and through its attorneys of record, and respectfully submits its Reply in Support of Supplement
to its Motion for Sanctions and Dismissal Pursuant to FED. R. CIV. P. 37(e)(2)(C). This Reply is
intended only to address Plaintiffs Supplemental Opposition Response1, and would show the
Court as follows:
any manner the results of the third-party forensic examination that establishes that the image
which Plaintiff and her counsel have represented to the Court is from November 30, 2015 was
actually created August 11, 2016, and was not to be found anywhere in the 2015 storage on
Plaintiffs iCloud, from where it was represented that the image had been located in the May 31,
from Plaintiffs counsel to his client with its statement Plaintiffs counsel in no way allowed
the ESI on Plaintiffs phone to be destroyed because Plaintiff repeatedly assured her counsel the
information was in her possession and stored. However, it is notable that at no time in the
1
See Pacer Docket Entry No. 109 (Plaintiffs Supplemental Opposition Response).
1
PD.21767219.1
Case 3:16-cv-00744-CWR-LRA Document 110 Filed 06/23/17 Page 2 of 4
briefing of the Universitys Motion has Plaintiffs counsel ever informed the Court of anything
that was done by Plaintiffs counsel to preserve the ESI on Plaintiffs phone. In the instance of
the University, a litigation hold letter was sent to the University by its counsel to take proactive
steps to preserve and sequester ESI. This is particularly important, because Plaintiffs counsel
also has failed to ever inform the Court of any steps taken by counsel after receiving the
3. Plaintiff is responsible for the clearly deliberate action of destroying the ESI on
her phone, and submitting what has now been shown to be altered versions of the text messages
between her and Durham, intended to redact evidence of her own active and voluntary
participation. However, the Courts rules regarding the duty to preserve ESI are intended to be
followed by attorneys, and it is not enough to lay the blame on a client for counsels failure to
take possession of the device or take any action whatsoever to preserve the now unrecoverable
ESI.
4. Plaintiffs Supplemental Opposition Response argues without any basis that the
University has not proven that Plaintiff acted with intent to deprive another party of the
informations use in litigation. The University would respectfully assert to the Court that the
evidence presented offers no other explanation than willful and calculated actions to destroy
evidence harmful to Plaintiffs case, and deliberately prevent the University from being able to
5. Also notable is that the University has produced clear evidence through the
forensic report that Plaintiffs prior claims about when her phone was traded in and the ESI was
destroyed are clearly false. Not surprisingly, even though Plaintiff has full access to her own
AT&T records, Plaintiff fails to produce any evidence that refutes the clear evidence of the
forensic examination.
2
PD.21767219.1
Case 3:16-cv-00744-CWR-LRA Document 110 Filed 06/23/17 Page 3 of 4
For all the reasons discussed herein and in is other pleadings as to its Rule 37(e) Motion,
Defendant Belhaven University respectfully requests the Court grant its Motion, and sanction
Plaintiff with dismissal of her action against the University, pursuant to FED. R. CIV. P.
37(e)(2)(C). The University also requests Plaintiff and her counsel be assessed all attorneys
fees incurred by the University in bringing the instant Motion, as well as any other relief the
Respectfully submitted,
3
PD.21767219.1
Case 3:16-cv-00744-CWR-LRA Document 110 Filed 06/23/17 Page 4 of 4
CERTIFICATE OF SERVICE
I, MARK FIJMAN, do hereby certify that on June 23, 2017, I electronically filed the
R. CIV. P. 37(E)(2)(C) with the Clerk of the Court using the CM/ECF system which sent
Carlos E. Moore
Justin D. Smith
Tucker Moore Group, LLC
306 Branscome Drive
Grenada, MS 38902-1487
carlos@tuckermoorelaw.com
justindsmithlaw@gmail.com
Charles T. Tucker
Tucker Moore Group, LLC
16009 Lavender Dream Lane
Brandywine, MD 20613
charles@tuckermoorelaw.com
Gerald A. Mumford
820 North Street
Jackson, Mississippi 39202
(601) 398-2347
gerald@themumfordfirm.com
4
PD.21767219.1
Case 3:16-cv-00744-CWR-LRA Document 109 Filed 06/23/17 Page 1 of 4
for Sanctions and Dismissal pursuant to Fed. R. Civ. P. 37 (e)(2)(C), and in support
1. This supplement arises from this Courts Order on June 8, 2017, and Defendant
iCloud account as well as her iPhone and passcode, and additional backups and
passcodes, if any.
iPhone, iCloud, and a photo of Plaintiffs in which she ensures was sent to
Defendant Durham.
Case 3:16-cv-00744-CWR-LRA Document 109 Filed 06/23/17 Page 2 of 4
4. The Pileum Report does not give an explanation if and when warranty of an
iPhone starts. It may be possible to opt-out of the warranty or buy the warranty
on a different date. Instead it uses general information for Apples website and
Belhaven. His phone, computer, and icloud should have the same information
that Ms. Stewarts phone, computer, and/or icloud would have regarding
6. The Defendant University has still not proven Plaintiff acted with intent to
Additionally, the Pileum Report explains that flash memory data could be
deleted and overwritten by powering the phone off.1 This show exactly how
unintentional loss of data can be. iPhones power off for various reason, including
but not limited to: battery drainage, the phone resetting, turning the phone off to
regain cellular service, etc. In other words, Defendant cannot prove Plaintiff
intentionally destroyed data on her phone because it well could have been
1
See Pileum Report at Pages 7-8.
Case 3:16-cv-00744-CWR-LRA Document 109 Filed 06/23/17 Page 3 of 4
destroyed because Plaintiff repeatedly assured her counsel the information was
Defendant continuously alleges that Plaintiff acted in bad faith and intentionally
destroyed evidence material to this case, but has not diligently looked elsewhere
for this information. Thus, has not proven the necessary elements for a grant of
For the reasons stated above and material incorporated by reference in Plaintiffs
Opposition, Plaintiff respectfully requests that this Honorable Court deny Belhavens
Motion of Sanctions and Dismissal, deny Defendant Universitys request for attorneys
fees and respectfully requests such other relief to which she is entitled.
CERTIFICATE OF SERVICE
I, the undersigned, do hereby certify that I have this date served via the
electronic filing system and/or mailed via U.S. Mail, postage pre-paid, a true and
correct copy of the above and foregoing to the following:
and through its attorneys of record, pursuant to L. U. CIV. R. 79, and respectfully submits its
Unopposed Motion for Leave to File Under Seal Deposition Testimony and Redacted Portions of
Pleadings Referencing Such Testimony. The University seeks such leave in regard to any future
pleadings or exhibits to be filed by the University to the extent they contain or reference such
testimony.
The University believes the Court already has tacitly ruled in favor of the requested
sealing through its April 14, 2017 ruling, however, the instant Motion is being filed to comply
with the requirements of L. U. CIV. R. 79. In support of this Motion, the University would show
as follows:
1. During Plaintiffs April 14, 2017 deposition, counsel for the University
questioned Plaintiff regarding her relationship, interactions and communications with a non-
questioning was specifically in regard to a statement made by Plaintiffs counsel to the media
during a September 28, 2016 press conference held by Plaintiff and her counsel.
-1-
PD.21703608.1
Case 3:16-cv-00744-CWR-LRA Document 105 Filed 06/19/17 Page 2 of 4
2. Pursuant to the Magistrate Judges ore tenus compelling Plaintiff to testify over
the objections of her counsel, the Magistrate Judge also ordered the portions of the deposition
transcript relating to Plaintiffs identification of the non-party individual and her interactions
with such person to be sealed.1 As it relates to Plaintiffs claims and purported damages, the
Universitys anticipates utilizing such evidence in its expected Motion for Summary Judgment.
3. The motion deadline in this case is August 2, 2017.2 The University anticipates
filing their Motion for Summary Judgment on or before the motion deadline.
4. Because the Court already has ruled that the deposition testimony in question is
properly sealed, no legitimate purpose is served by the testimony being publicly accessible on
the Courts PACER/ECF system. To the extent the Court requires additional information, the
University will make the sealed portion of the transcript available to the Court for in camera
review, or provide such information at any hearing the Court might Order.
5. For purposes of L. U. Civ. R. 79, the University believes the Court already has
established clear and compelling reasons to seal the deposition testimony and any reference to it
in any pleading. While the testimony is of relevance to this case and warranting the Courts
consideration as to factual and legal issues, no public interest is served by public disclosure.
6. If the Court grants the instant Motion, all conventionally filed documents will
comply with the requirements of L. U. Civ. R. 79(e). Unless the Court otherwise orders a
different filing procedure, Defendant Belhaven University will, to the extent the deposition
testimony in question is utilized as an exhibit, or referenced in a pleading, (a) file on the Courts
PACER/ECF system redacted versions of its pleadings and supporting exhibits as to the
deposition testimony in question, (2) conventionally file under seal the un-redacted pleadings
1
See Pacer Docket Text Entries of April 14, 2017.
2
See Pacer Docket Entry No. 18 (Case Management Order).
-2-
PD.21703608.1
Case 3:16-cv-00744-CWR-LRA Document 105 Filed 06/19/17 Page 3 of 4
and exhibits, and (3) provide un-redacted copies of the pleadings in question to the parties and
7. Counsel for the University has contacted counsel for all parties. Plaintiff and
Defendant / Counter Claimant Tarold Durham have no objection to the instant Motion.
Court enter an order granting the University leave to file under seal any such deposition
testimony previously designated by the Court, and any pleadings in which the testimony is
referenced.
Respectfully submitted,
-3-
PD.21703608.1
Case 3:16-cv-00744-CWR-LRA Document 105 Filed 06/19/17 Page 4 of 4
CERTIFICATE OF SERVICE
I, MARK FIJMAN, do hereby certify that on June 19, 2017, I electronically filed the
Court using the CM/ECF system which sent notification of such filing to the following counsel
of record:
Carlos E. Moore
Justin D. Smith
Tucker Moore Group, LLC
306 Branscome Drive
Grenada, MS 38902-1487
carlos@tuckermoorelaw.com
justindsmithlaw@gmail.com
Charles T. Tucker
Tucker Moore Group, LLC
16009 Lavender Dream Lane
Brandywine, MD 20613
charles@tuckermoorelaw.com
Gerald A. Mumford
820 North Street
Jackson, Mississippi 39202
(601) 398-2347
gerald@themumfordfirm.com
-4-
PD.21703608.1
Case 3:16-cv-00744-CWR-LRA Document 100 Filed 06/13/17 Page 1 of 4
and through its attorneys of record, pursuant to L. U. CIV. R. 79, and respectfully submits its
Motion to File Forensic Examination Report and Other Images Under Seal. In support of this
1. On June 8, 2017, the Magistrate Judge granted the Universitys ore tenus Motion
to Compel, and ordered Plaintiff to provide to a third-party computer forensics specialist for
examination, her current iPhone and access information to her iCloud.1 The Order provided that
the third-party computer forensics specialist would disclose the results of the examination to
2. On June 9, 2017, pursuant to the Courts Order, the report of the third-party
computer forensics specialist was provided to all parties. Based on the results of the report, the
University, filed its Supplement to its Motion for Sanctions and Dismissal Pursuant to FED. R.
CIV. P. 37(e)(2)(C), and noted its intent for the report to be an exhibit to the Supplement, and
also noted its intent to request of the Court that the report be file under seal.3
1
See Pacer Docket Entry No. 92 (Order)
2
See Pacer Docket Entry No. 92 (Order)
3
See Pacer Docket Entry No. 99 (Supplement to its Motion for Sanctions and Dismissal Pursuant to Fed. R. Civ. P.
37(e)(2)(C)).
-1-
PD.21665585.1
Case 3:16-cv-00744-CWR-LRA Document 100 Filed 06/13/17 Page 2 of 4
3. The report contains copies of the image that was provided on May 31, 2017 to the
Court and the parties by counsel for the Plaintiff. The Court has since addressed this image as it
relates to the instant case, i.e. a nearly-nude, salacious selfie she [Stewart] had sent Durham . . .
Stewarts deposition testimony indicates that she sent Durham the selfie before he sent her the
penis photo. In other words, Durhams pornographic photo of a penis was sent in response to
Stewarts scantily-clad selfie.4 As such, the Court has provided a substantive and entirely
4. In the instant case, while the University believes the image is yet additional
evidence of the baseless nature of Plaintiffs claims against the University, it also believes that
no legitimate purpose is served by the image being publicly accessible on the Courts
PACER/ECF system. The University does not wish to contribute to the tactical media
5. For purposes of L. U. Civ. R. 79, the University believes this is a clear and
compelling reasons to seal the report, as well as any other exhibit in this matter which may
contain the image in question, and this action would be a narrowly tailored remedy under the
circumstances. While the image(s) in question are of relevance to this case and warranting the
Courts consideration as to factual and legal issues, no public interest is served by public
disclosure, and there would be no prejudice to the public interest by allowing them to be
submitted under seal. If the Court grants the instant Motion, all conventionally filed documents
6. Counsel for the University has contacted counsel for all parties. Plaintiff has no
objection to the instant Motion. Defendant / Counter Claimant Tarold Durham objects to the
instant Motion.
4
See Pacer Docket Entry No. 98 at 2 n.1 (Order).
5
See Pacer Docket Entry No. 98 at 2 n.1 (Order)..
-2-
PD.21665585.1
Case 3:16-cv-00744-CWR-LRA Document 100 Filed 06/13/17 Page 3 of 4
Court enter an order granting the University leave to file the report under seal, as an exhibit to its
Supplement to its Motion for Sanctions and Dismissal Pursuant to FED. R. CIV. P. 37(e)(2)(C),
and also grant leave to file under seal any other exhibit containing the image in question.
Respectfully submitted,
-3-
PD.21665585.1
Case 3:16-cv-00744-CWR-LRA Document 100 Filed 06/13/17 Page 4 of 4
CERTIFICATE OF SERVICE
I, MARK FIJMAN, do hereby certify that on June 13, 2017, I electronically filed the
FORENSIC EXAMINATION REPORT AND OTHER IMAGES UNDER SEAL with the
Clerk of the Court using the CM/ECF system which sent notification of such filing to the
Carlos E. Moore
Justin D. Smith
Tucker Moore Group, LLC
306 Branscome Drive
Grenada, MS 38902-1487
carlos@tuckermoorelaw.com
Charles T. Tucker
Tucker Moore Group, LLC
16009 Lavender Dream Lane
Brandywine, MD 20613
charles@tuckermoorelaw.com
Gerald A. Mumford
820 North Street
Jackson, Mississippi 39202
(601) 398-2347
gerald@themumfordfirm.com
-4-
PD.21665585.1
Case 3:16-cv-00744-CWR-LRA Document 99 Filed 06/09/17 Page 1 of 5
and through its attorneys of record, and respectfully submits its Supplement to its Motion for
Sanctions and Dismissal Pursuant to FED. R. CIV. P. 37(e)(2)(C). This Supplement is provided in
light of the Magistrate Judges Order of June 8, 2017, and the report issued on June 9, 2017 by
the third-party computer forensics specialist who examined Plaintiffs iCloud and her current
iPhone.1 The report shows that the photograph produced by Plaintiff to the parties and the Court
on May 31, 2017, which was represented to the Court to be from November, 30, 2015, was
shown not to be from any 2015 data in Plaintiffs iCloud, but instead had a creation date of
August 11, 2016. The Pileum Report also showed that the image had multiple modification
dates, the most recent being shortly before 10:00 p.m. on June 7, 2017, the same day of the
hearing at which the Court ordered Plaintiffs iCloud and iPhone examined.
The examination of Plaintiffs iCloud reveals that her express representation to the Court
that the photograph was from November 30, 2015 is clearly false, in yet another example of the
deliberate spoliation and misrepresentations perpetrated by the Plaintiff in this matter. For the
reasons discussed herein and in the Universitys prior Memorandums, the University respectfully
1
As detailed in the Universitys Motion, the ESI on the iPhone that Plaintiff used to communicate with Durham has
been destroyed by the actions of Plaintiff.
1
PD.21662694.1
Case 3:16-cv-00744-CWR-LRA Document 99 Filed 06/09/17 Page 2 of 5
requests the Court grant its Motion, and sanction Plaintiff with dismissal of her action against the
University, pursuant to Fed. R. Civ. P. 37(e)(2)(C). The University also requests Plaintiff and
her counsel be assessed all attorneys fees incurred by the University as well as any other relief
the Court finds proper. In support of this Supplement, the University would show the following:
1. On May 31, 2017, Plaintiffs counsel e-mailed to counsel for all Defendants, as
well as the Magistrate Judge and District Court Judge, a photograph, which Plaintiff represents is
a selfie photograph of herself wearing only underwear, which the e-mail states she sent to
Defendant Tarold Durham on November 30, 2015.2 Plaintiff, through counsel, represents that
this purported November 30, 2015 photograph was just discovered on Plaintiffs iCloud. The
appearance of the purported 2015 photograph comes after more than six months of discovery and
after a Court-ordered sworn statement that she had already produced all relevant photographs.
2. On June 8, 2017, the Magistrate Judge granted the Universitys ore tenus Motion
to Compel, and ordered Plaintiff to provide to a third-party computer forensics specialist for
examination, her current iPhone and access information to her iCloud.3 The Order provides that
the third-party computer forensics specialist will disclose the results of the examination to
report, which was provided to all parties. A copy will be e-mailed to the Court for in camera
review pending leave for the Report to be filed under seal. The highlights of the Report are as
follows:
2
In its Order of June 9, 2017, the Court states it has reviewed the nearly-nude, salacious selfie which was
produced by Plaintiff, and accordingly, the University will not attach a copy as a Pacer accessible exhibit. See Pacer
Docket Entry No. 98 at 2 n.1 (Order).
3
See Pacer Docket Entry No. 92 (Order)
4
See Pacer Docket Entry No. 92 (Order)
2
PD.21662694.1
Case 3:16-cv-00744-CWR-LRA Document 99 Filed 06/09/17 Page 3 of 5
November 30, 2015, [w]hen examining Ms. Stewarts iCloud account Pileum
discovered that Ms. Stewart had 721 photos stored in the cloud from May 13,
2015 August 17, 2016. The only photo from 2015 was a video unrelated to
Ms. Stewarts iCloud shows that the creation date of the photograph supplied to
the Court as being from November 30, 2016, in fact had a creation date no earlier
The Pileum Report shows modifications were being made to the image as recently
as June 7, 2017 at 9:51 p. m., approximately seven hours after the Court ordered
The Pileum Report also shows modifications were being made to the image on
May 30, 2017 and May 31, 2017, prior to its production to the parties and the
The Pileum Report also shows Plaintiffs iPhone was activated as a new phone on
August 20, 2016, which gives lie to Plaintiffs earlier discovery responses in
February 2017 that she was in possession of her original phone, and then
For all the reasons discussed herein and in is other pleads as to its Rule 37(e) Motion,
Defendant Belhaven University respectfully requests the Court grant its Motion, and sanction
Plaintiff with dismissal of her action against the University, pursuant to FED. R. CIV. P.
5
See Pileum Report at Page 22.
6
See Pileum Report at Page 23-25.
7
See Pileum Report at Page 9-15.
8
See Pileum Report at Page 16-18.
9
See Pileum Report at Page 5.
3
PD.21662694.1
Case 3:16-cv-00744-CWR-LRA Document 99 Filed 06/09/17 Page 4 of 5
37(e)(2)(C). The University also requests Plaintiff and her counsel be assessed all attorneys
fees incurred by the University in bringing the instant Motion, as well as any other relief the
Respectfully submitted,
4
PD.21662694.1
Case 3:16-cv-00744-CWR-LRA Document 99 Filed 06/09/17 Page 5 of 5
CERTIFICATE OF SERVICE
I, MARK FIJMAN, do hereby certify that on June 9, 2017, I electronically filed the
37(E)(2)(C) with the Clerk of the Court using the CM/ECF system which sent notification of
Carlos E. Moore
Tucker Moore Group, LLC
306 Branscome Drive
Grenada, MS 38902-1487
carlos@tuckermoorelaw.com
Charles T. Tucker
Tucker Moore Group, LLC
16009 Lavender Dream Lane
Brandywine, MD 20613
charles@tuckermoorelaw.com
Gerald A. Mumford
820 North Street
Jackson, Mississippi 39202
(601) 398-2347
gerald@themumfordfirm.com
5
PD.21662694.1
Case 3:16-cv-00744-CWR-LRA Document 98 Filed 06/09/17 Page 1 of 3
ORDER
Before the Court is Tarold Durhams motion for summary judgment on the two state law
claims lodged against him: intentional and negligent infliction of emotional distress. The matter
The background of this case was recited in an earlier Order and need not be repeated
here. See Stewart v. Durham, No. 3:16-CV-744-CWR-LRA, 2017 WL 548994 (S.D. Miss. Feb.
Durham faces claims that his sexual advances inflicted emotional distress upon Erica N.
emotional distress as a direct result of the act/acts of the defendant. J.R. ex rel. R.R. v. Malley,
62 So. 3d 902, 906 (Miss. 2011) (italics and brackets omitted). Negligent infliction of emotional
Homecrafters, Inc., 744 So. 2d 736, 743 (Miss. 1999) (collecting cases).
Perhaps Durhams most egregious act was texting Stewart a picture of an engorged penis
along with the message, Your [job] interview will be next week. . . . Can I get something for the
interview? The advance was coarse, embarrassing, stupid, and as described by his counsel,
unbecoming of a married Christian father of twin boys. Be that as it may, the evidence does
The day after Durham sent the picture of the tumescent penis, Stewart replied, you can
get [a] hug and kiss after the interview! She then added, Sooo I found myself thinking about
you. The two flirted back and forth: Durham called her boo; Stewart called him Hun. When
Durham wrote I miss you, Stewart responded I miss you too and sent an emoji blowing him
a kiss. She also revealed that she had once participated in a threesome, texting I like stuff like
that . . . so if you become my boo. Stuff like that comes with me. Later she wrote, we can
celebrate once I get the job! along with three winking emoji, and invited Durham to join her
Needless to say these responses do not indicate distress. Stewarts deposition testimony
confirms as much. Counsel opposite asked, Now, by telling him youll hug and kiss him, you
dont sound particularly upset in your response about receiving the penis picture; is that correct?
Stewart answered, No, Im not -- I didnt sound upset. When asked again whether she was
Stewarts most compelling evidence of emotional harm came when she described what
happened (1) after she filed her charge of discrimination with the EEOC, and (2) after she filed
this lawsuit and held a press conference with her attorney, apparently to bring public attention to
her claims. After each of those occurrences, third partiesallegedly friends of Durham
harassed her and, in at least one instance, posted revealing pictures of her on the internet.
That conduct may warrant causes of action against the responsible persons. Without
evidence that the harassment and invasion of privacy were caused by Durham, though, it is not
1
After the briefing on this motion closed, Stewart located and produced a nearly-nude, salacious selfie she had sent
Durham. The supplemental production was vague as to the selfies date, but Stewarts deposition testimony indicates
that she sent Durham the selfie before he sent her the penis photo. In other words, Durhams pornographic photo of
a penis was sent in response to Stewarts scantily-clad selfie.
2
Case 3:16-cv-00744-CWR-LRA Document 98 Filed 06/09/17 Page 3 of 3
The question today is not whether Durhams conduct was appropriate or unsavory, the
word Durhams counsel uses to describe Stewarts conduct. Nor is it whether Durhams behavior
constituted sexual harassment in violation of Title VII. The issue is whether he intentionally or
negligently caused Stewart to suffer emotional distress. The available evidence indicates that the
answer is no.
s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE
3
Case 3:16-cv-00744-CWR-LRA Document 75 Filed 05/18/17 Page 1 of 3
COMES NOW Plaintiff, Erica Stewart, by and through her attorney of record, and files this,
Response in Opposition to Defendant Tarold Durhams Motion for Summary Judgment. Plaintiff
moves this Honorable Court to deny Defendants Motion and request a hearing on said Motion, and
1. This case arises from Tarold Durhams (Defendant Durham) offensive sexual advances
2. Defendant Durham was employed with Belhaven University as the Director of Online
Admissions. On November 28, 2015, via Facebook, Defendant Durham contacted Plaintiff
and advised of an open receptionist position with Belhaven University. On November 30,
2015, Plaintiff met with Defendant Durham in his office at Belhaven University regarding
her resume.
3. Subsequently, Defendant Durham engaged in sexual advancements toward Plaintiff via social
media and text messages, which includes Defendant Durham forwarding an obscene
photograph of his penis with the caption, Can I get something for the interview. Plaintiff
continuously denied Defendant Durhams sexual advances and on January 7, 2016, Plaintiff
1
Case 3:16-cv-00744-CWR-LRA Document 75 Filed 05/18/17 Page 2 of 3
4. On September 21, 2016, Plaintiff filed her Complaint against Defendant Durham asserting a
cause of action for intentional infliction of emotional distress (IIED) and negligent
5. On May 4, 2017, Defendant Durham filed a Motion for Summary Judgment alleging that
Defendant Durhams conduct does not rise to the level of IIED and NIED and Plaintiff did
not suffer any injuries. Further, Defendant Durham alleges that there is no genuine dispute as
to any material fact, which would preclude the entry of summary judgment.
6. Summary judgment is appropriate if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a). A genuine dispute of material fact exists when the evidence is such that a reasonable
jury could return a verdict for the nonmoving party. Royal v. CCC & R Tres Arboles, L.L.C.,
736 F.3d 396, 400 (5th Cir. 2013) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
448 (1986)). [A] party seeking summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those portions of [the
record] which it believes demonstrate the absence of a genuine issue of material fact.
7. Defendant Durhams Motion for Summary Judgment should be denied, as a matter of law,
and a jury should be afforded the opportunity to determine whether Defendant Durhams
conduct towards Plaintiff was so extreme and outrageous that it caused Plaintiff injuries. The
jury will determine that Defendant Durhams conduct was egregious and the record reflects
the same. Therefore, Defendant Durhams Motion for Summary Judgment should be denied.
2
Case 3:16-cv-00744-CWR-LRA Document 75 Filed 05/18/17 Page 3 of 3
b. Message thread between Defendant Durham and Plaintiff dated November 28, [2015]
WHEREFORE, PREMISES CONSIDERED Plaintiffs pray that this Honorable Court will
deny Defendant Durhams Motion for Summary Judgment as his sexual conduct towards Plaintiff
was egregious and caused Plaintiff injuries. Plaintiff also prays for all other general relief this Court
ERICA STEWART
OF COUNSEL:
TUCKER MOORE GROUP, LLP
306 Branscome Drive
Grenada, Mississippi 38901
Telephone: 662-227-9940
Facsimile: 662-227-9941
Carlos@TuckerMooreLaw.com
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the above and foregoing pleading was transmitted via
3
Case 3:16-cv-00744-CWR-LRA Document 55 Filed 03/08/17 Page 1 of 1
Case 3:16-cv-00744-CWR-LRA Document 50 Filed 02/09/17 Page 1 of 5
ORDER
Before the Court is Tarold Durhams motion to dismiss. Docket No. 27. The matter is
The factual allegations are drawn from the complaint and taken as true for present
purposes.
In November 2015, Erica Stewart interviewed for a job in the Online Admissions
Stewart says that at some point in her application process Durham made sexual advances
toward her via social media and text messages. The advances culminated in Durham sending
Stewart a text message containing a photo of an erect penis. Durham allegedly wanted sexual
Stewart refused the advances. In January 2016, she learned that the vacancy was no
longer available. She filed a claim with the EEOC, then commenced suit in this Court.
In her complaint, Stewart alleges that Durham and Belhaven are liable for sexual
harassment and retaliation in violation of Title VII, intentional and negligent infliction of
Case 3:16-cv-00744-CWR-LRA Document 50 Filed 02/09/17 Page 2 of 5
emotional distress, and negligent supervision. She takes special offense at this conduct having
Durhams motion to dismiss contends that Stewart has failed to state a claim.
When considering a motion to dismiss for failure to state a claim, the Court accepts the
plaintiffs factual allegations as true and makes reasonable inferences in the plaintiffs favor.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To proceed, the complaint must contain a short and
plain statement of the claim showing that the pleader is entitled to relief. Id. at 677-78
(quotation marks and citation omitted). This requires more than an unadorned, the defendant-
unlawfully-harmed-me accusation, but the complaint need not have detailed factual
allegations. Id. at 678 (quotation marks and citation omitted). The plaintiffs claims must also
be plausible on their face, which means there is factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged. Id. (citation
omitted).
III. Discussion
Stewart concedes that her Title VII claims against Durham fail because Durham was not
an employer under the statute. What remains are her state-law claims for intentional and
A claim for intentional infliction of emotional distress will not ordinarily lie for mere
employment disputes. Lee v. Golden Triangle Planning & Dev. Dist., Inc., 797 So. 2d 845, 851
(Miss. 2001) (citations omitted). To justify a finding that this tort has occurred, the defendants
conduct must be wanton and wilful and it would evoke outrage or revulsion. Speed v. Scott, 787
So. 2d 626, 630 (Miss. 2001) (quotation marks and citation omitted).
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Among the kind of actions that have been found to evoke such outrage were a plot
by a girlfriend and her parents to hide the child of an unwed father, arranging for
the baby to be adopted by strangers while the father pursued a custody suit. In
another suit a car dealership forged a customers name on a sales contract and sold
the contract to a finance company, resulting in the customers credit being
damaged. Contrarily, what is not sufficient have been such actions as a law firm
breaching an employment contract with an attorney, locking him out, refusing him
secretarial support and dropping his name from the firm sign.
Id. (citations omitted). In short, a plaintiff must allege conduct that is seen as intolerable,
omitted).
Durham contends that his conduct falls short of this high standard. The fact that Belhaven
Sexual advances and harassment in the workplace are nothing new. See, e.g., Moore v.
Cricket Commcns, Inc., 764 F. Supp. 2d 853, 858 (S.D. Tex. 2011) (involving display of nude
photograph to coworker); E.E.O.C. v. IPS Indus., Inc., 899 F. Supp. 2d 507, 519 (N.D. Miss.
2012) (involving unwanted physical advances); Snapp v. Ruan Transp. Corp., No. 1:05-CV-77-
M-D, 2006 WL 2455922, at *2, *15 (N.D. Miss. Aug. 22, 2006) (involving explicit photographs
and physical advances); Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 804 (11th Cir.
2010) (involving explicit photographs and vulgar conduct humiliating and degrading to
women); see also Deborah S. Brenneman, From A Woman's Point of View: The Use of the
Reasonable Woman Standard in Sexual Harassment Cases, 60 U. CIN. L. REV. 1281, 1297 (1992)
everywhere occurrence.).
What has changed is the technological capability to make graphic sexual advances
instantlylikely before our rational brains have a chance to understand the possible
consequences. See generally DANIEL KAHNEMAN, THINKING, FAST AND SLOW (2011). The
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increased ease of communication may lead to more, and more unusual, disputes which inevitably
ask judges and juries to consider what kind of conduct inspires outrage in this day and age.
Durham argues that there was no job vacancy, no interview, and nothing outrageous about
(allegedly) sending a photo of an engorged penis to a person who had been engaging in
flirtatious conversation with him for weeks. But it is very difficult to accept his argument at the
Stewart never alleges that the photo sharing was consensual. Nor does she allege that the
sharing took place between adults of equal status. Durham had power. He was the director of an
office, interviewed Stewart for a vacancy, appeared to have authority to hire her, and wanted sex
for the job. Under governing law, it is Stewarts allegations that must be taken as true at this
point in the case. And her allegations are backed by the shocking photograph accompanied by the
Durham is correct that the standard for intentional infliction of emotional distress is the
same regardless of Belhavens religious affiliation. But he is wrong about the outrageousness of
his behavior. A jury reviewing sufficient evidence may agree with Stewart that it is outrageous
and revolting to send unsolicited, non-consensual explicit photos in the employment context.
See, e.g., Moore, 764 F. Supp. 2d at 858 (finding that managers display of nude photograph of
himself to plaintiff was hostile, abusive, and indeed outrageous conduct); Snapp, 2006 WL
2455922, at *15 (accepting plaintiffs version of events at summary judgment stage and finding
that supervisors sustained and bizarre campaign of stalking, harassment and deviant behavior
would be more than sufficient to create genuine issues of material fact as to whether she is
entitled to recover against him for IIED); Smith v. City of New Smyrna Beach, No. 6:11-CV-
1110-ORL-37, 2012 WL 6721002, at *8 (M.D. Fla. Dec. 27, 2012) (Given the frequency and
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severity of the unwelcome conduct, the humiliation, and the unreasonable interference with
Plaintiffs performance, . . . a reasonable factfinder could conclude that the harassment was
sufficiently severe.). As one article explained, unsolicited dick pics that are sent as a form of
harassment . . . [are] a serious problem. Consent is crucial when it comes to dick pics.
Unsolicited dick pics and sexts are more than an annoyancethey make recipients feel unsafe
and degraded. Alex Abad-Santos, Anthony Weiner and the Rise of Dick Pics, Explained, VOX
For these reasons, Stewart may proceed with her intentional infliction of emotional
distress claim.
We are left with Stewarts negligent infliction of emotional distress claim. On one hand,
Stewarts complaint presents no facts to distinguish this claim from her intentional infliction
count. On the other hand, Durham has presented no argument for dismissing this claim beyond
his reasons for dismissing the intentional infliction count. On balance the better course of action
IV. Conclusion
s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE
1
Discovery may reveal something quite different about the allegations, pictures, and text messages, but again, at this
juncture, the Court must accept the allegations as true.
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and through its attorneys of record1, and respectfully submits its Motion for Sanctions and
relevant electronically stored information (ESI) by the deliberate and knowing disposal of
Plaintiffs phone after Plaintiffs counsel was expressly put on notice by the University to
text messages between her and former Belhaven employee Tarold Durham. In her deposition,
Plaintiff testified that all her text communications with Durham were conducted on her phone.
2. At the very start of this litigation, counsel for the University advised Plaintiffs
counsel in writing of his obligation to preserve ESI, and expressly instructed him to
immediately preserve and sequester any and all mobile telephones and/or other digital devices
belonging to Ms. Stewart, containing any and all text messages or other communications
between Ms. Stewart and Mr. Durham, including any and all images transmitted by Ms.
Stewart.
1
Undersigned counsel represents only Defendant Belhaven University, and does not represent Defendant Tarold
Durham.
1
PD.21482888.1
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counsel informed the Universitys counsel that Plaintiff no longer had the phone and had traded
it in at an AT&T store, effectively destroying any opportunity to recover ESI on the devices
hard drive.
this highly relevant ESI, and by the sequence events detailed below, it is clear that Plaintiff
and/or Plaintiffs counsel acted with intent to deprive the University of the ESI contained on
Plaintiffs phone. FED. R. CIV. P. 37(e)(2). The University has been prejudiced by Plaintiffs
deliberate destruction of the phone, which prevents examination of the actual digital ESI, and
Plaintiff should be sanctioned with dismissal of her action against the University, pursuant TO
(c) September 23, 2016 Letter to Plaintiffs Counsel Discovery Responses, Attached
as Exhibit C;
Exhibit D;
(f) E-Mail Chain from April 28, 2017 May 9, 2017, Attached as Exhibit F;
2
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For all the reasons discussed herein and in its Memorandum, Defendant Belhaven
University respectfully requests the Court grant its Motion, and sanction Plaintiff with dismissal
of her action against the University, pursuant to FED. R. CIV. P. 37(e)(2)(C). The University also
requests Plaintiff and her counsel be assessed all attorneys fees incurred by the University in
bringing the instant Motion, as well as any other relief the Court finds proper.
Respectfully submitted,
3
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CERTIFICATE OF SERVICE
I, MARK FIJMAN, do hereby certify that on May 11, 2017, I electronically filed the
SANCTIONS AND DISMISSAL PURSUANT TO FED. R. CIV. P. 37(E)(2)(C) with the Clerk
of the Court using the CM/ECF system which sent notification of such filing to the following
counsel of record:
Carlos E. Moore
Tucker Moore Group, LLC
306 Branscome Drive
Grenada, MS 38902-1487
carlos@tuckermoorelaw.com
Charles T. Tucker
Tucker Moore Group, LLC
16009 Lavender Dream Lane
Brandywine, MD 20613
charles@tuckermoorelaw.com
Gerald A. Mumford
820 North Street
Jackson, Mississippi 39202
(601) 398-2347
gerald@themumfordfirm.com
4
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and through its counsel of record, and responds to Plaintiffs Complaint. To the extent the
Complaint asserts any allegations against a party other than the University, Defendant is without
information sufficient to admit or deny the allegations, and accordingly, denies same. Defendant
responds as follows:
Plaintiffs Complaint fails to state a claim upon which relief can be granted.
Defendant affirmatively asserts that Plaintiff cannot establish a prima facie case of sexual
1
Undersigned counsel represents only Defendant Belhaven University.
PD.20174022.1
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Defendant affirmatively pleads all statutory and jurisdictional prerequisites to suit under
Title VII, including the criminal prohibition of perjury in an investigation, and all applicable
statutes of limitation and defenses available under the statute, and to the extent the Complaint
asserts or attempts to assert claims under Title VII other than those asserted by Plaintiff in a
timely charge of discrimination filed with the EEOC, such claims cannot be maintained.
Defendant affirmatively asserts that Plaintiff cannot establish a prima facie case of
negligent hiring, supervision and retention under Mississippi law, and cannot establish a prima
In regard to the actions alleged in Plaintiffs Complaint, Tarold Durham was not acting in
the course and scope of his employment with Belhaven University, and the alleged conduct
complained of was outside the course and scope of his employment with the University.
willful action.
PD.20174022.1
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Even if Plaintiff sustained damages, which is specifically denied, Defendant avers that
damages, Defendant affirmatively asserts that an award of punitive damages would violate the
Defendant assert the provisions of the Mississippi Litigation Accountability Act of 1988,
Miss. Code Ann. 11-55-1 et seq., including but not limited to the assessment of attorney fees
Defendant asserts all affirmative defenses that are or may become available or of which
Defendant may become aware (upon further investigation or discovery) under FED. R. CIV. P.
Defendant asserts all affirmative defenses that are or may become available or of which
Defendant may become aware (upon further investigation or discovery) under FED. R. CIV. P.
PD.20174022.1
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ANSWER
Defendant admits that Plaintiff has filed the instant Complaint but denies there is any
basis to Plaintiffs claims against the University and denies any and all remaining allegations
contained in the un-numbered Paragraph of the Complaint beginning with Comes Now. in
2. Defendant admits Tarold Durham is an adult citizen of Mississippi but denies the
4. Defendant admits the United States District Court for the Southern District of
Mississippi, Northern Division has jurisdiction over Plaintiffs claims, but denies there is any
basis to Plaintiffs claims against the University and denies any remaining allegations contained
5. Defendant admits venue is proper in the United States District Court for the
Southern District of Mississippi, Northern Division, but denies there is any basis to Plaintiffs
claims against the University and denies any remaining allegations contained in Paragraph 5 of
the Complaint.
Admissions at the University but denies any remaining allegations contained in Paragraph 6 of
the Complaint.
PD.20174022.1
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University and the University is without information sufficient to admit or deny the allegations
University and the University is without information sufficient to admit or deny the allegations
12. Defendant denies there was ever a position available, and is without information
14. Defendant admits Plaintiff filed a Charge of Discrimination on January 13, 2015.
statements of law and/or legal conclusions to which no response is required. To the extent any
the Complaint.
15. Defendant admits the EEOC conducted an investigation and issued a Dismissal
and Notice of Rights on June 22, 2016, which is a written document that speaks for itself and no
response is owed to the allegations regarding that document. Defendant denies the remaining
PD.20174022.1
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16. The allegations contained within Paragraph 16 of the Complaint contain purported
statements of law and/or legal conclusions to which no response is required. To the extent any
response is required, the allegations contained within Paragraph 6 of the Complaint are denied.
17. Defendant repeats the responses to the foregoing Paragraphs as though fully set
21. Defendant repeats the responses to the foregoing Paragraphs as though fully set
24. Defendant repeats the responses to the foregoing Paragraphs as though fully set
PD.20174022.1
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Court dismiss Plaintiff's Complaint and award the University costs, expenses, attorneys' fees and
Respectfully submitted,
PD.20174022.1
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CERTIFICATE OF SERVICE
I, MARK FIJMAN, do hereby certify that on October 20, 2016, I electronically filed the
using the CM/ECF system which sent notification of such filing to the following counsel of
record:
PD.20174022.1
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COMES NOW, Defendant, Tarold Durham, by and through counsel and files this, his
Answer, Affirmative Defenses and Counterclaim against Erica N. Stewart and would show unto
The Complaint fails to state a claim upon which relief can be granted against Defendant
Tarold Durham. Accordingly, Mr. Durham moves this Court for a dismissal with prejudice of
the Plaintiffs Complaint pursuant to Rule 12(b) of the Federal Rules of Civil Procedure.
Some or all of the claims of the Plaintiff are barred by her failure to exhaust
administrative remedies.
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Affirmatively and alternatively, and without waiving any other defenses asserted herein,
Mr. Durham hereby pleads any and all defenses available under the Federal Rules of Civil
Defendant affirmatively asserts that Plaintiff cannot establish a prima facie case of sexual
The claims of the Plaintiff are barred, in whole or in part, because Plaintiff failed to
Defendant affirmatively pleads all statutory and jurisdictional prerequisites to suit under
Title VII, including the criminal prohibition of perjury in an investigation, and all applicable
statutes of limitation and defenses available under the statute, and to the extent the Complaint
asserts or attempts to assert claims under Title VII other than those asserted by Plaintiff in a
timely charge of discrimination filed with the EEOC, such claims cannot be maintained.
willful action.
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Defendant affirmatively asserts that Plaintiff is not entitled to any compensatory damages,
damages, Defendant affirmatively asserts that an award of punitive damages would violate the
Defendant asserts the provision of the Mississippi Litigation Accountability Act of 1988,
Miss. Code Ann. 11-55-1 et seq., including but not limited to the assessment of attorney fees
Defendant asserts all affirmative defenses that are or may become available or of which
Defendant may become aware (upon further investigation or discovery) under FED. R. CIV. P.
Defendant asserts all affirmative defenses that are or may become available or of which
Defendant may become aware (upon further investigation or discovery) under FED. R. CIV. P.
3
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ANSWER
Defendant admits that Plaintiff filed the instant Complaint but denies there is any basis to
Plaintiffs claims against Tarold Durham and denies any and all remaining allegations contained
in the unnumbered Paragraph of the Complaint beginning with Comes Now . . . in reference to
Tarold Durham.
2. Defendant admits that he is an adult resident citizen of the State of Mississippi but
4. Defendant admits the United States District Court for the Southern District of
Mississippi, Northern Division, has jurisdiction over Plaintiffs claims, but denies there is any
basis to Plaintiffs claims against Tarold Durham and denies any remaining allegations contained
5. Defendant admits venue is proper in the United States District Court for the
Southern District of Mississippi, Northern Division, but denies there is any basis to Plaintiffs
claims against Tarold Durham and denies any remaining allegations contained in Paragraph 5 of
the Complaint.
6. Defendant admits that Tarold Durham was employed as the Director of Online
Admissions at Belhaven University but denies any remaining allegations contained in Paragraph
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6 of the Complaint.
14. Defendant admits Plaintiff filed a Charge of Discrimination on January 13, 2015.
statements of law/or legal conclusions to which no response is required. To the extent any
response is required, Defendant denies the remaining allegations contained in Paragraph 14 of the
Complaint.
15. Defendant admits EEOC conducted an investigation and issued a Dismissal and
Notice of Rights on June 22, 2016, which is a written document that speaks for itself and no
response is owed to the allegations regarding that document. Defendant denies the remaining
purported statements of law and/or legal conclusions to which no response is required. To the
extent any response is required, the allegations contained within Paragraph 16 of the Complaint
are denied.
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17. Defendant repeats the responses to the foregoing Paragraphs as though fully set
21. Defendant repeats the responses to the foregoing Paragraphs as though fully set
24. Defendant repeats the responses to the foregoing Paragraphs as though fully set
Court dismiss Plaintiffs Complaint and award Tarold Durham costs, expenses, attorneys fees
and any other relief that is warranted or the Court deems proper.
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COUNTERCLAIM
Now having fully answered the Complaint, Answering Defendant herein assumes the role
of counter claimant and would show unto this Court the following:
PARTIES
Mississippi.
FACTS
Stewart filed a Complaint in the above-referenced matter falsely alleging that she was
discriminated against in violation of Title VII of the Civil Rights Act of 1964, as amended,
because of Plaintiffs sex (female) in that she was subjected to continuous sexual advances which
she denied. As a result of denying Defendant Durhams sexual advances, Plaintiff was retaliated
against when she was denied employment among other false statements.
Stewart filed a Complaint in the above-referenced matter falsely alleging that On or about
November 30, 2015, Defendant Durham interviews Plaintiff for the position of Receptionist
Stewart filed a Complaint in the above-referenced matter falsely alleging that Defendant
Durham had a pattern and practice of making offensive sexual advancements to Plaintiff among
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Stewart filed a Complaint in the above-referenced matter falsely alleging that Defendant
Durham used his apparent authority as Director of Online Admissions to demand sexual favors
from Plaintiff and denied her employment when Plaintiff refused his sexual advances among
and every allegation contained in paragraphs numbered 1-6 of this Counterclaim with the same
8. That the filing of the Complaint containing false allegations against Counter-
for a purpose and to obtain a result not lawfully warranted or properly attainable thereby.
9. That the actions of the Counter-Defendant were done with the intent to abuse the
11. That as a direct and proximate result of said abuse of process, Counter-Plaintiff
has been causes to suffer damages of a personal and pecuniary nature, including but not limited
to loss of employment, out of pocket expenses, damage to reputation, attorneys fees, and other
DAMAGES
and every allegation contained in paragraphs numbered 1-11 of this Counterclaim with the same
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refusals and omissions, the Counter-Plaintiff has suffered injuries of a personal and pecuniary
nature, including but not limited to loss of employment, out of pocket expenses, damage to
Plaintiffs Complaint be dismissed with prejudice and that this Court award judgment to the
Counter-Plaintiff of, from, and against the Counter-Defendant, Erica N. Stewart, in a sum that
will fully compensate the Counter-Plaintiff for his loss, plus costs of court, reasonable attorneys
fees and any other relief that this Court or a jury deems just and proper.
TAROLD DURHAM
/s/Gerald A. Mumford
GERALD A. MUMFORD, MSB # 101902
OF COUNSEL:
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CERTIFICATE OF SERVICE
I hereby certify that on November 9, 2016, I electronically filed the foregoing Answer,
Defenses and Counterclaim with the Clerk of the Court using the CM/ECF system and that
service of such filing was made electronically to all counsel of record through such system.
/s/Gerald A. Mumford
GERALD A. MUMFORD
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