UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 12-2852

_______________________________

James Bergstrom,

Appellant

vs.

Sgt. Michelle Frascone (in her individual capacity),

Sgt. Vicki Braman (in her individual capacity), and Vanessa Rew,

Sgt. Stacey Webb (in her individual capacity),

Commander Kris Mienert (in her individual capacity),

Sgt. Sue McMahon (in her individual capacity),

Det. Chris Donohoe (in his individual capacity),

Det. Chris Ployart (in his individual capacity)

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MINNEOSTA

On an Order Dismissing Case with Prejudice

For Failure to Prosecute

______________________

______________________

APPELLANT’S BRIEF ______________________

______________________

i

APPELLANT’S ATTORNEY: Diana Longrie Attorney at Law 1321 Frost Avenue E Maplewood, MN 55109 (651) 214-0859

APPELLEES’ ATTORNEYS

Sgt. Michelle Frascone, in her individual capacity Defendant - Appellee

Joseph E. Flynn Direct: 651-290-7416 [COR NTC Retained] JARDINE & LOGAN Firm: 651-290-6500 Suite 100 8519 Eagle Point Boulevard Lake Elmo, MN 55042-0000 Michael P. Goodwin Direct: 651-290-6500 [COR NTC Retained] JARDINE & LOGAN Firm: 651-290-6500 Suite 100 8519 Eagle Point Boulevard Lake Elmo, MN 55042-0000 Leonard Jacob Schweich Direct: 651-290-6572 [COR NTC Retained] JARDINE & LOGAN Firm: 651-290-6500 Suite 100 8519 Eagle Point Boulevard Lake Elmo, MN 55042-0000

Sgt. Vicki Braman, in her individual capacity Defendant - Appellee

Joseph E. Flynn Direct: 651-290-7416 [COR NTC Retained] (see above)

ii

Michael P. Goodwin Direct: 651-290-6500 [COR NTC Retained] (see above) Leonard Jacob Schweich Direct: 651-290-6572 [COR NTC Retained] (see above)

Vanessa Rew, an individual Defendant - Appellee

Phillip J. Ashfield Direct: 612-335-1500 [COR LD NTC Retained] LEONARD & STREET Firm: 612-335-1500 Suite 2300 150 S. Fifth Street Minneapolis, MN 55402-0000 Monica Davies Direct: 612-335-1500 [COR NTC Retained] LEONARD & STREET Firm: 612-335-1500 Suite 2300 150 S. Fifth Street Minneapolis, MN 55402-0000 Calvin Patrick Hoffman Direct: 612-335-1926 [COR NTC Retained] LEONARD & STREET Firm: 612-335-1500 Suite 2300 150 S. Fifth Street Minneapolis, MN 55402-0000 Beau Daniel McGraw Direct: 651-209-3200 [COR NTC Retained] MCGRAW LAW FIRM Firm: 651-209-3200 Suite 3 10390 39th Street, N. Lake Elmo, MN 55042

iii

Peter Joseph Schwingler Direct: 612-335-7023 [COR NTC Retained] LEONARD & STREET Firm: 612-335-1500 Suite 2300 150 S. Fifth Street Minneapolis, MN 55402-0000

Sgt. Stacey Webb, in her individual capacity Defendant - Appellee

Joseph E. Flynn Direct: 651-290-7416 [COR NTC Retained] (see above) Michael P. Goodwin Direct: 651-290-6500 [COR NTC Retained] (see above) Leonard Jacob Schweich Direct: 651-290-6572 [COR NTC Retained] (see above)

Commander Kris Mienert, in her individual capacity Defendant - Appellee

Joseph E. Flynn Direct: 651-290-7416 [COR NTC Retained] Michael P. Goodwin Direct: 651-290-6500 [COR NTC Retained] Leonard Jacob Schweich Direct: 651-290-6572 [COR NTC Retained] (see above)

Sgt. Sue McMahon, in her individual capacity Defendant - Appellee

Joseph E. Flynn Direct: 651-290-7416 [COR NTC Retained] (see above)

iv

Michael P. Goodwin Direct: 651-290-6500 [COR NTC Retained] (see above) Leonard Jacob Schweich Direct: 651-290-6572 [COR NTC Retained] (see above)

Det. Chris Donohoe, in his individual capacity Defendant - Appellee

Joseph E. Flynn Direct: 651-290-7416 [COR NTC Retained] (see above) Michael P. Goodwin Direct: 651-290-6500 [COR NTC Retained] (see above) Leonard Jacob Schweich Direct: 651-290-6572 [COR NTC Retained] (see above)

Det. Chris Ployart, in his individual capacity Defendant - Appellee

Joseph E. Flynn Direct: 651-290-7416 [COR NTC Retained] (see above) Michael P. Goodwin Direct: 651-290-6500 [COR NTC Retained] Leonard Jacob Schweich Direct: 651-290-6572 [COR NTC Retained] (see above)

v

SUMMARY OF CASE AND REQUEST FOR ORAL ARGUMENT

Bergstrom asks that his case not be dismissed with prejudice for failure

to prosecute. While there were delays in his case, these delays were not

intentional and the Defendants’ defense has not been prejudiced.

Bergstrom’s underlying case is of merit and it challenges the Defendants’ who

acted under color of law of a statute and their abuse of the order for protection

process. Appellant James Bergstrom seeks 20 minutes of oral argument to

persuade the Court that the order and judgment dismissing his case, with

prejudice, be vacated and remanded for trial.

The underlying case in summary: James Bergstrom in his Amended

Complaint requested he be awarded a judgment in a reasonable amount in excess of

$50,000, including but not limited to compensatory, presumed and punitive

damages, including interest; his reasonable attorney fees and costs and

disbursements incurred herein; and the issuance of a temporary and/or

permanent prohibitory injunction prohibiting Defendants, their officers,

agents, employees, and successors, from engaging in the illegal practices

complained of herein.

Bergstrom’s claims arise under Title 42 of the United States Code (Civil Rights

Act of 1964, as amended), including but not limited to §1983. Defendants acted alone

and/or together (2 or more in concert) to violate Bergstrom’s rights.

vi

Defendant Rew, after having intentionally “set up” a situation where she

might trap Bergstrom into violating an active Order for Protection (hereinafter

“OFP”), she used her close personal relationship with certain police officer

Defendant(s), acted in concert to initiate/commence a criminal action against

Bergstrom by making a false and malicious complaint to Woodbury police

regarding an incident involving Bergstrom on April 22, 2010: i) knowing Oakdale

police refused to arrest or seek prosecution regarding the same incident -

rejecting Rew’s claim that Bergstrom violated an active OFP on April 22, 2010;

ii) knowing that the active OFP expired August 20, 2010; iii) knowing that a

“violation” of the OFP would allow her to extend the OFP for an extended period; iv)

knowing that while an OFP remained in place, Bergstrom, under the divorce decree,

would NEVER be able to establish parenting time with his two growing boys,

reestablish a father–child relationship and would remain forever alienated from his

children.

Bergstrom was deprived of his rights, privileges, and immunities secured by

the United States Constitution, and specifically the Fourteenth Amendment to the

United States Constitution, in conjunction with other rights. Bergstrom was arrested

and detained for 55 days. After which time, all charges were dismissed and all legal

(criminal) matters commenced in April 2010 terminated in favor of Bergstrom.

A trial by jury has been requested on all applicable Counts.

vii

TABLE OF CONTENTS

LISTING OF ATTORNEYS i

SUMMARY OF CASE AND REQUEST FOR ORAL ARGUMENT v

TABLE OF CONTENTS vii

TABLE OF AUTHORITIES viii

JURISDICTIONAL STATEMENT 1

STATEMENT OF LEGAL ISSUES 2

STATEMENT OF THE CASE 3

STATEMENT OF FACTS 6

STANDARDS OF REVIEW 13

SUMMARY OF ARGUMENT 14

ARGUMENT 15

I. Did the district court err when it ordered the

dismissal of Bergstrom’s case with prejudice

for failure to prosecute?

CONCLUSION 22

WORD COUNT CERTIFICATE AND SERVICE 23

Addendum Follows

viii

TABLE OF AUTHORITIES

28 U.S.C. §1291 1

28 U.S.C. §1331 1

42 U.S.C. §1983 1

Federal Rule of Civil Procedure 41(b) 14, 15, 16

Flaksa v. Little River Marine Construction Co., 389 F.2d 885, 887­89 (5th

Cir.), cert. denied, 392 U.S. 928, 88 S.Ct. 2287, 20 L.Ed.2d 1387 (1968)

18

Givens v. A.H. Robins Co., 751 F.2d 261, 263 (8th Cir. 1984) 17

Good Stewardship Christian Ctr. v. Empire Bank, 341 F.3d 794, 797­98

(8th Cir. 2003)

16

Herring v. City of Whitehall, 804 F.2d 464, 467 (8th Cir. 1986) 21

Hunt v. City of Minneapolis, 203 F.3d 524 (8th Cir. 2000) 2, 15

Hutchins v. A.G. Edwards & Sons, Inc., 116 F.3d 1256, 1260 (8th Cir. 1997) 13, 14

Jackson v. Washington Monthly Co., 569 F.2d 119 (D.C. Cir. 1977) 21

Leong v. Railroad Transfer Service, Inc., 302 F.2d 555, 557­58

(7th Cir. 1962) (Schnackenberg, J., concurring

19

Lorin Corp. v. Goto & Co., 700 F.2d 1202, 120748 (8th Cir. 1983) 15

Moore v. St. Louis Music Supply Co., 539 F.2d 1191(8th Cir. 1976) 2, 13, 18, 19, 20

Navarro v. Chief of Police, 523 F.2d 214, 217 (8th Cir. 1975) 15

Rodgers v. Univ. of Missouri, 135 F.3d 1216, 1219 (8th Cir.1998) 13, 15, 17

Schoffstall v. Henderson, 223 F.3d 818, 823 (8th Cir. 2000) 13

Smith v. Casino, 526 F.3d 402 (8th Cir. 2008) 2, 14, 16, 17, 20

1

JURISDICTIONAL STATEMENT

The United States District Court had original jurisdiction over this

lawsuit under 28 U.S.C. §1331, because it arose in part under the laws of the

United States, 42 U.S.C. §1983.

The Eighth Circuit Court of Appeals has jurisdiction over this appeal

pursuant to 28 U.S.C. §1291. This is an appeal from the District Court’s order

to dismiss with prejudice for failure to prosecute.

The Judgment was entered on July 6, 2012 (ECF No. 78). Plaintiff

Bergstrom timely filed a Notice of Appeal on August 3, 2012. (ECF No. 79).

This appeal is from a final order or judgment that disposes of all parties’

claims. The issues herein are presented for review.

Bergstrom was granted an extension to file his brief to November 9,

2012. (A:156). Request was made to accept late Brief.

2

STATEMENT OF LEGAL ISSUES

I. Did the district court err when it ordered the dismissal of Bergstrom’s

case with prejudice for failure to prosecute?

District Court: Upon Defendants’ motion to dismiss [ECF No. 64], the District

Court DISMISSED WITH PREJUDICE the Plaintiff’s amended

complaint [ECF No.35] for lack of prosecution, failure to comply

with the Federal Rules of Civil Procedure, and failure to comply

with the amended pretrial scheduling order dated May 31, 2012

[ECF No. 62].

Most apposite cases:

Moore v. St. Louis Music Supply Co., 539 F.2d 1191(8th Cir. 1976);

Hunt v. City of Minneapolis, 203 F.3d 524 (8th Cir. 2000); and

Smith v. Casino, 526 F.3d 402 (8th Cir. 2008).

“ECF” Refers to the ECF DOCKET REGISTER available at the back of the Appendix.

3

STATEMENT OF THE CASE

Plaintiff James Bergstrom filed this civil case in the District Court for the

Tenth Judicial District in Washington County on 09/14/2010. (A:1). The

Defendants then removed the case to MN Federal District Court on 09/15/2010.

Defendants removed to MN District Court. (ECF No.1). Bergstrom’s

Complaint was amended after motion. (ECF No.35 and A:20). The police

officer defendants answered. (ECF No.3 & ECF No.36). Defendant Rew

answered after her motion to dismiss as a party was denied. (ECF No.37).

Discovery, while moving slowly, was commenced. Bergstrom deposed several

police officers. (A:37) As of February 8, 2012, neither Defendant police

officers or Bergstrom had exchanged discovery responses to the other.

(A:115) Defendants’ deposition of Bergstrom had been rescheduled

numerous times due to attorney schedules, Bergstrom’s mother being on her

death bed (she died in November, 2011 A:103, A:110) or Bergstrom being

unable to get the time off from work. (A:55). Bergstrom’s deposition was

then ordered for July 12, 2012. (A:139) Trial was scheduled for April 15

2013. (ECF No.62).

The court record is replete with information to support our position

that the Court and Defendants’ Attorney knew of Attorney Jill Clark’s

4

unexpected medical complications and her medical leave. Further, Attorney

Clark or the law office of Jill Clark, LLV communicated about delays (primarily

medical in nature, some scheduling) so rescheduling could occur. (A:19,

A:42, A:43, A:48, A:51, A:52, A:55, A:103, A:104, A:105, A:108, A:109, A:110,

A:111, A:117, A:118, A:119, A:121, A:128, A:149 and A:150) Attorney Clark

attended all hearings and conferences that were scheduled in this case.

Attorney Clark was not uncooperative or obstructionist in her conduct .

Attorney Clark and Bergstrom acted collaboratively with Defendants’

attorneys to set deposition dates, enter into Stipulations and to amend

Pretrial Scheduling Orders before court ordered deadlines expired. (A: 19,

A:46, A:47, A:49, A:50, A:54, A:57, A:104, A:110 and A:112)

Pursuant to the June 1, 2012 Pretrial Scheduling Order, Attorney Clark

was issued a deadline of June 15, 2012 to deliver discovery responses to

Defendants’ attorneys. (A:139). She missed the deadline. (A:143). This is the

only court order Bergstrom is aware Attorney Clark violated. On June 21,

2012, Attorney Clark was admitted to the hospital for an extended stay.

(A:149). On June 22, 2012, United States District Judge Patrick J. Schiltz

issued an Order to show cause why Bergstrom’s case should not be dismissed

with prejudice. (ECF No.70) Attorney Clark, being in the hospital was unable

to answer and her attorney filed a letter with the Court on July 3, 2012, the

5

date Attorney Clark’s memorandum was due. Clark’s attorney explained the

medical situation and that the law firm of Jill Clark, LLC was developing a

case management plan for Attorney Clark’s open cases. (A:150). On July 6,

2012, an order dismissing Bergstrom’s case with prejudice, for failure to

prosecute, was issued. (ECF No.77 & A:151). The occurrence and impact of

Attorney Clark’s medical issues upon this case is not willful. The Defendants

have not been prejudiced in their ability to defend as a result of unintentional

delays. Sanctions, less harsh than dismissal with prejudice, were available to

the Court and could have been ordered.

6

STATEMENT OF FACTS

1. 09/14/2010. Bergstrom commenced his case in District Court for the Tenth

Judicial District in Washington County (A:1) by filing his Summons and

Complaint. (A:2)

2. 09/15/2010. Defendants removed to MN Federal District Court.

(ECF No.1)

3. 09/15/2010. Answer by Defendants Vicki Braman, Michelle

Frascone f i led. (ECF No.2)

4. 09/23/2010. Motion filed to dismiss Defendant Rew. (ECF No.7)

5. 11/17/2010. Pretrial Scheduling Order issued. Deadline for Motion to

Amend Pleadings set for February 1, 2011 and deadline for fact discovery

set for November 1, 2011. (ECF No.13 & A:15)

6. 01/11/2011. Letter from Rew’s attorney regarding parties’ agreement to

adjust motion response deadlines due to an emergency situation (Clark

medical issues). (ECF No.19 & A:19)

7. 01/17/2011. Bergstrom Motion to Amend Complaint filed. (ECF No.23)

8. 01/31/2011. Hearing held on Motion to dismiss Defendant Rew.

(ECF No.33)

9. 01/31/2011. Hearing held on Bergstrom’s motion to amend complaint.

(ECF No.33)

10. 01/31/2011. Court orders amended complaint (2nd) be filed and served

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by Bergstrom by February 14, 2011. (ECF No.34)

11. 02/14/11. Bergstrom serves and files Amended (2nd) Complaint pursuant

to Court order. (ECF No.35 & A:20)

12. 02/25/2011. Joint Answer filed by Defendants (Police Officers) to

Amended (2nd) Complaint. (ECF No.36)

13. 02/28/2011. Answer by Defendant Rew. (ECF No.37)

14. 06/20/2011 and 06/21/2011 Bergstrom scheduled depositions of

Defendant Officers Mienert, Frascone, Ployhart, McMahon, Donahoe and

Webb. (A:36, 40)

15. 05/27/11. Attorney Clark informs Defendants’ attorney (3 weeks in

advance) that June 20, 21 depositions need to be rescheduled. (A:43)

16. 05/27/11. Deposition of Bergstrom noticed for June 29, 2011 by

Defendants. (A:42, 53)

17. 05/27/11. Attorney Clark informs Defendants’ attorney she starts a

criminal trial 06/29/11. (A:42)

18. 05/27/11. Both attorneys agree to select dates in August 2011. (A:43)

19. 06/09/11. Depositions of police officers scheduled for 08/29/11 and

8/31/11. (A:46)

20. 07/21/11. Deposition of Bergstrom noticed for September 1, 2011.

(A:56)

21. 08/14/11. Two week notice: deposition date adjusted to 08/30/11 due

8

to trial commitment of Attorney Clark. (A:48)

22. 08/16/11. Deposition of Bergstrom confirmed for September 1, 2011.

(A:54)

23. 08/28/11. Bergstrom informs Attorney Clark that he can not get off of

work for the September 1, 2011 deposition. Attorney Clark informs

Defendants’ attorney. (A:55)

24. 08/30/11. Depositions of three police officers completed. (A:37)

25. 08/31/11. Defendants’ attorney reviews various unavailability of all

attorneys and schedules of police officers for the remaining depositions.

Depositions set for Sept. 14, 2011 to accommodate all schedules –

including those of Defendants’ attorneys. (A:49, A:50)

26. 09/06/11. Assistant to Attorney Clark sends email to notify Defendants’

attorneys that Attorney Clark placed on unanticipated medical leave for

the week. (A:51)

27. 09/12/11. Assistant to Attorney Clark sends email to notify Defendants’

attorneys that Attorney Clark’s medical leave has been extended another

week and can not attend the depositions scheduled for 09/14/12. (A:52)

28. 09/27/2011. Filing of Motion by Defendants for Extension of Discovery

Deadline. (ECF No.43)

29. 10/11/2011. Hearing held on Motion to Extend Discovery Deadline. (ECF

No.45)

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30. 10/28/11. Defendants’ attorney letter regarding rescheduling dates for

Bergstrom’s deposition and the parties exchanging discovery. (A:101)

31. 11/04/11. Attorney Clark informs Defendants’ attorney that Bergstrom’

mother is dying. Bergstrom’s mother died thereafter. Attorney Clark

discusses her medical restrictions and suggests a telephone conference

November 17, 2011. (A:103, A:110)

32. 11/07/11. Morning email from Attorney Clark indicating that Bergstrom

may be available and she is checking with her client. (A:104)

33. 11/07/11. Afternoon email from Attorney Clark along with a confidential

report from healthcare provider, Mary Jane Chiasson, DO. Attorney Clark

informs Defendants’’ attorneys that that she is unable to work. Court

informed of the situation. (A:104, 105)

34. 11/10/11. Email communication from the Jill Clark, LLC firm indicating

Attorney Clark’s medical leave continuing. (A:108)

35. 11/10/11. Defendants’ attorney requests a stay of the discovery deadlines.

(A:109)

36. 11/22/11. Email to Judge and Defendants’ attorneys from Attorney Clark

that she has returned to work on a very part-time basis. (A:109)

37. 11/30/2011. First Amended Pretrial Scheduling Order issued. Deadline for

fact discovery set for May 2, 2012, Dispositive Motions by July 1, 2012,

Trial ready by November 1, 2012. (ECF No.47 & A:137)

10

38. 01/31/12. Deposition for Bergstrom set for 02/24/2012. (A:112, 113,)

39. 02/08/12. Letter from Defendants’ attorney asking Bergstrom’s

interrogatory responses be sent by February 17, 2012. At which time they

will send Attorney Clark their discovery responses AFTER THE DEPOSITION

OF BERGSTROM. (A:115)

40. 02/16/12. Numerous emails between Jill Clark, LLC firm and Defendant’s

attorney regarding Attorney Clark on medical leave pursuant to doctor’s

recommendation. Attorney Clark in unable to exchange discovery. Bergstrom

deposition cancelled. (A:116, 117, 118, 119, 120)

41. 03/18/12. Email from Attorney Clark about returning an increased number

of hours per week and getting Bergstrom case back on track. (A:121)

42. 03/20/12. Letter from Defendants’ attorney proposing 3rd amended Pretrial

Scheduling Order – giving Attorney Clark only until March 22, 2012 to sign

and return. (A:122)

43. 03/27/2012. Defendants file motion requesting dismissal for lack of

prosecution and failure to cooperate. (ECF No.51)

44. 04/23/2012. Attorney Clark files a Declaration to the court regarding her

medical issues. (ECF No.57 & A:128)

45. 05/01/12. Motion to Dismiss denied without prejudice. (ECF No.59)

46. 05/30/12. Trial Notice Issued indicating Bergstrom case set as the 3rd case on

the trial calendar for November 5, 2012. Bergstrom is not the oldest case on

11

the calendar. (ECF No.60 & A:130, 135, 136)

47. 05/31/2012. Status conference held. (ECF No.61 & A:138)

48. 06/01/12. Amended Pretrial Scheduling Order issued. Bergstrom’s discovery

responses due June 15, 2012. Bergstrom deposition set for July 12, 2012. Fact

discovery to be completed by September 1, 2012. Trial re-set to April 15,

2013. (ECF No.62 & A:139)

49. 06/21/12. Defendants’ file motion to dismiss. (ECF No.64)

50. 06/21/12. Defendants’ Affidavit cite “intentional delay”, the unavailability

and failure to cooperate of Bergstrom and Attorney Clark as well as a

repeated pattern of delay, dilatory conduct (A:141) and violations of court

orders (A:143). Defendants’ attorney claim they are prejudiced by “repeated

pattern of intentional delay” without providing documentation to the Court

that delays are intentional nor have they provided the particulars of the

“prejudice” they have suffered. (ECF No.67 & A:143)

51. 06/22/12. Order to Show Cause was issued directing Attorney Clark to, no

later than July 3, 2012, file and serve a memorandum of no more than 3,000

words showing cause why this action should not be dismissed for lack of

prosecution, failure to comply with the Federal Rules of Civil Procedure,

and failure to comply with the amended pretrial scheduling order dated

May 31, 2012. (ECF No.70 & A:145)

52. 06/28/12. Order issued to stay unexpired deadlines pending outcome of

12

motion to dismiss. (ECF No.75)

53. 07/03/2012. Attorney Clark’s attorney writes letter to the court within the

timeframe set for the Order to Show cause and informs the Court of Attorney

Clark’s hospitalization and the law firm of Jill Clark LLC being in the process

of developing a management plan for all of Attorney Clark’s open cases.

Specifically, Bergstrom’s case was listed as a top priority in the management

plan process and a 30 day continuance was requested. (ECF No.76 & A:149)

54. 07/06/2012. Order (ECF No.77 & A:151)and Judgment (ECF No.78) issued

dismissing Bergstrom’s case with prejudice.

55. 07/12/2012. Date set for Bergstrom Deposition. (A:139)

56. 08/03/2012. Notice of appeal. (ECF No.79)

13

STANDARDS OF REVIEW

The standard of review from a dismissal order is whether the district court

has abused its discretion. Moore v. St. Louis Music Supply Co., 539 F.2d 1191, 1193

(8th Cir. 1976). Further, dismissal with prejudice is appropriate only in cases of

willful disobedience of court order or persistent failure to prosecute complaint);

Schoffstall v. Henderson, 223 F.3d 818, 823 (8th Cir. 2000). If a Court determines

that there has been willful disobedience, the district court's factual finding of a

willful disregard of court orders or of a pattern of persistent delay is reviewed for

clear error – does the record contain evidence that compels such a finding. Rodgers

v. Univ. of Missouri, 135 F.3d 1216, 1219 (8th Cir.1998). Finally, the Court’s decision

as to what sanctions are appropriate is reviewed for abuse of discretion. Hutchins v.

A.G. Edwards & Sons, Inc., 116 F.3d 1256, 1260 (8th Cir. 1997).

14

SUMMARY OF ARGUMENT

The District Court has power to dismiss a case for failure to comply with its rules

and for failure to prosecute. Fed.R.Civ.P. 41 (b) . The District Court has the discretion to

determine the appropriate sanctions if a party is not moving a case along but the

punishment must fit the crime. Smith v. Casino, 526 F.3d 402, 406 (8th Cir. 2008). The

Court, in determining the sanction, must weigh the consequence of forever

extinguishing the litigant’s claim against the demands of the court docket and any

resulting prejudice to the opposing party. Hutchins, 116 F.3d at 1260.

In this case, Bergstrom does not deny that Attorney Clark had significant medical

issues that slowed the discovery process. However, Attorney Clark or the law offices of

Jill Clark, LLC communicated with the Defendants’ attorneys, as well as the Court, to

keep them informed as to either her doctor ordered medical leaves of absence or

calendar conflicts. In two instances, Bergstrom himself was unavailable for deposition

dates due to either his mother dying (A:103, A:110) or his boss not letting him off from

work (A:55). Even Defendants’ attorneys had scheduling conflicts. (A:49, A:50). It was

not until the latest Amended Pretrial Scheduling Order, issued June 1, 2012, (ECF No.62,

A:139) that Bergstrom’s deposition was ordered for July 12, 2012. This same

scheduling order set the factual discovery deadline as 9/1/2012 and set the trial date

for April 15, 2013. The Court abused its discretion by dismissing Bergstrom’s case

with prejudice on July 6, 2012.

15

ARGUMENT

I. Did the district court err when it ordered the dismissal of

Bergstrom’s case with prejudice for failure to prosecute?

Attorney Clark’s failure to meet the June 15, 2012 deadline affixed by the

Court, together with her not personally presenting a Memorandum on July 3, 2012

in response to the Order to Show does not warrant the sanction of dismissal of

Bergstrom’s complaint with prejudice.

While the District Court has the power under Fed.R.Civ.P. 41 (b) to dismiss a case

for failure to comply with its rules and/or for failure to prosecute, it is considered an

extreme sanction to dismiss a case with prejudice for failure to prosecute. Navarro v.

Chief of Police, 523 F.2d 214, 217 (8th Cir. 1975). As the most sever sanction, dismissal

with prejudice should be used sparingly. Id.

Only those instances where the litigant has been willful in their disobedience

or continued, persistent failure to prosecute a complaint should the sanction of dismissal

with prejudice be used. Lorin Corp. v. Goto & Co., 700 F.2d 1202, 120748 (8th Cir. 1983).

Many of the examples found in case law cite the repeated contempt for court orders

without just cause, Hunt v. City of Minneapolis, 203 F.3d 524, 527-28 (8th Cir. 2000),

willful interference with the discovery process by failing to attend court ordered

depositions, Rodgers, 135 F.3d at 1218, or cumulative outrageous conduct inside

16

and outside the court room designed to delay proceedings. Good Stewardship

Christian Ctr. v. Empire Bank, 341 F.3d 794, 797-98 (8th Cir. 2003).

In this case, the timeline and the record of emails attached to affidavits tell

the story. Attorney Clark or the law office of Jill Clark, LLC were communicating

with Defendants’ attorneys on a regular basis when there were medical issues. As

an unintended consequence of having various periods of medical leave, Attorney

Clark’s work schedule piled up. But then too, either herself or the Jill Clark, LLC law

firm contacted Defendants’ attorneys about scheduling conflicts, often times,

several weeks in advance of a known conflict. Not once did Bergstrom miss a court

ordered appearance. There is no evidence in the record that her medical problems

were unsubstantiated (a confidential report is in the record) or that the periods of

full or part time medical leave were “elective”.

In Smith v. Casino, 526 F.3d 402 (8th Cir. 2008), Smith commenced his

action in July 2005. During the course of the litigation, he began to experience

health problems of which he informed the court and opposing counsel. Discovery

was delayed. For eight months. Upon a motion to dismiss, the Court concluded that

Smith’s “contentious refusal to adhere to the orders of the Court warrants

dismissal.” Id. at 404. The appellate court stated that they reviewed the district

court’s factual finding of willful or intentional failure to prosecute or comply with

court orders for clear error and a decision to dismiss pursuant to Rule 41(b) is

reviewed for abuse of discretion.

17

There are many similarities between the Smith case and Bergstrom’s . The

Court in Smith reviewed the record and found that there was not clear support for

the finding that Smith engaged in contentious refusal to follow court orders.

Further, they went on to say:

“When determining whether the district court abused its discretion in dismissing an action, "this court employs a balancing test that focuses foremost upon the degree of egregious conduct which prompted the order of dismissal and to a lesser extent upon the adverse impact of such conduct upon both the defendant and the administration of justice in the district court," Rodgers v. The Curators of the Univ. of Mo., 135 F.3d 1216, 1219 (8th Cir. 1998) (internal quotations and citation omitted). We have repeatedly stressed that the "sanction imposed by the district court must be proportionate to the litigant's transgression," id. (emphasis added), and that "[d]ismissal with prejudice is an extreme sanction and should be used only in cases of willful disobedience of a court order or continued or persistent failure to prosecute a complaint," Givens

v. A.H. Robins Co., 751 F.2d 261, 263 (8th Cir. 1984).

Id. at 405. The Court concluded that the dismissal with prejudice under the

circumstances was disproportional to the transgression. Id.

In the order dismissing Bergstrom’s claims with prejudice, the Court makes

no allowances for Attorney Clark’s medical condition. Further, the Court is

dismissive of Ms. Clark’s hospitalization and indifferent to the July 3, 2012 letter

informing the court of Clark’s health situation. In fact, the Court is very

unsympathetic, implying that it is all a “put on” since she was found to be working

on two cases different from Bergstrom’s. The Court went outside of the record for

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Bergstrom’s case, to chastise Attorney Clark for exerting time and priority (while

on medical leave) to a professional responsibility case filed against her and a

criminal case. Without knowing the details of these unrelated cases, Bergstrom

argues that the Court can not properly consider that Attorney Clark’s attention to

these matters was a willful disregard of his court order .

Moore v. St. Louis Music Supply Co., 539 F.2d 1191(8th Cir. 1976) gives us

insight on how to address the overextended attorney. Solo attorneys constantly

balance the potential for cases to compete for a finite amount of time. This becomes

exacerbated when an solo attorney must take periods of medical leave while

maintaining their practice. (ECF No.57, A:128)

When an attorney places the demands of one case ahead of another and there

results a violation of an order or missing an appearance, the Court should assess if the

violation is a result of conflicting court commitments, an indifference to the order or

dilatory tactics of the litigant. Id. at 1193 citing to Flaksa v. Little River Marine

Construction Co., 389 F.2d 885, 887-89 (5th Cir.), cert. denied, 392 U.S. 928, 88 S.Ct.

2287, 20 L.Ed.2d 1387 (1968). The attorney in Moore was scheduled in two separate

court rooms, in two different counties, for trial. When he was called to appear at one

Court, he did not and his case was dismissed with prejudice. On appeal, the Court

described Moore’s attorney as overextended. The Court described the situation an

attorney may find themselves in:

“While an attorney is an officer of the court and has undertaken

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a solemn obligation to respect and uphold its processes, it is

also true that he is more often than not the officer of many

courts whose processes are not coordinated and frequently

compete for the attorney's attention and presence. Some courts

appear to demand a greater priority than others; such demands

are often said to exacerbate state-federal relations. Attorneys

who hide behind the demands of one court in order to evade their obligations to another court only prompt a continuing escalation of pressure by judges intent upon making headway against a spiraling docket. It is not an easy problem to resolve. Compare

Leong v. Railroad Transfer Service, Inc., 302 F.2d 555, 557-58

(7th Cir. 1962) (Schnackenberg, J., concurring).”

Moore, 539 F.2d at 1194.

The Court in Moore did not believe the non-appearance was willful, but that

Moore’s attorney should have done a better job of communicating his conflict -

inexcusably causing available court time to go unused, and for that he “may be

properly subject to discipline …. but it does not follow…. that his client should be the

one to feel the lash.” Id. Dismissal with prejudice was determined to be too sever of a

sanction.

Like in Moore, Attorney Clark should have notified the Court and Defendants’

attorneys when she knew she would be unable to comply with the court ordered

deadline of June 15, 2012. However, this is the first time in the Bergstrom’s case that

a court ordered deadline was missed. The Court issued an Order to Show Cause for an

explanation for her noncompliance by July 3, 2012. A letter on behalf of Attorney Clark

was filed on July 3, 2012. (ECF No.76, A:149)

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The present order for dismissal with prejudice does not consider the

balancing test as described in Smith, 526 F.3d at 405. Nor does the Court adequately

consider other possible sanctions before concluding those sanctions were not

viable. Id. at 406. While Bergstrom appreciates the court wanting to keep cases

moving through the system, there is a time where the particular circumstances of a

case supports a lesser sanction than that of dismissal with prejudice. It is important to

keep in mind that prior to this, the Pretrial Scheduling Order had been amended to

extend out the dates for Defendants’ discovery to September 1, 2012 (Expert Disclosure

September 15, 2012) and the trial to April 15, 2013. (ECF No.62) The District Court

made no mention of prejudice to the Defendants. The Court only stated that Attorney

Clark was warned that there would be no extensions, that she placed two other cases

before Bergstrom’s and implied that the letter (ECF No.76, A:149) sent on behalf of

Attorney Clark was of little value in his decision to summarily dismiss Bergstrom’s case

with prejudice. (ECF No.77, A:151) While the letter sent to the Court on behalf of

Attorney Clark was not the formal memorandum dictated under the Order to Show

Cause, it was filed by July 3, 2012 as required and did provide the information explaining

Attorney Clark’s inability to comply with the June 15, 2012 deadline.

The proper sanction under these circumstances might have been to hold

Attorney Clark, and Bergstrom, in civil contempt, to assess payment of court costs or

some other sanction less egregious than dismissal with prejudice. Moore, 539 F.2d at

1193. “[A] sound discretion hardly comprehends a pointless exaction of retribution.

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Dismissals for misconduct attributable to lawyers and in no wise to their clients

invariably penalize the innocent and may let the guilty off scot-free.” Herring v. City of

Whitehall, 804 F.2d 464, 467 (8th Cir. 1986) citing to Jackson v. Washington Monthly

Co., 569 F.2d 119 (D.C. Cir. 1977).

The facts of this case, are in great part dependent upon the timeline of the

case’s progress. The discovery in the case started to slow down particularly when

Attorney Clark was required to go on required medical leave. Defendants’

attorneys on several occasions expressed their displeasure to the Court that they

had not received Bergstrom’s replies to the interrogatories and that these

responses were necessary for a proper deposition of Bergstrom. However, while

Attorney Clark may not have delivered Bergstrom’s responses to the Defendants, it

appears that Defendants were holding back their responses from Bergstrom as well.

(A:115)

In reviewing the interrogatories (A:62) the Defendant police officers served

upon Bergstrom, one might question much of their relevance. Bergstrom in his

Amended Complaint does not allege any event where he suffered physical police

brutality at the hands of the Woodbury police officers. Yet, Defendants’

interrogatories ask for information on where he received medical treatment for his

injuries. (A:65) Additionally, Defendants ask Bergstrom to list all incidents where

he was accused, charged, cited or arrested for any criminal offence. (A:66) In fact, it

is the Defendant that has the best access to Bergstrom’s criminal or alleged criminal

22

background since they are the law enforcement of Woodbury. While Attorney

Clark’s failure to provide the responses may warrant some sanction, such as

contempt of court to be cured by the court ordered deposition, certainly dismissal

without prejudice is over the top. Any of the questions in the interrogatories to

Bergstrom could easily be asked of him when deposed and a subpoena served upon

him to produce documents at the court ordered deposition to be held July 12, 2012.

CONCLUSION

The record does not show that Bergstrom, or Attorney Clark, intended

to delay the proceedings by failing to comply with the order to produce

discovery to the Defendants by June 15, 2012 or to produce a memorandum

by July 3, 2012 as required pursuant to the Order to Show Cause . For all of

the foregoing argument, Appellant Bergstrom respectfully asks that the order

and judgment dismissing his claims with prejudice be vacated and that this

matter be remanded to proceed to trial.

ATTORNEY FOR APPELLANT

November 9, 2012 _______________________________________________ Diana Longrie (259305) Attorney at Law

1321 Frost Avenue E Maplewood, MN 55109 651-214-0859

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CERTIFICATE OF SERVICE & WORD COUNT

I, Diana Longrie, Counsel for Appellant, hereby certify that I served this

brief via ECF on Appellees’ counsel on November 11, 2012 and served an

appendix the same date.

This further certifies that this Brief contains no more than 5839 words

(utilizing the automatic word count feature of Word/Office 2010), exclusive of

this certification (or other portions that are not counted as to the word count).

ATTORNEY FOR APPELLANT

November 9, 2012 _______________________________________________ Diana Longrie (259305) Attorney at Law

1321 Frost Avenue E Maplewood, MN 55109 651-214-0859