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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 ______________________
______________________
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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)
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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
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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)
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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)
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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.
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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.
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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
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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
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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.
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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.
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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
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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
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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.
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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
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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)
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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
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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
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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)
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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).
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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.
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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
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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.
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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
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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