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13 Comments:
Hi All,
I'm sorry there is a ton of copy errors.
Case 0:05-cv-00461-JNE-SRN
SHOEMAKER & SHOEMAKER, PLLC
ATTORNEYS AT LAW
A PROFESSIONAL LIMITED LIABILITY COMPANY, INCLUDING PROFESSIONAL CORPORATIONS
JOHN R. SHOEMAKER
PAUL F. SHOEMAKER
INTERNATIONAL PLAZA, SUITE 200
7900 INTER.NA TlONAL DRIVE
MINNEAPOLIS, MINNESOTA 55425
TELEPHONE (952) 224-4600
FACSIMILE (952) 224-4601
W"T,.'S DIRECT DIAL (952) 224-4610
www.shoemakerlaw.com
January 26, 2009
The Honorable Joan N, Ericksen
United States District Judge
United States District Court
12W U,S, Courthouse
300 South Fourth Street
Minneapolis, MN 55415
Re: Steinhauser, et aL v, City of St. Paul, et aL;
Harrilal, et aL v, Magner, City of St. Paul, et aL;
File No, 04-2632
File No, 05-0461
Rule 59(e) Motion of Plaintiffs to Alter and Amend Judgment
JOHN R. SHOEMAKER, P.A.
PAUL F. SHOEMAKER, P.A.
Motion to Strike and Disregard Newly Raised Arguments by Defendants
Dear Judge Ericksen:
With the permission of the Court granted, Plaintiffs file this letter Reply to Defendants'
response to Plaintiffs' Rule 59(e) motion to alter and amend the Court's judgment entered
December 19, 2008 (ECF 265, Steinhauser; ECF 244, Harrilal),
For the first time, Defendants now assert! that they never received notice in Plaintiffs'
pleadings, during discovery, or at any other time, that Plaintiffs were claiming the
challenged conduct of Defendants constituted violations of their affirmative duty to
further fair housing ("AFFH duty"), Ms, Seeba "belatedly" attempts to meet Defendants'
I Defendants, in their Rule 59(e) motion response, violate the prohibitions of Rule 59(e), because for the
first time they are making arguments that could have been made prior to entry of judgment. For example,
Rule 12 (e) provides that if a pleading fails to specify the allegations in a manner that provides sufficient
notice, a defendant can move for a more defmite statement before responding, Fed,R,Civ,R, 12(e),
Defendants here did not bring such a motion, Defendants' new arguments could also have been made in
their Reply Memorandum in support of their motion for summary judgment or at oral argument on such motion.
Plaintiffs object to Defendants' submission of new arguments and move the Court to strike
these arguments. Plaintiffs again request a hearing on their Rule 59(e) motion,
burden in moving for summary judgment on Plaintiffs' "AFFH" claim by now raising
tardy and baseless "notice" objections to Plaintiffs' AFFH claim. Defendants failed to
contest or even address Plaintiffs' AFFH duty claim in Defendants' summary judgment
motion papers or in Defendants oral argument. These omissions were not by accident but
were purposeful in the continued fraudulent attempt by the City and its attorneys to avoid
embarrassing disclosures related to the multiple violations by the City and its officials of
their AFFH duties directly connected to the hundreds of millions of dollars in federal
grants to the City for low income housing and the City long-standing aggressive and illegal code enforcement operations in the inner areas of the City.
Ms. Seeba makes four (4) new assertions on behalf of Defendants, each of which are
false and clearly made in a desperate attempt to convince the Court that there is
"absolutely no evidence that the City violated any such (AFFH) duty." Each of these
false assertions could have been made prior to entry of judgment and should be rejected
by the Court now.
Ms. Seeba falsely claims that, "Count III of Plaintifft' Complaints identifY only its
disparate impact claim made against Defendants." (emphasis added). A simple read of
the actual text of Count III of the Complaints shows that Ms. Seeba's claim is false.
Count III also includes a "disparate treatment claim,,,4 as well as a "disparate impact
claim"s and, in Count III, Plaintiffs also included "fair notice" of their claim that
Defendants' conduct violated the policies and purposes of the federal housing grants.
Defendants clearly knew from many years of annual AFFH certifications to HUD, that the
policies and purposes of the federal grants included the City's mandatory AFFH duty.
Ms. Seeba, falsely claims that "Nowhere within the pages [of Plaintiffs Complaints 1 did
Plaintifft complain about the City failing to meet any affirmative duty to further fair
2 The movement for summary judgment "bears the initial responsibility of informing the district court of the
basis for its motion," and must identify "those portions of [the record which it believes demonstrate the
absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Defendants completely failed to meet their burden on Plaintiffs' AFFH claim and instead ignored this claim.
, Defendants' Memorandum of Law, pp. 3-6 (hereinafter, "Memorandum of Law," ECF 271, Steinhauser;
ECF 250, Harrila1).
4 See paragraphs 237 and 238, Steinhauser Third Amended Complaint: "Defendants discriminatory policy,
custom and pattern of code enforcement conduct was intentional and malicious, "intended that their
aggressive code enforcement operations would have a discriminatory impact" (emphasis added).
Paragraph 243, Steinhauser Third Amended Complaint, "Said Defendants' aggressive code enforcement
operations had a discriminatory impact housing," and in doing so she deceptively refers to the earliest versions of the Complaints
in these cases instead of to the "final" versions of Plaintiffs' pleadings, the Third
Amended Complaint filed in Steinhauser, et al.
In the final versions of the Complaint, Plaintiffs provided Defendants with "fair notice"
that the conduct of Defendants challenged by Plaintiffs was contrary to the purposes of
the HUD funds received by the City for low income housing and Defendants were
concretely undermining the purposes and policies of the federal funds received by the
City. See Steinhauser Third Amended Complaint, paras. 47, 80, 82,93,99,234 and 241
("Said Defendants have also allowed the City to retain and expend the $12 million in
HUD grants. as well as other federal funds. while at the same time Defimdants have
concretely undermined the policy and purposes ofthat grant. by forcing tenants and
landlords out of the St. Paul marketfor affordable, safe housing, in violation offederal
and state law, including without due process and under color of law or official right. "
(emphasis added».
In their Third Amended Complaints, Plaintiffs set forth the following facts and claims
that provided "fair notice" oftheir AFFH claims:
Para. 47. "On June 2,2003, the City announced receipt of$12.5 million in
federal grants to provide low-income housing and economic development opportunities
in the City." Defendants admitted this allegation. Para. 41, Answer, ECF 61, Steinhauser,
et al.
Para. 80. " ... Said Defendants also knew and intended that such enforcement
["aggressive code enforcement operations" - see para. 74-80] would directly contradict
the purported purposes of the federal funds received by the City ... ". Defendants denied
this allegation. Para. 65, Answer, ECF 61, Steinhauser, et a!.
Para. 82. "During the Fall of 2002, Kelly, Dawkins, Martin, Magner, Koehnen
and John Doe and Jane Doe, members of the P P U, and certain members of the Fire
6 Third Amended Complaint, ECF 60, Steinhauser; Third Amended Complaint, ECF 65, Harrilal. Ms.
Seeba refers to ECF I, 6 and 7 in Steinhauser, and to ECF I, 12 and 19 in Harrilal.
7 Quotes are from Steinhauser, et al. Third Amended Complaint, as the Harrilal, et al, Third Amended
Complaint contains similar allegations. The Harrilal. et al. Third Amended Complaint contains similar notice to Defendants of Plaintiffs' claims that the claimed challenged conduct of Defendants was concretely
contrary to the purported purposes ofthe federal funds received by the City. See paragraphs 42, 61, 211 and
217. Department, all with the approval of the Council, intentionally and maliciously
commenced and continued a policy, custom and practice of discriminatory code
enforcement that aggressively targeted Plaintiffs and other St. Paul landlords, who were
lawfully renting to, encouraging. and associating with, individuals with protected rights
to housing under Title VIII Federal Fair Housing Act and Amendments living within the
City oJSt. Paul.. .. " (emphasis added). Defendants denied this allegation. Para. 65,
Answer, ECF 61, Steinhauser, et al.
Para. 93. "Defendants' malicious conduct was in direct contradiction to the
purposes for which the City accepted federal fUnds fOr low income residents. and this
malicious conduct interJered with Plaintifft in their provision oj housing services to low
income, protected class members." (emphasis added). Defendants' malicious conduct is
described in numerous paragraphs of the Complaints - for example, paragraphs 81-106.
Defendants denied this allegation. Para. 69, Answer, ECF 61, Steinhauser, et al.
Para. 99. "Dawkins, Martin, Koehnen, Magner and Attorney Dolan, and other
city officials and attorneys knowingly made these misrepresentations in order to
fraudulently induce said landlords to waive their legal rights and to intentionally place
oppressive financial burdens upon said landlords in an effort to run them out of town or
to raise their cost of doing business to the point that said landlords could not afford to
stay in business or continue renting to protected class tenants, and to discourage or
prevent PlaintiffS and others tram testifying before or participating in HUD
proceedings .... Federal Fair Housing proceedings. and/or other joint state and Federal
proceedings." (emphasis added). Defendants denied this allegation. Para. 71, Answer,
ECF 61, Steinhauser, et al.
Count III - Federal Fair Housing Act - "42 U.S.C. Sections 3601, et seq.
Para. 241. "Said DeJendants have also allowed the City to retain and expend the
$12 million in HUD grants, as well as other JederalJunds, while at the same time
Defendants have concretely undermined the policy and purposes of that grant, by forcing
tenants and landlords out of the St. Paul market for affordable, safe housing, in violation
of federal and state law, ... " Defendants denied this allegation. Para. 153, Answer, ECF
61, Steinhauser, et al.
Rule 8(a)(2), Fed.R.Civ.P. "Short and Plain Statement of Claim"
Rule 8(a)(2) of the Federal Rules of Civil Procedure provides that a complaint must
include only "a short and plain statement of the claim showing that the pleader is entitled
to relief' and such a statement must simply "give the defendant fair notice of what the
plaintiffs claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41,
47 (1957). As stated in C. Wright & A. Miller, Supra, "(t)hefederal rules, and the
decisions construing them, evince a belief that when a party has a valid claim, he should
recover on it regardless of his counsel'sfailure to perceive the true basis of the claim at
the pleading stage, * * * "provided that such a shift in the thrust of the case does not
work to the prejudice of the opposing party." 5 C Wright & Miller, Federal Practice and
Procedure s 1219 at 145 (1969). A court "should construe the complaint liberally in the
light most favorable to the plaintiff". Eckert v Titan Tire Corporation, 514 F.3d SOl, S06
(Sth Cir. 2007).
Plaintiffs more than met their burden of providing "fair notice" to Defendants that the
challenged conduct of Defendants had violated and was continuing to violate Federal Fair
Housing laws including the policies and purposes of the federal low income housing
grants the City had received and continued to receive. As Defendants have admitted, one
of the important Fair Housing Act policies directly conditioned on the City's receipt of
federal funds is that the City must affirmatively further fair housing ("AFFH") in return
for receipt ofthose funds.
Notably as well, Defendants can show no prejudice from any claimed "lateness" of
Plaintiffs' use ofthe exact "AFFH duty" phrase. Moreover, Defendants failed to timely
argue that they were prejudiced by the claimed lack of notice.
In any event, it has been Plaintiffs who have suffered prejudice by Defendants' failures to
disclose the Analysis ofImpediments (AI) to Fair Housing and related AFFH
documentation that HUD required the City to maintain in its records and which
documentation fell within the scope of Plaintiffs' document requests to Defendants.
Ms. Seeba falsely claims that an "affirmative duty to further fair housing" was not "part
of Plaintiffs' written discovery." In late 2004, Plaintiffs requested Defendants to produce,
"All documents related in any way to all HUD jitnding within the City of St. Paul during
the past ten (10) years, including, but not limited to, all correspondence, all application
documentation, documentation related to acquiring and maintaining said funding. all
regulations, all procedures, all reports, all audits, all complaints related in any way to
HUD regulations, ... and all other documentation related to HUD funding within the
City, including, but not limited to, the grant referred to in Paragraph No. 42 of
Defendants' Answer. " (emphasis added). See Exhibit No.1, attached hereto,
Defendants' Response to Plaintiffs' Request for Production of Documents (marked
copy).
In response to this document request, Defendants produced limited records. One of the
documents Defendants produced they labeled, "City of st. Paul Minnesota's Consolidated
Plan and Submission-2003 Annual Update, Bates STP 041, See Exhibit No.2, attached hereto (marked copy). The City's AFFH duty, as required by HUD regulations and as
admitted to by the City, is spelled out on pages 38 to 41, and the City's certification to
HUD is set forth in the "Local Government Certification" which provides,
"Affirmatively Further Fair Housing - The jurisdiction will affirmatively further fair
housing, which means it will conduct an analysis of impediments ["A I s"] to fair housing
choice with the jurisdiction, take appropriate actions to overcome the effects of any
impediments identified through that analysis, and maintain records reflecting that
analysis and actions in this regard." Exh. No.2, 6th page).
In March 2008, Plaintiffs provided further notice that Plaintiffs were claiming
Defendants' conduct was in violation of the AFFH duty. See John R. Shoemaker's
Second Affidavit dated March 31, 2008 (ECF Doct. 211, Steinhauser and ECF Doct. 186
Harrilal). As part of the March 2008 submissions in support of Plaintiffs' renewed
motion for sanctions, Defendants' and the Court had once again been apprised of
Plaintiffs continued claims that Defendants' conduct challenged by Plaintiffs was "in
direct contradiction to the affirmations made by City officials and Defendant City on
an annual basis to HUD that the City was furthering fair housing and fOllowing all
applicable HUD regulations." (emphasis added). See Exh. "3," Shoemaker Affidavit in
support of Rule 59(e) motion, parag. 7; see parags. 5-7.
In July, 2008, I delivered via e-mail communication, a Freedom of Information Act
("ForA") request to the Minneapolis Office of the United States Department of Housing
and Urban Development ("HUD"), requesting fair housing documentation related to the
City of Saint Paul, its code enforcement operations, and its AFFH duty, including request
"No. 27: Studies, reports and other data related to HUD's review and analysis of the City
of St. Paul's use of CDBG and other federalfair housingfunds, between 1995 and 2008,
on a yearly or other basis, of whether the City is meeting its admitted obligation to
affirmatively further fair housing initiatives and HUD policies. " (emphasis added) See
Exhibit No.3 attached hereto.
On July, 15, 2008, I forwarded a second e-mail communication to the local HUD office
noting the priority of certain of the document requests and on July 31, 2008, forwarded a
third e-mail to HUD requesting information as to when the "priority" documents would
be ready for my inspection. See Exhibit No.4 attached hereto.
On August I, 2008, HUD's local ForA liaison, L. Peter Bast, PhD, responded to the
For A request and e-mail communications.SeeExhibitNo.4.Mr. Bast noted that I am
also communicating with the attorneys of the City of St. Paul and did note that the
City of St. Paul has already provided you with five of the items you requested.
This candid disclosure by Mr. Bast was surprising but disturbing due to the implications
that the City and HUD were cooperating in further attempts by the City and its officials,
and attorneys, to conceal the City's violations of federal law.
On August 1, 2008, I responded to Mr. Bast that I was "concerned about your disclosure
that you are communicating with the City of Saint Paul and its attorneys concerning our
firm's FOIA request." My e-mail communication described in summary fashion the
challenged conduct of Defendants that Plaintiffs considered to be in violations of the
Minnesota State Building Code, fair housing laws, and the City's affirmative duty to
further fair housing. Under a heading titled, "Certifications by the City in submissions to
HUD," I referred Mr. Bast to certifications by federal grant recipients that they are
"affirmatively furthering fair housing" when strong evidence showed otherwise. I asked
Mr. Bast: "Do you consider that HUD is now officially on notice of our concern that
federal funds may have been obtained by the City based upon false oaths or affirmations
or material non-disclosures?" I have not received a response to that question.
On August 13, 2008, one month before oral arguments on Defendants' motion for
summary judgment herein, Mr. Bast responded to my August 1,2008 e-mail. See
Exhibit No.4. Mr. Bast stated, "Your FOIA continues in an interim state, which does
not indicate the amount of attention it has received. Nine officials from MPLS HUD
met and executed a conference call for input from the City of St. Paul. I am currently
writing your response, which will then go to our General Counsel, for his review. "
(emphasis added).
After my follow-up e-mail communication to Mr. Bast on November 18, 2008, I received
a e-mail response from him on November 25, 2008, stating, "/ have tried to coordinate
with the previous inquires you have made with St. Paul and also needed legal review. I
believe I have had to file three extensions. I will respond the week of December and
ask for your additional needs when you see what I could provide within my authority and
your budget." (emphasis added) Exh. 4.
To date, I have not received any further email or other response from Mr. Bast. I have
not received the "response" he was writing to me in August of last year and no other
HUD official has contacted me concerning the ForA request. I also have not received
any contact from the City or its attorneys who were (and are) "coordinating" with HUD
on my ForA request to HUD.
In light of the disclosures by Mr. Bast of continued coordination with the City attorney's
office since July 2008 on the subject For A request, and the complete lack of production
of any documents since then despite assurances to the contrary, it is an outrage for Ms.
Seeba to claim that the City and other Defendants had no notice of Plaintiffs' claims that
Defendants had violated their duties to AFFH in the City by: (I) conducting the
challenged code enforcement operations, including illegal code compliances on older
homes to "present code" in violation of the State Building Code, (2) failing to conduct
and disclose the A I s related to the City's building codes as applied, (3) failing to take
any action to eliminate the identified impediments to fair housing choice including the
City's application of its building codes to older homes in the City, and (4) failing to
provide the necessary financial and other resources the Defendants admitted were needed
by Plaintiffs and other low income housing providers in order to meet the City's
heightened code and aggressive enforcement.
In preparing and arguing Defendants' motion for summary judgment, Defendants simply
chose to ignore the uncontested facts and arguments presented by Plaintiffs that
Defendants had violated their AFFH duty by the challenged conduct. The uncontested
facts in Plaintiffs Joint Memorandum of Law contained multiple admissions by
Defendants of the exact definition of the Defendants' AFFH duties under the City and
HUD's definitions of those duties. The challenged conduct of Defendants that Plaintiffs
claimed constituted violations of the AFFH duties were set out in detail in said
Memorandum of Law, and in each of the Affidavits of Plaintiffs and yet Defendants
failed to contest many of those facts.
Plaintiffs request that the Court disregard Defendants' belated "notice" objections and
reopen these cases so that the Court can reconsider the AFFH duty claims Plaintiffs
expressly raised in its Complaints, during discovery, and in its motion papers filed in
response to Defendants' motion for summary judgment. Plaintiffs submit that
Defendants failed to meet their burden and that Plaintiffs have met their burden by
presenting clear and uncontested evidence of Defendants' violations of the duty to
affirmatively further fair housing. Reopening these cases will prevent a manifest injustice
that would result in wrongfully denying Plaintiffs' claims that should be presented to a
Jury.
Very truly yours,
John R. Shoemaker
John R. Shoemaker
JRS/hs
Encls. Exhibit Nos. 1-4
cc: Louise Toscano Seeba, Assistant City Attorney, City of St. Paul
Well, now we can see how much the plaintiffs case is, was and always will be just a nuisance case designed to harass the City and cost the City money. There never was any belief that they could ever take a RICO case to court and that their only desire was at some point be able to get some money back if the City was not able to find all of the paper work these people would ask for.
What the plaintiffs are saying now, and there has been some mention of this in other posts, is that the City by receiving HUD funds has a requirement to "affirmatively further fair housing" the suggestion is that by enforcing the code on these landlords the City has somehow violated that commitment.
Sorry boys, the judge has ruled that nothing that the plaintiffs had shown even remotely looked like evidence that the City was directing their enforcement based on anything other than the quality of the housing stock.
To buy this "disparate impact" claim concerning enforcement the judge would have to determine that since poor people are more likely to live in substandard housing than wealthy and that communities of color are more likely to number among the poor, then regardless of how unsafe the building is the City should never condemn a property since condemning a property is more likely to evict both a poor and a minority person than a wealthy white person.
The plaintiffs are arguing that is what "affirmatively further fair housing" means.
It is laughable.
The plaintiffs are now demanding that the City produce ten years worth of communication with HUD. The plaintiffs would suggest that somehow they now will act as the great protector of the Federal Government that had no idea that the City would actually require that there be working furnaces or plumbing systems...the evil City.
Sorry boys its a joke.
The City has an obligation to protect the health and safety of its residents, and you do not have the right to exploit them.
JMONTOMEPPOF
Chuck Repke
The city also has an obligation under the law to enforce that protection equally Chuck. They have not done that. The code they enforced against the private sector was much more strict than the code they enforced against the PHA and it caused a disparate impact. Why is it so hard for you to understand that?
Repke your mockery of the Rule of Law is pervase/fatal to due process, He who laughs last,laughs best, Confuscious,City of St.Paul has LOST at the USSC RE: HUD is similar to PHA
http://www.usdoj.gov/osg/briefs/2001/0responses/2001-0791.resp.pdf
3:24 - but you are spelling out exactly why this case is nothing but one big circle once the plaintiffs lawyers get at it.
From a City view, and a HUD view... allowing PHA to be able to repair their properties without going through the legislative hearing process would be an example of "affirmatively further fair housing." So, would be all of the City's efforts to build more quality affordable housing.
You have an entity that is funded by the FED's for the purposes of housing low to moderate income peoples and are accountable to the Fed's for the conditions and you believe that they will take care of problems when you notice them, one would think you would be "affirmatively further fair housing."
And, when you treat landlords the same as home owners (because we see plenty of homeowners bitching about DSI too) then you should be able to say that you have your fair enforcement that you are whining about.
BUT - the way that they switch back and forth in the law suit is, you should support fair housing by allowing those who exploit the poor a free hand and if you don't do that then you should not support Public Housing and make them appear at legislative hearings the same as us.
They don't really care about HUD's desire for the City to "affirmatively further fair housing" what they want is the opportunity to exploit the poor without oversight and if they are not allowed that then they want to force the City to violate their requirement to "affirmatively further fair housing" by forcing PHA to appear in hearings when there is issues with their properties.
Their goal would be to force the City to tolerate people living in death traps or violating its requirements from HUD and then potentially lose HUD funding.
Don't worry no judge will fall for this.
JMONTOMEPPOF
Chuck Repke
Your nuts Repke. I've have never known a landlord who exploits the poor. All your remarks are is a slander attempt against a certain group of people to try and bolster your credibility.
If anyone exploits the poor its St.Paul.They lure them here with their social programs and then recieve big fat checks from the federal government to expand their government.Slow down Chuckie boy and reconize!
OK kiddies to be clear, I have no problems with landlords as a class and am one myself. My issue is with anyone who would have that much resistance to the notion that there needs to be a minimum standard of housing quality for people to live in. The nature of this lawsuit is to say the government should allow the rental relationship to determine the quality of the housing stock. If someone will live in the dump, the landlord should be allowed to rent it. That defines exploitation of the poor to me.
...and 8:10 try listening to something other than right wing radio and you might understand the world a little bit.
What "social program" does the City run??? We have parks and libraries the same as anyone else... you do know that cities have nothing to do with welfare don't you? You moron.
I love the twisted notion that happens with you right wingers that somehow someone in government profits by government getting bigger. Like there is a commission based system for welfare administration or something.
Most of the skill sets of management are transferable between government and the private sector. Lawyers play equally as well in either and make more money on the private side. Those that understand financing find it much more personally financially beneficial to get pick up by a private firm. Same with management. The skill sets move and the profit motive is higher on the private side.
My experience in working with those in government is that the tend to have high ideals and believe that they can make a difference in peoples lives. You may not like that, but that is who ends up staying in those jobs. Whether they be on the right or the left, they think they will have an impact.
JMONTOMEPPOF
Chuck Repke
Chuck, I have followed this blog for a long time and the only thing on it that is a joke is you and eric. I have been a victim of the City's illegal actions, have seen much of the evidence, and know the claims of the plaintiffs are true.
Who says government doesn't cash in ?
There is a movement out there fighting the IV-D systym of going after fathers for child support and denying them due process .
These County child support workers
stop at no ends.
They get lots of money from the Federal Government to go after these men even if they can't get anything out of them.
Anyone who wants to hear a perfect case sample of what I'am talking about just say the word !
Jeff Matiatos
"My experience in working with those in government is that the tend to have high ideals and believe that they can make a difference in peoples lives."
You've gotta be kidding. The leadership in this city is a slimmy and scummy as you can find anywhwere. The only they care about is themselves and getting re-elected.
With all the vacants, the leadership of this city is heading for a loss of critical mass, and then mass desertions. Hello Detroit!
Who knows where to download XRumer 5.0 Palladium?
Help, please. All recommend this program to effectively advertise on the Internet, this is the best program!
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