Saint Paul / Motion for sanctions in the Federal racketeering lawsuits against the City of Saint Paul.
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posted by Bob at Tuesday, July 03, 2007
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Tuesday, July 03, 2007
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- Chief Harrington Praised
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- Federal Judge In Minneapolis Will Not withhold Inf...
- Andy Dawkins Broke The Law?
- Code Enforcement Officer Steve Magners Deposition ...
7 Comments:
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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Frank J. Steinhauser, III, et al., Civil No. 04-2632
JNE/SRN
Plaintiffs,
v. PLAINTIFFS’ JOINT
MOTION FOR
City of St. Paul, et al., SANCTIONS
Defendants.
Sandra Harrilal, et al., Civil No. 05-461
JNE/SRN
Plaintiffs,
v.
Steve Magner, et al.,
Defendants.
Thomas J. Gallagher, et al., Civil No. 05-1348
JNE/SRN
Plaintiffs,
v.
Steve Magner, et al.,
Defendants.
Pursuant to Rule 37 of the Federal Rules of Civil Procedure and the Court’s inherent power and authority to control the litigation before it, Plaintiffs in the above-referenced
Case 0:05-cv-01348-JNE-SRN Document 73 Filed 06/20/2007 Page 1 of 5
2 cases, with the exception of Plaintiffs Bee Vue and Lamena Vue, respectfully move the Court for sanctions against Defendants herein for:
(1) Defendants spoliation of relevant evidence to Plaintiffs’ claims herein, including the destruction after the Steinhauser, et al. case was filed herein on May 5, 2004, of the City’s electronic-stored documents, including e-mails of Defendants and other City officials and employees and of certain third parties, inter-departmental memoranda, and other electronic documents, for all periods prior to December 2005, including for the entire period Mayor Kelly and Andy Dawkins controlled code enforcement, and destruction of the City’s Truth In Sale of Housing Reports covering single family and duplex homes for 2001, 2002, and 2003; and
(2) Defendants’ willful non-disclosure to Plaintiffs of selected internal memoranda, progress reports, and other relevant evidence specifically subject to Plaintiffs’ discovery requests to Defendants.
Plaintiffs, as part of this motion, respectfully request an Order of the Court as follows:
(1)
Findings by the Court that the subject documents were relevant to Plaintiffs’ claims, that the destruction of said documents occurred during the litigation, that the destruction has prejudiced Plaintiffs, and Defendants’ conduct constituted spoliation of evidence and willful non-disclosure of relevant documents;
(2)
Compelling Defendants and their counsel to give full account to the Court and Plaintiffs on the nature of any “litigation hold” on relevant documents by Defendants and their counsel, and all efforts to suspend Defendants’ document
Case 0:05-cv-01348-JNE-SRN Document 73 Filed 06/20/2007 Page 2 of 5
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retention and destruction policies and thereby preserve all relevant evidence, at all times subsequent to receipt of notices of claims from Plaintiffs and others similarly situated, the filing of the cases herein, after Defendants’ receipt of the discovery requests from Plaintiffs in November 2004, and at all times thereafter;
(3)
Allowing Plaintiffs’ additional discovery related directly to the issues of spoliation and willful non-disclosure of relevant evidence;
(4)
Requiring Defendants and their counsel to inform the Court why Defendants are unable to produce said documents, to require Defendants and their counsel to affirm to the Court that Defendants and their counsel have made a diligent search for alternative sources of said documents and have or have not been able to locate copies of said documents that could be produced to Plaintiffs; and
(5)Entering sanctions against Defendants for their spoliation and willful non-disclosure of relevant evidence, including, but not limited to:
( a ) entering judgment against Defendants and in favor of Plaintiffs on the issues of liability;
( b ) entering judgment against Defendants and in favor of Plaintiffs on the issues of damages;
( c ) entering a monetary sanctions against Defendants and/or their counsel for spoliation of evidence and non-disclosure of relevant evidence;
( d ) ordering dismissal of Defendants’ Motions for Summary Judgment herein; Case 0:05-cv-01348-JNE-SRN Document 73 Filed 06/20/2007 Page 3 of 5
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( e ) making an adverse inference against Defendants and in favor of Plaintiffs as part of Defendants’ Motions for Summary Judgment;
( f ) directing factual findings in favor of Plaintiffs;
( g ) awarding Plaintiffs their attorney’s fees, expert fees, costs and expenses incurred by Plaintiffs as a result of Defendants’ wrongful conduct, including deposition costs for all depositions the Court authorizes to be taken or supplemented; ( h ) imposing an adverse inference instruction to the jury at trial; and
( i ) for such other and further relief as the Court deems just and equitable and that will otherwise restore Plaintiffs to the same position they would have been in absent Defendants’ spoliation and non-disclosure of relevant evidence.
This motion is based upon the arguments of Plaintiffs’ counsel, their joint memorandum of law and affidavits to be filed herein, the evidence presented at the hearing on this motion, and at any subsequent hearings the Court deems necessary, and upon all the files, records and other proceedings herein.
SHOEMAKER & SHOEMAKER, P.L.L.C.
Dated: June 20, 2007 By: /s/ John R. Shoemaker
John R. Shoemaker (Attorney Lic. #161561)
Centennial Lakes Office Park
7701 France Avenue South, Suite 200
Edina, Minnesota 55435
(952) 841-6375
Attorneys for Plaintiffs Steinhauser, et. al. Attorneys for Plaintiffs Harrilal, et. al
Case 0:05-cv-01348-JNE-SRN Document 73 Filed 06/20/2007 Page 4 of 5
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THE ENGEL FIRM, PLLC
Dated: June 20, 2007 By: /s/ Matthew A. Engel
Matthew A. Engel (Attorney Lic. #315400)
11282 86th Avenue North
Maple Grove, Minnesota 55369
T: (763) 416-9088
F: (763) 416-9089
Attorney for Plaintiffs Gallagher, et. al.
Case 0:05-cv-01348-JNE-SRN Document 73 Filed 06/20/2007 Page 5 of 5
(There is copy errors)
SHOEMAKER SHOEMAKER, P.L.L.C:.
ATTORNEYS AT LAW
A PROFESSIONAL LIMITED LIABILITV COMPANY, INCLUDING PROFESSIONAL CORPORATIONS
CENTENNIAL LAKES OFFICE PARK, SUITE 200
7701 FRANCE AVENUE SOUTH
EDINA, MN 55435
WRITER'S DIRECT DIAL: (952) 641-6375
FACSIMILE:: (952) 841 -6376
JOHN R. SHOEMAKER
PAUL F. SHOEMAKER
June 15,2007
Via Facsimile Transmission
Louise Toscano Seeba, Esq.
750 City Hall and Court House
15 West Kellogg Blvd.
St. Paul, MN 55102
Re: Steinhauser, et al. vs. Randy Kelly, et al.
Harrilal, et aJ. vs. Magner, et al.
Gallagher, et aJ. vs. Magner, et al.
Dear Ms. Seeba:
JOHN R. SHOEMAKER, P.A•
PAUL F. SHOEMAKER, P.A.
This letter follows our "meet and confer" by telephone conference on Thursday, June 7,
2007, concerning the remaining discovery items left to be addressed by you and your
clients as set out in the joint letter of the undersigned to you dated June 6,2007.
We have agreed to settle all discovery issues set out in the June 6, 2007, letter, except the
remaining issue regarding the personal records of Steve Magner, and on that issue, we
agreed to submit our evidence and arguments to the Magistrate by letter brief.
The Magistrate issued her Order yesterday agreeing that the parties could submit letter briefs
on the remaining issue subject to Plaintiffs' motion to compel. The hearing Monday,
June 18,2007, has been stricken and a telephone conference will be held on June 29,
2007, at 9:30 a.m.
You agreed to make a good faith effort to locate and produce the following documents,
pursuant to the agreements I had reached with you and Frank Villaume as set out in his
letter dated March 29, 2005;
Steinhauser Request No. 12 - Employee Manual was to be made available for our
inspection; you have agreed to determine if there are any older versions of the manual
other than the current version available to us on the City's website.
Steinhauser Request No. 46 - all documents relating to the meetings and
communications between Mayor Kelly and Andy Dawkins relating to code enforcement
were going to be made available for our inspection; we will review the available
EXHIBIT 1
Case 0:05-cv-01348-JNE-SRN Document 72 Filed 06/20/2007 Page 1 of 51
Louise Toscano Seeba, Esq.
June 15,2007
Page two
documents at the Minnesota Historical Society; in light of your disclosure that all
electronic versions of such communications, including emails, have been destroyed for
the period prior to December 2005, we again asked you to determine if there was any
other source of such documents still available at the City.
Steinhauser Request No. 56 - Maps that were created following formation of NHPI
regarding inspections activities were going to be made available; you agreed to have Ms.
Knutson look again for the requested maps, including PED map and make them available.
Steinhauser Request No. 61 - Mr. Villaume agreed to produce Andy Dawkins 20022004
calendars, Steve Magner's 2004 calendar and additional selections from Mayor
Kelly's calendars. In fact, two pages of Mayor Kelly's calendar were produced: Bates
Nos. STP 0611. We have agreed to withdraw our request for these calendars in light of
the Advisory Opinions from the Department of Administration you cited.
Even though we again made the request of you during our meet and confer on June 7,
2007, we have not yet received from you a fully executed signature page. by you as
counsel to your clients' Answers to Interrogatories and Responses to Request for
Production of Documents in any of the three cases. Once again, please provide your
signature on each of the discovery responses as required by the rules. Matt and I agreed
to review our Clients' discovery responses and where needed, supply you with the
necessary signature pages.
You agreed to provide us with a fully Bates numbered paper copy or on disk of the NHPI
file documents for Sandra HarriiaPs 704 Lawson and 476 Vv'rest Lawson rental properties
- these were not Bates numbered.
HarrilaI Document Request Nos. 19.
We find it very troubling that your office and
clients have not been able to locate !illY documents responsive to our request for all
"cooperative agreements," and "other written agreements between the City and PHA."
See Paragraph No. 19 of your May 31, 2007 letter. You agreed to review Plaintiffs'
request and our June 6, 2007 letter, in reconsideration ofour request for all documents the
City has related to PHA. Your agreement also includes Harrilal Document Request
Nos. 20 and 21: "All documents related to the PHA's payments to the City in lieu of
taxes" and "All documents related to the City's provision of police services to PHA's
rental properties during 1999 to present". As Matt and I have informed you, we have not
located within any source of City documents provided by you to date, any written
cooperative agreements, police service agreements, agreements related to payments in
lieu of taxes, or any other agreements between the City and PHA that are within the scope
of Harrilal Document Request Nos. 19-22.
EXHIBIT 1
Case 0:05-cv-01348-JNE-SRN Document 72 Filed 06/20/2007 Page 2 of 51
Louise Toscano Seeba, Esq.
June 15,2007
Page three
Your formal response to Harrilal Document Request Nos. 19-21, stated that the
documents would be made available for our inspection. Once again, we make the same
request of you and your clients to [wally produce these documents without further delay.
You have agreed to provide us with a list of all litigation commenced against the City,
its officials and employees from January I, 1997 through May 31, 2007. See Paragraph
No. 17 of your May 31,2007, letter.
Paragraph No. 20 of your May 31, 2007, letter refers to LIEP files for PHA rental
properties - we agreed that Plaintiffs would be able to inspect these records.
Paragraph Nos. 22-23 of your May 31, 2007, letter states that you are opposed to rescanning
of the documents where the scanning process did not pick-up the handwriting on
Correction Notices, Correction Orders and Sununary Abatements. We agreed that Matt
would provide to you the Bates numbers of the poor copies of NHPI file documents for
PHA.properties that need to be re-scanned - that would reduce the number of hours
needed by NHPI staff to provide those pages for re-scanning.
As Matt and I mentioned to you, we have reviewed the paper copies of NHPI files that
.were copied by your office and produced to us where copies of Correction Orders,
Correction Notices and Summary Abatements are poor copies. You agreed to provide us
with better copies of the documents listed by Bates Nos. in our letter of June 6, 2007.
You agreed to look at your Clients' original responses to Plaintiffs' Requests for
Admission to determine if supplemental responses were necessary to the Steinh.ause.'
and Barrilal Request for Admission No. 18, which requested that your clients admit
that Bates Nos. 050082 to 050368 are true and correct copies of the City's produced
documents in the Ramsey County District Court case brought by landlord Steven D. Mark
against the City of St Paul. As we stated to you, your Clients' denial is without basis in
law or fact. The subject documents, Bates Nos. 050082-50368 have an original City
Attorney Bates numbers, "STP 0001 to STP 0288". Please refer to Bates Nos. 050079-80
for the formal document response to Mr. Mark by your law office on behalf of the City
which was signed by Assistant City Attorney John Stechmann on August 13, 2003 - this
response indicates that the "STP 0001-0288" documents were in fact produced.
Matt and I also noted to you that your objections were without any legal basis as many of
these documents were the subject of substantial deposition testimony from the inspectors
during the consolidated depositions in our cases. Again, we ask that you and your clients
amend your response to Request No. 18.
EXHIBIT 1
Case 0:05-cv-01348-JNE-SRN Document 72 Filed 06/20/2007 Page 3 of 51
Have you read this Bob? They are asking the City to repoduce everything that has ever occured between the City and PED. They are asking for everything Magner has ever done, they are asking for everywhere that Randy kelly ever went and who he met with...
Get it. They are having a great time costing the City thousands of dollars and they have no case...
JMONTOMEPPOF
Chuck Repke
That is what the discovery process is all about in a lawsuit Chuck. It's to find information and these guys aren't doing anything different than what the city does all the time to people....only then the shoe is on the other foot, and it's the small guy that has to endure the hassle of getting everything together and giving it up. You don't like it so much when the shoe is on the other foot do you?
The facts simply demand an explanation.
With the things I have been reading here the last few months, there damn well better be an explanation!
the explanation is that the City has been doing illegal code inspections, illegally requiring code compliance, intimidating property owners for behavior issues, violating constitutional rights, using sham hearings before unqualified personel, and ignoring complaints from citizens and lawyers as to their outrageous and illegal behavior. The time is soon coming that corrupt city officials and certain inspectors will pay for their illegal acts and will end up paying by monetary judgements, jail time and fines.
Keep up the good work Bob !
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