant.

MEMORANDUM OPINION AND ORDER

Before the Court is a Motion to Supplement the Record (ECF No. 84) 

filed by Defendant’s Counsel, John L. Ross. After considering the 

motion, docket entries, and the applicable law, the Court concludes that 

the motion should be, and it is hereby, GRANTED. Accordingly, the 

clerk of the Court is INSTRUCTED to supplement the record on appeal 

in cause number 23-10397 with the United States Court of Appeals for 

the Fifth Circuit by including the following in the record on appeal: 

(1) Declaration of Plaintiff’s Counsel, Kevin M. Duddlesten (ECF No. 

64); (2) Declaration of Defendant’s Counsel, John L. Ross (ECF No. 65); 

(3) the Motion to Supplement the Record including its two exhibits (ECF 

No. 84); and (4) this Order (ECF No. 85). 

However, the Court notes that the language in Ross’s motion is 

illuminative of why the Court chose to sanction him in the first place. It 

is, in fact, a continuation of the contumacious conduct that he exhibited 

throughout the litigation process in this case. 

For example, instead of simply requesting that the Court supplement 

the record with the desired documents, he uses the motion as yet 

another stage to lecture the Court on the validity of his argument. Ross 

includes a three-page-long footnote collecting cases from the courts of 

appeals (and one decision of this Court) that hold that 28 U.S.C. § 1746 

allows for the filing of unsworn declarations given under penalty of 

perjury in lieu of sworn affidavits. See ECF No. 84 at 1–3. Humorously, 

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none of the cases Ross cites are factually analogous to, or much less 

support, his particular use of an unsworn declaration in lieu of an 

affidavit in this case.1 And this is likely because the legislative history 

of § 1746 and case law surrounding the legislation indicate that § 1746’s 

targeted audience is not lazy lawyers in glass towers who wish to skirt

an explicit court order. Instead, the main purposes of § 1746 are to: 

(1) ease the logistical difficulties that foreign and prisoner litigants face 

in procuring the presence of a notary; and (2) relax the formalism 

associated with the presentation of evidence in federal proceedings. See 

122 CONG. REC. H11210-11211 (daily ed. Sept. 27, 1976) (statement of

Rep. William L. Hungate, cosponsor of the bill) (discussing the main 

purposes of the rule); see also Carter, 616 F.2d at 230–31 (outlining that 

prisoner litigation is equally encompassed in the legislative history of 

§ 1746). 

Ross further exhibited conduct that spanned beyond his inability to 

resist the urge to lecture the Court. He also completely disregarded the 

litigation standards set out in Dondi Properties Corporation v. 

Commerce Savings & Loan Association that this Court expects of the 

advocates that appear before it. 121 F.R.D. 284 (N.D. Tex. 1988) (en 

banc). These standards were adopted to signal the Court’s “strong

1 See, e.g., Paters v. United States, 159 F.3d 1043, 1047 (7th Cir. 1998) (where a 

prisoner sought to support his motion to vacate under § 2255 with an unsworn

declaration); Burgess v. Moore, 39 F.3d 216, 217–18 (8th Cir. 1994) (where an inmate 

supported his § 1983 claim with a verified complaint and unsworn declaration); 

Williams v. Browman, 981 F.2d 901, 905 (6th Cir. 1992) (where the court accepted a 

pro-se prisoner’s complaint as verified because the prisoner swore to the veracity of the 

allegations under penalty of perjury); Sec. Nat. Bank of Enid., Okla. v. John Deere Co., 

927 F.2d 519, 521–22 (10th Cir. 1991) (not even applying § 1746); Nissho-Iwai Am. 

Corp. v. Kline, 845 F.2d 1300, 1306 (5th Cir. 1988) (disallowing use of an unsworn 

affidavit as summary-judgment proof because it was not declared to be true and correct 

under penalty of perjury); Thomas v. U.S. Dep’t of Energy, 719 F.2d 342, 344 n.3 (10th 

Cir. 1983) (affirming the district court’s consideration of a declaration given under 

penalty of perjury as summary-judgement proof under § 1746); Carter v. Clark, 616 

F.2d 228, 230–31 (5th Cir. 1980) (invalidating a local rule that required all pleadings 

from prisoner-litigants to be notarized given the logistical difficulties that prisoners 

would face in fulfilling that requirement); Rice v. Mgbakor, No. 3:08-CV-152-L, 2009 

WL 3241330, at *6 (N.D. Tex. Oct. 7, 2009) (Lindsay, J.) (accepting a magistrate judge’s 

recommendation that allowed an inmate’s verified complaint in a § 1983 action to serve 

as competent summary-judgment evidence because it was made under penalty of 

perjury and verified as true and correct). 

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disapproval of practices that have no place in our system of justice” and 

to emphasize “that a lawyer’s conduct, both with respect to the court and 

to other lawyers, should at all times be characterized by honesty and 

fair play.” Id. at 289.

Throughout the course of this case, five separate discovery disputes 

arose between the Parties. See ECF Nos. 32, 33, 42, 47, 59. This forced 

the Court to either refer the disputes to a magistrate judge for 

determination or order the Parties to confer amicably and preferably 

resolve the matters without the intervention of the Court. Indeed, these 

discovery disputes led the Court to issue the Order central to Ross’s 

appeal, which required that counsel for the Parties simply reread Dondi 

and certify via an affidavit that they had done so. See ECF No. 63. 

As this Court stated in Dondi when it specifically addressed the issue 

of prevalent discovery disputes, “the rules dealing with discovery in 

federal cases are to be self-executing,” requiring the Court’s intervention 

only on the basis of absolute necessity. 121 F.R.D. at 290. In isolation, 

the expenditures associated with these disputes appear inconsequential. 

Id. at 292. But considered in the proper context of the busyness of this 

Court’s docket and the frequency of disputes, it is apparent that 

cooperation between opposing counsel is essential to the efficient 

operation of our justice system. Id. Despite these long-held and 

unambiguous standards of Dondi, Ross exhibited no hesitation to

initiate discovery disputes and accuse opposing counsel of improper 

conduct throughout the course of this case.2 

At bottom, all the Court required in response to Ross’s recalcitrant 

conduct was a simple affidavit certifying his knowledge of the standards 

of Dondi. He could not even follow that Order. Seeing no other option, 

the Court decided that sanctions were appropriate. But in light of the 

Fifth Circuit’s mandate that district courts choose a lesser sanction 

when one is available, the Court concluded that a small monetary 

penalty of $250 would be appropriate. Apparently, Ross disagrees once 

again. Quite frankly, this Court is exhausted by Ross’s conduct. Given 

2 The Court also notes that Ross’s accusations of bad faith as to opposing counsel’s 

conduct equally contravene the standards set out in Dondi as they are almost always 

undeserving and unnecessarily dilatory. See 121 F.R.D. at 289.

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the Court’s limited resources and large docket, it can ill-afford to spend 

any more time on this relatively trivial matter. 

SO ORDERED on this 9th day of June 2023.

Mark T. Pittman

UNITED STATES DISTRICT JUDGE

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