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Thursday, December 06, 2007

Saint Paul/ Racketeering Lawsuits Update

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Blogger Bob said...

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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Frank J. Steinhauser, III, et al., Civil No. 04-2632 JNE/SRN
Plaintiffs,
DEFENDANTS’ MEMORANDUM OF
vs. LAW IN SUPPORT OF THE MOTION
TO AMEND THE PRETRIAL
City of St. Paul, et al., SCHEDULING ORDER
Defendants.
Sandra Harrilal, et al., Civil No. 05-461 JNE/SRN
Plaintiffs,
DEFENDANTS’ MEMORANDUM OF
vs. LAW IN SUPPORT OF THE MOTION
TO AMEND THE PRETRIAL
Steve Magner, et al., SCHEDULING ORDER
Defendants.
Thomas J. Gallagher, et al., Civil No. 05-1348 JNE/SRN
Plaintiffs,
DEFENDANTS’ MEMORANDUM OF
vs. LAW IN SUPPORT OF THE MOTION
TO AMEND THE PRETRIAL
Steve Magner, et al., SCHEDULING ORDER
Defendants.
INTRODUCTION
Plaintiffs’ counsel seek review of 79 City employees’ emails. Defendants have
agreed to provide the emails to Plaintiffs’ counsel subject to a protective order protecting
private and non-public data from public dissemination. All counsel agreed it was
necessary to move the dispositive motion deadline because of the volume of emails that
Case 0:04-cv-02632-JNE-SRN Document 135 Filed 11/21/2007 Page 1 of 9
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Plaintiffs’ counsel seek to review. Plaintiffs’ counsel now refuse to stipulate to extend
the dispositive motion deadline. Defendants seek an extension of the dispositive motion
deadline and attorney’s fees and costs for bringing this motion.
PROCEDURAL HISTORY AND STATEMENT OF RELEVANT FACTS
Defendants agreed to provide Plaintiffs’ counsel 79 City employees’ emails in
response to Plaintiffs’ discovery requests. All parties agreed that many of the emails
would have protected data under the Minnesota Government Data Practices Act
(MGDPA) and that a protective order was necessary to expedite production of the emails.
On August 17, 2007, Defendants provided Plaintiffs’ counsel a draft stipulation for entry
of a protective order that, inter alia, provided that Plaintiffs’ counsel would abide by the
MGDPA and the emails were for attorney’s eyes only. (Seeba Aff. Ex. A). On August 22, 2007, the Court heard Plaintiffs’ motion for sanctions. Plaintiffs’ counsel and
Defendants’ counsel agreed at the motion hearing that it was necessary to extend the
dispositive motion deadline in light of the volume of emails Plaintiffs requested.
Defendants’ counsel and Plaintiffs’ counsel Matt Engel discussed the opportunity to
include the stipulation for an extension of the dispositive motion deadline in the
stipulation for entry of a protective order that Plaintiffs’ counsel were reviewing and
planned to revise. (Seeba Aff. ¶ 16). It was understood that Plaintiffs’ counsel would
include an extension of the dispositive motion deadline in Plaintiffs’ version of the
stipulation for entry of a protective order. (Seeba Aff. ¶ 17). Plaintiffs’ counsel did not
Case 0:04-cv-02632-JNE-SRN Document 135 Filed 11/21/2007 Page 2 of 9
1 Defendants have incorporated portions of Plaintiffs’ counsels’ revised
stipulation for entry of a protective order into the most recent draft of the stipulation for
entry of a protective order. Plaintiffs’ counsel were provided a copy of the most recent
draft of the proposed stipulation on October 18, 2007. (Seeba Aff. Ex. H). Plaintiffs’
counsel have not executed the stipulation or recommended any changes, despite the fact
that in has been in their possession for over one month.
3
provide any revision until October 11, 2007, only five days before Defendants were
required to file their dispositive motion under the current scheduling order. (Seeba Aff.
Ex. C).1 Furthermore, there was no stipulation to extend the dispositive motion deadline
included within Plaintiffs’ stipulation for entry of a protective order. Also, Plaintiffs’
proposed stipulation did not restrict the review of the emails to “attorney’s eyes only” but
allowed Plaintiff Frank Steinhauser access. (Seeba Aff. Ex. C). Defendants’ counsel
immediately informed Plaintiffs’ counsel Mr. Engel that the stipulation to extend the
dispositive motion deadline was not included with Plaintiffs’ proposed stipulation.
(Seeba Aff. ¶ 18). Since Counsel could not agree on whether the emails would be for
“attorney’s eyes only” or for Plaintiff to review, Defendants’ and Plaintiffs’ counsel
agreed to enter into two separate stipulations so that the stipulation to extend the
dispositive motion deadline could be done immediately. (Seeba Aff. ¶ 19).
On October 12, 2007, Defendants’ counsel forwarded Plaintiffs’ counsel a
stipulation to extend the dispositive motion deadline. (Seeba Aff. Ex. D). By October 15,
only one day before Defendants’ deadline to file dispositive motions, Defendants’ counsel
still had not heard from Plaintiffs’ counsel regarding the stipulation. On October 15,
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Defendants’ counsel again emailed Plaintiffs’ counsel regarding the stipulation and stated
that if Defendants’ counsel did not hear from Plaintiffs’ counsel, Defendants “would be
forced to make a motion to extend the dispositive motion deadline.” (Seeba Aff. Ex. E).
On October 16, 2007, Plaintiffs’ counsel Mr. Engel left a voicemail message regarding
the proposed stipulation to extend the dispositive motion deadline message stating:
... I haven’t heard back from [John Shoemaker] yet, I just
want to talk over the date with him to see if he has any other
ideas. If I don’t hear from him, I guess I am fine signing it,
but obviously I don’t want you to have to file a motion to
extend the deadline when we all agree that we need to do
that. It’s just a matter of what date to choose.” (Seeba Aff.
Ex. F).
Surprisingly, and in complete contradiction to every conversation Defendants’
counsel had with Mr. Engel up to that point, at approximately 1:00 p.m. on October 16
(the filing deadline of Defendants’ dispositive motion under the current scheduling
order), Mr. Engel called and informed Defendants’ counsel that neither John Shoemaker
nor Mr. Engel would agree to extend the dispositive motion deadline. (Seeba Aff. Ex. H
and Aff. ¶ 20). Defendants’ counsel asked Mr. Engel to get Mr. Shoemaker on the phone
since this was in complete contradiction to everything Mr. Engel had said for nearly two
months. (Seeba Aff. Ex. H and Aff. ¶ 23). Mr. Engel informed Defendants’ counsel that
Mr. Shoemaker would not discuss this issue and would not agree to an extension to the
dispositive motion deadline. (Seeba Aff. Ex. H and Aff. and Aff. ¶ 24). Mr. Engel then
stated that Defendants’ counsel would have to file a motion for the extension. (Seeba
Case 0:04-cv-02632-JNE-SRN Document 135 Filed 11/21/2007 Page 4 of 9
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Aff. Ex. H and Aff. ¶ 25). At that point, Defendants’ counsel agreed to file the motion
and the conversation ended. (Seeba Aff. Ex. H and Aff. ¶ 26).
On November 14, 2007, Defendants’ counsel requested that Plaintiffs’ counsel
reconsider their refusal to stipulate to extend the dispositive motion deadline. (Seeba Aff.
Ex. M). Plaintiffs’ counsel did not respond to the request. On November 20, 2007,
Defendants’ counsel again requested that Plaintiffs’ counsel reconsider. (Seeba Aff. Ex.
N). Defendants’ counsel also informed Plaintiffs’ counsel that Defendants would seek
attorney’s fees and cost for bringing this motion if Plaintiffs’ did not stipulate to extend
the deadline. (Seeba Aff. Ex. N).
Statement Required by District of Minnesota Local Rule 16.3
District of Minnesota Local Rule 16.3 requires “a statement describing: (1) What
discovery remains to be completed; (2) What discovery has been completed; (3) Why all
discovery has not been completed; and (4) How long it will take to complete discovery.”
D. Minn. L.R. 16.3. The answers to these questions are summarized below.
Discovery Remaining
Plaintiffs need to review the 79 City employees email boxes. Plaintiffs also need
to review 9 bankers boxes of City Neighborhood Housing and Property Improvement
problem property files.
Case 0:04-cv-02632-JNE-SRN Document 135 Filed 11/21/2007 Page 5 of 9
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Discovery Completed
Plaintiffs and Defendants are done with depositions and all other written
discovery. Once Plaintiffs review the email boxes, counsel will “meet and confer”
regarding any additional depositions that may be necessary because of newly discovered
evidence found in emails.
Why Discovery Has Not Been Completed
Discovery has not been completed because Plaintiffs insist on a stipulation for
entry of a protective order that allows Plaintiff Frank Steinhauser to review email
documents. Defendants believe that the emails should be for “attorney’s eyes only.”
Discovery has also not been completed because Plaintiffs’ counsel have requested to
review hundreds of thousand of emails which are irrelevant to Plaintiffs’ claims, yet has
made no effort to begin reviewing the emails. Furthermore, Plaintiffs’ counsel, as late as
October 3, 2007, have made requests to review new documents which resulted in 9
bankers boxes. (Seeba Aff. Ex. B). These documents are ready for Plaintiffs’ counsel
review, yet Plaintiffs’ counsel has made no effort to begin review.
Length of Time to Complete Discovery
Plaintiffs’ counsel have hundreds of thousand of documents to review.
Defendants cannot speculate how long it will take Plaintiffs’ counsel to review these
documents. However, Defendants suggest that the dispositive motion (filed by) deadline
Case 0:04-cv-02632-JNE-SRN Document 135 Filed 11/21/2007 Page 6 of 9
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be extended to 90 days past the end of Plaintiffs’ counsel review and/or depositions are
completed.
ARGUMENT
The trial court has broad discretion in determining whether good cause exists to
amend a scheduling order. Rainy Lake One Stop, Inc. v. Marigold Foods, Inc., 195 F.3d
430, 437 (8th Cir. 1999). “The primary measure of Rule 16’s ‘good cause’ standard is
the moving party’s diligence in attempting to meet the case management order's
requirements.” Bradford v. DANA Corp., 249 F.3d 807, 809 (8th Cir. 2001), citing,
Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). “[M]indless
subservience to the dictates of a Scheduling Order should [not] overshadow our
fundamental obligation to achieve a just, speedy, and inexpensive determination of the
underlying civil claim, particularly in the absence of any prejudice to the complaining
party. Medical Graphics Corp. v. Hartford Fire Ins. Co., 171 F.R.D. 254, 264 (D. Minn.
1997). See also , Archer Daniels Midland Co. v. Aon Risk Servs., 187 F.R.D. 578, 582
(D. Minn. 1999), citing, Luigino's, Inc. v. Pezrow Cos., 178 F.R.D. 523, 525 (D. Minn.
1988) (stating good cause does not “turn on the existence or absence of prejudice to the
non-moving party”).
Good cause for extending a dispositive motion deadline is established when:
the proffered dispositive motion presents legal issues that the
court would inevitably have to decide either prior to or in the
course of trial. In those circumstances, a well-founded
summary judgment motion might present the most efficient
Case 0:04-cv-02632-JNE-SRN Document 135 Filed 11/21/2007 Page 7 of 9
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method for addressing the legal issues presented, the fairest
opportunity for all parties to be heard on those issues, and,
ultimately, make possible a smoother, more coherent, and
briefer presentation of the case to a jury. In short, it is the
issues raised in the . . . motion . . . that may determine
whether there is “good cause” . . . for extending the deadline
to consider it. Moreover, where the issues raised in the . . .
motion must inevitably be addressed by the court either prior
to or in the course of trial, the opposing party cannot claim
prejudice where consideration of the otherwise untimely
motion presenting those issues actually gives the opposing
party the opportunity to litigate those issues fully and fairly.
Eischeid v. Dover Constr., Inc., 217 F.R.D. 448, 455 (D. Iowa 2003) (discussing the
possibility of extending a dispositive motion deadline to consider an untimely summary
judgment motion). See also, Century Indem. Co. v. Aero-Motive Co., 379 F. Supp.2d
879, 880-881 (D. Mich. 2004), quoting, Williams v. Wilkinson, 1997 U.S. App. LEXIS
36760, *5 (6th Cir. Dec. 18, 1997) (per curiam) (quoting the district court’s decision).
Plaintiffs’ counsel claim to want to review hundreds of thousands of documents in
the City’s possession (emails and NHPI files). Good cause exists to extend the
dispositive motion deadline so that the motion is not filed before Plaintiffs’ counsel have
completed reviewing the discovery requested. However, if Plaintiffs’ counsel have
changed their minds, and now want to move forward with a dispositive motion as soon as
possible without further discovery, a new deadline must be set in order to give
Defendants’ the opportunity to move for summary judgment.
Defendants have been forced to bring this unnecessary and time consuming
motion. Defendants request that Plaintiffs’ counsel bear Defendants’ attorney’s fees and
Case 0:04-cv-02632-JNE-SRN Document 135 Filed 11/21/2007 Page 8 of 9
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costs of this motion in the amount of One Thousand One Hundred and 00/100 Dollars
($1,100.00). (Seeba Aff. Ex. O).
CONCLUSION
Defendants respectfully request that this Court grant their Motion to Amend the
Pretrial Scheduling Order to extend the dispositive motion deadline. Furthermore,
Defendants request that Plaintiffs’ counsel be ordered to reimburse Defendants in the
amount of One Thousand One Hundred and 00/100 Dollars ($1,100.00) for the
attorney’s fees and costs of bringing this motion.
Dated: /s/ November 21, 2007 JOHN J. CHOI
Saint Paul City Attorney
By: /s/ Louise Toscano Seeba
Louise Toscano Seeba (#292047)
Assistant City Attorney
750 City Hall and Courthouse
15 West Kellogg Boulevard
St. Paul, MN 55102
(651) 266-8772
Attorney for Defendants

4:27 PM  
Anonymous Anonymous said...

Seems to me that if the city had a foot to stand on they would talking plain language that normal people can understand. This sounds like a bunch of BS to me.

5:12 PM  
Anonymous Anonymous said...

Whens the trial? Could anyone name the time and date?Hey Repke why don't you show up so you know alittle more about the case and can report back to the blog with your opinion?

7:49 PM  
Anonymous Anonymous said...

This one is pretty simple, the City is asking for additional time to come up with the hundred of thousand of documents that the plaintiff's want. They also want only the plaintiff's attornies to be able to look at the stuff.

chuck Repke

8:36 PM  
Anonymous Anonymous said...

4 years isn't enough time to come up with papers? How damn much time they need?

8:59 PM  
Anonymous Anonymous said...

Chuck this just proves you and thune don't know what the hell is going on.That is not why they want an extension.I remember you said the landlords were dragging this out to cost the city money.I think its the other way around.

Come on, I invite you to the federal court house on monday the 10th of december at 9:30.Bring your buddy Thune to so he's knows whats going on.

7:57 AM  
Anonymous Anonymous said...

Chuck,

Things are looking bleaker and bleaker for the city.

You had better get ready to change your letterhead to read "Landlordsville, Minnesota, formerly known as the not so saintly City of St. Paul."

8:06 AM  
Anonymous Anonymous said...

HellTown is coming Repke. I know some of these landlords and when this thing is over and their pockets are bulging with cash and the real estate values heading for the sewer, these guys are all going to be back and their spreads will be bigger than ever. They'll pprobably buy the whole block you live on move in every type of riff raff and anti social behavior you could imagine.

9:46 AM  

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