In The United States Court Of Appeals For The Eighth

IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT _________________________________________

Appeal No. 09-1528 FRANK J. STEINHAUSER, III, ET AL., Plaintiffs-Appellants, v. CITY OF ST. PAUL, ETC., ET AL., Defendants-Appellees _________________________________________

Appeal No. 09-1579 SANDRA HARRILAL, ET AL., Plaintiffs-Appellants, v. STEVE MAGNER, ET AL., Defendants-Appellees _________________________________________ JOINT REPLY BRIEF OF PLAINTIFFS-APPELLANTS _________________________________________ Appeals from United States District Court, District of Minnesota Civil No. 04-CV-2632 (JNE/SRN) Civil No. 05-CV-0461 (JNE/SRN) _________________________________________________ John R. Shoemaker, Esq. SHOEMAKER & SHOEMAKER, P.L.L.C. 7900 International Drive, Suite 200 Bloomington, Minnesota 55425 (952) 224-4610 Attorneys for Appellants

TABLE OF CONTENTS TABLE OF CONTENTS..........................................................................................ii TABLE OF AUTHORITIES....................................................................................iv ARGUMENT.............................................................................................................1 I.

DEFENDANTS’ SCHEMES APPLICABLE TO ALL CLAIMS………….1 NO ILLEGAL OR INVALID CITY ORDINANCE CAN SUPPORT THEIR SCHEMES EVEN WHEN STYLED AS VALID USE OF MUNICIPAL POLICE POWERS…………………………………………..2 DEFENDANTS’ RETALIATIONS………………………………………...3 ERRORS OF LAW IN GRANTING SUMMARY JUDGMENT…………..5 THE SCHEMES OF DEFENDANTS COMPLETELY UNDERCUT THEIR DEFENSES…………………………………………………………8 STATE BUILDING CODE ITSELF AS HELD BY MINNESOTA SUPREME COURT, PREEMPTS DEFENSES AND ARGUABLY PROVES THE RELEVANCE OF THE DESTROYED ELECTRONIC EVIDENCE…………………………………………………………………9 SUMMARY JUDGMENT – FURTHER ANALYSIS…………………….10 GATE KEEPING IS NOT APPROPRIATE AFTER LAWS HAVE BEEN VIOLATED………………………………………………...11 THESE ARE NOT ISSUES OF FIRST IMPRESSION IN EITHER THE STATE OR FEDERAL COURTS…………………………11 TRAGIC EXAMPLE OF POLICE POWERS INTENTIONALLY GONE WRONG WITH UNDENIABLE APPROVAL OF CITY ATTORNEY’S OFFICE AND OTHER PUBLIC OFFICIALS……13 ii

II.

SPOLIATION - DISTRICT COURT ABUSED DISCRETION BY MISAPPLYING SPOLIATION LAW, FINDING NO PREJUDICE AND AWARDING NO SANCTIONS…………………………………….16 STANDARD OF REVIEW………………………………………………..16 CONCLUSION.............................................................................................37 CERTIFICATION OF COMPLIANCE WITH FRAP 32 AND CERTIFICATION OF WORD PROCESSING PROGRAM ……………..39

iii

TABLE OF AUTHORITIES Federal cases: Boyle v. United States, 129 S.Ct. 2237 (2009)…………………………………..4, 7 CBOCS West, Inc. v. Humphries, 128 S.Ct. 1951 (2008)………………………..10 Olmstead v. U.S., 277 U.S. 438 (1929)…………………………………………...37 Capellupo v. FMC Corp., 126 F.R.D. 545 (D.Minn. 1989)………………19, 28, 31 Dahlgren v. First National Bank of Holdrege, 533 F.3d 681 (8th Cir. 2008)…….12 Dillion v. Nissan Motor Co., 986 F.2d 263 (8th Cir. 1993)………………16, 19. 34 E*Trade Securities, LLC v. Deutsche Bank AG, 230 F.R.D. 582 (D. Minn. 2005) ……………………………………………..18, 33 Handeen v. LeMaire, 112 F.3d 1339 (8th Cir. 1997)…………………………1, 2, 4 Greyhound Lines, Inc. v. Wade, 485 F.3d 1032 (8th Cir. 2006)………………….17 Kronisch v. U.S., 150 F.3d 112 (2d Cir. 1998)…………………………………...34 Mastercard International, Inc. v. Moulton, 2004 WL 1393992 (S. D. N. Y. June 12, 2004)……………………………………………………….19 Morris v. Union Pac. R.R., 373 F.3d 896 (8th Cir.2004)…………………………18 Mosaid Technologies v. Samsung Electronics, 348 F.Supp.332 (D.N.J. 2004)……………………………………………………………………...36 Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99 (2d Cir. 2002)……………………………………………………33, 34 iv

Roberts v. Canadian Pacific Ry. Ltd, 2007 WL 118901 (D. Minn. Jan. 11, 2007)…………………………………………………………..17 Stevenson v. Union Pacific Railroad Company, 354 F.3d 739 (8th Cir. 2004)………………………………………16-19, 31, 33, 34 U. S. v. Cianchi, 378 F.3d 71 (1st Cir. 2004)………………………………………1 United States v. City of Black Jack, Missouri, 508 F.2d. 1179 (8th Cir. 1974)…………………………………………………4, 13 U. S. v. Gilbert, 813 F.2d 1523 (9th Cir. 1987)…………………………………….4 U. S. v. Hively, 437 F.3d 752 (8th Cir. 2006)…………………………………….12 U.S. v. Phillip Morris USA, Inc., 566 F.3d 1095 (D.C.Cir. 2009)…………………4 Webb v. District of Columbia, 146 F.3d 964 (D.C.Cir.1998)……………………19 West v. Goodyear Tire & Rubber Co., 167 F.3d 776 (2d Cir.1999)……………...17 Federal Statutes: 18 U.S.C. § 1961………………………………………………………………...3, 7 18 U.S.C. § 1962(c) and (d)……………………………………………………..3, 7 42 U.S.C. § 1981…………………………………………………………………..3 42 U.S.C. § 1982…………………………………………………………………..3 v

42 U.S.C. § 1983…………………………………………………………………...3 42 U.S.C. § 3615 …………………………………………………………………..4 42 U.S.C. § 3617………………………………………………………………….. 3 42 U.S.C. § 3631…………………………………………………………………...3 Federal Regulations and Rules: 24 C.F.R. § 91.210(e)……………………………………………………………..29 24 C.F.R. § 91.215(h)…………………………………………………………….29 24 C.F.R. § 91.220(j)……………………………………………………………..29 24 C.F.R. § 91.225………………………………………………………………..29 Fed.R.Civ.P. 26……………………………………………………………………27 Fed.R.Evid. 401…………………………………………………………………...26 State cases: City of Minnetonka v. Mark Z. Jones, 236 N.W.2d 163 (Minn.1975)……………..9 City of Morris v. SAX Investments, Inc., 749 N.W.2d 1 (Minn.2008)…………….9 Witzman v. Lehrman, Lehrman and Flom, 601 N.W.2d 179 (Minn. 1999)……...12 Minnesota Agricultural Aircraft Association v. Township of Mantrap, 498 N.W. 2d 40 (Minn.Ct.App. 1993)……………………………………………..9

vi

Secondary Authorities: 52 A. L. R. Fed. 818………………………………………………………………..7 CJS MUNCCORP § 62 CJS Municipal corporations § 141, June 2009………….14 6 NO. 21 Lawyers J., 6 October 15, 2004………………………………………...32

vii

I.

Defendants’ Schemes Applicable to All Claims A Civil Rights Case With Multiple Other State and Federal Law Violations – Defendants’ Attempt to Rationalize By Their Claimed Police Powers To Protecting Public Health-Safety Defendants’ claim that Plaintiffs have not provided any evidence to

substantiate their causes of action and avoid summary judgment. Defs.’Br.18. Defendants have consistently proclaimed across the City of St. Paul that Plaintiffs have no evidence, all the while Defendants and their counsel have attempted to distract the public and the Court from Defendants’ concocted and implemented scheme to deviate from the State Building Code, despite the State Code’s history since 1974 as having field preemption over any municipal codes that varied from the State Code. Defendants’ and their associates have sought to take control over the City’s rental housing affairs and deceive the public. It is very troubling the District Court granted summary judgment to let the Defendants off the hook given the facts in dispute over such a scheme with the inferences that properly could be drawn in favor of Plaintiffs. See, e.g., U. S. v. Cianchi, 378 F.3d 71 (1stCir.2004)(scheme of Mayor to protect power and assets of members of scheme, including municipal departments and divisions defendants controlled as part of conspiracy); Handeen v. 1

LeMaire, 112 F.3d 1339 (8thCir.1997)(lawyers could be liable under RICO for operating bankruptcy estate or court as a RICO enterprise). It is the conduct, not the title of the actor that controls and here the conduct includes the intentional violations of field preemptive State law, under exactly the guise of the “valid” exercise of the City’s [field preempted] police powers. Defendants’ Problem on Summary Judgment – No Illegal or Invalid City Ordinance Can Support Their Schemes Even When Styled as Valid Use of Municipal Police Powers Arguably, as supported by actual admissible evidence, and as a rule of law, the creation or exercise of municipal police powers are, as a matter of law not nearly so expansive as the City and Defendants contend. Defs.’Br.p.4-7. Police powers for municipalities are a creature of State law, and such powers can only be created or exercised within the Constitutional limits imposed by the Legislature. If, as alleged and proffered here, a City exceeds its authorized powers by municipal Code or practice, such excess is not deserving of any deference and is void as a matter or law. Such creation or exercise of ultra vires police powers and such rationalizations are thus as a matter of law improper, and in light of the inferences to be drawn in favor of the non-moving parties, no summary judgment arguably should have been granted by the District Court which 2

completely failed to address such excess ultra vires Code enforcement policies and police powers, let alone the ultra vires significance of such powers as implemented by policies and procedures, as submitted by admissible evidence under oath by Plaintiffs in opposition to summary judgment, who as non-moving parties are entitled to all proper inferences in the favor. Defendants’ Retaliations Further, as part of their scheme, the Defendants decided to retaliate against victims and witnesses, which is actionable under both Federal Fair Housing 42 U.S.C. §3617 and for civil and criminal prosecution under §3631 and 18 U.S.C. §1961–1962(c) and (d), as well as civil rights laws including Sections 1981, 1982 and 1983.[APP116-291-Gallagher/Collins; APP292-341-Allison;APP342-415-Kubitscheks;APP435-37-Osterman; APP438-442-Jayasuriya;APP443-56;APP457-59-Jacobs;APP460-56Steinhauser;APP657-66-Meysembourg;APP767-827-Brisson;APP828-886Harrilal;APP887-1036-Johnson;APP1286-1312-Doolittle;APP1560-67Anderson;APP1568-73-Miller;APP1576-79-Krahn;APP1037;1039; 1075;1117;1138-HedquistReports;APP1046-48-Brisson-MeysbourgSteinhauser;APP1082-91-Harrilal-Vues-Johnson; APP1138,1146-GallagherCollins-Allison-Kubitschek]. 3

Because it is not necessary that any or every Defendant actually receive monetary compensation to prove up such a scheme, or that the scheme was motivated by an economic purpose, unfortunately for Defendants, it is black letter law that passage of an ultra vires City Code or set of codes is itself unlawful and a violation of the Constitution(s), both federal and state, and implementing such a scheme by false code enforcement activities, is itself also unlawful. See 42 U.S.C.§3615; United States v. City of Black Jack, Missouri, 508 F.2d. 1179 (8th Cir. 1974)(fair housing scheme); Boyle v. United States, 129 S.Ct. 2237 (2009)(RICO scheme and “association in fact”); Handeen v. LeMaire, 112 F.3d 1339 (8th Cir.1997) (RICO scheme for lawyers/family to operate bankruptcy estate as RICO enterprise, and deceive courts); United States v. Phillip Morris USA, Inc., 566 F. 3d 1095 (D.C.Cir.2009)(scheme to employ mail/wire fraud/false certifications to deceive consumers and regulatory authorities); U. S. v. Gilbert, 813 F.2d 1523 (9thCir.1987) (elements of criminal prosecution for violating Fair Housing Act). Under the Federal Fair Housing Act, Section 3615, “…any law of a State, a political subdivision, or other such jurisdiction that purports to require or permit any action that would be a discriminatory housing practice under this subdivision shall to that extent be invalid.” 4

Defendants’ scheme was exposed before the District Court as involving City Legislative Codes and enforcement policies arguably void under the State Building Code and civil rights laws, with illegal participation by certain judges and officials of the Ramsey County District Court, members of the City Council and other City officials. Errors of Law In Granting Summary Judgment On the record, given the overwhelming admissible evidence of such multiple schemes and retaliations, the District Court erred in granting summary judgment as to the facts on the motive, intent, knowledge and actual existence and operations of Defendants’ schemes, and the Defendants’ respective roles as an association in fact. Such facts are in dispute and reasonable inferences in favor of the non-moving Plaintiffs could allow a properly instructed jury to find both liability and damages in favor of Plaintiffs under one or more of these multiple legal theories. For example, RICO schemes to operate an enterprise through a pattern of racketeering activity were also alleged and evidence in support of such claims was also submitted in opposition to summary judgment. [APP435-37Osterman;438-442-Jayasuriya;443-56;457-59-Jacobs;460-56-Steinhauser; 657-66-Meysembourg;767-827-Brisson;828-886-Harrilal;887-1036Johnson;1286-1312-Doolittle;1560-67-Anderson;1568-73-Miller;1576-795

Krahn;1037;1039;1075;1117;1138-Hedquist-Reports;1046-48-BrissonMeysbourg-Steinhauser;1082-91-Harrilal-Vues-Johnson;1138,1146Gallagher-Collins-Allison-Kubitschek]. In short, certain Defendants decided upon a scheme by which they would take control over the City’s deviant versions of the State Building Code and enforce those deviant standards so as to control hundreds if not thousands of otherwise affordable, grandfathered-in rental housing units in the City, whether for personal gain, the financial gain of others associated with the scheme, or the addictive “high” control of all those City affairs such a scheme provided. Plaintiffs’ admissible evidence and the inferences properly drawn there from, reveal that Defendants re-wrote the City’s laws and then gerrymandered the County’s court system, so that almost nobody could ever get a full or fair hearing on anything having to do with the subject matter fields preempted by those regulated in the controlling State Building Code. Uncontested evidence also reveals the schemers even set up their own version of Federal Fair Housing and State Building Code Courts, in which one or more judges or hearing officers, coordinating in secret with City officials, pre-determined who would lose, and by what margins of error, by applying standards that deviated from those required under the field 6

preemption of the State Building Code and/or Federal Fair Housing. [See, Plaintiffs’ Joint Corrected Brief herein,pp.57-58; Plaintiffs’ sworn evidence submitted naming public officials, judicial officials and others implicated in such schemes, also unaddressed on summary judgment even as to the proper inferences from such sworn evidence]. The recent Boyle v. United States, supra, decision by the United States Supreme Court, regarding the liberal definition of an “association in fact,” further buttresses Plaintiffs’ claims the District Court erred. Case law is replete with rulings that cities and city departments and courts and state agencies and police departments can be “enterprises” within Title 18 U.S.C. Section

1962

(c)

and

(d).

52A.L.R.Fed.818

(“Enterprise,”

18

U.S.C.A.§1961(4),§5 Public entities). These types of schemes are historically precisely the types of violations that are properly pled and enforced through civil rights litigation including the Federal Fair Housing Act, which like other civil rights law and RICO, is to be broadly construed to effectuate Congressional purposes.

7

The Schemes of Defendants Completely Undercut Their Defenses The affirmative and/or other defenses of the Defendants herein, as held applicable on summary judgment by the District Court,1 are to the contrary completely undercut as a matter of law by such defenses being premised on ultra vires alterations and enforcements of an invalid set of City Codes, which are demonstrably at odds with and thus void in comparison with the subject matter field preemptive Minnesota Building Code, whose existence, subject matter terms and field preemptive force were completely ignored by the City Attorney and the District Court. Ignoring key controlling State law is arguably a novel way indeed to obtain summary judgment, as is the intentional destruction of material electronic [e-mail and other] evidence after litigation had commenced, in a 1

The District Court erred as a matter of law in not performing the immunity analysis, but instead seemingly prepared Plaintiffs to be sandbagged so as to prevent the exposure of public corruption “at any costs,” even to the reputation of the District Court. Defendants, including the City for all purposes other than RICO, were on actual notice that: violating field preemption of State Building Code; violating Fair Housing including City’s affirmative duty to further fair housing, conduct “AIs” concerning the effect of City’s building codes on “protected classes”; violating duties to provide true certifications to HUD; violating civil rights law; preserving evidence; violating RICO and conspiracy law; and committing such violations while employed by or associated with the City; would constitute knowing and intentional violations under qualified immunity standards. 8

manner outside the usual and customary data storage practices of Defendants. Plaintiffs respectfully submit either ignoring State law, undenied Federal Fair Housing violations, or destroying electronic evidence, is not a proper way to obtain summary judgment under controlling Supreme Court and Eighth Circuit summary judgment standards. Minnesota Supreme Court – State Building Code Preempts Defenses and Arguably Proves the Relevance of the Destroyed Electronic Evidence No less an authority than the Minnesota State Supreme Court has declared the field preemptive force of the State Building Code in an unbroken line of decisions dating between 1975 and 2008. City of Morris v. SAX Investments, Inc., 749 N.W.2d 1 (Minn.2008); City of Minnetonka v. Mark Z. Jones, 236 N.W.2d 163 (Minn.1975)(city construction ordinance, purported to adopt more stringent fire prevention measures affecting building design or construction – preempted by state code); Minnesota Agricultural Aircraft Association v. Township of Mantrap, 498 N.W.2d 40 (Minn.Ct.App.1993)(“Occupying the field” preemption - it does not matter whether local regulation coincides with, is complementary to, or opposes State law which fully occupies the particular field of legislation” municipalities cannot invoke power so as to accomplish what is otherwise preempted by state statute). This Court arguably must respect their decisions 9

as to this controlling issue of State law, which was completely ignored below by the District Court. Because the District Court improperly weighed and found facts, determined credibility, omitted factual analysis of expert opinions required as a matter of law, and completely failed to render all proper inferences in favor of the non-moving parties as to the field preemption of the State Building Code – not only was summary judgment not proper, no immunity existed for any individual Defendant or the City, as ultra vires passage or enforcement of codes that violate the subject matter field preemption of the State Building Code cannot protect the Defendants from further discovery, liability and trial on the merits as to damages. Summary Judgment – Further Analysis Under the standard announced in CBOCS West, Inc. v. Humphries, 128 S.Ct. 1951 (2008), the Plaintiffs exceeded the requirements to avoid summary judgment by proffering substantial quantities of sworn, admissible evidence which was either un-contested by Defendants, or if contested, precludes summary judgment either on the contest, or by inference upon the undisputed or contested facts.

10

The District Court managed to reach the summary judgment by completely ignoring the multiple, uncontested expert opinions of Plaintiffs’ expert Don Hedquist and arguably erred as a matter of law. Gate Keeping Is Not Appropriate After Laws Violated Summary judgment is a gate keeping function with multiple supporters and multiple critics. It is not proper where a District Court fails to consider the evidence in a light most favorable to the non-moving party, makes credibility findings, weighs the evidence, and rules on issues of intent, knowledge, motive and opportunity, which are quintessential jury issues. While summary judgment can be used as a valid exercise in judicial efficiency, it is not a substitute for allowing a litigant to proceed with discovery and trial on state and federal law facts in dispute, which is why certain presumptions are required, including all inferences to be drawn in favor of the non-moving party. These Are Not Issues of First Impression in Either the State or Federal Courts This Court has previously been confronted with many situations where a unit of government or its agents or employees have allegedly committed civil rights and other violations. 11

Hopefully, this Court is not jaded into complacency where as here the evidence shows a City trying to escape liability for civil rights and other violations, or lulled to affirm by the City’s legal slight of hand in spoliation of evidence and ignoring controlling Stated law issues . Arguably, such violations can result in criminal prosecutions, if not civil process. See Dahlgren v. First National Bank of Holdrege, 533 F. 3d 681 (8thCir.2008)(outsider RICO liability-State law violation as torts and predicate acts); Witzman v. Lehrman, et al., 601 N.W.2d 179 (Minn.1999). (all who actively participate in any manner in commission of a tort, or who procure, command, direct, advise, encourage, aid, or abet its commission, or who ratify it, are jointly and severally liable for injury); U. S. v. Hively, 437 F.3d 752 (8thCir.2006)(RICO criminal conviction analyzed-mail fraudmailings incident to scheme to defraud, sufficient threat of repetition). The challenge for a District Court is to separate out legitimate government functions from those that are illegitimate, and actually illegal or unconstitutional. While no court should play second guesses as to a municipality’s proper range of discretionary function decision-making, it is almost never the case in complex civil rights cases that summary judgment is granted where motive, knowledge and intent are at issue. Yet it was here.

12

While the presumption may be that government actions are legal, clearly such presumption can be rebutted. Such a gate keeping function by the District Court is not aided when Defendants here hid and destroyed thousands of items of material e-data/email evidence, the District court excluded expert affidavits sub silentio, allowed Defendants to justify their own efforts to protect the public under police powers they clearly do not have under field preemptive controlling State law, and the Court in fact never discussed that State Law. “Whatever one thinks of state action as a viable limiting principle on the constitutional command of equality, it should at least be clear that the most outrageous deprivations of equal rights are those perpetrated by the state itself.” City of Black Jack, 508 F.2d. 1179. Tragic Example of Police Powers Intentionally Gone Wrong With Undeniable Approval of City Attorney’s Office and Other Public Officials In its defense, the City submits that it has the power to enact and enforce certain police powers related to public safety and public health, as subject matters under its legislative code, and besides the Plaintiffs’ buildings undeniably violated the City’s current code enforcement provisions. Defs.Br.4-7.

13

Plaintiffs’ have countered, as the St. Paul City code does not and cannot control: (1) there was a prior PP2000 approach that protected residents and afforded due process to landlords, in compliance with field preemption of the State Building Code’s grandfathering provisions and the City’s duties under Federal Fair Housing; (2) the City only has police powers within limits allowed by the State; (3) any police powers the City has granted unto itself that exceed those allowed by the State, are void, and unconstitutional; and (4) precisely because they violate the field preemptive force of the State Building Code, such ultra vires police powers are an attempt by Defendants to knowingly and intentionally exercise void powers. Thus, when analyzing the disputed facts and all inferences to be drawn in favor of Plaintiffs, no summary judgment was proper as Defendants’ actions not only violated the field preemptive State Building Code, they also violated Federal Fair Housing, civil rights and RICO, as ‘proven’ for summary judgment purposes by the expert reports of Don Hedquist and the

14

inferences properly drawn from the City’s factually un-denied violations of the State Building Code.2 Because Defendants’ cannot and have not defended how or why they can violate the State Building Code’s field preemption, and further at least de minimus any and all facts are in dispute as to such claims, no summary judgment as a matter of law could have been granted to any Defendant.3 Arguably, under summary judgment and spoliation analysis, this case on remand needs some additional discovery as to intentionally destroyed emails and TISH inspection records, who was in charge of the usual and customary City data retention policy, multiple Defendants’ knowledge and intent, and a trial before a jury, lest a District Court be found to approve and

2

See, CJS MUNCCORP §62, CJS Municipal corporations §141 Updated June 2009 - Analysis of conflict and field preemption, dating back years – going to actual knowledge of Defendants. 3

This includes the uncontested [completely unaddressed on summary judgment] sworn Plaintiffs’ evidence, including Dawkins depositions admissions and notes, implicating the local state court, City Attorney’s Office, City Council and Dawkins in meeting to pre-determine any civil rights, code enforcement, or Fair Housing claims before court action, in order to fix results for Defendants, which all would have been ipso facto violation of the State Building Code and other laws. Perhaps this evidence could explain any pressures on the District Court and the City Attorney to keep this case from going to trial, as somehow requiring the District Court to violate summary judgment standards. 15

uphold precisely the type of civil rights violations properly condemned by this Court in Black Jack. II.

DEFENDANTS’ SPOLIATION OF EVIDENCE District Court Abused Its Discretion By Misapplying Spoliation Law, Finding No Prejudice and Awarding No Sanctions In their Reply Brief, Defendants contend Plaintiffs failed to show they

were “prejudiced”. Defs.Br.58. Plaintiffs submit the District Court abused its discretion by misapplying the law on spoliation, failing to find “prejudice” from said destruction of evidence, refusing to hold an evidentiary hearing, failing to order sanctions, and rewarding Defendants’ spoliation with summary judgment.

It was virtually uncontested that

Defendants had: (1) failed to place a “litigation hold” on evidence; (2) destroyed virtually all e-data/e-mails of Defendants and other officials/employees for 2000 through 2005; and (3) for three years during litigation, annually destroyed 5,000 to 6,000 Truth-in-Sale of Housing inspection reports (15,000-18,000 inspection reports) of homes inspected by licensed inspectors during 2001-2003. Standard of Review This Court reviews sanction decisions under the abuse of discretion standard. Stevenson v Union Pacific Railroad Company, 354 F.3d 739, 745

16

(8thCir.2004) (citing Dillion v. Nissan Motor Co., 986 F.2d 263, 267 (8thCir.1993). The Court will be found to have abused its discretion, “If the court bases its ruling on ‘an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Greyhound Lines, Inc. v. Wade, 485 F.3d 1032, 1035 (8thCir.2006). “Spoliation” has been defined consistently as “the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.” West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2dCir.1999). Any possible destruction of evidence is to be treated as a serious transgression of discovery procedures in that it goes to the core of the Court’s truth-finding mission. Dillon, at 269. “‘Purposeful impairment of the opposing party’s ability to discover information” justifies invocation of the Court’s inherent power and duty to insure the integrity of the judicial proceeding.” Roberts v. Canadian Pacific Ry. Ltd, 2007 WL 118901 (D.Minn. 1-11-07) (document destruction – an attempt to suborn fact-finding process is an affront to court that has an obligation to maintain integrity of proceedings).

17

A spoliation sanction requires “a finding of intentional destruction indicating a desire to suppress the truth.” Greyhound, 485 F.3d at 1035 (citing Stevenson, 354 F.3d at 746).

Unfortunately, as this Court well

knows, “Intent is rarely proved by direct evidence.” Morris v. Union Pac. R.R., 373 F.3d 896, 902 (8thCir.2004). If the destruction of relevant evidence occurs after litigation is imminent or has begun, no bad faith need be shown for sanctions. Stevenson, at 746. When litigation has already commenced, a party “cannot blindly destroy documents and expect to be shielded by a seemingly innocuous document retention policy. Id. at 750. Moreover, once a party receives a specific document request, a party cannot rely on its routine document retention policy as a shield. Id. When spoliation is established, the jury may draw an inference that the evidence destroyed was unfavorable to the party responsible for its spoliation. E*Trade Securities, LLC v. Deutsche Bank AG, 230 F.R.D. 582, 587, 589 (D.Minn.2005). In Stevenson, this Court determined that the continued destruction of track maintenance records after litigation was commenced and after the

18

receipt of a request for production of documents, was properly sanctioned with an adverse inference instruction, without “bad faith”. Id. at 750. Contrary to the twisted application of the law by the District Court in a desperate attempt to keep Defendants afloat in the river of corruption they have enjoyed, this Court in Stevenson applied a liberal relevancy standard for showing “prejudice” from spoliation after litigation has commenced and after a request for documents submitted. Significantly, this Court stated that “track maintenance records [were] of limited use” yet found prejudice justifying an adverse inference instruction. Id. at 749. See Dillion, 986 F.2d at 268 (“evidence which may have provided helpful to the defense [had] been destroyed”); Capellupo v. FMC Corp., 126 F.R.D. 545, 551 (D.Minn.1989) (Defendants having destroyed a significant quantity of documents, the exact extent now indeterminable, should not be allowed to claim information contained is irrelevant or unimportant). In Stevenson, this Court determined that Union Pacific’s claimed innocence under its routine document retention policy (sound familiar?) and a lack of knowledge that the records were relevant, were unavailing as defenses to an adverse inference instruction sanction: after the specific document request for track maintenance records, Union Pacific could not 19

rely on its routine document retention policy as a shield. Id. at 749-50 (quoting Webb v. District of Columbia, 146 F.3d 964, 974 n.20 (D.C.Cir.1998) (adverse inference presumption is a common sanction for spoliation). See Mastercard International, Inc. v. Moulton, 2004 WL 1393992 (S.D.N.Y. June 12, 2004) (court imposed sanctions for failing to preserve e-mails automatically destroyed by computer server in ordinary course of business; failure to cease customary destruction of e-mail practices was breach of duty to preserve and sanctioned by adverse inference). Steinhauser, et al. filed 5/4/2004 – Document Requests 11/2004 Following commencement of the Steinhauser case in May 2004, Defendants’ failed to place a litigation hold on e-data/e-mails, TISH and other potentially relevant evidence. ADD000056-57, 74. Defendants destroyed e-data/e-mail and TISH Housing Inspection Records after commencement of this action and also after receiving Steinhauser document requests in November 2004 for such documents. ADD000074; Ecf.114,pp.6-7[04-cv-2632]. Defendants

destroyed

15,000-18,000

Truth-In-Sale-of-Housing

(“TISH”) housing inspection reports for 2001-2003 after litigation was commenced. Ecf.143, p.2[04-cv-2632].

20

E-data/E-mail Communications Steinhauser’s document requests sought production of “electronically stored information,” “e-mails,” including, “All documents related in any way to all communications” between the City’s code enforcement, building permit, Planning and Economic Development, Housing and Redevelopment Authority, and Human Rights Department, and Citizen Services offices, City Council members, Mayor’s office, Police Department, and the Public Housing Agency, Neighborhood Councils and individual defendants. Ecf.114,pp.5-9-ShoemakerAff. Steinhauser requested Defendants produce all communications including e-data/e-mails. Ecf.114,pp.5-9(Request No.13). The November 2004 Steinhauser document requests also sought “All documents related in any way to the Department of Neighborhood Housing and Property Improvement (“NHPI”) and its predecessor departments since 1994, including but not limited to, …reports, …, files, …, computer maintained information, …, email communications,…”. Id.( Request No.9). On January 14, 2005, Defendants responded to the Document Request No. 13 by objecting to production of documents related to communications defined by Steinhauser as including e-mails – Defendants must have needed more time to ensure complete destruction of there internal communications. 21

Defendants were the first party here to acknowledge the relevancy of TISH reports to Plaintiffs’ claims. In January 2005, Defendants responded to Request No. 9 by describing four categories of files related to homes: (1) code enforcement files generally retained three years; (2) vacant building files since 1998; (3) Truth-in-Sale of Housing files [TISH inspection reports]; and (4) Rental Registration files generally retained three years. Id. Defendants later produced miniscule e-data/e-mails for the relevant periods prior to December 2005.

Ecf.152,EngelAff.,Ex.12-39[05-cv-

1348];Ecf.183,ShoemakerAff.,paras.68-80(evidence of e-mail destruction). TISH Housing Inspection Records In January 2005, as Defendants were disclosing to Plaintiffs the existence of TISH inspection report/files within the realm of “NHPI files” requested by Plaintiffs, Defendants were actually shredding the City’s copies of 2001 TISH inspection reports/files; in January 2006 and January 2007, Defendants

destroyed

2002

and

2003

TISH

files

respectively.

Ecf.114,ShoemakerAff.paras.26,31,41[04-cv-2632]. While Defendants in 2005 through 2007, were destroying TISH inspection reports/files of properties neighboring Plaintiffs’ properties, Defendants’ requested Plaintiffs’ produce copies of TISH inspection records on Plaintiffs’ properties, obtained those TISH records, provided those 22

records to Defendants’ liability expert, obtained an expert opinion that those TISH records were relevant to the parties claims and defenses, and used those TISH records in depositions of Plaintiffs. Ecf.114,ShoemakerAff. pp.13-18[04-cv-2632]. Even the Court recognized the relevancy of these TISH reports. ADD000076,fn.3. But, the Court cleverly cited Defendants’ knowing false statement that, “Defendants also reminded Plaintiffs that they had not even asked for the [TISH] reports until 2007, approximately two years after they first learned of the reports, and that the City had produced all of the reports in its possession to Plaintiffs at that time [2007].” ADD000064. Both the Court and Defendants knew of Defendants’ duty to maintain TISH records for Plaintiffs’ eventual inspection and use and knew that destruction of same would constitute spoliation. Instead, Defendants secretly shredded the TISH records

without

informing

Plaintiffs,

Ecf,114,ShoemakerAff.,paras.16,18.

until

it

was

too

late.

Prior to early 2007, Plaintiffs were

kept busy fighting Defendants’ motions to strike and for protective order protection, as well as taking almost 50 depositions, and prioritizing which of the many groups of documents to first inspect. Defendants’ took advantage by using the time wisely to destroy as much evidence as possible. 23

Due to Defendants’ destruction of the TISH reports that were centrally located at Dawkins’ office, Plaintiffs were faced with a cost and time prohibitive hurdle of seeking TISH reports from 45 inspectors at offices around the Twin Cities Metro Area, with no assurance the inspectors had maintained their copies of inspection records for 5,000-6,000 inspections each year, when the three year normal retention period applicable to both the City and TISH inspectors had already expired. The Court erred in determining that, “Plaintiffs never subpoenaed the TISH evaluators. Such a failure to pursue discovery is incongruent with Defendants’ claim of prejudice.” ADD000064. The Court had suggested Plaintiffs seek replacement TISH reports from inspectors through subpoenas but only requiring the minimal subpoena costs be paid by Defendants. ADD000081. Arguably, the Court’s Order included service fees, but there was no provision for $15,000 in copy costs of the replacement records (15,000 reports, four pages each, at $.25/page), for $13,500 from 45 deposition transcripts ($300 each), or for Plaintiffs’ attorney fees for the time consuming task of attempting to recreate the City’s central depository collection of 2001-2003 TISH records, all with no guarantee the City files could be restored. Defendants’ knew their intentional destruction would create that additional mountain for Plaintiffs to climb. But for Defendants’ 24

destruction of centrally stored TISH reports, Plaintiffs would not have been faced with these prohibitively burdensome additional costs and fees. Plaintiffs’ objections to the magistrate’s order were denied by the District Court. ADD000083. The District Court abused its discretion by misapplying the law on spoliation as set out by this Court in Stevenson. The District Court determined Plaintiffs had failed to demonstrate they were prejudiced by the destruction of the e-data including e-mails and TISH housing inspection reports. ADD000064-68;80. The Court made the following clearly erroneous factual determination concerning the destruction of e-data prior to December 2005: “Other than the reasons already discussed, Defendants offer an additional reason: because Plaintiffs’ counsel had explicitly limited the discovery request to emails from December 2005 onward, in a letter dated June 6, 2007.” ADD000067. This is another example of the District Court adopting a deliberate false statement as the Court’s own finding without labeling it as such. Plaintiffs

never

limited

their

document

request

to

email

communications from December of 2005 forward so as to waive their claims of spoliation of the pre-December 2005 e-mails. One has to wonder why 25

Plaintiffs would have brought motions for sanctions if they had agreed, as Defendant’s counsel falsely represented, to limit their e-mail requests. As Mr. Shoemaker stated to Ms. Seeba in a letter dated May 15, 2007: We understand from you that the electronic communications such as emails between City departments and third parties have not been retained for the period prior to December 2005. Ecf.217-6,p.9[-04-cv-2632]. In Plaintiffs June 6, 2007 letter, Plaintiffs again sought emails from 1994 to present: Emails both within the City and to and from third parties have been relevant to the claims herein since 2002. …inspectors also testified to use of the e-mail system in their work for the City. It certainly appears …Defendants…did not take action to preserve the written communications … for the time period prior to December 2005, ... Ecf.217-7,p.6[-04-cv-2632]. Defendants’ failure to place any litigation hold on e-data/e-mails after the commencement of litigation in May of 2004 and failure to preserve all back-up tapes prior to December of 2005, allowed Defendants to destroy relevant evidence for the relevant periods prior to December 2005, which created an absence of communications between and among Defendants and other city officials and employees and third parties, including neighborhood councils, PHA, and HUD from 1999 through 2005.

26

Plaintiffs were clearly prejudiced by such destruction during this litigation as the destroyed e-data/e-mails easily meet the definition of “relevancy” under Rule 401, F.R.E. (“evidence having the tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable that it would be without the evidence”). Additionally, under Rule 26, Fed.R.Civ.P., the destroyed TISH inspection records and e-data/e-mails were a proper subject of the Steinhauser document requests to Defendants in November 2004, as they were “relevant to any party’s claim or defense” and were “reasonably calculated to lead to the discovery of admissible evidence.” Defendant’s duty to preserve evidence arose no later than when they were served with the Steinhauser Corrected First Amended Complaint (87 pgs) filed May 28, 2004 (Ecf.7[04-cv-2632) detailing the Plaintiffs claims that: (1) Defendants had selectively targeted and were continuing to target Plaintiffs and other low-income landlords; (2) Defendants were ignoring clearly visible code violations on exteriors of properties in Plaintiffs’ neighborhoods so the condition of Plaintiffs’ and surrounding properties were at issue; (3) All inspection programs for rental homes in the City were relevant; 27

(4) Communications between City officials and employees and third parties were relevant; (5) PHA had rental properties and tenants that were similar in many respects to those of Plaintiffs and had their own inspection system; (6) Plaintiffs considered the City’s “Problem Property 2000” initiative to be very significant to Plaintiffs’ claims; (7) Code enforcement conduct challenged by Plaintiffs was contrary to the City’s federal funding; and (8) Certain of Plaintiffs’ tenants were receiving federal Section 8 assistance and with HUD funding for housing placement services into properties owned by Steinhauser and other landlords. Here, as in Capellupo, Plaintiffs were “deprived of significant amounts of potentially helpful information,” relevant evidence concerning “claims or defenses” of the parties.

Defendants’ destruction of e-data

including internal/external e-data/e-mails of City officials and employees, and external e-data/e-mail communications with third parties, prejudiced Plaintiffs by eliminating naturally relevant evidence related to issues of intent and motive of Defendants on Plaintiffs’ claims that the City was violating the State Building Code, such violations constituted a “disparate treatment” and “disparate impact” on protected classes, constituted intentional discrimination under Section 1981, 1982 and 1983 (equal protection), RICO, as well as directly related to defenses raised by Defendants, including immunity defenses and that there was no evidence of 28

“disparate impact” or “intentional discrimination”. City officials misused code enforcement inspectors to placate White neighbors and deleted smoking gun e-mails from Defendants’ e-mail production. Ecf.143,p.8[04cv-2632](Plaintiffs uncovered these e-mails in paper files maintained by the Legislative Hearing Officer prior to City officials and employees’ personal review and selection of e-mails to disclose to Plaintiffs). Additionally, the destruction of e-data/e-mails deprived Plaintiffs of evidence on whether the City had “affirmatively furthered fair housing” by conducting “analysis of impediments to fair housing choice” (“AI”) required under federal law concerning the City’s building code and code enforcement policies applicable to “protected class” housing, taking appropriate actions, and

maintaining

records

on

the

“AIs”.

24C.F.R.§91.225

(City’s

certifications); §91.210(e)(City’s public policies, including building codes as barriers to affordable housing – whether those policies affect cost of housing or incentives to develop, maintain, or improve affordable housing – affect return on investment, and act as barrier); §91.215(h)(public polices as barriers); §91.220(j)(building codes as barriers). The internal/external e-data/e-mail communications would have provided evidence of the deliberations behind the scenes of the intent, motive and opportunity of Defendants, City Council members, and others 29

concerning federally mandated “AIs” concerning City building code and code enforcement policies and the application to “protected class” housing, costs of same and displacement effect from such illegal application of the City’s ultra vires police powers and code polices. The destroyed e-data/e-mail internal/external communications for 2000 through most of 2005, covered the period that the City suddenly abandoned its successful PP2000 code enforcement program (early 2002), adopted and implemented a heavy-handed, “code to the max” approach (2002-present), including aggressively designating properties as “vacant” buildings,” dramatically increasing condemnations of homes and illegally demanding older homes meet “present code” under the City’s Code Compliance inspection and certification process that Defendants’ knew was in direct violation of the State Building Code and Minnesota court decisions, that both provided grandfathering protections to existing structures. The destroyed e-mails deprived Plaintiffs of evidence going to Defendants’ discussions on how to violate the State Building Code, how to falsify HUD funding certifications without conducting the required and legitimate “AIs,” and how to keep the public and Plaintiffs’ in the dark about these issues, and other communications in furtherance of the schemes and criminal conspiracy. 30

The

Court

failed

to

consider

that

the

written,

electronic

communications of Defendants and City officials and employees would have been the best source of evidence directly bearing on all these matters and thus directly related to the claims and defenses of the parties. The Court denied Plaintiffs’ requests for sanctions, including costs and attorney’s fees related to bringing its motion (ADD000055) and failed to grant Plaintiffs’ request for an evidentiary hearing (Ecf.183,ShoemakerAff. paras88-90[04-cv-2632]. The Court made a decision contrary to the law in failing to award Plaintiffs’ their costs and attorney’s fees incurred as a result of Defendants’ conduct when the Court acknowledged Plaintiffs may have been harmed. ADD000062,68. The Court erred by failing to award Plaintiffs’ their costs and attorney’s fees incurred as a result of Defendants’ conduct. Here, as in Capellupo, the actions of Defendants “imposed an enormous burden on counsel for plaintiffs.” Capellupo, 126 F.R.D. at 553. Defendants’ Bad Faith In Spoliation of Relevant Evidence Under this Court’s ruling in Stevenson, no bad faith showing is necessary but is relevant on the issue of what sanctions would be appropriate to meet the policies supporting sanctions. Here, Defendants’ destruction of evidence was so egregious that the district court abused its discretion in 31

denying Plaintiffs any of the relief requested: judgment against Defendants on liability and damages; monetary sanctions; dismissal of Defendants’ summary judgment motion; directing factual findings in favor of Plaintiffs; an adverse inference jury instruction; an award of attorneys fees, expert fees and costs from March 2, 2007 through the hearing March 2008; discovery related to the spoliation; Ecf.183,ShoemakerAff.[04-cv-2632(Defendants’ litigation

tactics

caused

undue

expense,

fees

for

Plaintiffs-

pars.17,18,27,50,88-89)]. Even though Plaintiffs were not required to demonstrate Defendants’ “bad faith,” Plaintiffs submit that Defendants conduct rose to the level of “bad faith” thereby justifying a finding of “prejudice” because the evidence was relevant, would have been helpful to Plaintiffs and could have led to discovery of other evidence. The duty to preserve evidence is imposed on counsel as officers of the court. See 6 NO. 21 Lawyers J. 6 October 15, 2004 (Duty of preservation and protection of electronically stored information that may be relevant to potential or actual litigation show a clear trend to judicially impose a duty on counsel to safeguard and preserve potentially relevant evidence.). The substantial and complete nature of the destruction of virtually all e-data/e-mails of Defendants, City Council members and other key players 32

for all periods prior to December 2005, the time periods relevant to Defendants’ claims of immunity and Plaintiffs constitutional and statutory claims, and the complete destruction of three years of TISH housing inspection reports, all destroyed during litigation, justifies a “bad faith” finding, a determination of “prejudice” to Plaintiffs from said destruction and sanctions including monetary sanctions, attorney’s fees and costs, reversal of summary judgment, and an adverse inference instruction. See E*Trade, 230 F.R.D. at 592. The e-data/e-mail written communications of Defendants and City officials/employees and third parties relevant to the claims and defenses of the parties is similar to the only recording of conversations contemporaneous to an accident. Stevenson, 354 F.3d at 748. There is no substitute evidence. The District Court, contrary to this Court’s holding in Stevenson, placed too high of a burden on Plaintiffs to demonstrate “prejudice”. Courts have warned against applying too high a standard on victim litigants of spoliation: “Courts must take care not to ‘hold the prejudiced party to too strict a standard of proof regarding the likely contents of the destroyed [or unavailable] evidence,’ because doing so ‘would subvert the…purposes of the adverse inference and would allow parties who have…destroyed evidence to profit from that destruction.”

33

Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 109 (2dCir.2002). The Second Circuit Court of Appeals has stated, “[t]he task is unavoidably imperfect, inasmuch as, in the absence of the destroyed evidence, we can only venture guesses with varying degrees of confidence as to what that missing evidence may have revealed.” Kronisch v. U.S., 150 F.3d 112, 128 (2dCir.1998) (Wigmore’s admonition - holding prejudiced party to too strict a standard of proof regarding the likely contents of the destroyed evidence would subvert the prophylactic and punitive purposes of the adverse inference). Moreover, as can be seen by this Courts’ decisions in Stevenson (finding prejudice and approving an adverse inference jury instruction) and in Dillion (finding prejudice and approving the exclusion of evidence), if the evidence destroyed would have been helpful to the opposing party, even if that evidence was of “limited use,” this Court will approve sanctions including a adverse inference instruction. Here, the District Court determined that Plaintiffs had not shown what the missing e-data/e-mails would have contained - but Plaintiffs had demonstrated that the missing e-data consisted of written communications of Defendants, City officials and employees and influential third-parties on 34

subjects relevant to the parties claims and defenses but from a period after the relevant claim/defense period. Under Stevenson, even if this e-data was of limited use, its destruction during litigation should have resulted in a prejudice finding and an adverse inference instruction and/or other sanctions. During the filings of these three lawsuits, Defendant Dawkins, a licensed attorney, headed the main City code enforcement department responsible for conduct challenged in these three cases. Defendants had a large full service law firm at their disposal. Defendants were familiar with Court rules due to experience with litigation. Yet the District Court held that the destruction of the written communications of City officials and employees and the housing inspection reports for the relevant time period prior to December 2005 was not in “bad faith” and that the other related destruction and obstructive litigation tactics, taken together with e-data/email destruction, did not demonstrate bad faith. Plaintiffs submit that at the very least public defendants should be held to the same standard of preserving evidence applicable to private corporations.

When considering the important policies of honesty and

openness by government officials and employees in public matters including federal court litigation, the Court abused its discretion in placing a heavy, 35

almost impossible burden on Plaintiffs to demonstrate they were “prejudiced” by such destruction. Plaintiffs submit that the Court should consider the serious public and judicial policies implicated by the Defendants’ destruction of massive volumes of evidence during this litigation: Spoliation sanctions serve a remedial function by leveling the playing field or restoring the prejudiced party to the position it would have been without spoliation. They also serve a punitive function, by punishing the spoliator for its actions, and a deterrent function, by sending a clear message to the other potential litigants that this type of behavior will not be tolerated and will be dealt with appropriately if need be. Mosaid Tech. v. Samsung, 348 F.Supp.332, 335 (D.N.J.2004). Plaintiffs and their counsel strongly submit that it is imperative this Court reverse the District Court’s rulings on spoliation, sanctions and summary judgment, thereby correcting the false impression that violation of state and federal laws, Court rules, including massive destruction of evidence, and other wrongful acts, are a legitimate way of conducting government business. Additionally, as it currently stands, there is more than an appearance of impropriety in the handling of these cases by the Minnesota District Court. The District Court has from the commencement of these cases, downplayed and soft pedaled the claims and evidence of violations of state 36

and federal laws, court rules and the corruption by public officialsemployees, and State Court personnel, has seriously abused the summary judgment standard, dismissed the evidence that a reasonable jury could view as supporting Plaintiffs’ claims, and has worked diligently to undermine Plaintiffs’ ability to hold accountable before the law, a City run by those who see the law as an inconvenience to be subverted at every opportunity no matter what the cost to other members of society. The message heard by all from the District Court of Minnesota through its decisions here is that politically connected lawbreakers have immunity without worry of the consequences. This Court must not let this message stand without challenge. As Justice Brandeis stated in his dissenting opinion in Olmstead v. U.S.: Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. 277 U.S. 438, 485 (1929). CONCLUSION Plaintiffs respectfully request the Court: (1) overturn summary judgment and remand these cases for trial on all of Plaintiffs’ claims;

37

(2) determine that prior to trial, full discovery on spoliation and sanctions with an evidentiary hearing is appropriate with Plaintiffs’ costs and attorney’s fees during such discovery paid by Defendants; (3) that Plaintiffs be awarded their reasonable attorney’s fees and costs due to Defendants’ wrongful litigation conduct during 2007 and 2008; (4) that sufficient prejudice has been established to warrant an adverse inference jury instruction; (5) that a federal circuit judge from outside Minnesota be appointed as the judge responsible for these cases on remand; and (6) such other relief that this Court determines is warranted under the circumstances. Respectfully submitted, SHOEMAKER & SHOEMAKER, P.L.L.C.

Dated: July 31, 2009

By: s/ John R. Shoemaker John R. Shoemaker (Attorney Lic. #161561) 7900 International Drive International Plaza, Suite 200 Bloomington, Minnesota 55425 (952) 224-4610 Attorneys for Plaintiffs-Appellants Steinhauser, et al. and Harrilal, et al.

38

CERTIFICATION OF COMPLIANCE WITH FRAP 32 AND CERTIFICATION OF WORD PROCESSING PROGRAM Counsel for Plaintiffs-Appellants prepared its brief using Microsoft Word 2003 for its word processing program. This brief contains 6,994 words. Counsel also certifies that the attached CD has been scanned for computer viruses and there are no viruses on the CD. The only document contained on this CD is the Joint Reply Brief of Plaintiffs-Appellants in the PDF file format. Dated: July 31, 2009

By: s/ John R. Shoemaker John R. Shoemaker, Esq.

39