Part 2...IN THE UNITED STATES COURT OF APPEALS/ Saint Paul Fair Housing Lawsuits
posted by Bob at Tuesday, June 02, 2009
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Tuesday, June 02, 2009
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36 Comments:
There maybe copy errors
§1981 and §1982
Plaintiffs are required to show discriminatory intent to prevail on their claims under 42 U.S.C. §§ 1981, 1982. Dirden v. Dep’t of Housing and Urban Dev., 86 F.3d 112, 114 (8th Cir. 1996).
The facts and evidence submitted in support of discriminatory intent to prove their FHA claims also supports Plaintiffs §1981 and §1982 claims. The City’s discriminatory environment and attitude in housing code enforcement, force ownership change strategy and eviction strategy were known by the City to eliminate affordable housing and to have a disproportionate impact on protected class members.
Plaintiffs cited and the District Court discussed 2922 Sherman Ave. Tenants’ Ass’n v. District of Columbia, 444 F.3d 673 (D.C. Cir. 2006), where the District of Columbia’s lack of explanation for how it narrowed a list of seventy-five properties recommended for closure that were evenly distributed across the city down to five apartment buildings located in neighborhoods having an average Hispanic population 4.4 times that of the city as a whole supported an inference of intentional discrimination. 444 F.3d at 684.
The District Court isolated Plaintiffs’ maps and failed to consider the evidence from the FHA analysis - that the City’s discriminatory environment and attitude in housing code enforcement, force ownership change strategy and eviction strategy
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were known by the City to eliminate affordable housing and to have a disproportionate impact on protected class members. The discriminatory environment Plaintiffs refer to includes animus toward rental properties (Andy Dawkins’ own statements), a complaint based code enforcement system that has a problem with targeting people of color (Jane Prince’s email and Dawkins’ memo) , and getting rid of the bottom tier of tenants and low income people in the City (Cullen’s and Anderson’s testimony).
§1985
To prevail on a §1985 claim, the plaintiffs must show that “(1) the defendants conspired, (2) with the intent to deprive them, either directly or indirectly, of equal protection of the laws, or equal privileges and immunities under the laws, (3) an act in furtherance of the conspiracy, and (4) that they or their property were injured, or they were deprived of exercising any right or privilege of a citizen of the United States.” Barstad v. Murray County, 420 F.3d 880, 887 (8th Cir. 2005).
Again, the District Court failed to consider the evidence from the FHA analysis - that the City’s discriminatory environment and attitude in housing code enforcement, force ownership change strategy and eviction strategy which were known by the City to eliminate affordable housing and to have a disproportionate impact on protected class members. Plaintiffs alleged with particularity and
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specificity the City’s understanding of the impact of their discriminatory environment and attitude in housing code enforcement, force ownership change strategy and eviction strategy. Further, this discriminatory environment in housing code enforcement was “agreed to,” or an “understanding was reached,” when Dawkins had meetings with Chief Judge Mott and City Attorney Cervantes to get “buy in” to his aggressive, force ownership change and eviction strategies (Dawkins goals for 2004 included getting “buy-in” from the Police Department, City Attorney, Courts and Neighborhoods). ADD 91.
continued
c.
Void for Vagueness.
Plaintiffs claim that chapters 34, 43, 45 and 51 of the St. Paul Legislative Code (“City Code”) are void for vagueness because they fail to provide landlords and other property owners with sufficient notice of their basic obligations under law, thereby placing unwarranted discretion in the hands of those charged with code enforcement.
The void-for-vagueness doctrine is embodied in the due process clauses of the fifth and fourteenth amendments. Woodis v. Westark Community Coll., 160 F.3d 435, 438 (8th Cir. 1998). A vague regulation violates the Constitution because it fails (1) to define the offense with sufficient definiteness that ordinary people can understand prohibited conduct and (2) to establish standards to permit enforcement of the law in a non-arbitrary, non-discriminatory manner. Id. “In a facial vagueness challenge, an
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enactment reaching a substantial amount of constitutionally protected conduct may withstand constitutional scrutiny only if it incorporates a high level of definiteness. An enactment imposing criminal sanctions or implicating constitutionally protected rights demands more definiteness than one which regulates the economic behavior of businesses.” Id.
Plaintiffs Gallagher, Collins, Dadder’s and Kubitschek (as well as Steinhauser and Harrilal), had properties labeled by the city as “problem properties.” Plaintiffs Steinhauser, Meysembourg, Johnson, Brisson, Allison, and Kubitschek were all subject to “code compliance certifications.”
Plaintiffs have not received adequate notice of proscribed conduct, or in other cases under city code, required conduct, in maintaining their rental properties. For example, with tenant turnover, Plaintiffs typically clean the property in order to re-rent the premises. On many occasions, it may take several weeks to several months to re-let the property, depending on the amount of tenant damage that needs repair and the rental market.
With Plaintiffs Allison and Dadder’s, 1522\1524 Carroll was designated as vacant just 23 days after sale of the property. Gallagher provided signed leases and rent deposit slips on appeal of the vacant building designation, but the appeal was denied. Defendant Senty declared the building vacant by looking through a second
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story window while standing on the ground. Defendant Senty could not define “legally occupied.” APP 124.
Dawkins, an attorney, a 15 year servant in the Minnesota House of Representatives, and as the former 4 year director of the City’s code enforcement division (NHPI), could not describe the three categories of vacant buildings, could not define code compliance, and did not know if “legally occupancy” was defined in the Code as the Code states it should (which it does not). When asked about vacant buildings, Dawkins stated: “It was always confusing to me, and I’m not sure I can get it right even today.” APP 432. When asked about code compliance, Dawkins stated, “That’s always been confusing to me. The best I can tell you is that I attempted to learn about it when I heard that it became part of the settlement of the first Tenant Remedy Action”. Id. In his duties as Director of NHPI, Dawkins never had any discussions with his inspectors between 2002-2005 as to when a code compliance would be required. Id. When asked about “legal occupancy” in an email from a resident trying to understand the vacant building code, and whether the term even appears in the City’s code, Dawkins wrote, “I am not sure it appears anywhere. I would interpret this to mean not over-occupied and not trespassers.” APP 433.
Code enforcement manager Lippert, former head of the Problem Property 2000 program, could not define a problem property. When asked about problem properties,
Lippert stated, “I don’t use the term and I don’t have a definition.” APP 434. When asked why he doesn’t use the term, Lippert states, “That term has been used so often by so many people, it means so many different things to so many different people that I don’t think it uniformly defines anything. So there is too much chance of misunderstanding by using the term, so I don’t use it.” Id.
This Court has seen the facts and evidence behind the City’s discriminatory environment and attitude in housing code enforcement and the force ownership change strategy and eviction strategies. Because many of the significant terms used in the City’s code are insufficiently defined, because the City code lends itself to arbitrary enforcement by different application, and because Plaintiffs and others are forced to guess at the code’s prescriptions, the code should be declared unconstitutionally vague because the housing code is being abused.
The void for vaugness deal makes it look as if the city may not have a code left to enforce is this gets over turned.
Looking at this in its totality I don't know how some here can think there's no actionable conduct on the part of the city.
Get ready to pay St. Paul! And you'll pay dearly if a jury gets hold of this.
Who was the mayor at this time.
2:52 - looking at what????
The plaintiff's give no evidence of anything that they allege. It reads like a novel but it gives no facts. No hard evidence. They didn't have anything but accusations during the entire discovery process. And again the appeal is nothing but one giant allegation of a conspiracy to violate people of color's right to live in substandard, unsafe housing.
If you take their appeal in its totality this is what you have:
1. The City found violations on our properties.
2. We either can't, aren't able to or don't want to fix them.
3. Low income people will rent from us even if we don't fix them.
4. If we fix them we will raise our rent otherwise we will shut them down.
5. Making us repair our properties is an assault on poor people, because since they do rent our places they must want to.
There is no evidence even as to how much more they would charge if they fixed them, nor any evidence that the low income tenants couldn't afford a slightly higher rent. NOTHING. Not one thing that even resembled a fact or evidence of anything. They didn't even show that the units that were in disrepair rented for less that units that were up to code! NOTHING.
It was a just sad. Just a vengeful, spiteful, hateful, group of spoiled brats. Or bad lawyers, one of the two.
JMONTOMEPPOF
Chuck Repke
Look at how much space they waste in the appeal over the question of if Andy Dawkins knows what "legal occupancy" means.
SO WHAT!!!!
So, because Dawkins doesn't "know" what the term means exactly, then the Federal Court should throw out the code, right? That is a big part of this appeal...right?
Then try this one, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
For two hundred years we have been debating what that means. I am sure Mr. Dawkins doesn't have a clue there either.
I guess we need to throw that out too.
JMONTOMEPPOF
Chuck Repke
Keep spinning Chuck!
Like I said, plaintiffs attorneys are getting rich !
"No hard evidence. They didn't have anything but accusations during the entire discovery process."
I got some news for ya Chuck. They don't have to have evidence at this point. All they need is conflicting fact issues and I have seen plenty of them. This case will go to trial regardless of what you think.
d.
RICO.
Plaintiffs brought RICO claims against Defendants claiming violations of 18 U.S.C. § 1962(c), (d). A plaintiff who brings suit under 18 U.S.C. § 1962(c) must prove that the defendant engaged in (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity. Handeen v. Lemaire, 112 F.3d 1339, 1347 (8th Cir. 1997).
“Racketeering activity” is defined in 18 U.S.C. § 1961(1). That section lists as
54
predicate acts certain state law crimes, conduct that is “indictable” under various federal provisions, and numerous other offenses. Handeen, 112 F.3d at 1353. Plaintiffs based their RICO claims in their Complaint on seven predicate acts: mail fraud, bank fraud, wire fraud, the Hobbs Act, tampering, bribery, and interstate travel or transportation in aid of racketeering enterprises. In Plaintiffs’ brief, Plaintiffs added facts obtained through discovery to their RICO claims on alleged false claims of housing code violations, Defendants’ use of the City’s housing code rather than the HQS, misrepresentations of code compliance inspections, and extortion.
From the period of 2002 and thereafter, Defendants have, through a joint enterprise, participated in conduct which qualifies as racketeering activity. Defendant Magner engaged in excessive code enforcement and targeting properties with the intent of forcing property owners to sell their properties. In each case, Magner enforced numerous code violations which required thousands of dollars in rehabilitation work. Prior to completion of the rehabilitation work, Magner approached property owners Osterman and Lois Jacobs, offering to arrange for each to sell their property to either Magner or someone of Magner’s choosing. In both cases, Magner presented the property with an offer that was grossly below market value. APP 435-437 (Osterman), 438-442 (Jayasuriya), 443-456 (Hayes), 457-459 (Jacobs).
Magner’s conduct is sufficient to meet the “relatedness” requirement because it
55
exhibits a similar purpose, result, type of victim, and method of commission. Not only did Magner enforce code violations which required excessive repairs, he attempted to corner each of the above-mentioned property owners into selling their property at a price below market value. Plaintiffs also contend that Magner has personally benefited from such behavior by transferring “inside knowledge” to Wally Nelson who has not only purchased many distressed single family and duplex homes under Magner’s control, but is also a close friend of Magner’s and has provided construction services to Mr. Magner’s father at a discounted rate ($10,000.00). Docket, 213, Ex. 33-35; Docket, 210, Ex. 72. Magner’s clear purpose was to force these property owners to sell their properties and move out.
The City and PHA knew the City’s minimum maintenance code was more strict 82% of the time when compared to federal HQS and yet fail to disclose this important fact to public or HUD in their Consolidated Plans – this non-disclosure was a material misrepresentation to the community, to Plaintiffs and other landlords, and property I owners, as well as to tenants and other occupants, all of whom HUD considered beneficiaries of the disclosure requirement in the AI process and annual and five year updates to HUD.
Further, Plaintiffs made similar claims that Defendants falsified claimed code violations in order to deprive Plaintiffs of monies through excessive consumption fees
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(Dawkins’ memo regarding raising “a half million” in re-inspection fees), permit fees, other city fees, and of Plaintiffs investments. Plaintiff Affidavits, APP 284-287 - code violations for birds nesting, kiddy pools, etc.).
Based upon the foregoing facts and conclusions, this Court should find that summary judgment as pertaining to RICO is not appropriate and Defendants’ motion should therefore be denied.
Well Chuck.....you've been harping about who benifets from the rico......wlel here it is, choke on it you fool.
11:44 - choke from laughter maybe.
The court did reserve that if the plaintiffs wanted to take Magner to court they were welcome to do it. The court and any rational person would find the accusation totally f'ing insane to suggest that Mayor Kelly and Andy Dawkins and all of the rest of the City were involved in a criminal conspiracy to make Steve Magner money! Only a total idiot would believe that. I know it hurts your brain to think, but think about how nuts one has to be to put that in writing.
On the excessive consumption... again an accusation... the City collected Billions and Billions of dollars from these people... please some facts, some real numbers, not some comment from Dawkins or anyone else. Some DATA.
And 8:53 wrong again Bucko. For something to be a conflicting fact (and the word "fact" should give you a clue) there has to be some evidence that makes it a fact.
So, by now the plaintiff's should have shown that their clients charged on an average 25% less on their rent then the properties that were not written up for code violations. That would have been a useful fact if it was true. Or, they could have shown some niche in the population that sought them out.
With me? That would have shown something towards the suggestion that they were actually serving a targeted population.
But, they showed no facts. No evidence. Just wild ass accusations.
Its over.
JMONTOMEPPOF
Chuck Repke
It's a good thing most of the country doesn't think like you Chuck. No one ever said that everyone in the city was involved, just a few people and that's all it takes.
9:55 no, no it doesn't.
They are suing the City. The conspiracy has to be something that those who are responsible for some level of the City government are a part of.
If some rouge City employee tried to squeeze some one for something, you may have a case against him or her for their actions, but you don't have a RICO case against the City of Saint Paul.
Remember when this thing started the RICO case was that the City was involved in a conspiracy to try and put landlords out of business to improve business for PHA. Now if there was any evidence that had the potential for a case (which is why this thing went to discovery). One part of government attempting to make another level of government more successful by eliminating private enterprise. But there were no facts (and PHA's waiting list is ten years long) so the original law suit case has just disappeared and we are left with this silliness.
JMONTOMEPPOF
Chuck Repke
So you agree that the landlords have a case huh Repke? That's the only reason I can think of that makes you try so hard to deny the obvious.
Chuck,
All it takes is a few rotten apples to spoil the barrel. We have city employees that are not acting like concerned responsible professional public servants, but acting like thugs.
And the city council is backing them up to the hilt.
lol yes, they have potential cases, they just don't have any evidence that anything that they make up in their heads actually occurred.
If the City's actions were designed to adversely affect people of color, you have a fair housing case.
If the City's actions were designed to benefit one party at the expense of another you have a RICO case.
But if what you have is a group of landlords that either would not or could not maintain their property and object to someone trying to make them do it. What you have is a waste of time and money.
To this point all of the facts point to the latter. There is no evidence of any fair housing violations and no evidence of RICO.
The fact that there were code violations on all of these properties is not in dispute. The fact that they were all given time, time and more time to repair them is not in dispute. The fact that at some point the City says enough is enough and we are not extending you any more extension is not in dispute. The fact that they treat all similarly situated private property owners the same is not in dispute.
But with all of those facts you then have on the other side the accusation that despite the facts to the contrary the plaintiffs believe that there is a crime that occurred.
Nuts.
JMONTOMEPPOF
Chuck Repke
St Paul officials lied about violations Chuck. Sure there were some violations but every home in the city has them. The city has said so. City inspectors also said these were good landlords who did repair their property when notified of need repairs. Tenants have said that the landlords were good and that the city lied. The tenants said they had no problem with the landlords and when they called for repairs the landlords did the repairs. There are crimes that ocurred and people are going to go to jail eventually over those crimes.
10:13 - again that is what is so silly about this case. If the City lied about violations then the landlords would be in State Court fighting the alleged violations that were lies.
As far as I know there are zero, none, nada landlords or plaintiffs in this case that went to court to fight the violations.
Instead they came up with this which hunt.
Its not going to trial. There is no case. Its over.
JMONTOMEPPOF
Chuck Repke
Well they didn't go to sttse court Repke they went to federal court cause there were federal issues. You can spin all you want but only one side is going to come out a winner here and I think it's you who is going to look foolish when it's all done and over.
What is silly about the case, Chuck, is that housing - a non political issue, has become political, and the bad guys in the city are relying on political mouthpieces to create enough confusion so they can get away with it.
continued
e.
State Law Claims.
Plaintiffs make three state law claims: (1) abuse of process, (2) tortious interference with contract, and (3) tortious interference with Plaintiffs’ business expectancy.
To succeed on an abuse of process claim, Plaintiffs must show that there was an ulterior purpose and that Defendants used the process to achieve something not within the scope of the proceedings. Kittler & Hedelson v. Sheehan Props., Inc., 203 N.W.2d 835, 840 (Minn. 1973).
To prevail on a tortious interference with contract claim, Plaintiffs must show (1) the existence of a contract; (2) Defendants’ knowledge of the contract; (3) Defendants’ intentional procurement of its breach; (4) without justification; and (5) damages resulting therefrom. See Bouten v. Richard Miller Homes, Inc., 321 N.W.2d 895, 900 (Minn. 1982).
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Success on Plaintiffs’ tortious interference with business expectancy claim requires a showing of (1) the existence of a reasonable expectation of economic advantage or benefit belonging to Plaintiffs; (2) that Defendants had knowledge of that expectation of economic advantage; (3) that Defendants wrongfully and without justification interfered with Plaintiffs’ reasonable expectation of economic advantage or benefit; (4) that in the absence of the wrongful acts of Defendants, it is reasonably probable that Plaintiffs would have realized their economic advantage or benefit; and (5) that Plaintiffs sustained damages as a result of this activity. See Harbor Broad., Inc. v. Boundary Waters Broad., Inc., 636 N.W.2d 560, 569 (Minn. Ct. App. 2001).
The City’s discriminatory environment and attitude in housing code enforcement, force ownership change strategy and eviction strategy which were known by the City to eliminate affordable housing and to have a disproportionate impact on protected class members – this is exactly the type of evidence Plaintiffs rely on in support of their State Law claims. As the District Court did in its Order, Plaintiffs did not repeat the facts and analysis of the FHA/disparate treatment and impact portion of their brief.
IV. The District Court Erred in Denying Plaintiffs’ Original and Renewed Motions for Sanctions.
Spoliation is the intentional destruction of evidence and when it is established,
58
the fact finder may draw inference that the evidence destroyed was unfavorable to the party responsible for its spoliation. See E*Trade Sec. LLC v. Deutsche Bank AG, 230 F.R.D. 582, 587 (D.Minn 2005) (citing Black's Law Dictionary 1401 (6th ed.1990); see also Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 216 (S.D.N.Y.2003)(spoliation of evidence is the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonable foreseeable litigation); see also West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir.1999)).
Defendants had a duty at the commencement of the Steinhauser lawsuit in May 2004, to place a litigation hold on all relevant evidence that might be useful to Plaintiffs. Defendants failed to do so then or thereafter when they were sued in Harrilal and Gallagher in 2005. Discovery requests in Steinhauser were served on Defendants in November of 2004 requesting all inspection reports, records and “emails” of all officials and City agencies. Defendants continued to destroy e-data/e-mails and TISH reports thereafter. Defendants failed to place a “litigation hold” on potentially relevant documents.
At the April 14, 2008, hearing on Plaintiffs renewed motion for sanctions the Court acknowledged that no showing of “bad faith” was required because the subject documents had been destroyed by Defendants after litigation was commenced.
continued-
Nevertheless, the Court applied the “bad faith” standard in its Order. Order at 7-10, 13, 14.
Plaintiffs never limited their document request to email communications from December of 2005 forward, or at any other time waived their right to email communications for the relevant periods prior to December 2005. Plaintiffs agreed to limit the number of individuals from whom which they sought emails, not limit the emails that were produced during litigation. Ms. Seeba’s claim that Plaintiffs had limited their request for emails for December of 2005 forward is a deliberately false assertion of the record. Ms. Seeba’s comments at the August 2007 hearing clearly show that she was requesting a limitation individuals, not a limitation of the time period for emails. Plaintiffs would not waive their right to emails written during the course of litigation.
Defendants’ failure to place any litigation hold on e-mails/e-data after the commencement of litigation in May of 2004 and failure to preserve back-up tapes prior to December of 2005 allowed Defendants to destroy relevant evidence for the key time periods prior to December 2005, which created an absence of communications between and among Defendants and other city officials and employees and third parties from 1999 through 2005, concerning Plaintiffs claims and regarding Defendants’ claims of immunity. Given the sampling of emails provided in
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this brief by Plaintiffs’ counsel, it is reasonable to conclude that e-data/e-mails prior to December 2005 would have produced evidence supportive of Plaintiffs’ claims of intentional discrimination and relevant to Defendants’ claimed immunity.
V. The District Court Erred in Denying Plaintiffs’ Motion to Compel.
Magistrate Nelson denied Plaintiffs’ joint motion to compel the production of the tax records, banking records and cell phone records of Defendant Steve Magner, a supervisor of vacant buildings for the Neighborhood Housing and Property Improvement office (NHPI) of St. Paul and a member of the Problem Property Unit of NHPI.
Plaintiffs sought these personal records to support claims that Defendant Magner had committed the predicate acts of “attempted extortion” and “extortion” under the federal Racketeering Act, 18 U.S.C. Section 1961, et seq. (hereinafter referred to as “RICO Act”).
Attempted extortion is an illegal predicate act under the RICO Act. 18 U.S.C. § 1961. Under the RICO Act, “Racketeering activity” is defined as, “(A) any act or threat involving…extortion, or (B) any act which is indictable under any of the following provisions of title 18, United States Code §1951 (relating to interference with commerce, robbery, or extortion). 18 U.S.C. §1961 (emphasis added).
During the period of 2002 and thereafter, Mr. Magner was the head inspector in
Continued-
charge of all vacant buildings for the City. Gallagher, Collins, the Dadder’s entities, Allison and Jeff and Sara Kubitschek were subject to the “vacant building” supervision of Mr. Magner during this period. Mr. Magner testified that as a vacant building supervisor he was privy to a great deal of personal and financial information of owners of single family and duplex property owners required at his direction to undergo expensive certification of Code Compliances. Docket, 213, Ex. 33-35.
Plaintiffs claim that Mr. Magner has personally benefited from his transfer of “inside” knowledge to Wally Nelson who has purchased a great deal of distressed single family and duplex homes under Magner’s control. In fact, Mr. Magner has admitted that Mr. Nelson has purchased a great number of properties that are subject to Mr. Magner’s control and supervision. Docket, 213, Ex. 33-35. Mr. Magner admitted that he has known Wally Nelson for many years, that he and Mr. Nelson have a long standing practice of frequent social contacts, and that Mr. Nelson has provided construction services to Mr. Magner’s father on his homestead located in Stillwater, across the road from Steve Magner‘s homestead. Docket, 213, Ex. 33-35. Mr. Nelson admitted that his business partner had performed new construction services for Mr. Magner’s father’s new home in Stillwater for $10,000.00. Mr. Nelson also admitted to having assisted Mr. Magner’s father lay sod at his new house. Docket, 210, Ex. 72.
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Affidavits and sworn statement from four individuals that were presented to the Magistrate on Plaintiffs’ Joint Motion to Compel constituted direct evidence of “attempted extortion” by Defendant Magner in his official position as a supervisor of code enforcement for Defendant City.
Plaintiffs were seeking Magner’s personal records as further evidence that Magner had committed the RICO predicate act of “attempted extortion” and for evidence that he had committed “extortion” under the RICO Act. Magistrate Nelson’s determination that “Plaintiffs have produced absolutely no evidence that he has derived any income from the alleged pattern of racketeering” was clearly erroneous and contrary to law. Plaintiffs are seeking to show evidence Magner “derived income” from the alleged pattern of racketeering through his bank records and tax returns. Plaintiffs have already presented evidence of the predicate act of “attempted extortion.” Because “attempted extortion” is a RICO predicate act, Plaintiffs should be allowed to examine Magner’s bank records and tax returns to determine if in fact he has derived any income that would constitute the additional predicate act of “extortion.”
The fact the Magner was unsuccessful in his attempted extortion, or that he did not derive income from those individuals, does not mean that an illegal predicate act was not committed or that discovery of his bank records and tax returns should not be
63
allowed. As the Court held in MacLaughlin, “that the extortion effort ultimately failed can not exonerate Anderson, since Macgall alleged, and the Hobbs Act forbids, attempted extortion.” See McLaughlin at 194 (citing 18 U.S.C. § 1951(a)).
In sum, given the nature of the claims against Magner, his tax, banking and personal cell phone records fall within the proper scope of permissible discovery under the Federal Rules of Civil Procedure and the Court should allow such discovery. Plaintiffs are agreeable to subjecting Magner’s cell phone records and financial documents to provisions of a protective order to protect his privacy and financial security interests. Plaintiffs’ request for such documents is within the scope of discovery, is relevant, material and likely to lead to the discovery of admissible evidence under Rule 26 of the Federal Rules of Civil Procedure.
CONCLUSION
The Order of the District Court is replete with examples of the Court ignoring the standard for summary judgment motions. Repeatedly, the District Court weighed evidence, stating that the Court was “not persuaded” or that the evidence did not “show” discrimination, that there was no evidence, or the Court “concluded” that the evidence was insufficient. This disregard for the summary judgment standard has become the norm, and this kind of “trial on the paper” violates plaintiffs’ Constitutional right to trial by jury. The facts, when all inferences are drawn in favor
64
of Plaintiffs, clearly present evidence from which a reasonable fact finder could conclude that the City’s custom, policy and practice was a discriminatory environment and attitude in housing code enforcement, that the force ownership change strategy and eviction strategy were known by the City to eliminate affordable housing and to have a disproportionate impact on protected class members. For these reasons, Plaintiffs ask this Court to reverse the District Court’s grant of summary judgment and remand the case for trial.
AASE, ENGEL & KIRSCHER, PLLC
Dated: May 5, 2009 By: s/ Matthew A. Engel
Matthew A. Engel (Attorney Lic. #315400)
180 East 5th Street, Suite 255
Saint Paul, Minnesota 55101
T: (651) 209-6884
Attorney for Plaintiffs-Appellants Gallagher, et.al.
There you have it Rpeke........SPOILIATION!>>>>>>discussion closed and case back on the front burner. Your boys are on deck chap and they are going to get their butts kicked.
Sorry 10:28 what the courts have repeatedly said about missing documents is that for any court to determine that the missing documents had some information of importance is that you have to have some document that was important.
With me?
In order for the court to believe there is missing evidence you have to have found some evidence that something occurred somewhere else.
So, in this case what the plaintiff's are saying is that we went through thousands and thousands of documents and haven't found one shred of paper that even suggests that what we are accusing the City is true. So, that means that what ever papers we don't have must be the evidence that we would have needed to prove this case.
The courts say, no, you have to at least have some evidence somewhere that the things you are saying is true before we believe that there is some evidence being hidden.
Folks there is no evidence in this case that the city did anything remotely like what the plaintiff's accuse them of.
JMONTOMEPPOF
Chuck Repke
"So, in this case what the plaintiff's are saying is that we went through thousands and thousands of documents and haven't found one shred of paper that even suggests that what we are accusing the City is true. So, that means that what ever papers we don't have must be the evidence that we would have needed to prove this case."
Now you're catching on Repke! It took a while but it's refreshing to see you finally waking up, smelling the roses and realizing the significance of the case at hand. Welcome aboard comrade.
There is no evidence period.
Even the plaintiffs admit that whatever evidence there was, was shredded and destroyed.
So best case senario, your able to prove that the city destroyed documents or e-mails .
That may be wrong, but it doesn't prove rico.
Plaintiffs were late and not slick enough to get the truth and facts.
The city knew what it was doing to landlords long before this matter got to the courts.
Now, plaintiffs are losing money and the tax payors are getting the shaft by paying the legal bills to fight this.
Both sides need to realize that.
They may admit that evidence was destroyed, but they found very incriminating emails in city files that the got from the city. Those emails were some of the ones destroyed in the total wipe out because they were going to hurt the city. As usual in big cases, they didn't destroy all of them and the landlords were able to find enough incriminating ones that will set the stage for the cities downfall.
Rico is up to bat with the bases loaded and and I think the landlords are going to hit a grand slam with the appeals court.
St. Paul is going to go down in flames just like the Chicago fire. Only the flames will be legal flames.
The landlords are going to roast some weenies.
same ol same ol. Slumlords talk, nobody listens.
slumlord this and slumlord that.....it's going to be so much fun to see you fools with egg on your face after the landlords mop the floor with your city officials.
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