Terence Kimberg v. University of Scranton

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-3314
___________
TERENCE KIMBERG,
Appellant
v.
UNIVERSITY OF SCRANTON;
WYOMING VALLEY HEALTH CARE SYSTEM, INC.;
CAROLINE RASKIEWICZ, Individually and as
Program Director for the University of Scranton
_______________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
D.C. Civil Action No. 06-cv-1209
(Honorable James M. Munley)
______________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 4, 2010
Before: SCIRICA, FUENTES and JORDAN, Circuit Judges.
(Filed: October 27, 2010)
_________________
OPINION OF THE COURT
_________________
SCIRICA, Circuit Judge.
Terence Kimberg was dismissed from the University of Scranton’s Nurse
Anesthesia Program in 2006. He sued the University of Scranton, the Wyoming Valley
Health Care System and Caroline Raskiewicz, Program Director for, inter alia, breach of

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contract. After dismissing Kimberg’s other causes of action, the District Court granted
Defendants summary judgment on his breach of contract claim. We will affirm.
I.
In August 2004, Kimberg enrolled in the Nurse Anesthesia Program offered by the
University in conjunction with Wyoming Valley. The Program consists of two essential
components; enlisted students must both take courses within the University and complete
clinical work at various local hospitals. As part of his clinical studies, Kimberg regularly
administered anesthesia to patients under the supervision of a certified registered nurse
anesthetist. (“CRNA”). For each day Kimberg was at the clinical site, the attending
CRNA evaluated his performance.1
During a December 5, 2005 meeting in Raskiewicz’s office, Kimberg received
written notification that his performance had fallen short of Program standards.
Specifically, Program administrators professed concerns regarding Kimberg’s execution
of a classroom presentation and his failure to complete certain competency evaluations.
1 The Program’s Clinical Grading Policy sets forth how students within the Program are
evaluated. Students receive daily verbal feedback from their supervising faculty members
as well as written daily clinical evaluations. At the close of each semester, students
undergo “Triannual Evaluations” in which their clinical mentors determine whether the
student has made the expected progress over the course of that marking period. Should a
student fail to meet any objective, the clinical mentor decides whether to place the
student on probation. Although Kimberg contends he initially received uniformly positive
feedback, ultimately upwards of six CRNAs expressed reservations to Program
administrators concerning Kimberg’s clinical aptitude.

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The following month, Kimberg was placed on probation for clinical performance
deficiencies. In rendering its disciplinary determination, the Program advised Kimberg
that he “does not appear to have the total anesthetic picture,” “consistently needs
assistance,” “needs a large amount of help,” and “does not appear to be at the clinical
level expected,” and moreover that multiple CRNAs had balked at the hypothetical
prospect of allowing Kimberg to administer anesthesia to their family members.
While on probation, Kimberg continued to receive negative evaluations from his
supervising CRNAs. Several witnesses testified as to Kimberg’s persistent travails.
Patricia Harrington, chair of the University’s Department of Nursing, testified that
Kimberg was “insubordinate” during his probationary period and had dosed patients with
medication he had been instructed not to provide. Jo Ann Platko, the Assistant Program
Administrator, testified Kimberg’s performance was imperiling patient safety. And
Raskiewicz echoed this concern, indicating that a string of troubling incidents over the
course of Kimberg’s tenure within the Program had led her to determine that Kimberg
posed a legitimate threat to the welfare of hospital patients.
Having failed to ameliorate the concerns of administrators during his stint on
probation, Kimberg was notified on March 24, 2006 that he had been terminated from the
clinical portion of the Program. The written notice of termination cited Kimberg’s
“failure to progress during [his] probationary period” as the official rationale for
dismissal.

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Immediately thereafter, Kimberg availed himself of the grievance mechanism
provided within the Wyoming Valley Health Care System/University of Scranton School
of Nurse Anesthesia School Handbook.2 On March 27, Kimberg filed a formal appeal of
his termination and requested a hearing before the University’s “Due Process Review
Committee.” On May 9, Raskiewicz notified Kimberg that he would not be permitted to
have legal representation at his hearing. In lieu of pressing forward without the assistance
of counsel, Kimberg elected to refrain from further pursuing his appeal. In May 2006, the
University dismissed Kimberg from the Program after his unsatisfactory mark in the
clinical portion appeared on his semester grade report.
II.
Kimberg commenced this action on June 15, 2006 in the Middle District of
Pennsylvania. His four-count complaint sought relief for (1) breach of contract; (2)
breach of the covenant of good faith and fair dealing; (3) denial of due process; and (4)
tortious interference with contract. Defendants moved to dismiss, and the District Court
granted Defendants’ motion as to three causes of action, leaving only the breach of
contract claim.
Without first obtaining leave of court, Kimberg filed an Amended Complaint.
Ostensibly recognizing the impermissibility of this action, Kimberg moved to dismiss
voluntarily his Amended Complaint. The court granted this motion, striking the
2 As explained below, the Handbook was part a collection of documents that structured
the contractual relationship between the parties. See infra Part IV.B.

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complaint from the record. On April 17, 2007, Kimberg properly filed a motion for leave
to file an Amended Complaint. While that motion was pending, discovery on Kimberg’s
breach of contract claim proceeded apace. On several occasions, the parties moved by
concurrence to extend the time to conduct discovery. Critically, it was during this time
period that counsel elicited the deposition testimony regarding Kimberg’s alleged
noncompliance with Program protocol that would backstop Defendants’ contention that
Kimberg’s dismissal conformed to applicable University procedures.
The District Court denied Kimberg’s Motion for Leave to File Amended
Complaint on November 19, 2007. With that motion resolved, the due date for
Defendants’ Answers to Kimberg’s Complaint was fixed at December 3, 2007. Without
having first filed their Answers within the allotted timeframe, Defendants moved for
summary judgment on March 20, 2008. Apprehending their error only in the course of
briefing their summary judgment motions, Defendants filed a Joint Motion for Extension
of Time to File Answers Nunc Pro Tunc To Plaintiff’s Complaint on April 30. Holding
Defendants’ failure to answer justified by “excusable neglect,” the court granted
Defendants’ motion on November 5, and Defendants filed their Answers that day.
On January 29, 2009, the District Court granted summary judgment in favor of
Defendants. In their Answers to Kimberg’s Complaint, Defendants had posited a host of
defenses collectively pointing toward the notion that Kimberg’s sanctioning and
dismissal were occasioned by a bona fide concern for patient safety and that,

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consequently, the disciplining fell within the proper scope of University procedures. In
awarding Defendants summary judgment, the District Court accepted this argument and
concluded Kimberg had failed to create a triable issue of fact as to the root cause of his
dismissal from the Program. Because the express language of the contractual arrangement
between the parties enabled Defendants to terminate Kimberg’s tenure with the Program
“if an error of commission or omission jeopardizes the safety and/or welfare of the
patient,” the District Court held Defendants were entitled to judgment as a matter of law.
Kimberg filed a Motion for Reconsideration of the District Court’s summary
judgment order, wherein he argued the court’s order improperly foreclosed any
opportunity to explore the defenses raised in the Answers during discovery. The court
denied Kimberg’s motion, reasoning that the deposition testimony obtained during the
oft-lengthened discovery period, replete with allusions to concerns harbored by Program
administrators, provided Kimberg with ample notice that Defendants would mount a
defense centered around the patient safety provision in the Handbook. Kimberg then filed
this appeal. 3
III.
A.
We review the District Court’s decision to excuse Defendants’ late filings under
an abuse of discretion standard. In re Orthopedic Bone Screw Prods. Liab. Litig., 246
3 The District Court had jurisdiction under 28 U.S.C. § 1332(a) We have jurisdiction
under 28 U.S.C. § 1291.

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F.3d 315, 320 (3d Cir. 2001); Jones v. Chemetron Corp., 212 F.3d 199, 205 (3d Cir.
2000) (reviewing district court findings concerning excusable neglect for abuses of
discretion). We will not disturb the trial court’s exercise of discretion “unless there is a
definite and firm conviction that the court below committed a clear error of judgment in
the conclusion it reached upon a weighing of the relevant factors.” Hanover Potato
Products, Inc. v. Shalala, 989 F.2d 123, 127 (3d Cir. 1993) (internal quotation omitted).
Federal Rule of Civil Procedure 6(b)(2) permits a district court to extend the
deadline for a motion paper “for good cause . . . if the party failed to act because of
excusable neglect.” Fed. R. Civ. P. 6(b)(2). At bottom, excusable neglect requires “a
demonstration of good faith on the part of the party seeking an enlargement and some
reasonable basis for noncompliance within the time specified in the rules.” Petrucelli v.
Bohringer & Ratzinger, 46 F.3d 1298, 1312 (3d Cir. 1995) (internal quotation omitted).
In Pioneer Inv. Services Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 392
(1993), the Supreme Court explained that, for Rule 6(b) purposes, excusable neglect is an
“elastic concept.” In assessing whether a party’s neglect is excusable, a court must take
into account “all relevant circumstances surrounding the party’s omission,” including (1)
the danger of prejudice to the other party; (2) the length of the delay and its potential
impact on judicial proceedings; (3) whether the cause of the delay was within the
reasonable control of the moving party; and (4) whether the movant acted in good faith.

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Id. at 395.4 We have also considered the diligence of the moving party as well as whether
the asserted inadvertence reflects either professional incompetence or an “easily
manufactured excuse incapable of verification by the court.” In re Cendant Corp., 189
F.R.D. 321, 324 (D.N.J. 1999) (citing Dominic v. Hess Oil Corp., 841 F.2d 513, 517 (3d
Cir. 1988)).
B.
Kimberg contends Defendants concocted their “patient safety” strategy only after
the discovery window had closed and that he was unfairly surprised by the contents of
their Answers. By allowing Defendants to file belatedly, Kimberg contends, the District
Court effectively allowed them to procure a summary judgment order on the basis of
affirmative defenses he lacked an adequate opportunity to contest. This argument is
unpersuasive. The District Court did not abuse its discretion in granting Defendants’ joint
motion.
Defendants demonstrated neither bad faith nor professional incompetence, nor did
they cause Kimberg significant prejudice solely by virtue of their actions. As noted
above, this case has had an unusual procedural history. On account of protracted
litigation over Defendants’ motion to dismiss and Kimberg’s motion to file an Amended
Complaint, nearly eighteen months passed between the filing of Kimberg’s Complaint
4 Although the Court propounded this standard within the framework of a bankruptcy
proceeding, we have applied it within the Rule 6(b) setting. In re Orthopedic Bone Screw
Prods. Liab. Litig., 246 F.3d 315, 323–29 (3d Cir. 2001).

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and the due date for Defendants’ Answers. When the deadline came and went, the parties
were fully engaged in discovery on Kimberg’s breach of contract claim. Only in
preparing their motion for summary judgment did Defendants come to realize they had
failed to file these Answers. The atypicality of this procedural posture lends credence to
Defendants’ position that their failure to file within the allotted time period was an honest
oversight and not part of a sinister, well-conceived plan to frustrate Kimberg’s discovery
efforts.
Furthermore, although the Answers may have provided the first concrete
formulation of Defendants’ patient safety strategy, Kimberg’s protestations that he was
blindsided by this proffered defense strain credulity.5 From the outset of this litigation,
Defendants consistently maintained they proceeded in accordance with Program
guidelines. Their pleadings unfailingly contained accounts of Kimberg’s deficient
performance and references to corresponding contractual language — including the
crucial Handbook passage concerning patient safety — enabling them to impose
appropriate discipline. The deposition testimony of Harrington, Platko and Raskiewicz
5 For example, during Raskiewicz’s deposition, she testified
“[W]e are all student advocates all the time until the point comes where
there’s a safety issue, and then we switch gears wherein we move into
being patient advocates. At that point, when we feel that the patient’s safety
is at risk, we believe, according to the handbook, that we follow the rules
and we dismiss.”
She then went on to explain Kimberg’s clinical deficiencies had forced her to
withdraw her support for her student in favor of securing the welfare of hospital
patients.

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buttressed this position and formed the basis of Defendants’ motions for summary
judgment. Notably, these motions were filed before Defendants allegedly ambushed
Kimberg with these defenses in their Answers. Kimberg could theoretically have elicited
greater insight into Defendants’ strategies by serving written discovery requests or by
conducting additional depositions before the discovery deadline. Although Kimberg
chose not to take such steps, the record is littered with evidence alerting him to the
position Defendants would adopt in their Answers. Kimberg’s argument that he was
prejudiced by unanticipated defenses raised after the close of discovery thus rings hollow.
Presumably, any prejudice suffered by Kimberg on account of the late filing could
have been cured by additional discovery. Although Kimberg now claims that Defendants
implicitly conditioned their joint motion for leave to file untimely answers on the
reopening of discovery, this is simply not so. In their motion, Defendants stated, “[to] the
extent that any denials or defenses set forth in the Defendants’ Answers raise new issues
for discovery, Defendants do not object to the reopening of discovery on those matters.”
However, in denying Kimberg’s motion for reconsideration, the District Court noted
Kimberg “never sought an extension of discovery to address these issues.” Indeed,
Kimberg inveighed against the inconvenience and the cost that it would entail. Having
moved on multiple occasions for extensions of time to complete discovery, Kimberg
cannot credibly argue that one final extension to accommodate Defendants’ filing would
have resulted in severe prejudice.

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A plaintiff does not suffer cognizable prejudice simply because he is forced to
litigate issues raised in a late answer. Kleckner v. Glover Trucking Corp., 103 F.R.D. 553,
556 (M.D. Pa. 1984). Because we disfavor default judgments, doubts as to whether a
defendant should be permitted to file an untimely answer should be resolved in favor of
allowing a determination on the merits. Gross v. Stereo Component Systems, Inc., 700
F.2d 120, 122 (3d Cir. 1983). Therefore, any purported prejudice was attributable not to
the untimeliness of Defendants’ Answers but instead to the lack of additional discovery,
an issue which Kimberg did not preserve for appeal.
IV.
A.
We review a grant of summary judgment de novo, applying the same standard that
the District Court should have applied in determining whether summary judgment was
appropriate. Gonzalez v. AMR, 549 F.3d 219, 223 (3d Cir. 2008). Summary judgment is
proper when there is “no genuine issue as to any material fact” and the moving party is
“entitled to judgment as a matter of law.” Fed R. Civ. P. 56(c)(2). An alleged factual
dispute is “genuine” only if the evidence bearing on the disputed fact would permit a
reasonable jury to find for the nonmoving party, and the fact is “material” only insofar as
its adjudication “could affect the outcome of the case under the applicable substantive
law.” Hozier v. Midwest Fasteners, Inc., 908 F.2d 1155, 1158 (3d Cir. 1990). When
ruling on a motion for summary judgment, a trial court must consider the evidence in a

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light most favorable to the nonmoving party — accepting its allegations as true, affording
it the benefit of all legitimate inferences that may be drawn, and resolving any conflicted
assertions in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986);
Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976).
As we will explain, Kimberg has failed to demonstrate the District Court’s
summary judgment order turned on genuine issues of material fact being resolved in
Defendants’ favor. Therefore, we concur with that court’s assessment that Defendants
were entitled to judgment as a matter of law.
B.
“[T]he relationship between a private educational institution and an enrolled
student is contractual in nature; therefore, a student can bring a cause of action against
said institution for breach of contract where the institution ignores or violates portions of
the written contract.” Swartley v. Hoffner, 734 A.2d 915, 919 (Pa. Super. Ct. 1999). The
contract between the parties “is comprised of the written guidelines, policies, and
procedures as contained in the written materials distributed to the student over the course
of their enrollment in the institution.” Id.
Defendants claim Kimberg was properly terminated from the Program according
to the terms of the Handbook and that they therefore committed no contractual breach. As
noted, the Handbook expressly provides that the school may place a student on probation
and ultimately dismiss him from the program “if an error of commission or omission

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jeopardizes the safety and/or welfare of the patient.”6 Additionally, it provides that a
“[f]ailure to follow instructions in the clinical area will result in immediate probation for
the 1st offense. The second offense will result in termination from the school.”
We concur with the District Court in finding the record discloses no genuine issue
of material fact. Viewed in the light most favorable to Kimberg, the evidence suggests his
clinical performance was, at best, deficient. Even affording him the benefit of the
inference that his early evaluations showed him to be a stellar student, his fall from good
standing is well-documented. The sequence of events leading to Kimberg’s probationary
period and eventual dismissal is chronicled in detail above. In placing Kimberg on
probation, the Program provided him with written notice of the concerns his supervisors
had registered. Among the delineated shortcomings were Kimberg’s alleged
disorganization, failure to grasp the entirety of the anesthetic picture, need for constant
assistance and unwillingness to follow through with clinical tasks. Moreover, CRNAs
working with Kimberg expressed apprehension about the prospect of Kimberg
6 According to the Handbook’s “program outcome criteria,” a prospective graduate must
demonstrate a baseline level of competence in five general topic areas, foremost of which
is “patient safety.” To show the requisite degree of acquired skill and knowledge within
this field, a student must, inter alia, “[b]e vigilant in the delivery of patient care,”
“[p]articipate in the positioning of patients to prevent injury,” and “[u]tilize standard
precautions and appropriate infection control measures.” Raskiewicz recounted a slew of
incidents that called into question Kimberg’s performance in this area. On separate
occasions, she testified, Kimberg professed an inability to adjust a patient’s blood
pressure cuff from a pediatrics setting to an adult-sized setting and then unilaterally
decided to halve the dosage of a patient’s prescription despite indications her blood
pressure was “very high.”

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administering anesthesia to their family members. Their evaluation forms indicated that
he had failed on one occasion to hook up a patient’s air line and had demonstrated a
substandard grasp of pharmacology and the rationale for drug uses and dosages.
The record simply fails to support Kimberg’s position that Defendants acted
outside the scope of the contractual agreement in invoking an overriding concern for
patient well-being as justification for placing him on probation and ultimately dismissing
him from the Program. According to Program policies, administrators may extend a
probationary period to help a student if they feel he is capable of being reformed.
Otherwise, the student is given the opportunity to withdraw or else be terminated from
the Program. In notifying Kimberg of his dismissal, Raskiewicz wrote that he had
“fail[ed] to progress during [his] probationary period.” With concern for patient well-
being paramount among the reasons Kimberg had landed on probation in the first place,
Kimberg’s inability to allay administrators’ fears on this front rendered their decision to
dismiss him appropriate under the terms of the Handbook. Kimberg was fully aware of
the allegations leveled against his clinical competence, and Defendants properly
exercised their contractual prerogative to safeguard patient safety.7
7 Kimberg argues the contract required Defendants to follow Policy No. 60.6, a
progressive series of disciplinary procedures. The Handbook, which stresses that the rules
of the Program supersede those of the Wyoming Valley Health Care System (including
Policy 60.6) and which indicates only that students must follow Policy 60.6 as it relates
to student status, suggests otherwise. And, as the District Court noted, the policy lists
behaviors that are inappropriate and which might precipitate disciplinary action.

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C.
Moreover, Kimberg claims that Defendants breached the parties’ agreement by
denying Kimberg the opportunity to be represented by legal counsel at his hearing before
the University’s Due Process Review Committee. As the District Court properly
concluded, this position lacks support in either Pennsylvania law or within the scope of
the contractual language.
Because the relationship between a private college and its students is contractual
in nature, a student being disciplined is entitled “only to those procedural safeguards
which the school specifically provides.” Psi Upsilon of Phila. v. Univ. of Pa., 591 A.2d
755, 758 (Pa. Super. Ct. 1991) (quotation omitted). While private colleges enjoy wide
latitude to structure their internal disciplinary procedures as they see fit, Schulman v.
Franklin & Marshall Coll., 538 A.2d 49, 52 (Pa. Super. Ct. 1988), they are limited by the
principle that such procedures must be “fundamentally fair,” Psi Upsilon, 591 A.2d at
758.
The Program’s Due Process Policy grants students the right to appeal any action
they feel violates their rights under established policies, rules and regulations. The
terminal step of the grievance procedure consists of a hearing before a Due Process
Review Committee, a body charged with rendering an impartial determination as to the
fairness of the sanctions imposed upon the student. The Committee is empowered only to
Significantly, behaviors that constitute threats to patient safety, such as those which
prompted Defendants to place Kimberg on probation, are not among those listed.

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decide if the student was afforded adequate process; determining the clinical competency
of the student rests within the exclusive preserve of the student’s CRNA supervisors.
First, the District Court correctly concluded that a college’s disciplinary
procedures are not necessarily unfair simply by virtue of their failure to provide a student
with the right to representation by counsel. The Pennsylvania Commonwealth Court has
held that public universities do not have to afford a “‘full-dress judicial hearing,’ subject
to the rules of evidence or representation by counsel” to satisfy the “fundamental
fairness” standard. Ruane v. Shippensburg Univ., 871 A.2d 859, 862 (Pa. Commw. Ct.
2005). Private institutions need not endow their students with the constitutional due
process protections that state universities are obligated to provide. Psi Upsilon, 591 A.2d
at 758. Hence, as the District Court astutely noted, “[i]f fundamental fairness is met in a
public school without representation by counsel, then surely, it is met in a private school
where there is not representation by counsel.”
Second, the Handbook did not entitle Kimberg to representation by counsel at the
Due Process Review Committee hearing. Although the Due Process Policy does not
stipulate that a student who requests a hearing will be prohibited from appearing
alongside an attorney, Defendants bore no obligation to afford Plaintiff protections in
addition to those expressly embodied in the written agreement. Boehm v. Univ. of Pa.
Sch. of Veterinary Med., 573 A.2d 575, 579 (Pa. Super. Ct. 1990) (“[T]he relationship
between a private college and its students [is] contractual in nature. Therefore, students

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who are being disciplined are entitled only to those procedural safeguards which the
school specifically provides.”). As explained above, the University’s procedures were
sufficiently robust as to be fundamentally fair. In disallowing Plaintiff’s request,
Defendants merely opted to abide by the literal terms of the Handbook rather than to
insert a new safeguard alongside those already in place.
V.
For the foregoing reasons, we will affirm the judgment of the District Court.

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