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Friday, May 30, 2008

Saint Paul RICO Update/ Defendants response to plaintiffs objections to Magistrate Nelson's order of April 23, 2008.

Please click onto the COMMENTS for the motion. (New here? To gain an understanding of this motion please read the RICO lawsuits against the City of Saint Paul on the front page below the Scale of Justice)

16 Comments:

Blogger Bob said...

There maybe copy errors.

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Frank J. Steinhauser, III, et al., Civil No. 04-2632 JNE/SRN
Plaintiffs,
DEFENDANTS’ RESPONSE TO
v. PLAINTIFFS’ OBJECTIONS TO
MAGISTRATE NELSON’S ORDER
OF APRIL 23, 2008
City of St. Paul, et al.,
Defendants.
Sandra Harrilal, et al., Civil No. 05-461 JNE/SRN
Plaintiffs,
DEFENDANTS’ RESPONSE TO
v. PLAINTIFFS’ OBJECTIONS TO
MAGISTRATE NELSON’S ORDER
OF APRIL 23, 2008
Steve Magner, et al.,
Defendants.
Thomas J. Gallagher, et al., Civil No. 05-1348 JNE/SRN
Plaintiffs,
DEFENDANTS’ RESPONSE TO
v. PLAINTIFFS’ OBJECTIONS TO
MAGISTRATE NELSON’S ORDER
OF APRIL 23, 2008
Steve Magner, et al.,
Defendants.
INTRODUCTION
In June, 2007, Plaintiffs filed a motion for sanctions which was ultimately denied
without prejudice. In March 2008, after the close of discovery, Plaintiffs renewed their
motion for sanctions. On April 23, 2008, Plaintiffs’ joint renewed motion for sanctions
Case 0:04-cv-02632-JNE-SRN Document 230 Filed 05/21/2008 Page 1 of 7
1 On May 8, 2008, the parties had a conference call with Magistrate Judge Nelson
regarding the scheduling order and typographical errors in the Court’s order. Plaintiffs attempted
to gain more time in order to file their objections to the Court’s April 23, 2008, Order denying
sanctions. Plaintiffs based this request on the amended Order that was to be filed by the Court
and claimed that the later date should be the date from which to object to the Order denying
sanctions. Counsel for Defendants opposed any additional time for Plaintiffs to file their
objections as the amended Order would only change typographical errors and the phone
conference was regarding scheduling and typographical errors, and had nothing to do with
sanctions. The Court agreed, and did not allow Plaintiffs any additional time to object to the
Order denying Plaintiffs’ motion for sanctions. Nevertheless, Plaintiffs ignored the Court’s
ruling and filed untimely objections to the Magistrate’s Order. Therefore, Plaintiffs’ objections
should be denied as they are untimely as they do not comply with Local Rule 72.2.
2
was denied in its entirety. On May 12, 2008, Plaintiffs filed (untimely) objections to the
Magistrate’s April 23, 2008, order denying their motion for sanctions.1 Plaintiffs’
objections to the Court’s April 23, 2008, Order should be denied as the Court’s Order was
in accordance with the law.
STANDARD OF REVIEW
Great deference is given to a magistrate judge’s orders. Reko v. Creative
Promotions, Inc., 70 F. Supp. 2d 1005, 1007 (D. Minn. 1999) (stating standard of review
is “extremely deferential”). A district court “must affirm the order of the magistrate judge
unless it is clearly erroneous or contrary to law.” Regents of the Univ. of Minn. v. Glaxo
Wellcome, Inc., 58 F. Supp. 2d 1036, 1037 (D. Minn. 1999). See Banbury v. Omnitrition
Int'l, Inc., 818 F. Supp. 276, 279 (D. Minn. 1993) (utilizing clearly erroneous or contrary
to law standard). See also 28 USCS § 636(b)(1)(A) (providing review by the district
court judge “where it has been shown that the magistrate’s [magistrate judge’s] (sic) order
is clearly erroneous or contrary to law”); Fed. R. Civ. P. 72(a) (stating same); D.Minn. LR
Case 0:04-cv-02632-JNE-SRN Document 230 Filed 05/21/2008 Page 2 of 7
3
72.2(a) (stating same). “A finding is ‘clearly erroneous’ when although there is evidence
to support it, the reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” Chakales v. Commissioner, 79 F.3d 726,
728 (8th Cir. 1996) (internal quotation omitted).
ARGUMENT
I. PLAINTIFFS FAILED TO ESTABLISH PREJUDICE
The Court correctly denied Plaintiffs’ motion for sanctions because Plaintiffs
simply did not demonstrate prejudice resulting from any destroyed or nondisclosed
documents. See Order at p. 14. The Court also correctly noted that Plaintiffs had
received, “if not from Defendants then from some other source nearly all the documents
and information they requested.” Id.
As the Court correctly found, sanctions for spoliation may not be imposed “until
the moving party can demonstrate that they have suffered prejudice as a result of the
spoliation.” E*Trade Sec. LLC, 230 F.R.D. at 592. Accord Stevenson, 34 F.3d at 748
(“There must be a finding of prejudice to the opposing party before imposing a sanction
for destruction of evidence.”); Keefer v. Provident Life & Accident Ins. Co., 238 F.3d
937, 940 (8th Cir. 2000) (stating that showing of prejudice is required for sanction of
dismissal). To establish prejudice, a movant must generally be able to show the contents
of the documents at issue, that is, the substance of the evidence to which they were
improperly denied access. See Order at p. 14. LEXIS-NEXIS v. Beer, 41 F. Supp. 2d
Case 0:04-cv-02632-JNE-SRN Document 230 Filed 05/21/2008 Page 3 of 7
4
950, 955 (D. Minn. 1999) (noting that a movant must show that destroyed material
“would have contained evidence pertinent to the present litigation”).
In fact, even Plaintiffs agree that in order for their motion for sanctions to succeed
a finding of prejudice is required. See November 13, 2007, Order at p. 3 (citing
Plaintiffs’ Joint Memo. of Law in Support of Motion for Sanctions at p. 11), see also
Plaintiffs’ Joint Objections to Magistrate’s Order of November 13, 2007, at pp. 6 & 8
(arguing existence of prejudice).
A. Documents Related to the PHA
The Court correctly noted that Plaintiffs did not show that they were prejudiced by
the nondisclosure of PHA-related documents. See Order at p. 8. The Court correctly
found that Defendants provided Plaintiffs with all PHA documents in Defendants’
possession and worked with the PHA to gather documents for Plaintiffs that were not in
Defendants’ possession. See Order at pp. 7, 8 & 9.
B. TISH Reports
The Court correctly found that Plaintiffs did not show that the destruction or
failure to produce TISH reports has prejudiced them. Plaintiffs did not request the reports
until 2007, and in response to that request Defendants produced all of the reports in its
possession to Plaintiffs. See Order at p. 10. Plaintiffs requested sanctions based on the
destruction of earlier reports that were destroyed pursuant to the City’s valid document
retention policy. However, Defendants provided Plaintiffs all the information Plaintiffs
Case 0:04-cv-02632-JNE-SRN Document 230 Filed 05/21/2008 Page 4 of 7
5
needed to obtain the missing TISH reports directly from the TISH evaluators (who are not
City employees). Plaintiffs are the ones who independently decided that they did not need
the reports. The Court correctly found that Plaintiffs simply did not show prejudice based
on the City’s destruction of TISH reports pursuant to a valid document retention policy.
C. Documents Obtained From Anonymous Source
The Court correctly found that Plaintiffs were not prejudiced based on disclosure
of “anonymous source” documents. Plaintiffs received a number of documents from an
anonymous source, and claim that Defendants should be sanctioned for not producing
them. In fact, Defendants had produced a vast majority of the documents (and all the
documents in Defendants possession).
The only prejudice that Plaintiffs claim from the alleged nondisclosure is that they
were unable to use the documents in depositions. However, Plaintiffs had the opportunity
to use the documents in depositions and questioned deponents regarding many of the
“anonymous source” documents. See Defendants’ Opposition to Plaintiffs’
Memorandum of Law in Support of Motion for Sanctions, p. 15; Order at p. 11. The
Court correctly found that Plaintiffs were not prejudiced by the production of any
“anonymous source” documents.
D. E-Mails
The Court correctly found that Plaintiffs were not prejudiced by Defendants’
disclosure of emails. Regarding the individual email accounts of which Plaintiffs
Case 0:04-cv-02632-JNE-SRN Document 230 Filed 05/21/2008 Page 5 of 7
6
complained: Susan Kimberly, Kathy Lantry and Andy Dawkins, Plaintiffs provided no
evidence other than mere speculation claiming that more emails should exist. See Order
at pp. 12 & 13. Furthermore, Plaintiffs did not provide any evidence that allegedly
deleted emails would have information favorable to Plaintiffs’ case.
With respect to Plaintiffs’ claim that Defendants should be sanctioned for not
retaining more pre-December, 2005 emails, the Court correctly found that Plaintiffs did
not provide any evidence that they were prejudiced by the destruction of emails. In an
effort to show prejudice, Plaintiffs made only conclusory assertions which were no more
than mere speculation that destroyed material would have contained evidence favorable to
Plaintiffs’ claims. See Order at p. 13. The Court correctly found that Plaintiffs’
conclusory statements do not satisfy the requirement that Plaintiffs show prejudice.
CONCLUSION
For the reasons set forth above, Defendants respectfully request that the Court
strike Plaintiffs’ May 12, 2008 Objections to the Magistrate’s April 23, 2008, Order as
untimely. In the alternative, Defendants respectfully request that the Court affirm
Magistrate Nelson’s April 23, 2008, Order denying Plaintiffs’ joint renewed motion for
sanctions.
Case 0:04-cv-02632-JNE-SRN Document 230 Filed 05/21/2008 Page 6 of 7
7
Dated: May 21, 2008 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
Attorneys for Defendants

6:49 PM  
Blogger Bob said...

Is Seeba a LIAR?

There maybe copy errors.

May 23,2008
Aase, Engel 8: Kirscher, PLLC
United States District Court - District of Minnesota
Honorable Joan N. Ericksen - Chambers
12W U.S. Courthouse
300 South Fourth Street
Minneapolis, MN 55415
VIAECF AND
US MAIL
RE: Plaintiffs' Objections to Magistrate Nelson's Order dated April 23, 2008, and
Amended Order dated May 8, 2008
Steinhauser, et. at, Harrilal et. at and Gallagher, et. at vs. Magner, et. at
Court fIle numbers: 04-2632, 05-461, and 05-1348
Dear Judge Ericksen:
This will confirm our request and the Court's authorization that this letter be filed in the
Court's ECF system.
In Defendants' Response to Plaintiffs' Joint Objections to Magistrate Nelson's Order of
April 23, 2008 (e.g., ECF Doc. 230 ~ Steinhauser, et al.), Ms. Seeba makes a false
assertion that Plaintiffs' Objections to Magistrate Nelson's April 23, 2008 Order were
filed in an untimely manner (p. 2 and fn 1). As the Court will see, Plaintiffs timely filed
their Objections to the April 23, 2008 Order and to the Amended Order of May 8, 2008,
by ECF on Monday May 12, 2008.
Ms. Seeba's false assertion is a continuation of abusive litigation tactics cleverly
designed to take unfair advantage, to increase Plaintiffs' attorney's fees and costs and to
complicate matters presented to the Court.
Ms. Seeba's veneer of analysis started and ended with Local Rule 72.2. Ms. Seeba
intentionally failed to note the other Rules that must be consulted to reach a proper
determination to her specious claim. Moreover, she conveniently avoided noting for the
Court what date she claims was the deadline for filing, or how the due date should be
calculated. This leaves the Court with the time consuming task of looking for all of the
applicable Rules and making the necessary calculations in order to reach a proper
resolution of her claim. Ms. Seeba simply wants the Court to assume that she is correct.
maple grove ~f!icc:
11282 86th Avenue North
Maple Grove, MN 55369-4510
phone: 763 416 9088
st.pall/~ce:
180 East Fifth Street, Suite 255
St. Paul, MN 55101
pholle: 651209 6884
Case 0:04-cv-02632-JNE-SRN Document 233 Filed 05/23/2008 Page 1 of 3
Honorable Judge Joan N. Ericksen
May 23,2008
Page 2 of3
We submit that after a "reasonable" inquiry of the facts and applicable rules; an attorney
acting in "good faith" under the restrictions of Rule 11, Fed. R. Civ. P., would see that a
multitude of Rules and subparts to those Rules interplay in the analysis (by counsel and
the Court) of what constitutes timely filing of Objections under Local Rule 72.2. An
officer ofthis Court certainly understands the seriousness ofthat duty.
Furthermore, in making a claim that the opposing party should not be heard and has
waived their right of appeal because they filed a court paper in an untimely manner, any
"reasonable" attorney acting in "good faith" would at least present the Court and the
opposing party with the applicable Rules and the facts necessary to reach a proper
calculation for what was the deadline for filing such Court papers. Ms. Seeba did neither.
The Order of April 23, 2008 was served on Plaintiffs via the ECF system on April 23,
2008. Local Rule 72.2 and the Federal Rules of Civil Procedure provide a period of 10
business days to serve and file objections following service of the Order (a period that
does not include intermediate Saturdays and Sundays), and an additional period of three
(3) days due to the electronic service method.
Support for Plaintiffs' timely filing of their Objections starts with a review of Local Rule
72.2:
LR 72.2 REVIEW OF MAGISTRATE JUDGE RULINGS.
(a) Nondispositive Matters.--Within 10 days after being served with a copy ofthe
Magistrate Judge's order, unless a different time is prescribed by the Magistrate
Judge or a District Judge, a party may serve and file objections to the order; a
party may not thereafter assign as error a defect in the Magistrate Judge's order
to which objection was not timely made (emphasis added).
In further analysis of this issue, one must review Rule 6 (a) (2), Fed. R. Civ. P., which
expressly provides that if the time period to act is less than 11 days, one must exclude
intermediate Saturdays, Sundays, and legal holidays from the computation:
Fed. R. Civ. P. Rule 6. Computing and Extending Time; Time for Motion Papers.
(a) Computing Time. The following rules apply in computing any time period
specified in these rules or in any local rule, court order, or statute: (1) Day ofthe
Event Excluded. Exclude the day of the act, event, or default that begins the
period; (2) Exclusions from Brief Periods. Exclude intermediate Saturdays,
Sundays, and legal holidays when the period is less than 11 days; (3) Last Day.
Include the last day of the period unless it is a Saturday, Sunday, legal holiday,
or--if the act to be done is filing a paper in court--a day on which weather or
other conditions make the clerk's office inaccessible. When the last day is
excluded the period runs until the end of the next day that is not a Saturday,
Sunday, legal holiday, or day when the clerk's office is inaccessible.
Case 0:04-cv-02632-JNE-SRN Document 233 Filed 05/23/2008 Page 2 of 3
Honorable Judge Joan N. Ericksen
May 23,2008
Page 3 of3
Rule 6 (d), Fed. R. Civ. P. expressly provides a party with three (3) additional days to act
after certain kinds of personal service, including ECF service of Orders:
Fed. R. Civ. P. Rule 6. Compo and Extending Time; Time for Motion Papers.
(d) Additional Time After Certain Kinds ofService. When a party mayor must act
within a specified time after service and service is made under Rule 5(b) (2) (C),
(D), (E), or (F), 3 days are added after the period would otherwise expire under
Rule 6(a).
Rule 5 (b) (2) (E), Fed. R. Civ. P., provides:
Fed. R. Civ. P. Rule 5. Serving and Filing Pleadings and Other Papers
(b) Service: How Made. (2) Service in General. A paper is served under this rule
by: (C) mailing it to the person's last known address--in which event service is
complete upon mailing; (D) leaving it with the court clerk if the person has no
known address; (E) sending it bv electronic means if the person consented in
writing--in which event service is complete upon transmission, but is not effective
if the serving party learns that it did not reach the person to be served; or (F)
delivering it by any other means that the person consented to in writing--in which
event service is complete when the person making service delivers it to the agency
designated to make delivery.
Plaintiffs were entitled to a period of 13 business days (not counting the Saturdays and
Sundays) from April 24, 2008, the day after the date of the Order in which to file their
Objections. Since the 13th business day occurred on Saturday May 10th
, and Rule 6 (a)
(3) provided until the following Monday, May 1ih for filing Plaintiffs' Objections,
Plaintiffs' filing was timely. 1 We submit that sanctions are in order due to Ms. Seeba's
bad faith assertion and request an Order awarding attorney's fees to Plaintiffs.2
Respectfully yours,
SHOEMAKER & SHOEMAKER, PLLC
s/John R. Shoemaker
AASE, ENGEL & KIRSCHER, PLLC
s/Matthew A. Engel
1 Plaintiffs used the same time calculation when filing their Objections to the Order ofNovember 13,2007,
on December 3,2007. Ms. Seeba did not claim that those Objections were untimely filed.
2 Plaintiffs also note that Magistrate Judge Nelson issued an Amended Order on May 8, 2008, that
corrected four significant errors on the identification of the parties in her Order and additional scheduling
errors. The April 23, 2008 Order was replaced by the Amended Order, and Plaintiffs had a 10 day
objection period from service ofthe Amended Order dated May 8, 2008. Nevertheless, Plaintiffs filed their
Joint Objections to both Orders on May 12,2008. Finally, Plaintiffs submit that Magistrate Nelson did not
issue an Order on the timing ofthe Objections as Ms. Seeba implies

6:53 PM  
Anonymous Anonymous said...

Yes Bob....I'm afraid she is. That's sure what it looks like, but not to worry, ricomen will straighten it out.

7:27 PM  
Anonymous Anonymous said...

This seems to be just one more in along line of allegations by the ricomen that the city is playing every dirty trick they can in an effort to gain advantage. As this thing has unfolded for months now I find myself wondering if the city has such a good case why don't they welcome the chance to get into court and present it rather than delay delay delay?

2:18 AM  
Anonymous city employee said...

You Rico guys are finished.
You have been beaten time after time.
You can't face the facts.
Why do you need to prevail so bad with this issue if your other case arguments are so strong as you pretend, who gives a shit !
You guys must be printing up money
because the courts and the city are tapping you guys for everything you got.



City employee.

7:13 PM  
Anonymous Anonymous said...

City Employee,

What happened to decency, committment and a sense of fair play?

The city's approach appears to me to be dog-eat-dog, and the abuse of power, along with being smartmouthed. It is doomed.

6:57 AM  
Anonymous City employee said...

There is no fairplay in legalized warfare.
You attack them- they attack you.
You do whatever you can to WIN !
The courts decide what is fairplay, dirty and nasty because the courts are the breeders of anything nasty and dirty.
You Rico guys should start playing dirty.
You expect fairness and decency from your opponent is like letting them bed your wife.
Better tell your attorneys to dig out the heavy artillary.



City employee

10:46 AM  
Anonymous Anonymous said...

You may think your pretty smart city employee, but the war is not over yet. God sent the ricomen to flush out the devils from city hall. So far it looks like they're doing a good job.

12:40 PM  
Anonymous city employee said...

The Ricomen may have put some water
on the hell fires being set but the fire is hotter than you can handle and you dont have the water to put it out let alone what it takes.
Please, save whatever money you have left for your retirement.


City employee

1:13 PM  
Anonymous Leslie K. Lucht said...

city employee,

You should watch what you say.

Becuase the city will pay for its wrong deeds to everyone. And you will have to take a pay cut soon.

Do you think that the five computers and laptop was stole.

Its sound like way to hide things.
the city will lose. becaue when you lie about things. It comes out. The truth. Then you singing other tune

2:39 PM  
Anonymous Anonymous said...

There has already been another lawsuit filed against the city besides the ricomen, and I've heard there are more yet that are coming soon. The computers from LIEP disappeared to hide evidence in the newer lawsuits. How could it not be an inside job with only 1 way into the building and a person running the only elavator?

5:29 PM  
Anonymous Anonymous said...

Generally, legislation that treats one class of persons differently from others who are similarly situated is presumed to meet the equal protection requirements of the Fifth Amendment9 if the classification drawn by the legislation is "rationally related to a legitimate state interest." City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439-40, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985). If the classification disadvantages a "suspect class" or burdens one group's exercise of a "fundamental right," the legislation is subject to strict scrutiny review. Plyler, 457 U.S. at 216-17, 102 S.Ct. at 2394-95. Likewise, if a statute impinges upon a fundamental right, the substantive due process component of the Fifth Amendment requires that it satisfy strict scrutiny review.10 See Washington v. Glucksberg, 521 U.S. 702, 117 S.Ct. 2258, 2267-68, 138 L.Ed.2d 772 (1997).

9:43 PM  
Anonymous Anonymous said...

9:43 your "suspect class" would be what? People who either refuse or are unable to maintain their property? The only thing that the class have in comman in your law suit is the unwillingness to maintain their property. They fail to meet any standard of a suspect class.

JMONTOMEPPOF

Chuck Repke

9:50 AM  
Anonymous Anonymous said...

To Chuck Repke 9:50 AM

You always have something to say,
but you and your friends in the city hall are as crooked as that two face Norm Coleman.
You know how the city covered their asses about the damage done on my home.
The house had sewer gases coming in it from the work done by ---!
The Gestapo Code Inspectors should have condemn my home or made me leave it when they discovered the sewer gases in it.
I am running for U S Senate, on the Republican Party.
That gives me the opportunity to point the finger at the Democrats that dogged me.
How does it feel being a two face person like Dave Thune and Norm Coleman

8:57 AM  
Anonymous Anonymous said...

8:57am,
I hate to bust your bubble but Norm Coleman is a republican. He received the Republican endorsement for U.S. Senate on Saturday.

You may want to get familiar with what you're representing and even if they want you, before you mouth off. But, if you did, you wouldn't be here under anonymous, now would you?

So who are you? You're running under Anonymous for Senate? How are you going to debate so that you can 'expose' the Democrats.

We'll be holding our breaths.



Eric

10:18 AM  
Anonymous Anonymous said...

8:57 sounds like Bill Dahn !


Welcome back Bill.

5:20 PM  

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