### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 12-60010

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- Ap p ell e e J ohn Ker m o de w a s a t e nur e d p rof e s s or 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 Lea rning, and various faculty members U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Novembe r 16, 20 12 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR C UIT RUL E 47.5 , the cour t has det erm ined that this opi nion sho uld * not be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR C UIT RUL E47. 5.4. Case: 12-60010 Document: 00512055881 Page: 1 Date Filed: 11/16/2012No. 12-60010

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 defendin g th e s uit o n th e m erits; whether Kermode forfeited his waiver argument by failing to raise it until after the district court granted s u m m ary judgment to the defendants; whether the district court erred in adjudicating the su p p l e mental claims despite having dismi s s e d 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 o f 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 l a te 2007 when Kermode invited Park to attend an academic conference with him. Kermode’ s w ife 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 an d other profess i o n a l opportunities. Park repeatedly requested that he cease communicating wi t h 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 t o honor Park’s wishes that he cease communicating with her. Ke r m o d e

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continued to communicate via email with Park, an d h e s e nt 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 represente d b y counsel and allowed to p r e s e nt evidence on his behalf, the Committee found that Kermode had harassed Park but recomme nded against termination. Nevertheless, the final decision regarding employment action was vested in the Vice-Chancellor, Dr. Daniel J o n e s , who upheld the decision to terminate Kermode. Kermode appealed the decision to the Mississippi Institut i o n s of Higher Learning (MIHL), the state board t h at oversees Mississippi’s public universities, which also affirmed the termination. Kermode filed suit i n t he 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 complai n t to add

o f f i cial-capacity claims against Jones and two other faculty members involv e d with the termination proceedi n gs, 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 contr a ct, breach of the duty of good faith and fair dealing, intentional infliction of emotional distress, invasion

At tim es , we ref

er to the Me dic al Cent e r a n d t he off icia l-c apac ity def

enda nts 1 coll ect ively as the “s tat e” or the “s tat e de f e n d a n t s. ” On ly Dr

. Farle y wa s sue d in both his individual and of

fic ial cap acit ies , and w e ref er tothe indivi dual -c apac ity clai ms agains t him se par atel y. 3 Case: 12-60010 Document: 00512055881 Page: 3 Date Filed: 11/16/2012No. 12-60010

of privacy, tortious interfere n ce with a contract, defamation, and civil conspir a c y . 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 Elev e n t h Amendment or sovereign immunity. The district court set a discovery and mediation schedule, with trial to be held six mo n th s l ater 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 o n qualified immunity and state law immunity , wh ich 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 F a rley’s motion to dismiss as to the supplemental state law claims against him in his indivi d u al capacity for invasion of privacy, intentional interference with a c o n t ract, defamation, and civil conspiracy. After Kermode amended his complaint to add the other faculty member defendants, the defendants filed an amended a n s w er asserting materially the same defenses as they previously asserted, including sovere i gn immunity. At the end of the discovery period, the remaining defendants (the Medical Center and the faculty member defendants) filed a motion for summary judg m e n t, again asserting, inter alia, sovereign immunity. The district court gr a n ted the motion as to Kermode’s claims against the Medical Cent e r a n d against the faculty members for money-damages claims asserted against them

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in their official capacities on sovereign immu n i ty gr ounds. 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, defamation, and civil conspiracy c l a i m s. The district court denied
summary judgment as to Kermode’s due process claims i n which he sought prospective i njunctive relief against the faculty members in their official capacities under Ex parte Young, 209 U.S. 123 (1908) (h i s “E x 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 o n t h e m e rits because, Ke rmode 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 t h e m o t i on, finding that Kermode forfeited the argument by failing to raise it in his opposition to summary judgment. Ke r m o de then filed a motion under Federal Rule of Civil Procedure 54(b) to certify th e p artial summary judgment for appeal. The dis t r i ct 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.

As expla ined mo re full y below , the fac ulty me mbe rs are st ate off icer s wh o, wh en sue d 2 in thei r off

icia l cap acit ies , are enti tle d to rais e t he sam e so verei gn im mun ity def ens e as the Me dic al Cente r. It “is we ll es tabl ish ed [t hat] ‘a sui t agains t a st ate off icia l in his or her off

icia l cap acit y is no t a s uit agains t the off icia l b ut rat her is a s uit agains t the off icia l’s of fic e’” and t hat ther efo re the off icia l-c apac ity def

enda nts are enti tle d to invok e so verei gn im mun ity. Uni on Pac. R.R

. v. La. Pub. Serv

. Com m’ n , 662 F.3d 336, 340 n.3 (5t h Cir. 2011) (quo ting Wil l
v. M ic h. De p’t of State Poli ce , 491 U. S. 58, 71 (198 9))

. 5 Case: 12-60010 Document: 00512055881 Page: 5 Date Filed: 11/16/2012No. 12-60010

The district court had federal question jurisdiction under 28 U.S.C. § 1331 and supplemental jurisdiction over Kerm o d e ’s Mississippi tort and contract claims unde r 28 U.S.C. § 1367. This Court has jurisdiction over the final judgments of district courts. 28 U.S.C. § 1291. State s o v e r e i gn 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 ’ A lene 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 F E D

. R. C IV

. P. 54(b). Kermode filed his notice of appeal on December 28, 2011, fewer than 30 days after the district court’s Ru l e 5 4 (b) order, making his appeal timely. See F E D

. R. AP P

. 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). “Sovereign immunity is the 3 privilege of the sovereign not to be sued without its consent.” Va. Office for Prot. & Advocacy v. Stewa r t , 1 31 S. Ct. 1632, 1637 (2011). “[S]tate sovereign immunity ‘has two parts: first, t h a t e a c h S t ate is a sovereign entity in our federal system; and second, that it is inherent in the nature of sovereignty not

De fen dant s urge tw o ki nds of imm uniti es , “s overe ign im mun ity” and “Eleve nth 3 Ame ndm ent im mun ity. ” Becaus e ther e is no sub st antive dif fer ence betw een them , how ever, weus e t he ter m, “ so verei gn im mun ity” inou r analys is. See Me yers ex rel

. Benz ing v. T exas , 410 F.3d 236, 240- 41 (5t h Cir. 2005) (c itin g Al den v. Ma ine , 527 U. S. 706, 713 (199 9)) ; see also, e. g. , Va

. Of

fi ce for Prot. & Ad v o c a c y v . S te wa rt , 131 S. Ct. 1632, 1637- 38 (201 1) (int erna l cit at i o n s o m i t t ed) (“ The language of the Elevent h Ame ndm ent only elim inate s the bas is for our judgment in the famo us case of Chis hol m v. Ge orgi a , 2 U. S. 419 (179 3), wh ich involved a sui t agains t a Sta te by a nonci tizen of the Sta te. Sinc e Ha ns v. Loui si ana , 134 U. S. 1 (189 0), how ever, we have unde rs too d the Eleventh Ame ndm ent to conf irm the st ruc tur al unde rs tand ing that Sta tes ente red the Unio n wi th thei r so verei gn im mun ity intac t, unlim ite d by Ar tic le III’s jur isd ict ional grant .” ). 6 Case: 12-60010 Document: 00512055881 Page: 6 Date Filed: 11/16/2012No. 12-60010

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, 6 3 4 ( 1 9 9 9 ) ). Despite the principle of sovereign immunity, a state may still be subject to s u i t in federal court if it “consents to suit or [if] Congress has clearly and validly ab r o g a t e d 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 t hat 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 officialcapacity faculty defenda n t s are state entities entitled to invoke sovereign immunity against suits by individuals in federal court. Sovereign i m m u n ity extends to agencies of the state government and “alter e gos” 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,” b u t 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 co u rt’s undisputed finding that Tex a s Women’s University is an arm of the state entitled to

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immunity). In addressing whether a n i n s t i t u tion 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 M i s s i s sippi is an arm of the state entitled t o r a ise 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). I n a n u n p ub l ished decision, a panel of this Court concluded that the University o f Mississippi Medical Center is an arm of the University of Mississippi and as such is entitled to raise the s t a t e ’ s sovereign i m m u nity as well. McGarry v. Univ. of Miss. Med. Ctr. , 355 F. App’x 8 5 3 , 8 5 6 (5th Cir. 2009); see also Sullivan v. Univ. of Miss. Med. Ctr. , 617 F. Supp. 554, 5 5 7 ( S

. D

. M iss. 1985) (same). We agree and conclude that as an arm of th e University of Mississippi, the University of M i s s i s sippi 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. I t “i s w e ll established [that] ‘a suit against a state official in his or her officia l capacity is not a suit against the official but rather is a suit against the official’s office’” and that therefore such officials a r e e n t itled 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 again s t s t a t e 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, ag a i n st the State.”); Kentucky v. Graham , 473 U.S. 159, 165-67 (1985) (“Official-capacity suits

. . . ‘generally represent only another way of pleading an action ag a i n s t a n 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 tha t the state defendants waived their immunity by evidencing an intent to defend the suit on the merits. E v e n i f s overeign immunity applies, the sta t e m a y s t ill 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, P ub

. L

. No. 99-506, 42 U.S.C. § 2000d-7. “Although [the court is] 4 empowered to c o nsider 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 immu nity 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 t h an 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.

In add itio n, Elevent h Ame ndm ent im mun ity may be abro gated for cer tain civil right s 4 l i t i g a t i o n , s ee Sem ino le Tri be of Fla

. v. Flor ida , 517 U. S. 44, 56-5 9 (199 6), but thes e do no t inclu de § 1983 sui ts , see Qu ern v. Jorda n , 440 U. S. 332, 345 (197 9). Abrogat ion pr incip les are ther efo re not app licable in this c ase . 9 Case: 12-60010 Document: 00512055881 Page: 9 Date Filed: 11/16/2012No. 12-60010

Generally, the [c]ourt will find a waiver either if (1) the state voluntarily invokes f ederal court jurisdiction, or (2) the state makes a ‘clear declaration’ that i t 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 i mmunity at the trial level may constitute waiver if it evidences an i n t e n t t o 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 s t a t e defendant may waive its immunity “by conduct that i s i n compatible 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 mi gh t h ave an unfair advantage if it could wait until the eve of trial to assert its i m m u n i t y. See id. at 757; cf. Union Pac. , 662 F.3d at 341-42 (holding that the state entity defendant did not w a ive 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”). Ho w e ver, 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 beginnin g t h a t they

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intended to move to dismiss on those grounds. In a d di t i on, they vigorously reasserted the defense in th e ir motion for summary judgment. Under the circumstances, we cannot conclude t hat the state defendants engaged in “gamesmanship” or otherwise eviden c e d a n 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 b r i e f

i ng 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 w a iv e r w h ere 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 affirm a tive 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 alternativ e a r gument that the district court, having dismissed his claims against the state defen d ant s on sovereign immunity grounds, erred in exercising supplemental jurisdiction to adjudi c a t e his individual-capacity claims against D r . Farley. Federal courts may exercise
supp l e m e ntal jurisdiction over state law claims when there is a federal claim

Becaus e we res olve the ques tio n of so verei gn im mun ity wa iver on the me rit s, we need 5 not reac h the def

enda nts ’ alte rnat ive cont enti on that Ke rm ode for fei ted his argum ent that the d efe ndant s wa ived thei r im mun ity as a res ult of his fai lure to rais e the iss ue until h i s R u l e 59(e) mo tio n t o a lte r or ame nd the judgm ent. 11 Case: 12-60010 Document: 00512055881 Page: 11 Date Filed: 11/16/2012No. 12-60010

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. L a m p as as 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 ( 5 t h C ir. 1994), and we review a district court’s refu s al to r elin qui s h j uri s dictio n over supplemental state claims for abuse of discretion, e.g. , Enochs , 641 F.3d at 158.

A. Kermode argues that the Supreme Court’ s h olding in Pennhurst State School & Hospital v. Halde r m an , 465 U.S. 89 (1984), requires that the supplemental state law claims be dismissed along with the federal claims. We address t h i s i s sue de novo. See Hook , 38 F.3d at 780. In Pennhurst , the Sup r e m e C o urt h el d th at 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 j uri s diction doctrine did not abrogate state entities’ sovereign immunity. See id. at 119-21. Accordingly, the reasoning in Pennhurst is applicable only if s over eign immunity is at issue—it is not applicable where the s u p p l e m ental 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 . 1 3 (5th Cir. 2008) (explaining that Pennhurst established that federal courts may not “hear[] state law claims against state officials in their official capacity under s u p p l e m e ntal jurisdiction”). As we e x p l a i n ed 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 t h o s e d e fendants 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 t h e state’s sovereign immunity: one is to file suit against the state offic e r s i n 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 t o 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 sov e r e i gn i m m u nity. See Graham , 473 U.S. at 165. Pennhurst , which involved a suit again s t a state officer in his official capacity, is therefore inapposite. See Pennhurst , 465 U.S.

See, e. g. , Bd. of Trus tees v. Ga rre tt , 531 U. S. 356, 374 n.9 (200 1); Ex pa rte Young , 209 6 U. S. at 155- 56. The Ex p a r te Young excep tio n to a st ate’ s so verei gn im mun ity res ts on the pr em ise (or legal “f

ict i o n” ) t h a t wh en a fed eral cour t enjoins a st ate off icia l’s illegal or uncon st itut ional act ions , the off ici a l i s d eem ed to be st rip ped of st ate autho rit y and is ther efo re not tre ated as the st ate for so verei gn im munity pur pos es . E.g. , Va . O ff ic e for Prot. & A dvo ca cy , 131 S. Ct

. at 1638. Unli ke off

icia l-c apac ity clai ms , individual

- c a pac ity clai ms “s eek to im pos e per so nal 7 liabil ity[ ,] ” not liabil ity agains t a st ate enti ty. Graha m , 473 U. S

. a t 1 65. Becaus e a sui t agains t an off

icer sue d in his or her individual cap acit y is no t a sui t agains t the st ate its elf, so verei gn im mun ity is not a def ens e in suc h individual -c apac ity sui ts—unl es s an individual

cap acit y clai m in eff

ect se ek s mo ney fr om the st ate rat her than the individual def enda nt. See,
e. g. , Graha m , 473 U. S. a t 1 6 5

- 67; Ford Mo tor Co. v. De pt. of Tre as ury of Ind. , 323 U. S. 459, 464 (194 5), ove rru le d on other grounds by Lap ide s v. Bd. of Regen ts, 535 U

. S

. 6 1 3 ( 2 002)

. Not hing in the rec ord or the par tie s’ brie fing indi cat es that this excep tio n wo uld app ly in this cas e. 13 Case: 12-60010 Document: 00512055881 Page: 13 Date Filed: 11/16/2012No. 12-60010

at 121; McInt o sh , 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 in dividual-capacity claims against Farley despite having dismissed other claims on sovereign immunity grounds.

B. Having found P

e n n h urst 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 s u p p l e m e ntal jurisdiction—i.e., whether the state and federal claims have a “common nucleus of operative fact,” Gibbs , 3 8 3 U.S. at 725, which we review for abuse of discretion, Enochs , 641 F.3d at 158. Kermode’s federal constitutional cl ai m s a gain s t th e oth er f aculty 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

. O f f i c e 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 cou r s e o f conduct a n d e v ents, namely, the faculty members’ alleged wrongdoing in

con n ection with the investigation and proceedings leading up to Kermode’s termination. We conclude that the two claim s h ave a “common nucleus of operative fact.” Gibbs , 383 U.S. at 725. The district court properly had federalquestion 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.

14 Case: 12-60010 Document: 00512055881 Page: 14 Date Filed: 11/16/2012No. 12-60010 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, i n c l u ding 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 th e r u l ing was not within the scope of the district court’s certification u n d e r R ule 54(b), which certified for appeal the district

cour t ’ s di s p o sal 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 c o u r t ’ 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 indivi du al defendants.

15 Case: 12-60010 Document: 00512055881 Page: 15 Date Filed: 11/16/2012