Friday, July 7, 2017

Belhaven: Stewart & Carlos Moore commited a "fraud upon the court" in sexual harassment case.

Carlos the Clown and his client continue to fight Belhaven University in federal court.  Erica Stewart sued Belhaven University and former employee Tarold Durham for sexual harassment last year.  U.S. District Judge Carlton Reeves dismissed the complaint against Mr. Durham last month while Belhaven asked the court to spank Ms. Stewart's attorney, Carlos Moore, with sanctions.  Ms. Stewart claimed that Mr. Durham sent sexually explicit images of himself to her cellphone when she interviewed for a job at Belhaven.  However, Belhaven produced a report that showed the plaintiff sent sexually provocative pictures of herself in a partial state of undress to the defendant prior to his allegedly sending the offensive picture.  The report is posted below.

Ms. Stewart applied for the position of Receptionist at Belhaven.  She interviewed with Mr. Durham on November 30, 2015.  She alleged in the complaint:

 Initially, Defendant Durham engaged in sexual advancements toward Plaintiff via social media and then the activity escalated to text messages resulting in an obscene photograph of Defendant's male reproductive organ (penis) being sent to Plaintiff with the caption "Can I get something for the interview?"
Judge Reeves creamed Ms. Stewart when he threw out the case against Mr. Durham:

 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 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 and a friend for a drink at a local restaurant.
Needless to say these responses do not indicate distress. Stewart’s deposition testimony confirms as much. Counsel opposite asked, “Now, by telling him you’ll hug and kiss him, you don’t sound particularly upset in your response about receiving the penis picture; is that correct?” Stewart answered, “No, I’m not -- I didn’t sound upset.” When asked again whether she was “upset in any way” over the photo, she replied “no.”
Indeed, the court emphasized in a footnote:

 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 selfie’s date, but Stewart’s deposition testimony indicates that she sent Durham the selfie before he sent her the penis photo.  In other words, Durham’s pornographic photo of a penis was sent in response to Stewart’s scantily-clad selfie.

 The forensic report below contains copies of the plaintiff's selfie.  The thrust of the case against Ms. Stewart is that she got rid of her cellphone when Belhaven told Mr. Moore it wanted to examine the phone. Belhaven also showed that the so-called picture of the alleged offending member was an altered photograph.

Belhaven told Mr. Moore in writing to preserve all cellphones owned by his client as well as all text messages  and electronic communications between Ms. Stewart and Mr. Durham, in a letter sent to him on September 23, 2016, two days after the lawsuit was filed.   Ms. Stewart submitted an affidavit to the court on May 11, 2017 that stated she had not deleted any text messages or other digital communications.  She submitted to Belhaven a set of answers to interrogatories on February 14, 2017 that stated she was "the current custodian" of the cellphone used to communicate with Mr. Durham via text messages.

However, the phone was traded in to AT&T for another phone.  Belhaven's lawyer asked for the phone in an email sent to Mr. Moore on April 28, 2017 after she mentioned a broken iphone in her deposition.  The phone was not provided to the defendants.  Mr. Moore stalled but finally admitted a few weeks later that she no longer had the phone.

Belhaven submitted a forensic report to the Court prepared by Pileum Corporation (posted below). The report states that Ms. Stewart's phone and Icloud account was investigated.  Pileum stated:

 When examining Ms. Stewart’s iCloud account Pileum discovered that Ms. Stewart had 721 total photos stored in the cloud from May 13, 2015-August 17, 2016. The only “photo” in the iCloud account from 2015 was a video unrelated to communications between Ms. Stewart and Mr. Durham. (p.22)....
 In conclusion, Pileum was unable to discover any communications between Erica Stewart and Tarold Durham on Ms. Stewart’s iPhone or Ms. Stewart’s iCloud. Pileum was able to estimate the activation of the iPhone brought in for examination to August 20, 2016 by using Apple’s website and warranty check tool. The image provided by Plaintiff on May 31, 2017 appears on both iCloud and the iPhone multiple times, with multiple modification dates, with dates in iCloud and the creation date from the iPhone’s image metadata going back as late as August 11, 2016.
The interview took place in November 2015.  

Belhaven asked the court to seal the report and part of Ms. Stewart's deposition.  It appears Belhaven considers good news to be bad news even when it really is good news for the university.  Oddly enough, Mr. Moore did not oppose the motion.

However, Mr. Moore opposed the motion for sanctions.  He claimed that Belhaven should try to retrieve the texts and pictures from Mr. Durham's phone instead of his client even though she was the one alleging the offensive behavior.  He further argued that Belhaven didn't prove that Ms. Stewart intentionally destroyed evidence and that she was merely trying to replace a broken phone.*  He claimed

The Defendant University has still not proven Plaintiff “acted with intent to deprive another party of the information’s use in litigation.” Fed. R. Civ. P. 37(e)(2). Plaintiff maintains her intention was to replace a broken phone. 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 simply destroyed by everyday use of the phone.
 Defendant University  is  essentially filing frivolous,  premature  motions. 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 sanctions server as dismissal.
Keep in mind that Belhaven told Mr. Moore to preserve the phone two days after he filed the lawsuit.  Belhaven's jumped at the chance to bill the university for some more work and vigorously responded to Mr. Moore's attempt to escape the court-ordered spanking (This sentence is a rhetorical device, Mr. Moore.  Nothing to take literally.)

Belhaven took off the gloves:

1.  Plaintiff’s Supplemental Opposition Response completely and fails to address in 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 Plaintiff’s iCloud, from where it was represented that the image had been located in the May  31, 2017 e-mail.  What has occurred is a fraud upon the Court......

5. Also notable is that the  University  has  produced  clear  evidence  through  the forensic report that Plaintiff’s 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....

Belhaven again asked Judge Reeves to sanction Carlos Moore and his client with the attorney's fees incurred in filing and litigating the motion for sanctions.

Kingfish note:  Thus the question is did Ms. Stewart fabricate this case? Is there any actual evidence to support her allegations? It is curious that Belhaven wants to start sealing everything.  Erica Stewart and Carlos the Clown made a point to embarrass the university with a highly publicized press conference.  One would think that Belhaven might like to get the news out that it was the victim of a smear campaign and a frivolous lawsuit.

It is interesting that Mr. Moore did not attack any of the actual findings in the report or did I miss something?  Read about the dismissal of the case against Mr. Durham in this earlier post.

Documents posted below
P.1: Belhaven's reply to response to motion for sanctions
P.5: Stewart's response to motion for sanctions
P.9: Belhaven's motion to file evidence under seals
P.13: Belhaven motoin to file report under seal
P. 17 : Belhaven's motion to supplement  motion for sanctions & dismissal
P. 22: Order granting motion for summary judgment
P. 25: Plaintiff's response to Durham's motion for summary judgment
P. 28: Order on motion to compel
P. 29: Order on motion to dismiss
P. 34: Belhaven's motion for sanctions and dismissal
P. 38: Erica Stewart affidavit
P. 40: Email chain
P. 43: Erica Stewart's response to interrogatories
P. 46: September 23 letter to Carlos Moore
P. 48: Belhaven answer to complaint
P. 56: Durhams counterclaim
P. 66: Complaint against Durham and Belhaven

Pileum Report


Anonymous said...

Whoop, there it is!

Anonymous said...

They have been in a downward slide since they went from Belhaven College to Belhaven University.

Anonymous said...

Carlos is getting it done for his clients!!

NOT Will this clown ever stop with the b.s. lawsuits?

Anonymous said...

I'd hit it.

Anonymous said...

Crazy @$$ people running amuck! On the national level, foolishness, childishness, immaturity and narcissism, filtering down...

Anonymous said...

2:21 - help yourself. As I scrolled thru the report, I was just wondering how long it would take for you to get here with your standard.

In some previous cases, I might have agreed with you. But not here! I'm wondering if she sent these pics because she really didn't want the job and was hoping that this might scare him off.

Anonymous said...

Hang in there Carlos! Sooner or later your big break is gonna come and all the stupid b.s. you've done will be forgotten... At least by the idiots you want to lead. You've got no shame, that's your best asset. Hang in there!

Anonymous said...

They have been in a downward slide since they went from Belhaven College to Belhaven University.

How? Be specific.

Cha Ching said...

Evah ho needs to be paid

Anonymous said...

@ 2:02… I would also agree that Belhaven academics has really taken a royal dump since the name change as well as the awful Dr. Parrot is concerned I blame his solely. He brought in the Football program that has sucked the school dry. I think the board has him on a shot leash and soon they will fire him. Also, this a$$ clown Carlos Moore is a total joke. My 1st thought was that this entire case was made up or some spoof. Actually once I saw his name in the article I knew it must be true because he's the only person that would take a case such as this. I can now say that its no coincidence that Carlos is the laughing stock for most lawyers in the jackson area. I mean he is a run of the mill joke.

Anonymous said...

" tumescent penis "

All I can say . . . in my best Hank Hill accent is . . . BOY HOWDY.

Anonymous said...

I think the board has him on a shot leash and soon they will fire him.

I think you don't know what you think you know. No, I'm pretty sure of it.

Kingfish said...

Someone keeps trying to make the same comment over and over. Sorry, that is potentially slanderous and one party loves to sue for the fun of it.

Anonymous said...


Anonymous said...

Something thought to be true and not said or written out of malice can't be slanderous or libelous. Would have a hard (tumescent) time of it anyway.

Anonymous said...

ncaa division 3 athletics enables students to continue to play sports at a respetively high level of competition.

translation- no scholarships mean that 100 plus students are willing to fork over 25k a year to play football with no hope of going to the nfl. it's a great way to keep a school open.

Anonymous said...

This is why you don't send your kid to some large comprehensive "university" like Belhaven. If you want to avoid being exposed to sex and alcohol, go to one of the small christian colleges.

Anonymous said...

With 20 years of hind site, if I didn't think I would get killed, I would probably pay $25,000 to play a year of college football. If you got the money, why not?

Anonymous said...

With campuses in Orlando, Houston and Atlanta, there's no telling what goes on inside the walls of Belhaven nowadays.

Heck, think of the stuff you could see if you got one of those internet degrees they sell?

Anonymous said...

Amazing someone above thinks D3 athletes pay to go to school just to play a sport.

Anonymous said...

As for the comment that, "Something thought to be true and not said or written out of malice can't be slanderous or libelous." That is simply not an accurate statement of the law of defamation. If the person about whom the statement is made is not a public figure, negligence in making the statement is enough to make the person making the defamatory statement liable. So unless one has a reasonable basis to make a statement of an assertion of fact, or an statement of opinion which implies a fact, which if false would be defamatory about a private person, the person making the statement may be liable even if he subjectively believes it to be true. The malice requirement pertains to public officials and public figures such as celebrities or persons who seek to put themselves in the public eye.

Anonymous said...

9:26. yes, people go to div 3 schools and pay tuition to play sports. div 3 athletes are keeping another college in jackson open. (certainly not feminist liberation theological studies...)

and--why not? most of these students have been playing sports since age 5 and still want to compete same thing as club sports at div 1 schools...

its not a knock on div 3 athletes, but just part of reality.

now back to subject: that's a real nice little scandal at the church college...

Anonymous said...

Actually Belhaven had a great soccer program with multiple national titles beat many NCAA Division 1 programs. Had lots of players from Africa Jamaica and I was there in 1992 before going to play at UNC charrlotte. They did many illegal things though and tore the program apart

Anonymous said...

10:24 - You conveniently fail to mention intent and proof of damaged reputation. A person who already has a shit-reputation will have a hard time prevailing with a claim of damages, regardless of whether he's a private or public citizen.

"That worthless asshole got our soccer fields closed down" may piss somebody off, but he will not prevail in a lawsuit.

Anonymous said...

About 15 years ago, I had a son play football for an out of state Division III school and had a great experience. Was in a fraternity, had great academic opportunities and football was just something he did. He was a hard worker on the field but simply wasn't good enough to play at the D-I level or even Delta State, although he did have one D2 offer.

Fortunately, he was a better student than football player. The academic scholarships he received made the cost of attendance on par with State and Ole Miss, and he got a chance to play college football.

Division III sports were designed for athletes who truly wanted to be students first, but youth sports have ruined that as well. Now they are just "C plans" for the same athletes that were "destined for greatness."

Anonymous said...

3:52, my comment was not addressed to factual merits of any specific claim, only to whether of a defamation claim requires proof of malice. You are correct that in order to recover one must establish damage to reputation. However, in a claim of libel, actual damages do not have to be proved; and presumed damages are allowed, if the plaintiff is a private person. And yes, you can defame even a person with a bad reputation, depending on the circumstances and whether the alleged defamation is related to the reasons why the person already has a bad reputation. Saying a known thief is a murderer is defamatory and actionable, for example.

Btw, calling someone a "worthless a-hole" is not defamatory since that is in the nature of an expression of opinion, and not an assertion of fact or an opinion that implies the existence of facts that would impugn the person's honesty, etc.

Anonymous said...

For someone who knows...Where is the line drawn on athletic scholarships and why? Which schools at which levels can NOT offer scholarships and why?

Anonymous said...

It is refreshing to know that people like 2:32 reside in Mississippi. Surprising but refreshing.

Anonymous said...


Division I FBS schools such as State, Ole Miss and USM can give 85 scholarships for football. Most starters and reserves are on full scholarship. Full encompassing tuition, fees, room board and books.

Division I FCS schools like JSU can give up to 63, although many do not give this many. This causes most players to receive partial scholarships.

division II schools like MC and Delta State can give 36, which basically means no one gets a full ride, or at least it's rare and reserved for upperclassmen.

division iii schools like Millsaps and Belhaven do not give athletic scholarships. Students here either pay full price or get academic scholarships.

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Trollfest '09

Trollfest '07 was such a success that Jackson Jambalaya will once again host Trollfest '09. Catch this great event which will leave NE Jackson & Fondren in flames. Othor Cain and his band, The Black Power Structure headline the night while Sonjay Poontang returns for an encore performance. Former Frank Melton bodyguard Marcus Wright makes his premier appearance at Trollfest singing "I'm a Sweet Transvestite" from "The Rocky Horror Picture Show." Kamikaze will sing his new hit, “How I sold out to da Man.” Robbie Bell again performs: “Mamas, don't let your babies grow up to be Bells” and “Any friend of Ed Peters is a friend of mine”. After the show, Ms. Bell will autograph copies of her mug shot photos. In a salute to “Dancing with the Stars”, Ms. Bell and Hinds County District Attorney Robert Smith will dance the Wango Tango.

Wrestling returns, except this time it will be a Battle Royal with Othor Cain, Ben Allen, Kim Wade, Haley Fisackerly, Alan Lange, and “Big Cat” Donna Ladd all in the ring at the same time. The Battle Royal will be in a steel cage, no time limit, no referee, and the losers must leave town. Marshand Crisler will be the honorary referee (as it gives him a title without actually having to do anything).

Meet KIM Waaaaaade at the Entergy Tent. For five pesos, Kim will sell you a chance to win a deed to a crack house on Ridgeway Street stuffed in the Howard Industries pinata. Don't worry if the pinata is beaten to shreds, as Mr. Wade has Jose, Emmanuel, and Carlos, all illegal immigrants, available as replacements for the it. Upon leaving the Entergy tent, fig leaves will be available in case Entergy literally takes everything you have as part of its Trollfest ticket price adjustment charge.

Donna Ladd of The Jackson Free Press will give several classes on learning how to write. Smearing, writing without factchecking, and reporting only one side of a story will be covered. A donation to pay their taxes will be accepted and she will be signing copies of their former federal tax liens. Ms. Ladd will give a dramatic reading of her two award-winning essays (They received The Jackson Free Press "Best Of" awards.) "Why everything is always about me" and "Why I cover murders better than anyone else in Jackson".

In the spirit of helping those who are less fortunate, Trollfest '09 adopts a cause for which a portion of the proceeds and donations will be donated: Keeping Frank Melton in his home. The “Keep Frank Melton From Being Homeless” booth will sell chances for five dollars to pin the tail on the jackass. John Reeves has graciously volunteered to be the jackass for this honorable excursion into saving Frank's ass. What's an ass between two friends after all? If Mr. Reeves is unable to um, perform, Speaker Billy McCoy has also volunteered as when the word “jackass” was mentioned he immediately ran as fast as he could to sign up.

In order to help clean up the legal profession, Adam Kilgore of the Mississippi Bar will be giving away free, round-trip plane tickets to the North Pole where they keep their bar complaint forms (which are NOT available online). If you don't want to go to the North Pole, you can enjoy Brant Brantley's (of the Mississippi Commission on Judicial Performance) free guided tours of the quicksand field over by High Street where all complaints against judges disappear. If for some reason you are unable to control yourself, never fear; Judge Houston Patton will operate his jail where no lawyers are needed or allowed as you just sit there for minutes... hours.... months...years until he decides he is tired of you sitting in his jail. Do not think Judge Patton is a bad judge however as he plans to serve free Mad Dog 20/20 to all inmates.

Trollfest '09 is a pet-friendly event as well. Feel free to bring your dog with you and do not worry if your pet gets hungry, as employees of the Jackson Zoo will be on hand to provide some of their animals as food when it gets to be feeding time for your little loved one.

Relax at the Fox News Tent. Since there are only three blonde reporters in Jackson (being blonde is a requirement for working at Fox News), Megan and Kathryn from WAPT and Wendy from WLBT will be on loan to Fox. To gain admittance to the VIP section, bring either your Republican Party ID card or a Rebel Flag. Bringing both and a torn-up Obama yard sign will entitle you to free drinks served by Megan, Wendy, and Kathryn. Get your tickets now. Since this is an event for trolls, no ID is required. Just bring the hate. Bring the family, Trollfest '09 is for EVERYONE!!!

This is definitely a Beaver production.

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Jackson Jambalaya is the home of Trollfest '07. Catch this great event which promises to leave NE Jackson & Fondren in flames. Sonjay Poontang and his band headline the night with a special steel cage, no time limit "loser must leave town" bout between Alan Lange and "Big Cat"Donna Ladd following afterwards. Kamikaze will perform his new song F*** Bush, he's still a _____. Did I mention there was no referee? Dr. Heddy Matthias and Lori Gregory will face off in the undercard dueling with dangling participles and other um, devices. Robbie Bell will perform Her two latest songs: My Best Friends are in the Media and Mama's, Don't Let Your Babies Grow up to be George Bell. Sid Salter of The Clarion-Ledger will host "Pin the Tail on the Trial Lawyer", sponsored by State Farm.

There will be a hugging booth where in exchange for your young son, Frank Melton will give you a loooong hug. Trollfest will have a dunking booth where Muhammed the terrorist will curse you to Allah as you try to hit a target that will drop him into a vat of pig grease. However, in the true spirit of Separate But Equal, Don Imus and someone from NE Jackson will also sit in the dunking booth for an equal amount of time. Tom Head will give a reading for two hours on why he can't figure out who the hell he is. Cliff Cargill will give lessons with his .80 caliber desert eagle, using Frank Melton photos as targets. Tackleberry will be on hand for an autograph session. KIM Waaaaaade will be passing out free titles and deeds to crackhouses formerly owned by The Wood Street Players.

If you get tired come relax at the Fox News Tent. To gain admittance to the VIP section, bring either your Republican Party ID card or a Rebel Flag. Bringing both will entitle you to free drinks.Get your tickets now. Since this is an event for trolls, no ID is required, just bring the hate. Bring the family, Trollfest '07 is for EVERYONE!!!

This is definitely a Beaver production.

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