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IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
_________________________________________ Appeal No. 09-1528
FRANK J. STEINHAUSER, III, ET AL.,
Plaintiffs-Appellants,
v.
CITY OF ST. PAUL, ETC., ET AL., Defendants-Appellees
_________________________________________ Appeal No. 09-1579
SANDRA HARRILAL, ET AL., Plaintiffs-Appellants,
v.
STEVE MAGNER, ET AL., Defendants-Appellees
_________________________________________
JOINT REPLY BRIEF OF PLAINTIFFS-APPELLANTS _________________________________________
Appeals from United States District Court, District of Minnesota
Civil No. 04-CV-2632 (JNE/SRN)
Civil No. 05-CV-0461 (JNE/SRN)
_________________________________________________
John R. Shoemaker, Esq.
SHOEMAKER & SHOEMAKER, P.L.L.C.
7900 International Drive, Suite 200
Bloomington, Minnesota 55425 (952) 224-4610
Attorneys for Appellants
ii
TABLE OF CONTENTS
TABLE OF CONTENTS..........................................................................................ii
TABLE OF AUTHORITIES....................................................................................iv
ARGUMENT.............................................................................................................1
I. DEFENDANTS’ SCHEMES APPLICABLE TO ALL CLAIMS………….1
NO ILLEGAL OR INVALID CITY ORDINANCE CAN SUPPORT THEIR SCHEMES EVEN WHEN STYLED AS VALID USE OF MUNICIPAL POLICE POWERS…………………………………………..2 DEFENDANTS’ RETALIATIONS………………………………………...3
ERRORS OF LAW IN GRANTING SUMMARY JUDGMENT…………..5
THE SCHEMES OF DEFENDANTS COMPLETELY UNDERCUT THEIR DEFENSES…………………………………………………………8 STATE BUILDING CODE ITSELF AS HELD BY MINNESOTA SUPREME COURT, PREEMPTS DEFENSES AND ARGUABLY PROVES THE RELEVANCE OF THE DESTROYED ELECTRONIC EVIDENCE…………………………………………………………………9 SUMMARY JUDGMENT – FURTHER ANALYSIS…………………….10 GATE KEEPING IS NOT APPROPRIATE AFTER LAWS HAVE BEEN VIOLATED………………………………………………...11 THESE ARE NOT ISSUES OF FIRST IMPRESSION IN EITHER THE STATE OR FEDERAL COURTS…………………………11 TRAGIC EXAMPLE OF POLICE POWERS INTENTIONALLY GONE WRONG WITH UNDENIABLE APPROVAL OF CITY ATTORNEY’S OFFICE AND OTHER PUBLIC OFFICIALS……13
iii
II. SPOLIATION - DISTRICT COURT ABUSED DISCRETION BY MISAPPLYING SPOLIATION LAW, FINDING NO PREJUDICE AND AWARDING NO SANCTIONS…………………………………….16 STANDARD OF REVIEW………………………………………………..16 CONCLUSION.............................................................................................37
CERTIFICATION OF COMPLIANCE WITH FRAP 32 AND CERTIFICATION OF WORD PROCESSING PROGRAM ……………..39
iv
TABLE OF AUTHORITIES
Federal cases:
Boyle v. United States, 129 S.Ct. 2237 (2009)…………………………………..4, 7
CBOCS West, Inc. v. Humphries, 128 S.Ct. 1951 (2008)………………………..10
Olmstead v. U.S., 277 U.S. 438 (1929)…………………………………………...37
Capellupo v. FMC Corp., 126 F.R.D. 545 (D.Minn. 1989)………………19, 28, 31
Dahlgren v. First National Bank of Holdrege, 533 F.3d 681 (8th Cir. 2008)…….12
Dillion v. Nissan Motor Co., 986 F.2d 263 (8th Cir. 1993)………………16, 19. 34
E*Trade Securities, LLC v. Deutsche Bank AG,
230 F.R.D. 582 (D. Minn. 2005) ……………………………………………..18, 33
Handeen v. LeMaire, 112 F.3d 1339 (8th Cir. 1997)…………………………1, 2, 4
Greyhound Lines, Inc. v. Wade, 485 F.3d 1032 (8th Cir. 2006)………………….17
Kronisch v. U.S., 150 F.3d 112 (2d Cir. 1998)…………………………………...34
Mastercard International, Inc. v. Moulton, 2004 WL 1393992
(S. D. N. Y. June 12, 2004)……………………………………………………….19
Morris v. Union Pac. R.R., 373 F.3d 896 (8th Cir.2004)…………………………18
Mosaid Technologies v. Samsung Electronics, 348 F.Supp.332
(D.N.J. 2004)……………………………………………………………………...36
Residential Funding Corp. v. DeGeorge Fin. Corp.,
306 F.3d 99 (2d Cir. 2002)……………………………………………………33, 34
v
Roberts v. Canadian Pacific Ry. Ltd, 2007 WL 118901
(D. Minn. Jan. 11, 2007)…………………………………………………………..17
Stevenson v. Union Pacific Railroad Company,
354 F.3d 739 (8th Cir. 2004)………………………………………16-19, 31, 33, 34
U. S. v. Cianchi, 378 F.3d 71 (1st Cir. 2004)………………………………………1
United States v. City of Black Jack, Missouri,
508 F.2d. 1179 (8th Cir. 1974)…………………………………………………4, 13
U. S. v. Gilbert, 813 F.2d 1523 (9th Cir. 1987)…………………………………….4
U. S. v. Hively, 437 F.3d 752 (8th Cir. 2006)…………………………………….12
U.S. v. Phillip Morris USA, Inc., 566 F.3d 1095 (D.C.Cir. 2009)…………………4
Webb v. District of Columbia, 146 F.3d 964 (D.C.Cir.1998)……………………19
West v. Goodyear Tire & Rubber Co., 167 F.3d 776 (2d Cir.1999)……………...17
Federal Statutes:
18 U.S.C. § 1961………………………………………………………………...3, 7
18 U.S.C. § 1962(c) and (d)……………………………………………………..3, 7
42 U.S.C. § 1981…………………………………………………………………..3
42 U.S.C. § 1982…………………………………………………………………..3
vi
42 U.S.C. § 1983…………………………………………………………………...3
42 U.S.C. § 3615 …………………………………………………………………..4
42 U.S.C. § 3617………………………………………………………………….. 3
42 U.S.C. § 3631…………………………………………………………………...3
Federal Regulations and Rules:
24 C.F.R. § 91.210(e)……………………………………………………………..29
24 C.F.R. § 91.215(h)…………………………………………………………….29
24 C.F.R. § 91.220(j)……………………………………………………………..29
24 C.F.R. § 91.225………………………………………………………………..29
Fed.R.Civ.P. 26……………………………………………………………………27
Fed.R.Evid. 401…………………………………………………………………...26
State cases:
City of Minnetonka v. Mark Z. Jones, 236 N.W.2d 163 (Minn.1975)……………..9
City of Morris v. SAX Investments, Inc., 749 N.W.2d 1 (Minn.2008)…………….9
Witzman v. Lehrman, Lehrman and Flom, 601 N.W.2d 179 (Minn. 1999)……...12
Minnesota Agricultural Aircraft Association v. Township of Mantrap,
498 N.W. 2d 40 (Minn.Ct.App. 1993)……………………………………………..9
vii
Secondary Authorities:
52 A. L. R. Fed. 818………………………………………………………………..7
CJS MUNCCORP § 62 CJS Municipal corporations § 141, June 2009………….14
6 NO. 21 Lawyers J., 6 October 15, 2004………………………………………...32
1
I. Defendants’ Schemes Applicable to All Claims
A Civil Rights Case With Multiple Other State and Federal Law Violations – Defendants’ Attempt to Rationalize By Their Claimed
Police Powers To Protecting Public Health-Safety Defendants’ claim that Plaintiffs have not provided any evidence to
substantiate their causes of action and avoid summary judgment.
Defs.’Br.18.
Defendants have consistently proclaimed across the City of St. Paul
that Plaintiffs have no evidence, all the while Defendants and their counsel
have attempted to distract the public and the Court from Defendants’
concocted and implemented scheme to deviate from the State Building
Code, despite the State Code’s history since 1974 as having field preemption
over any municipal codes that varied from the State Code. Defendants’ and
their associates have sought to take control over the City’s rental housing
affairs and deceive the public.
It is very troubling the District Court granted summary judgment to let
the Defendants off the hook given the facts in dispute over such a scheme
with the inferences that properly could be drawn in favor of Plaintiffs. See,
e.g., U. S. v. Cianchi, 378 F.3d 71 (1stCir.2004)(scheme of Mayor to protect
power and assets of members of scheme, including municipal departments
and divisions defendants controlled as part of conspiracy); Handeen v.
2
LeMaire, 112 F.3d 1339 (8thCir.1997)(lawyers could be liable under RICO
for operating bankruptcy estate or court as a RICO enterprise). It is the
conduct, not the title of the actor that controls and here the conduct includes
the intentional violations of field preemptive State law, under exactly the
guise of the “valid” exercise of the City’s [field preempted] police powers.
Defendants’ Problem on Summary Judgment – No Illegal or Invalid City Ordinance Can Support Their Schemes
Even When Styled as Valid Use of Municipal Police Powers
Arguably, as supported by actual admissible evidence, and as a rule of
law, the creation or exercise of municipal police powers are, as a matter of
law not nearly so expansive as the City and Defendants contend.
Defs.’Br.p.4-7.
Police powers for municipalities are a creature of State law, and such
powers can only be created or exercised within the Constitutional limits
imposed by the Legislature. If, as alleged and proffered here, a City exceeds
its authorized powers by municipal Code or practice, such excess is not
deserving of any deference and is void as a matter or law.
Such creation or exercise of ultra vires police powers and such
rationalizations are thus as a matter of law improper, and in light of the
inferences to be drawn in favor of the non-moving parties, no summary
judgment arguably should have been granted by the District Court which
3
completely failed to address such excess ultra vires Code enforcement
policies and police powers, let alone the ultra vires significance of such
powers as implemented by policies and procedures, as submitted by
admissible evidence under oath by Plaintiffs in opposition to summary
judgment, who as non-moving parties are entitled to all proper inferences in
the favor.
Defendants’ Retaliations
Further, as part of their scheme, the Defendants decided to retaliate
against victims and witnesses, which is actionable under both Federal Fair
Housing 42 U.S.C. §3617 and for civil and criminal prosecution under
§3631 and 18 U.S.C. §1961–1962(c) and (d), as well as civil rights laws
including Sections 1981, 1982 and 1983.[APP116-291-Gallagher/Collins;
APP292-341-Allison;APP342-415-Kubitscheks;APP435-37-Osterman;
APP438-442-Jayasuriya;APP443-56;APP457-59-Jacobs;APP460-56-
Steinhauser;APP657-66-Meysembourg;APP767-827-Brisson;APP828-886-
Harrilal;APP887-1036-Johnson;APP1286-1312-Doolittle;APP1560-67-
Anderson;APP1568-73-Miller;APP1576-79-Krahn;APP1037;1039;
1075;1117;1138-HedquistReports;APP1046-48-Brisson-Meysbourg-
Steinhauser;APP1082-91-Harrilal-Vues-Johnson; APP1138,1146-Gallagher-
Collins-Allison-Kubitschek].
4
Because it is not necessary that any or every Defendant actually
receive monetary compensation to prove up such a scheme, or that the
scheme was motivated by an economic purpose, unfortunately for
Defendants, it is black letter law that passage of an ultra vires City Code or
set of codes is itself unlawful and a violation of the Constitution(s), both
federal and state, and implementing such a scheme by false code
enforcement activities, is itself also unlawful. See 42 U.S.C.§3615; United
States v. City of Black Jack, Missouri, 508 F.2d. 1179 (8th Cir. 1974)(fair
housing scheme); Boyle v. United States, 129 S.Ct. 2237 (2009)(RICO
scheme and “association in fact”); Handeen v. LeMaire, 112 F.3d 1339 (8th
Cir.1997) (RICO scheme for lawyers/family to operate bankruptcy estate as
RICO enterprise, and deceive courts); United States v. Phillip Morris USA,
Inc., 566 F. 3d 1095 (D.C.Cir.2009)(scheme to employ mail/wire fraud/false
certifications to deceive consumers and regulatory authorities); U. S. v.
Gilbert, 813 F.2d 1523 (9thCir.1987) (elements of criminal prosecution for
violating Fair Housing Act).
Under the Federal Fair Housing Act, Section 3615, “…any law of a
State, a political subdivision, or other such jurisdiction that purports to
require or permit any action that would be a discriminatory housing practice
under this subdivision shall to that extent be invalid.”
5
Defendants’ scheme was exposed before the District Court as
involving City Legislative Codes and enforcement policies arguably void
under the State Building Code and civil rights laws, with illegal participation
by certain judges and officials of the Ramsey County District Court,
members of the City Council and other City officials.
Errors of Law In Granting Summary Judgment
On the record, given the overwhelming admissible evidence of such
multiple schemes and retaliations, the District Court erred in granting
summary judgment as to the facts on the motive, intent, knowledge and
actual existence and operations of Defendants’ schemes, and the
Defendants’ respective roles as an association in fact. Such facts are in
dispute and reasonable inferences in favor of the non-moving Plaintiffs
could allow a properly instructed jury to find both liability and damages in
favor of Plaintiffs under one or more of these multiple legal theories.
For example, RICO schemes to operate an enterprise through a pattern
of racketeering activity were also alleged and evidence in support of such
claims was also submitted in opposition to summary judgment. [APP435-37-
Osterman;438-442-Jayasuriya;443-56;457-59-Jacobs;460-56-Steinhauser;
657-66-Meysembourg;767-827-Brisson;828-886-Harrilal;887-1036-
Johnson;1286-1312-Doolittle;1560-67-Anderson;1568-73-Miller;1576-79-
6
Krahn;1037;1039;1075;1117;1138-Hedquist-Reports;1046-48-Brisson-
Meysbourg-Steinhauser;1082-91-Harrilal-Vues-Johnson;1138,1146-
Gallagher-Collins-Allison-Kubitschek].
In short, certain Defendants decided upon a scheme by which they
would take control over the City’s deviant versions of the State Building
Code and enforce those deviant standards so as to control hundreds if not
thousands of otherwise affordable, grandfathered-in rental housing units in
the City, whether for personal gain, the financial gain of others associated
with the scheme, or the addictive “high” control of all those City affairs such
a scheme provided.
Plaintiffs’ admissible evidence and the inferences properly drawn
there from, reveal that Defendants re-wrote the City’s laws and then
gerrymandered the County’s court system, so that almost nobody could ever
get a full or fair hearing on anything having to do with the subject matter
fields preempted by those regulated in the controlling State Building Code.
Uncontested evidence also reveals the schemers even set up their own
version of Federal Fair Housing and State Building Code Courts, in which
one or more judges or hearing officers, coordinating in secret with City
officials, pre-determined who would lose, and by what margins of error, by
applying standards that deviated from those required under the field
7
preemption of the State Building Code and/or Federal Fair Housing. [See,
Plaintiffs’ Joint Corrected Brief herein,pp.57-58; Plaintiffs’ sworn evidence
submitted naming public officials, judicial officials and others implicated in
such schemes, also unaddressed on summary judgment even as to the proper
inferences from such sworn evidence].
The recent Boyle v. United States, supra, decision by the United
States Supreme Court, regarding the liberal definition of an “association in
fact,” further buttresses Plaintiffs’ claims the District Court erred. Case law
is replete with rulings that cities and city departments and courts and state
agencies and police departments can be “enterprises” within Title 18 U.S.C.
Section 1962 (c) and (d). 52A.L.R.Fed.818 (“Enterprise,” 18
U.S.C.A.§1961(4),§5 Public entities).
These types of schemes are historically precisely the types of
violations that are properly pled and enforced through civil rights litigation
including the Federal Fair Housing Act, which like other civil rights law and
RICO, is to be broadly construed to effectuate Congressional purposes.
8
The Schemes of Defendants Completely Undercut Their Defenses
The affirmative and/or other defenses of the Defendants herein, as
held applicable on summary judgment by the District Court,1 are to the
contrary completely undercut as a matter of law by such defenses being
premised on ultra vires alterations and enforcements of an invalid set of City
Codes, which are demonstrably at odds with and thus void in comparison
with the subject matter field preemptive Minnesota Building Code, whose
existence, subject matter terms and field preemptive force were completely
ignored by the City Attorney and the District Court.
Ignoring key controlling State law is arguably a novel way indeed to
obtain summary judgment, as is the intentional destruction of material
electronic [e-mail and other] evidence after litigation had commenced, in a
1 The District Court erred as a matter of law in not performing the immunity analysis, but instead seemingly prepared Plaintiffs to be sandbagged so as to prevent the exposure of public corruption “at any costs,” even to the reputation of the District Court. Defendants, including the City for all purposes other than RICO, were on actual notice that: violating field preemption of State Building Code; violating Fair Housing including City’s affirmative duty to further fair housing, conduct “AIs” concerning the effect of City’s building codes on “protected classes”; violating duties to provide true certifications to HUD; violating civil rights law; preserving evidence; violating RICO and conspiracy law; and committing such violations while employed by or associated with the City; would constitute knowing and intentional violations under qualified immunity standards.
9
manner outside the usual and customary data storage practices of
Defendants. Plaintiffs respectfully submit either ignoring State law, un-
denied Federal Fair Housing violations, or destroying electronic evidence, is
not a proper way to obtain summary judgment under controlling Supreme
Court and Eighth Circuit summary judgment standards.
Minnesota Supreme Court – State Building Code Preempts Defenses and Arguably Proves the Relevance
of the Destroyed Electronic Evidence
No less an authority than the Minnesota State Supreme Court has
declared the field preemptive force of the State Building Code in an
unbroken line of decisions dating between 1975 and 2008. City of Morris v.
SAX Investments, Inc., 749 N.W.2d 1 (Minn.2008); City of Minnetonka v.
Mark Z. Jones, 236 N.W.2d 163 (Minn.1975)(city construction ordinance,
purported to adopt more stringent fire prevention measures affecting
building design or construction – preempted by state code); Minnesota
Agricultural Aircraft Association v. Township of Mantrap, 498 N.W.2d 40
(Minn.Ct.App.1993)(“Occupying the field” preemption - it does not matter
whether local regulation coincides with, is complementary to, or opposes
State law which fully occupies the particular field of legislation” -
municipalities cannot invoke power so as to accomplish what is otherwise
preempted by state statute). This Court arguably must respect their decisions
10
as to this controlling issue of State law, which was completely ignored
below by the District Court.
Because the District Court improperly weighed and found facts,
determined credibility, omitted factual analysis of expert opinions required
as a matter of law, and completely failed to render all proper inferences in
favor of the non-moving parties as to the field preemption of the State
Building Code – not only was summary judgment not proper, no immunity
existed for any individual Defendant or the City, as ultra vires passage or
enforcement of codes that violate the subject matter field preemption of the
State Building Code cannot protect the Defendants from further discovery,
liability and trial on the merits as to damages.
Summary Judgment – Further Analysis
Under the standard announced in CBOCS West, Inc. v. Humphries,
128 S.Ct. 1951 (2008), the Plaintiffs exceeded the requirements to avoid
summary judgment by proffering substantial quantities of sworn, admissible
evidence which was either un-contested by Defendants, or if contested,
precludes summary judgment either on the contest, or by inference upon the
undisputed or contested facts.
11
The District Court managed to reach the summary judgment by
completely ignoring the multiple, uncontested expert opinions of Plaintiffs’
expert Don Hedquist and arguably erred as a matter of law.
Gate Keeping Is Not Appropriate After Laws Violated
Summary judgment is a gate keeping function with multiple
supporters and multiple critics. It is not proper where a District Court fails to
consider the evidence in a light most favorable to the non-moving party,
makes credibility findings, weighs the evidence, and rules on issues of
intent, knowledge, motive and opportunity, which are quintessential jury
issues.
While summary judgment can be used as a valid exercise in judicial
efficiency, it is not a substitute for allowing a litigant to proceed with
discovery and trial on state and federal law facts in dispute, which is why
certain presumptions are required, including all inferences to be drawn in
favor of the non-moving party.
These Are Not Issues of First Impression in Either the State or Federal Courts
This Court has previously been confronted with many situations
where a unit of government or its agents or employees have allegedly
committed civil rights and other violations.
12
Hopefully, this Court is not jaded into complacency where as here the
evidence shows a City trying to escape liability for civil rights and other
violations, or lulled to affirm by the City’s legal slight of hand in spoliation
of evidence and ignoring controlling Stated law issues .
Arguably, such violations can result in criminal prosecutions, if not
civil process. See Dahlgren v. First National Bank of Holdrege, 533 F. 3d
681 (8thCir.2008)(outsider RICO liability-State law violation as torts and
predicate acts); Witzman v. Lehrman, et al., 601 N.W.2d 179 (Minn.1999).
(all who actively participate in any manner in commission of a tort, or who
procure, command, direct, advise, encourage, aid, or abet its commission, or
who ratify it, are jointly and severally liable for injury); U. S. v. Hively, 437
F.3d 752 (8thCir.2006)(RICO criminal conviction analyzed-mail fraud-
mailings incident to scheme to defraud, sufficient threat of repetition).
The challenge for a District Court is to separate out legitimate
government functions from those that are illegitimate, and actually illegal or
unconstitutional. While no court should play second guesses as to a
municipality’s proper range of discretionary function decision-making, it is
almost never the case in complex civil rights cases that summary judgment
is granted where motive, knowledge and intent are at issue. Yet it was here.
13
While the presumption may be that government actions are legal, clearly
such presumption can be rebutted.
Such a gate keeping function by the District Court is not aided when
Defendants here hid and destroyed thousands of items of material e-data/e-
mail evidence, the District court excluded expert affidavits sub silentio,
allowed Defendants to justify their own efforts to protect the public under
police powers they clearly do not have under field preemptive controlling
State law, and the Court in fact never discussed that State Law.
“Whatever one thinks of state action as a viable limiting principle on the constitutional command of equality, it should at least be clear that the most outrageous deprivations of equal rights are those perpetrated by the state itself.”
City of Black Jack, 508 F.2d. 1179.
Tragic Example of Police Powers Intentionally Gone Wrong With Undeniable Approval of
City Attorney’s Office and Other Public Officials
In its defense, the City submits that it has the power to enact and
enforce certain police powers related to public safety and public health, as
subject matters under its legislative code, and besides the Plaintiffs’
buildings undeniably violated the City’s current code enforcement
provisions. Defs.Br.4-7.
14
Plaintiffs’ have countered, as the St. Paul City code does not and
cannot control:
(1) there was a prior PP2000 approach that protected residents and
afforded due process to landlords, in compliance with field
preemption of the State Building Code’s grandfathering provisions
and the City’s duties under Federal Fair Housing;
(2) the City only has police powers within limits allowed by the State;
(3) any police powers the City has granted unto itself that exceed
those allowed by the State, are void, and unconstitutional; and
(4) precisely because they violate the field preemptive force of the
State Building Code, such ultra vires police powers are an attempt by
Defendants to knowingly and intentionally exercise void powers.
Thus, when analyzing the disputed facts and all inferences to be drawn in
favor of Plaintiffs, no summary judgment was proper as Defendants’ actions
not only violated the field preemptive State Building Code, they also
violated Federal Fair Housing, civil rights and RICO, as ‘proven’ for
summary judgment purposes by the expert reports of Don Hedquist and the
15
inferences properly drawn from the City’s factually un-denied violations of
the State Building Code.2
Because Defendants’ cannot and have not defended how or why they
can violate the State Building Code’s field preemption, and further at least
de minimus any and all facts are in dispute as to such claims, no summary
judgment as a matter of law could have been granted to any Defendant.3
Arguably, under summary judgment and spoliation analysis, this case
on remand needs some additional discovery as to intentionally destroyed e-
mails and TISH inspection records, who was in charge of the usual and
customary City data retention policy, multiple Defendants’ knowledge and
intent, and a trial before a jury, lest a District Court be found to approve and
2 See, CJS MUNCCORP §62, CJS Municipal corporations §141 Updated June 2009 - Analysis of conflict and field preemption, dating back years – going to actual knowledge of Defendants. 3 This includes the uncontested [completely unaddressed on summary judgment] sworn Plaintiffs’ evidence, including Dawkins depositions admissions and notes, implicating the local state court, City Attorney’s Office, City Council and Dawkins in meeting to pre-determine any civil rights, code enforcement, or Fair Housing claims before court action, in order to fix results for Defendants, which all would have been ipso facto violation of the State Building Code and other laws. Perhaps this evidence could explain any pressures on the District Court and the City Attorney to keep this case from going to trial, as somehow requiring the District Court to violate summary judgment standards.
16
uphold precisely the type of civil rights violations properly condemned by
this Court in Black Jack.
II. DEFENDANTS’ SPOLIATION OF EVIDENCE
District Court Abused Its Discretion By Misapplying Spoliation Law, Finding No Prejudice and Awarding No Sanctions
In their Reply Brief, Defendants contend Plaintiffs failed to show they
were “prejudiced”. Defs.Br.58. Plaintiffs submit the District Court abused
its discretion by misapplying the law on spoliation, failing to find
“prejudice” from said destruction of evidence, refusing to hold an
evidentiary hearing, failing to order sanctions, and rewarding Defendants’
spoliation with summary judgment. It was virtually uncontested that
Defendants had:
(1) failed to place a “litigation hold” on evidence; (2) destroyed virtually all e-data/e-mails of Defendants and other officials/employees for 2000 through 2005; and (3) for three years during litigation, annually destroyed 5,000 to 6,000 Truth-in-Sale of Housing inspection reports (15,000-18,000 inspection reports) of homes inspected by licensed inspectors during 2001-2003.
Standard of Review
This Court reviews sanction decisions under the abuse of discretion
standard. Stevenson v Union Pacific Railroad Company, 354 F.3d 739, 745
17
(8thCir.2004) (citing Dillion v. Nissan Motor Co., 986 F.2d 263, 267
(8thCir.1993).
The Court will be found to have abused its discretion, “If the court
bases its ruling on ‘an erroneous view of the law or on a clearly erroneous
assessment of the evidence.” Greyhound Lines, Inc. v. Wade, 485 F.3d
1032, 1035 (8thCir.2006).
“Spoliation” has been defined consistently as “the destruction or
significant alteration of evidence, or the failure to preserve property for
another’s use as evidence in pending or reasonably foreseeable litigation.”
West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2dCir.1999).
Any possible destruction of evidence is to be treated as a serious
transgression of discovery procedures in that it goes to the core of the
Court’s truth-finding mission. Dillon, at 269. “‘Purposeful impairment of
the opposing party’s ability to discover information” justifies invocation of
the Court’s inherent power and duty to insure the integrity of the judicial
proceeding.” Roberts v. Canadian Pacific Ry. Ltd, 2007 WL 118901
(D.Minn. 1-11-07) (document destruction – an attempt to suborn fact-finding
process is an affront to court that has an obligation to maintain integrity of
proceedings).
18
A spoliation sanction requires “a finding of intentional destruction
indicating a desire to suppress the truth.” Greyhound, 485 F.3d at 1035
(citing Stevenson, 354 F.3d at 746). Unfortunately, as this Court well
knows, “Intent is rarely proved by direct evidence.” Morris v. Union Pac.
R.R., 373 F.3d 896, 902 (8thCir.2004).
If the destruction of relevant evidence occurs after litigation is
imminent or has begun, no bad faith need be shown for sanctions.
Stevenson, at 746.
When litigation has already commenced, a party “cannot blindly
destroy documents and expect to be shielded by a seemingly innocuous
document retention policy. Id. at 750.
Moreover, once a party receives a specific document request, a party
cannot rely on its routine document retention policy as a shield. Id.
When spoliation is established, the jury may draw an inference that
the evidence destroyed was unfavorable to the party responsible for its
spoliation. E*Trade Securities, LLC v. Deutsche Bank AG, 230 F.R.D. 582,
587, 589 (D.Minn.2005).
In Stevenson, this Court determined that the continued destruction of
track maintenance records after litigation was commenced and after the
19
receipt of a request for production of documents, was properly sanctioned
with an adverse inference instruction, without “bad faith”. Id. at 750.
Contrary to the twisted application of the law by the District Court in
a desperate attempt to keep Defendants afloat in the river of corruption they
have enjoyed, this Court in Stevenson applied a liberal relevancy standard
for showing “prejudice” from spoliation after litigation has commenced and
after a request for documents submitted.
Significantly, this Court stated that “track maintenance records [were]
of limited use” yet found prejudice justifying an adverse inference
instruction. Id. at 749. See Dillion, 986 F.2d at 268 (“evidence which may
have provided helpful to the defense [had] been destroyed”); Capellupo v.
FMC Corp., 126 F.R.D. 545, 551 (D.Minn.1989) (Defendants having
destroyed a significant quantity of documents, the exact extent now
indeterminable, should not be allowed to claim information contained is
irrelevant or unimportant).
In Stevenson, this Court determined that Union Pacific’s claimed
innocence under its routine document retention policy (sound familiar?) and
a lack of knowledge that the records were relevant, were unavailing as
defenses to an adverse inference instruction sanction: after the specific
document request for track maintenance records, Union Pacific could not
20
rely on its routine document retention policy as a shield. Id. at 749-50
(quoting Webb v. District of Columbia, 146 F.3d 964, 974 n.20
(D.C.Cir.1998) (adverse inference presumption is a common sanction for
spoliation). See Mastercard International, Inc. v. Moulton, 2004 WL
1393992 (S.D.N.Y. June 12, 2004) (court imposed sanctions for failing to
preserve e-mails automatically destroyed by computer server in ordinary
course of business; failure to cease customary destruction of e-mail practices
was breach of duty to preserve and sanctioned by adverse inference).
Steinhauser, et al. filed 5/4/2004 – Document Requests 11/2004
Following commencement of the Steinhauser case in May 2004,
Defendants’ failed to place a litigation hold on e-data/e-mails, TISH and
other potentially relevant evidence. ADD000056-57, 74.
Defendants destroyed e-data/e-mail and TISH Housing Inspection
Records after commencement of this action and also after receiving
Steinhauser document requests in November 2004 for such documents.
ADD000074; Ecf.114,pp.6-7[04-cv-2632].
Defendants destroyed 15,000-18,000 Truth-In-Sale-of-Housing
(“TISH”) housing inspection reports for 2001-2003 after litigation was
commenced. Ecf.143, p.2[04-cv-2632].
21
E-data/E-mail Communications
Steinhauser’s document requests sought production of “electronically
stored information,” “e-mails,” including, “All documents related in any
way to all communications” between the City’s code enforcement, building
permit, Planning and Economic Development, Housing and Redevelopment
Authority, and Human Rights Department, and Citizen Services offices, City
Council members, Mayor’s office, Police Department, and the Public
Housing Agency, Neighborhood Councils and individual defendants.
Ecf.114,pp.5-9-ShoemakerAff.
Steinhauser requested Defendants produce all communications
including e-data/e-mails. Ecf.114,pp.5-9(Request No.13).
The November 2004 Steinhauser document requests also sought “All
documents related in any way to the Department of Neighborhood Housing
and Property Improvement (“NHPI”) and its predecessor departments since
1994, including but not limited to, …reports, …, files, …, computer
maintained information, …, email communications,…”. Id.( Request No.9).
On January 14, 2005, Defendants responded to the Document Request
No. 13 by objecting to production of documents related to communications
defined by Steinhauser as including e-mails – Defendants must have needed
more time to ensure complete destruction of there internal communications.
22
Defendants were the first party here to acknowledge the relevancy of
TISH reports to Plaintiffs’ claims. In January 2005, Defendants responded
to Request No. 9 by describing four categories of files related to homes: (1)
code enforcement files generally retained three years; (2) vacant building
files since 1998; (3) Truth-in-Sale of Housing files [TISH inspection
reports]; and (4) Rental Registration files generally retained three years. Id.
Defendants later produced miniscule e-data/e-mails for the relevant
periods prior to December 2005. Ecf.152,EngelAff.,Ex.12-39[05-cv-
1348];Ecf.183,ShoemakerAff.,paras.68-80(evidence of e-mail destruction).
TISH Housing Inspection Records
In January 2005, as Defendants were disclosing to Plaintiffs the
existence of TISH inspection report/files within the realm of “NHPI files”
requested by Plaintiffs, Defendants were actually shredding the City’s copies
of 2001 TISH inspection reports/files; in January 2006 and January 2007,
Defendants destroyed 2002 and 2003 TISH files respectively.
Ecf.114,ShoemakerAff.paras.26,31,41[04-cv-2632].
While Defendants in 2005 through 2007, were destroying TISH
inspection reports/files of properties neighboring Plaintiffs’ properties,
Defendants’ requested Plaintiffs’ produce copies of TISH inspection records
on Plaintiffs’ properties, obtained those TISH records, provided those
23
records to Defendants’ liability expert, obtained an expert opinion that those
TISH records were relevant to the parties claims and defenses, and used
those TISH records in depositions of Plaintiffs. Ecf.114,ShoemakerAff.
pp.13-18[04-cv-2632].
Even the Court recognized the relevancy of these TISH reports.
ADD000076,fn.3.
But, the Court cleverly cited Defendants’ knowing false statement
that, “Defendants also reminded Plaintiffs that they had not even asked for
the [TISH] reports until 2007, approximately two years after they first
learned of the reports, and that the City had produced all of the reports in its
possession to Plaintiffs at that time [2007].” ADD000064. Both the Court
and Defendants knew of Defendants’ duty to maintain TISH records for
Plaintiffs’ eventual inspection and use and knew that destruction of same
would constitute spoliation. Instead, Defendants secretly shredded the TISH
records without informing Plaintiffs, until it was too late.
Ecf,114,ShoemakerAff.,paras.16,18. Prior to early 2007, Plaintiffs were
kept busy fighting Defendants’ motions to strike and for protective order
protection, as well as taking almost 50 depositions, and prioritizing which of
the many groups of documents to first inspect. Defendants’ took advantage
by using the time wisely to destroy as much evidence as possible.
24
Due to Defendants’ destruction of the TISH reports that were centrally
located at Dawkins’ office, Plaintiffs were faced with a cost and time
prohibitive hurdle of seeking TISH reports from 45 inspectors at offices
around the Twin Cities Metro Area, with no assurance the inspectors had
maintained their copies of inspection records for 5,000-6,000 inspections
each year, when the three year normal retention period applicable to both the
City and TISH inspectors had already expired.
The Court erred in determining that, “Plaintiffs never subpoenaed the
TISH evaluators. Such a failure to pursue discovery is incongruent with
Defendants’ claim of prejudice.” ADD000064. The Court had suggested
Plaintiffs seek replacement TISH reports from inspectors through subpoenas
but only requiring the minimal subpoena costs be paid by Defendants.
ADD000081. Arguably, the Court’s Order included service fees, but there
was no provision for $15,000 in copy costs of the replacement records
(15,000 reports, four pages each, at $.25/page), for $13,500 from 45
deposition transcripts ($300 each), or for Plaintiffs’ attorney fees for the
time consuming task of attempting to recreate the City’s central depository
collection of 2001-2003 TISH records, all with no guarantee the City files
could be restored. Defendants’ knew their intentional destruction would
create that additional mountain for Plaintiffs to climb. But for Defendants’
25
destruction of centrally stored TISH reports, Plaintiffs would not have been
faced with these prohibitively burdensome additional costs and fees.
Plaintiffs’ objections to the magistrate’s order were denied by the District
Court. ADD000083.
The District Court abused its discretion by misapplying the law on
spoliation as set out by this Court in Stevenson. The District Court
determined Plaintiffs had failed to demonstrate they were prejudiced by the
destruction of the e-data including e-mails and TISH housing inspection
reports. ADD000064-68;80.
The Court made the following clearly erroneous factual determination
concerning the destruction of e-data prior to December 2005: “Other than
the reasons already discussed, Defendants offer an additional reason:
because Plaintiffs’ counsel had explicitly limited the discovery request to
emails from December 2005 onward, in a letter dated June 6, 2007.”
ADD000067. This is another example of the District Court adopting a
deliberate false statement as the Court’s own finding without labeling it as
such.
Plaintiffs never limited their document request to email
communications from December of 2005 forward so as to waive their claims
of spoliation of the pre-December 2005 e-mails. One has to wonder why
26
Plaintiffs would have brought motions for sanctions if they had agreed, as
Defendant’s counsel falsely represented, to limit their e-mail requests. As
Mr. Shoemaker stated to Ms. Seeba in a letter dated May 15, 2007:
We understand from you that the electronic communications such as emails between City departments and third parties have not been retained for the period prior to December 2005.
Ecf.217-6,p.9[-04-cv-2632].
In Plaintiffs June 6, 2007 letter, Plaintiffs again sought emails from
1994 to present:
Emails both within the City and to and from third parties have been relevant to the claims herein since 2002. …inspectors also testified to use of the e-mail system in their work for the City. It certainly appears …Defendants…did not take action to preserve the written communications … for the time period prior to December 2005, ...
Ecf.217-7,p.6[-04-cv-2632].
Defendants’ failure to place any litigation hold on e-data/e-mails after
the commencement of litigation in May of 2004 and failure to preserve all
back-up tapes prior to December of 2005, allowed Defendants to destroy
relevant evidence for the relevant periods prior to December 2005, which
created an absence of communications between and among Defendants and
other city officials and employees and third parties, including neighborhood
councils, PHA, and HUD from 1999 through 2005.
27
Plaintiffs were clearly prejudiced by such destruction during this
litigation as the destroyed e-data/e-mails easily meet the definition of
“relevancy” under Rule 401, F.R.E. (“evidence having the tendency to make
the existence of any fact that is of consequence to the determination of the
action more probable or less probable that it would be without the
evidence”).
Additionally, under Rule 26, Fed.R.Civ.P., the destroyed TISH
inspection records and e-data/e-mails were a proper subject of the
Steinhauser document requests to Defendants in November 2004, as they
were “relevant to any party’s claim or defense” and were “reasonably
calculated to lead to the discovery of admissible evidence.”
Defendant’s duty to preserve evidence arose no later than when they
were served with the Steinhauser Corrected First Amended Complaint (87
pgs) filed May 28, 2004 (Ecf.7[04-cv-2632) detailing the Plaintiffs claims
that:
(1) Defendants had selectively targeted and were continuing to target Plaintiffs and other low-income landlords; (2) Defendants were ignoring clearly visible code violations on exteriors of properties in Plaintiffs’ neighborhoods so the condition of Plaintiffs’ and surrounding properties were at issue; (3) All inspection programs for rental homes in the City were relevant;
28
(4) Communications between City officials and employees and third parties were relevant; (5) PHA had rental properties and tenants that were similar in many respects to those of Plaintiffs and had their own inspection system; (6) Plaintiffs considered the City’s “Problem Property 2000” initiative to be very significant to Plaintiffs’ claims; (7) Code enforcement conduct challenged by Plaintiffs was contrary to the City’s federal funding; and (8) Certain of Plaintiffs’ tenants were receiving federal Section 8 assistance and with HUD funding for housing placement services into properties owned by Steinhauser and other landlords.
Here, as in Capellupo, Plaintiffs were “deprived of significant
amounts of potentially helpful information,” relevant evidence concerning
“claims or defenses” of the parties. Defendants’ destruction of e-data
including internal/external e-data/e-mails of City officials and employees,
and external e-data/e-mail communications with third parties, prejudiced
Plaintiffs by eliminating naturally relevant evidence related to issues of
intent and motive of Defendants on Plaintiffs’ claims that the City was
violating the State Building Code, such violations constituted a “disparate
treatment” and “disparate impact” on protected classes, constituted
intentional discrimination under Section 1981, 1982 and 1983 (equal
protection), RICO, as well as directly related to defenses raised by
Defendants, including immunity defenses and that there was no evidence of
29
“disparate impact” or “intentional discrimination”. City officials misused
code enforcement inspectors to placate White neighbors and deleted
smoking gun e-mails from Defendants’ e-mail production. Ecf.143,p.8[04-
cv-2632](Plaintiffs uncovered these e-mails in paper files maintained by the
Legislative Hearing Officer prior to City officials and employees’ personal
review and selection of e-mails to disclose to Plaintiffs).
Additionally, the destruction of e-data/e-mails deprived Plaintiffs of
evidence on whether the City had “affirmatively furthered fair housing” by
conducting “analysis of impediments to fair housing choice” (“AI”) required
under federal law concerning the City’s building code and code enforcement
policies applicable to “protected class” housing, taking appropriate actions,
and maintaining records on the “AIs”. 24C.F.R.§91.225 (City’s
certifications); §91.210(e)(City’s public policies, including building codes as
barriers to affordable housing – whether those policies affect cost of housing
or incentives to develop, maintain, or improve affordable housing – affect
return on investment, and act as barrier); §91.215(h)(public polices as
barriers); §91.220(j)(building codes as barriers).
The internal/external e-data/e-mail communications would have
provided evidence of the deliberations behind the scenes of the intent,
motive and opportunity of Defendants, City Council members, and others
30
concerning federally mandated “AIs” concerning City building code and
code enforcement policies and the application to “protected class” housing,
costs of same and displacement effect from such illegal application of the
City’s ultra vires police powers and code polices.
The destroyed e-data/e-mail internal/external communications for
2000 through most of 2005, covered the period that the City suddenly
abandoned its successful PP2000 code enforcement program (early 2002),
adopted and implemented a heavy-handed, “code to the max” approach
(2002-present), including aggressively designating properties as “vacant”
buildings,” dramatically increasing condemnations of homes and illegally
demanding older homes meet “present code” under the City’s Code
Compliance inspection and certification process that Defendants’ knew was
in direct violation of the State Building Code and Minnesota court decisions,
that both provided grandfathering protections to existing structures.
The destroyed e-mails deprived Plaintiffs of evidence going to
Defendants’ discussions on how to violate the State Building Code, how to
falsify HUD funding certifications without conducting the required and
legitimate “AIs,” and how to keep the public and Plaintiffs’ in the dark about
these issues, and other communications in furtherance of the schemes and
criminal conspiracy.
31
The Court failed to consider that the written, electronic
communications of Defendants and City officials and employees would have
been the best source of evidence directly bearing on all these matters and
thus directly related to the claims and defenses of the parties.
The Court denied Plaintiffs’ requests for sanctions, including costs
and attorney’s fees related to bringing its motion (ADD000055) and failed to
grant Plaintiffs’ request for an evidentiary hearing (Ecf.183,ShoemakerAff.
paras88-90[04-cv-2632].
The Court made a decision contrary to the law in failing to award
Plaintiffs’ their costs and attorney’s fees incurred as a result of Defendants’
conduct when the Court acknowledged Plaintiffs may have been harmed.
ADD000062,68. The Court erred by failing to award Plaintiffs’ their costs
and attorney’s fees incurred as a result of Defendants’ conduct. Here, as in
Capellupo, the actions of Defendants “imposed an enormous burden on
counsel for plaintiffs.” Capellupo, 126 F.R.D. at 553.
Defendants’ Bad Faith In Spoliation of Relevant Evidence
Under this Court’s ruling in Stevenson, no bad faith showing is
necessary but is relevant on the issue of what sanctions would be appropriate
to meet the policies supporting sanctions. Here, Defendants’ destruction of
evidence was so egregious that the district court abused its discretion in
32
denying Plaintiffs any of the relief requested: judgment against Defendants
on liability and damages; monetary sanctions; dismissal of Defendants’
summary judgment motion; directing factual findings in favor of Plaintiffs;
an adverse inference jury instruction; an award of attorneys fees, expert fees
and costs from March 2, 2007 through the hearing March 2008; discovery
related to the spoliation; Ecf.183,ShoemakerAff.[04-cv-2632(Defendants’
litigation tactics caused undue expense, fees for Plaintiffs-
pars.17,18,27,50,88-89)].
Even though Plaintiffs were not required to demonstrate Defendants’
“bad faith,” Plaintiffs submit that Defendants conduct rose to the level of
“bad faith” thereby justifying a finding of “prejudice” because the evidence
was relevant, would have been helpful to Plaintiffs and could have led to
discovery of other evidence.
The duty to preserve evidence is imposed on counsel as officers of the
court. See 6 NO. 21 Lawyers J. 6 October 15, 2004 (Duty of preservation
and protection of electronically stored information that may be relevant to
potential or actual litigation show a clear trend to judicially impose a duty on
counsel to safeguard and preserve potentially relevant evidence.).
The substantial and complete nature of the destruction of virtually all
e-data/e-mails of Defendants, City Council members and other key players
33
for all periods prior to December 2005, the time periods relevant to
Defendants’ claims of immunity and Plaintiffs constitutional and statutory
claims, and the complete destruction of three years of TISH housing
inspection reports, all destroyed during litigation, justifies a “bad faith”
finding, a determination of “prejudice” to Plaintiffs from said destruction
and sanctions including monetary sanctions, attorney’s fees and costs,
reversal of summary judgment, and an adverse inference instruction. See
E*Trade, 230 F.R.D. at 592.
The e-data/e-mail written communications of Defendants and City
officials/employees and third parties relevant to the claims and defenses of
the parties is similar to the only recording of conversations contemporaneous
to an accident. Stevenson, 354 F.3d at 748. There is no substitute evidence.
The District Court, contrary to this Court’s holding in Stevenson,
placed too high of a burden on Plaintiffs to demonstrate “prejudice”. Courts
have warned against applying too high a standard on victim litigants of
spoliation:
“Courts must take care not to ‘hold the prejudiced party to too strict a standard of proof regarding the likely contents of the destroyed [or unavailable] evidence,’ because doing so ‘would subvert the…purposes of the adverse inference and would allow parties who have…destroyed evidence to profit from that destruction.”
34
Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 109
(2dCir.2002).
The Second Circuit Court of Appeals has stated, “[t]he task is
unavoidably imperfect, inasmuch as, in the absence of the destroyed
evidence, we can only venture guesses with varying degrees of confidence
as to what that missing evidence may have revealed.” Kronisch v. U.S., 150
F.3d 112, 128 (2dCir.1998) (Wigmore’s admonition - holding prejudiced
party to too strict a standard of proof regarding the likely contents of the
destroyed evidence would subvert the prophylactic and punitive purposes of
the adverse inference).
Moreover, as can be seen by this Courts’ decisions in Stevenson
(finding prejudice and approving an adverse inference jury instruction) and
in Dillion (finding prejudice and approving the exclusion of evidence), if the
evidence destroyed would have been helpful to the opposing party, even if
that evidence was of “limited use,” this Court will approve sanctions
including a adverse inference instruction.
Here, the District Court determined that Plaintiffs had not shown what
the missing e-data/e-mails would have contained - but Plaintiffs had
demonstrated that the missing e-data consisted of written communications of
Defendants, City officials and employees and influential third-parties on
35
subjects relevant to the parties claims and defenses but from a period after
the relevant claim/defense period. Under Stevenson, even if this e-data was
of limited use, its destruction during litigation should have resulted in a
prejudice finding and an adverse inference instruction and/or other
sanctions.
During the filings of these three lawsuits, Defendant Dawkins, a
licensed attorney, headed the main City code enforcement department
responsible for conduct challenged in these three cases. Defendants had a
large full service law firm at their disposal. Defendants were familiar with
Court rules due to experience with litigation. Yet the District Court held that
the destruction of the written communications of City officials and
employees and the housing inspection reports for the relevant time period
prior to December 2005 was not in “bad faith” and that the other related
destruction and obstructive litigation tactics, taken together with e-data/e-
mail destruction, did not demonstrate bad faith.
Plaintiffs submit that at the very least public defendants should be
held to the same standard of preserving evidence applicable to private
corporations. When considering the important policies of honesty and
openness by government officials and employees in public matters including
federal court litigation, the Court abused its discretion in placing a heavy,
36
almost impossible burden on Plaintiffs to demonstrate they were
“prejudiced” by such destruction.
Plaintiffs submit that the Court should consider the serious public and
judicial policies implicated by the Defendants’ destruction of massive
volumes of evidence during this litigation:
Spoliation sanctions serve a remedial function by leveling the playing field or restoring the prejudiced party to the position it would have been without spoliation. They also serve a punitive function, by punishing the spoliator for its actions, and a deterrent function, by sending a clear message to the other potential litigants that this type of behavior will not be tolerated and will be dealt with appropriately if need be.
Mosaid Tech. v. Samsung, 348 F.Supp.332, 335 (D.N.J.2004).
Plaintiffs and their counsel strongly submit that it is imperative this
Court reverse the District Court’s rulings on spoliation, sanctions and
summary judgment, thereby correcting the false impression that violation of
state and federal laws, Court rules, including massive destruction of
evidence, and other wrongful acts, are a legitimate way of conducting
government business.
Additionally, as it currently stands, there is more than an appearance
of impropriety in the handling of these cases by the Minnesota District
Court. The District Court has from the commencement of these cases,
downplayed and soft pedaled the claims and evidence of violations of state
37
and federal laws, court rules and the corruption by public officials-
employees, and State Court personnel, has seriously abused the summary
judgment standard, dismissed the evidence that a reasonable jury could view
as supporting Plaintiffs’ claims, and has worked diligently to undermine
Plaintiffs’ ability to hold accountable before the law, a City run by those
who see the law as an inconvenience to be subverted at every opportunity no
matter what the cost to other members of society. The message heard by all
from the District Court of Minnesota through its decisions here is that
politically connected lawbreakers have immunity without worry of the
consequences. This Court must not let this message stand without challenge.
As Justice Brandeis stated in his dissenting opinion in Olmstead v.
U.S.:
Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.
277 U.S. 438, 485 (1929).
CONCLUSION
Plaintiffs respectfully request the Court:
(1) overturn summary judgment and remand these cases for trial on all of
Plaintiffs’ claims;
38
(2) determine that prior to trial, full discovery on spoliation and sanctions
with an evidentiary hearing is appropriate with Plaintiffs’ costs and
attorney’s fees during such discovery paid by Defendants;
(3) that Plaintiffs be awarded their reasonable attorney’s fees and costs due
to Defendants’ wrongful litigation conduct during 2007 and 2008;
(4) that sufficient prejudice has been established to warrant an adverse
inference jury instruction;
(5) that a federal circuit judge from outside Minnesota be appointed as the
judge responsible for these cases on remand; and
(6) such other relief that this Court determines is warranted under the
circumstances.
Respectfully submitted,
SHOEMAKER & SHOEMAKER, P.L.L.C.
Dated: July 31, 2009 By: s/ John R. Shoemaker John R. Shoemaker (Attorney Lic. #161561) 7900 International Drive International Plaza, Suite 200 Bloomington, Minnesota 55425 (952) 224-4610 Attorneys for Plaintiffs-Appellants Steinhauser, et al. and Harrilal, et al.
39
CERTIFICATION OF COMPLIANCE WITH FRAP 32 AND CERTIFICATION OF WORD PROCESSING PROGRAM
Counsel for Plaintiffs-Appellants prepared its brief using Microsoft
Word 2003 for its word processing program. This brief contains 6,994
words. Counsel also certifies that the attached CD has been scanned for
computer viruses and there are no viruses on the CD. The only document
contained on this CD is the Joint Reply Brief of Plaintiffs-Appellants in
the PDF file format.
Dated: July 31, 2009 By: s/ John R. Shoemaker John R. Shoemaker, Esq.