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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 ______________________ ______________________

APPELLANTS BRIEF
______________________ ______________________

APPELLANTS 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) i

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 ii

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 Joseph E. Flynn Defendant - Appellee 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. Bergstroms 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. Bergstroms 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 Bergstroms 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 Rews 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 fatherchild 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 SUMMARY OF CASE AND REQUEST FOR ORAL ARGUMENT TABLE OF CONTENTS TABLE OF AUTHORITIES JURISDICTIONAL STATEMENT STATEMENT OF LEGAL ISSUES STATEMENT OF THE CASE STATEMENT OF FACTS STANDARDS OF REVIEW SUMMARY OF ARGUMENT ARGUMENT I. Did the district court err when it ordered the dismissal of Bergstroms case with prejudice for failure to prosecute? CONCLUSION WORD COUNT CERTIFICATE AND SERVICE 22 23 i v vii viii 1 2 3 6 13 14 15

Addendum Follows

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TABLE OF AUTHORITIES

28 U.S.C. 1291 28 U.S.C. 1331 42 U.S.C. 1983 Federal Rule of Civil Procedure 41(b) 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) Givens v. A.H. Robins Co., 751 F.2d 261, 263 (8th Cir. 1984) Good Stewardship Christian Ctr. v. Empire Bank, 341 F.3d 794, 79798 (8th Cir. 2003) Herring v. City of Whitehall, 804 F.2d 464, 467 (8th Cir. 1986) Hunt v. City of Minneapolis, 203 F.3d 524 (8th Cir. 2000) Hutchins v. A.G. Edwards & Sons, Inc., 116 F.3d 1256, 1260 (8th Cir. 1997) Jackson v. Washington Monthly Co., 569 F.2d 119 (D.C. Cir. 1977) Leong v. Railroad Transfer Service, Inc., 302 F.2d 555, 55758 (7th Cir. 1962) (Schnackenberg, J., concurring Lorin Corp. v. Goto & Co., 700 F.2d 1202, 120748 (8th Cir. 1983) Moore v. St. Louis Music Supply Co., 539 F.2d 1191(8th Cir. 1976) Navarro v. Chief of Police, 523 F.2d 214, 217 (8th Cir. 1975) Rodgers v. Univ. of Missouri, 135 F.3d 1216, 1219 (8th Cir.1998)
Schoffstall v. Henderson, 223 F.3d 818, 823 (8th Cir. 2000)

1 1 1 14, 15, 16 18

17 16

21 2, 15 13, 14 21 19

15 2, 13, 18, 19, 20 15 13, 15, 17 13 2, 14, 16, 17, 20

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

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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 Courts 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.

STATEMENT OF LEGAL ISSUES


I. Did the district court err when it ordered the dismissal of Bergstroms case with prejudice for failure to prosecute?

District Court:

Upon Defendants motion to dismiss [ECF No. 64], the District Court DISMISSED WITH PREJUDICE the Plaintiffs 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.

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). Bergstroms

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, Bergstroms 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). Bergstroms 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 Clarks
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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 Bergstroms 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 Clarks memorandum was due. Clarks attorney explained the medical situation and that the law firm of Jill Clark, LLC was developing a case management plan for Attorney Clarks open cases. (A:150). On July 6, 2012, an order dismissing Bergstroms case with prejudice, for failure to prosecute, was issued. (ECF No.77 & A:151). The occurrence and impact of Attorney Clarks 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.

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. (ECF No.1) 3. 09/15/2010. Answer by Defendants Vicki Braman, Michelle Frascone filed. (ECF No.2) 4. 5. 09/23/2010. Motion filed to dismiss Defendant Rew. (ECF No.7) 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 Rews attorney regarding parties agreement to adjust motion response deadlines due to an emergency situation (Clark medical issues). (ECF No.19 & A:19) 7. 8. 01/17/2011. Bergstrom Motion to Amend Complaint filed. (ECF No.23) 01/31/2011. Hearing held on Motion to dismiss Defendant Rew. (ECF No.33) 9. 01/31/2011. Hearing held on Bergstroms motion to amend complaint. (ECF No.33) 10. 01/31/2011. Court orders amended complaint (2nd) be filed and served
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Defendants removed to MN Federal District Court.

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. 14. 02/28/2011. Answer by Defendant Rew. (ECF No.37) 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. 19. 05/27/11. Both attorneys agree to select dates in August 2011. (A:43) 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

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. 25. 08/30/11. Depositions of three police officers completed. (A:37) 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 Clarks 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)

30.

10/28/11. Defendants attorney letter regarding rescheduling dates for Bergstroms deposition and the parties exchanging discovery. (A:101)

31.

11/04/11. Attorney Clark informs Defendants attorney that Bergstrom mother is dying. Bergstroms 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 Clarks 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)

38. 39.

01/31/12. Deposition for Bergstrom set for 02/24/2012. (A:112, 113,) 02/08/12. Letter from Defendants attorney asking Bergstroms 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 Defendants attorney regarding Attorney Clark on medical leave pursuant to doctors 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. 46.

05/01/12. Motion to Dismiss denied without prejudice. (ECF No.59) 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. 48. 05/31/2012. Status conference held. (ECF No.61 & A:138) 06/01/12. Amended Pretrial Scheduling Order issued. Bergstroms 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. 50. 06/21/12. Defendants file motion to dismiss. (ECF No.64) 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 Clarks attorney writes letter to the court within the timeframe set for the Order to Show cause and informs the Court of Attorney Clarks hospitalization and the law firm of Jill Clark LLC being in the process of developing a management plan for all of Attorney Clarks open cases. Specifically, Bergstroms 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 Bergstroms case with prejudice. 55. 56. 07/12/2012. Date set for Bergstrom Deposition. (A:139) 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 Courts 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 litigants 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 Bergstroms 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 Bergstroms case with prejudice on July 6, 2012.

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ARGUMENT I. Did the district court err when it ordered the dismissal of Bergstroms case with prejudice for failure to prosecute?

Attorney Clarks 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 Bergstroms 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 Clarks 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 Smiths contentious refusal to adhere to the orders of the Court warrants dismissal. Id. at 404. The appellate court stated that they reviewed the district

courts 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 Bergstroms . 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 Bergstroms claims with prejudice, the Court makes no allowances for Attorney Clarks medical condition. Further, the Court is dismissive of Ms. Clarks hospitalization and indifferent to the July 3, 2012 letter informing the court of Clarks 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 Bergstroms. The Court went outside of the record for

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Bergstroms 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 Clarks 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 Moores 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 Moores 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 Bergstroms 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 Bergstroms 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 Bergstroms 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 Clarks 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 cases 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 Bergstroms replies to the interrogatories and that these responses were necessary for a proper deposition of Bergstrom. However, while Attorney Clark may not have delivered Bergstroms 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 Bergstroms criminal or alleged criminal
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background since they are the law enforcement of Woodbury. While Attorney Clarks 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

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