rounds, daugaard et al response
Post on 09-Oct-2015
146 Views
Preview:
DESCRIPTION
TRANSCRIPT
-
UNITED STATES DISTRICT COURTDISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o
JEFF BARTH, personally and in his capacityas sitting County Commissioner for theCOUNTY OF MINNEHAHA, SOUTHDAKOTA, and all others similarly situated,
Petitioners,
vs.
MARION M. MIKE ROUNDS, JEFFREYT. SVEEN, ROBERT TAD PERRY,
Respondents.
************************************
JEFF BARTH, personally and in his capacityas sitting County Commissioner for theCOUNTY OF MINNEHAHA, SOUTHDAKOTA, and all others similarly situated,
Petitioners,
vs.
HARVEY JEWETT IV, JACK R.WARNER, JAMES F. SHEKLETON,JOHN H. MEYER, DR. JAMES SMITH andthe HONORABLE DENNIS DAUGAARD,in his capacity as Governor of the State ofSouth Dakota,
Respondents.
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
14-mc-00118-KES14-mc-00130-KES
RESPONDENTS M. MICHAELROUNDS, ROBERT TAD
PERRY, HARVEY JEWETT IV,JACK R. WARNER, JAMES F.
SHEKLETON, JOHN H.MEYER, DR. JAMES SMITH,AND DENNIS DAUGAARDSMEMORANDUM OF LAW IN
OPPOSITION TOPETITIONERS RULE 27
PETITION
o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o
Case 4:14-mc-00118-KES Document 12 Filed 10/20/14 Page 1 of 23 PageID #: 57
-
14-mc-00118-KES; 14-mc-00130Respondents Memorandum of Law in Opposition to Petitioners Rule 27 Petition
It is unclear whether Jeff Barth is actually acting with the Minnehaha County1Commissions approval or with the approval of any other similarly situatedCommissioners as indicated in the Petitions caption. Neither he nor anyone purportingto have the authority to act on behalf of the County Commission has signed the Petition.
2
The Petition is properly denied because it is substantively deficient, procedurally
deficient, and unnecessary because the appropriate steps have already been taken to
protect against the loss of any EB-5 materials that may be under Respondents control.
BACKGROUND
On September 22, 2014, a Pre-Complaint Petition to Preserve Evidence was
filed by Jeff Barth, in his personal capacity and in his capacity as sitting County
Commissioner for the County of Minnehaha, South Dakota, and supposedly on behalf
of all others similarly situated. (Doc. 1.) The Petition cites Federal Rule of Civil1
Procedure 27(a) as the supposed mechanism authorizing the relief requested in the
Petition. (Doc. 1 at 3.) The Petition filed in 14-mc-118-KES identifies the Respondents
as Marion M. Mike Rounds, Jeffrey T. Sveen, and Robert Tad Perry. Various
exhibits have also been submitted in support of the Petition.
On September 29, 2014, another Petition was filed by Jeff Barth in 14-mc-130-
KES. It is substantively the same as the earlier Petition filed on September 22, 2014, and
it is supported with the same exhibits as well. The only difference is that the September
29 Petition identifies Harvey Jewett IV, Jack R. Warner, James F. Shekleton, John H.
Case 4:14-mc-00118-KES Document 12 Filed 10/20/14 Page 2 of 23 PageID #: 58
-
14-mc-00118-KES; 14-mc-00130Respondents Memorandum of Law in Opposition to Petitioners Rule 27 Petition
3
Meyer, Dr. James Smith, and Dennis Daugaard, in his capacity as Governor of the State
of South Dakota, as Respondents. Accordingly, both Petitions will be referred to as the
Petition. This Memorandum is submitted on behalf of Mike Rounds, Tad Perry,
Harvey Jewett, Jack Warner, James Shekleton, John Meyer, Dr. James Smith, and Dennis
Daugaard (collectively referred to as Respondents). The memorandum filed on behalf
of these Respondents is the same for both 14-mc-118-KES and 14-mc-130-KES.
ANALYSIS
Rule 27 requires a petitioner to establish several elements when requesting an
order from the Court to preserve evidence. Rather than follow the clear directives in
Rule 27, Jeff Barth asserts unsubstantiated claims and allegations in an attempt to
circumvent several well-established legal principles. It fails to establish the existence of
a cognizable federal claim. It also fails to demonstrate that evidence will be lost by any
of the Respondents. And multiple litigation holds are already in place to protect against
the inadvertent loss of evidence. This Court should therefore deny the Petition.
I. The Petition fails to identify a cause of action that could properly be broughtin a federal court.
A plain reading of Rule 27(a)(2) establishes that it can only be invoked if the
contemplated Complaint involves a matter cognizable in a United States court[.] Stated
differently, the Petition must establish that the action petitioner contemplates bringing
Case 4:14-mc-00118-KES Document 12 Filed 10/20/14 Page 3 of 23 PageID #: 59
-
14-mc-00118-KES; 14-mc-00130Respondents Memorandum of Law in Opposition to Petitioners Rule 27 Petition
4
would be cognizable in a court of the United States[.] In re Petition of MacCormack,
2000 WL 526313, at *1 (D. Kan. Apr. 19, 2000) (quoting In re Boland, 79 F.R.D. 665,
667 (D.D.C. 1978)). See also In Re Tsymbal, 2011 WL 8218997, at *15 (D.N.J. Dec. 9,
2011) (denying Rule 27 petition because the [p]etitioner has not demonstrated how/why
her allegations are cognizable in any United States court); In re I-35W Bridge Collapse
Site Inspection, 243 F.R.D. 349, 352 (D. Minn. 2007) (The petition must also show that
the anticipated lawsuit will be within the jurisdiction of the federal courts. (citing
Dresser Indus., Inc. v. United States, 596 F.2d 1231, 1238 (5th Cir. 1979)); Petition of
State of North Carolina, 68 F.R.D. 410, 412 (S.D.N.Y. 1975) (denying Rule 27 petition
because the petitioner State is unable even to demonstrate that the anticipated action
will be within federal jurisdiction (citation omitted)). Here, the Petition fails to identify
how the anticipated Complaint would be cognizable in a United States court[.] See
Fed. R. Civ. P. 27(a).
The Petition contains a heading labeled II. Jurisdiction and Venue. (Doc. 1 at
4.) It reads as follows: Jurisdiction and venue are proper in this Court, because The
File(s) are/is believed to be located in, and the parties are all within this Jurisdiction. The
amount in controversy meets the definition of this Court. (Doc. 1 at 4.) The last
sentence, The amount in controversy meets the definition of this Court, suggests that
the Complaint would invoke what is commonly referred to as diversity jurisdiction. See
Case 4:14-mc-00118-KES Document 12 Filed 10/20/14 Page 4 of 23 PageID #: 60
-
14-mc-00118-KES; 14-mc-00130Respondents Memorandum of Law in Opposition to Petitioners Rule 27 Petition
5
28 U.S.C. 1332 (The district courts shall have original jurisdiction of all civil actions
where the matter in controversy exceeds the sum of $75,000 . . . and is between . . .
citizens of different States[.]). Jurisdiction under 28 U.S.C. 1332, however, would
not exist in any Complaint by Jeff Barth against any of the Respondents because they are
acknowledged residents of South Dakota. (Doc. 1 at 5, 7, 8, 10, 11, 12, 13.) Thus, the
Complaint could not be cognizable in federal court based on a diversity claim.
Because diversity jurisdiction would not exist, the only basis for a cognizable
claim in federal court would be a claim arising under federal law. See 28 U.S.C. 1331
(The district courts shall have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.). The Petition, however, fails to
identify what federal law the Complaint would rely on to assert a claim against
Respondents in a federal court.
The only federal statute identified in any of the filings in this case is the Freedom
of Information Act (FOIA) that was selected in the civil filing statement. (Doc. 3.)
Because the Petition itself fails to identify the federal cause of action that the Complaint
would allege, one guess would be that the Complaint would attempt to rely on the
Freedom of Information Act. If so, such a claim against the Respondents could not be
properly filed in any court, let alone federal court, because the Freedom of Information
Act only applies to the federal government and federal agencies. See, e.g., Rimmer v.
Case 4:14-mc-00118-KES Document 12 Filed 10/20/14 Page 5 of 23 PageID #: 61
-
14-mc-00118-KES; 14-mc-00130Respondents Memorandum of Law in Opposition to Petitioners Rule 27 Petition
6
Holder, 700 F.3d 246, 258 (6th Cir. 2012) (As numerous sister circuits have noted, it is
beyond question that FOIA applies only to federal and not to state agencies. (internal
quotations and citations omitted)); Grand Cent Pship, Inc. v. Cuomo, 166 F.3d 473, 484
(2d Cir. 1999) ([I]t is beyond question that FOIA applies only to federal and not to state
agencies. (citations omitted)); Philip Morris, Inc., v. Harshbarger, 122 F.3d 58, 83 (1st
Cir. 1997) (FOIA . . . applies only to federal executive branch agencies.); St. Michael's
Convalescent Hosp. v. California, 643 F.2d 1369, 1373 (9th Cir. 1981) (noting that the
definition of agency under FOIA does not encompass state agencies or bodies).
Thus, a Complaint against any of the Respondents that would rely on FOIA would
simply not be cognizable in a federal court because the Respondents are not part of any
federal agency.
Rather than identify what federal cause of action the Complaint would allege, the
Petition states that It is about a not-yet-cognizable complaint that will allege a pattern
and course of conduct so outrageous, so unscrupulous and so conniving-that it boggles
the reasonable mind. (Doc. 1 at 2.) Such vague and hostile allegations, while
potentially useful in political attack ads, have not been, are not currently, and will never
be enough to state a plausible federal claim.
Case 4:14-mc-00118-KES Document 12 Filed 10/20/14 Page 6 of 23 PageID #: 62
-
14-mc-00118-KES; 14-mc-00130Respondents Memorandum of Law in Opposition to Petitioners Rule 27 Petition
7
A. Jeff Barth does not have standing to file any anticipated Complaint.
Jeff Barth does not have standing under Article III of the Constitution to bring any
federal claim against Respondents based on the allegations outlined in the Petition. To
demonstrate standing, the plaintiff must show:
(1) that he or she suffered an injury in fact, which is an invasion of a legally
protected interest that is concrete and particularized and actual or
imminent, not conjectural or hypothetical;
(2) the existence of a causal connection between the injury and the conduct
complained of that is fairly . . . trace[able] to the challenged action of the
defendant and not . . . th[e] result [of] the independent action of some third
party not before the court; and
(3) that it is likely, as opposed to merely speculative, that the injury will be
redressed by a favorable decision.
Lujan v. Defenders of Wildlife, 504 U.S. 560-61 (1992) (citations and quotations
omitted) (alterations in original). See also Neighborhood Enters., Inc. v. City of
St. Louis, 644 F.3d 728, 735 (8th Cir 2011).
The Petition provides no factual allegations that Jeff Barth has suffered an injury
in fact or that he will suffer an injury in fact. For example, the Petition does not state that
Jeff Barth was an investor in any project that received funds from investors utilizing the
Case 4:14-mc-00118-KES Document 12 Filed 10/20/14 Page 7 of 23 PageID #: 63
-
14-mc-00118-KES; 14-mc-00130Respondents Memorandum of Law in Opposition to Petitioners Rule 27 Petition
In fact, Jeff Barth acknowledged in a TV interview with a Keloland news2reporter, Jared Ransom, that the Petition was filed because the citizens have an interestin this and I hope we can find out whats going on. Seehttp://www.keloland.com/newsdetail.cfm/mhaha-county-commissioner-barth-files-papers-over-eb-5/?id=169750 (video recording at 1:15 to 1:21).
8
EB-5 program. (Doc. 1 at 2.) Indeed, the Petition never even alleges that he personally
lost any funds or suffered any personal injury or loss whatsoever. Simply put, the
Petition fails to identify any injury in fact suffered by Jeff Barth that would need to be
established in the anticipated Complaint.
Furthermore, the Petitions generalized and unsubstantiated assertion that there
was a Fail[ure] to ensure that the tens of millions of dollars in fees . . . were remitted to
their rightful owners the taxpayers and citizens of the State of South Dakota is a
generalized grievance supposedly suffered by Jeff Barth as a state taxpayer. Such2
generalized grievances, however, are not sufficient to establish standing under Article III
of the United States Constitution. See Daimlerchrysler Corp. v. Cuno, 547 U.S. 332,
343-44 (2006).
Indeed, the United States Supreme Court has repeatedly explained that someone in
Jeff Barths position cannot allege the necessary concrete and particularized injury
when the claim is premised on general political issues like taxation and revenue
allocation. See id. at 345 ([T]he decision of how to allocate any such [revenue] savings
is the very epitome of a policy judgment committed to the broad and legitimate
Case 4:14-mc-00118-KES Document 12 Filed 10/20/14 Page 8 of 23 PageID #: 64
-
14-mc-00118-KES; 14-mc-00130Respondents Memorandum of Law in Opposition to Petitioners Rule 27 Petition
9
discretion of lawmakers, which the courts cannot presume either to control or to
predict. (citation omitted)). As the Supreme Court explained, the such an alleged
injury is necessarily conjectural or hypothetical in that it depends on how legislators
respond to the situation. Id. at 344 (citation omitted).
Simply put, Jeff Barth does not have standing to bring a Complaint against
Respondents based on the allegations in the Petition. And if Jeff Barth does not have
standing on his own behalf, he cannot not have standing to bring a claim on behalf of all
others similarly situated as indicated in the Petitions caption. Thus, the Petition is also
properly denied because a Complaint would not be cognizable in a federal court due to a
lack of Article III standing.
II. The Petition is properly denied because it is being used as a discovery tool todraft a Complaint.
Because the Petition fails to identify the cause of action that would be alleged, it is
clear that Jeff Barth is trying to use Rule 27 to search for something so he can file some
type of Complaint. Indeed, the opening line in the Petitions Memorandum of Law
section establishes that Jeff Barth is asking for this Court to expand[] the scope of Rule
27 to turn it into a general discovery tool. (Doc. 1 at 15.)
This request goes directly against the overwhelming number of cases that prohibit
petitioners from using Rule 27 as a means of conducting discovery to establish a lawsuit.
Case 4:14-mc-00118-KES Document 12 Filed 10/20/14 Page 9 of 23 PageID #: 65
-
14-mc-00118-KES; 14-mc-00130Respondents Memorandum of Law in Opposition to Petitioners Rule 27 Petition
10
See, e.g., Ash v. Cort, 512 F.2d 909, 912 (3d Cir. 1975) (Rule 27 is not a substitute for
discovery. (citing cases)); In re Liquor Salesmens Union Local 2D Pension Fund, 2012
WL 2952391, at *6 (E.D.N.Y. July 19, 2012) ([I]t is well-settled that Rule 27 is not a
vehicle for general discovery before an action is commenced and should not be used to
determine whether a cause of action exists[.] (internal quotations and citation omitted)
(citing cases)); In re Petition of Allegretti, 229 F.R.D. 93, 96 (S.D.N.Y 2005) (In other
words, Rule 27 may not be used as a vehicle for discovery prior to filing a complaint.);
In re Chester County Elec., Inc., 208 F.R.D. 545, 547 (E.D. Pa. 2002) (confirming that
Rule 27 is not a mechanism to draft a complaint or conduct pre-trial discovery (citing
cases)); Petition of Ford, 170 F.R.D. 504, 508 (M.D. Ala. 1997) (As stated, the
language in Rule 27 is clear that the rule authorizes the perpetuation of evidence, not the
discovery or uncovering of it. (citing cases)); In Matter of Gurnsey, 223 F.Supp. 359,
360 (D.D.C. 1963) (It is not a method of discovery to determine whether a cause of
action exists[.] (citing cases)); Petition of State of North Carolina, 68 F.R.D. 410, 412
(S.D.N.Y. 1975) ([S]everal courts have held that a Rule 27 petition cannot be used for
the purpose of ascertaining facts to be used in drafting a complaint. (citing cases)). As
the Minnesota District Court in In re I-35W Bridge Collapse Site Inspection succinctly
explained, In other words, the [petitioner] must provide an explanation for why it
cannot presently bring any lawsuit on behalf of any client, and its explanation cannot be
Case 4:14-mc-00118-KES Document 12 Filed 10/20/14 Page 10 of 23 PageID #: 66
-
14-mc-00118-KES; 14-mc-00130Respondents Memorandum of Law in Opposition to Petitioners Rule 27 Petition
11
that it has not yet learned enough about the case to be able to file specific claims against
specific defendants[.] 243 F.R.D. at 253.
In support of the suggested misuse of Rule 27, the Petition cites three non-
authoritative cases that went against the otherwise plain meaning and purpose of Rule 27.
(Doc. 1 at 15.) The first case is In re Alpha Industries, Inc., 159 F.R.D. 456 (S.D.N.Y.
1995), which concluded that the fact that petitioner must delay bringing suit until
receiving the information sought is a sufficient showing to allow the use of Rule 27 to
perpetuate respondents testimony. Id. at 457. In support of this conclusion, the court
in Alpha Industries relied on Professor Moores comment that ordinarily, a showing
that the petitioner is presently unable to bring the expected action or cause it to be
brought is sufficient show of the danger of the loss of evidence by delay. Id. (quoting
4 Moores Federal Practice 27-32). As the Eastern District of New York Court in Liquor
Salesmens Union noted, however, Moores Federal Practice subsequently disapproved
of the reasoning and holding in Alpha Industries: Alpha Industries [i]s a minority-view
case and . . . district courts are surely correct in rejecting Alpha Industries holding).
Liquor Salesmens Union, 2012 WL 2952391, at *5 (quoting 6-27 Moores Federal
Practice 27.13). See also Petition of Ford, 170 F.R.D. 504, 508 (M.D. Ala. 1997)
([T]he Alpha Industries court omits the critical opening sentence to [Professor Moores]
commentary: The reasons for perpetuating the proposed testimony must demonstrate
Case 4:14-mc-00118-KES Document 12 Filed 10/20/14 Page 11 of 23 PageID #: 67
-
14-mc-00118-KES; 14-mc-00130Respondents Memorandum of Law in Opposition to Petitioners Rule 27 Petition
12
danger of losing the evidence by delay.). Moreover, a large number of subsequent
decisions have expressly refused to follow Alpha Industries. Liquor Salesmens Union,
2012 WL 2952391, at *5 (collecting cases).
The last two cases identified in the Petition actually undermine what Jeff Barth is
trying to do with Rule 27 here. In Lubrin v. Hess Oil Virgin Islands Corp., 109 F.R.D.
403 (D. Vi. 1986), the request under Rule 27 was made after filing an equitable action.
Id. at 404. The court in that case specifically stated that a Rule 27(a) deposition may not
be used as a substitute for discovery[.] Id. Thus, Lubrin explicitly contradicts what Jeff
Barth is asking this Court to do with Rule 27.
And in Reints v. Sheppard, 90 F.R.D. 346 (M.D. Pa. 1981), the court stated,
without any explanation, analysis, or supporting authority whatsoever, that it would be
willing to grant such a request in a situation where [a] plaintiff truly did not have
knowledge of sufficient facts to plead his case. Id. at 347. Ultimately, however, the
court denied the request, seemingly made under Rule 27, because the basic facts upon
which plaintiff is to base his claim are not in the exclusive possession of the defendants.
Id. at 347. Thus, the court effectively reasoned that the plaintiffs difficulty in drafting a
complaint could not be solved through his attempt to use Rule 27 to further develop his
previously rejected Complaint. Id.
Case 4:14-mc-00118-KES Document 12 Filed 10/20/14 Page 12 of 23 PageID #: 68
-
14-mc-00118-KES; 14-mc-00130Respondents Memorandum of Law in Opposition to Petitioners Rule 27 Petition
13
Here, the Petition states that Joop Bollen is the one who walked off with all the
EB5 files (state records) when he resigned his position at Northern State University Dec.
21, 2009, without requesting permission to do so. (Doc. 1 at 6). And the Declaration of
Richard Engels in Support of Petitioners Pre-Complaint Petition to Preserve Evidence
states that Richard Engels, on behalf of Jeff Barth, is unable to file a cognizable
complaint as of todays date because the SDRC executive(s) still refuses to return or
provide any of the public documents wrongfully converted to private custody. At the
risk of stating the obvious, the Respondents identified in the Petition are not Joop Bollen
or SDRC.
Thus, Jeff Barths request for this Court to misapply Rule 27 so he can perform
some general discovery in order to develop a Complaint is based on one universally
discredited decision out of New York. The better approach would be to allow Rule 27 to
be used only when the petitioner has established a real need to preserve already known
evidence before a federal cause of action can be filed in federal court. That is, it should
be used how it is written: as a procedure for preserving testimony before the bringing
of a federal cause of action. Webb v. Dyer County Bd. of Educ., 471 U.S. 234, 243 n.17
(1985) (emphasis added).
The prohibition against using Rule 27 to be used as a general discovery tool
before a Complaint is filed is particularly applicable in this situation. The allegations
Case 4:14-mc-00118-KES Document 12 Filed 10/20/14 Page 13 of 23 PageID #: 69
-
14-mc-00118-KES; 14-mc-00130Respondents Memorandum of Law in Opposition to Petitioners Rule 27 Petition
While none of these defenses are discussed in detail because the Petition fails to3identify any actual claims, the Respondents expressly reserve the right to assert any andall defenses if a Complaint is filed.
14
against the Respondents, though general and vague, pertain to their official capacities as
current and former South Dakota government officials. And in a civil suit, government
officials are afforded the opportunity to raise qualified immunity and other similar
defenses before discovery would commence. Hughbanks v. Dooley, 2011 WL 3502484,3
at *1 (D.S.D. Aug. 10, 2011) (Qualified immunity protects [] officials from litigation
itself, not merely liability. (citing Mitchell, 472 U.S. at 526)). Allowing Rule 27 to be
used for general discovery purposes, as Jeff Barth intends to use it against the
Respondents before any immunity defenses can be raised, will effectively destroy the
goals and purposes of all immunity defenses. That cannot be allowed.
One of the purposes behind qualified immunity is to protect against distraction of
officials from their governmental duties, inhibition of discretionary action, and
deterrence of able people from public service. Mitchell v. Forsyth, 472 U.S. 511, 526
(1985) (citations omitted). And as Justice Stevens observed, Persons of wisdom and
honor will hesitate to . . . serve in these vital positions if they fear that vexatious and
politically motivated litigation associated with their public decisions will squander their
time and reputation, and sap their personal financial resources when they leave office.
Id. at 542 (1985) (Stevens, J., concurring in the judgment). See also Gray v. Bell, 712
Case 4:14-mc-00118-KES Document 12 Filed 10/20/14 Page 14 of 23 PageID #: 70
-
14-mc-00118-KES; 14-mc-00130Respondents Memorandum of Law in Opposition to Petitioners Rule 27 Petition
15
F.2d 490, 496 (9th Cir. 1983) (recognizing that official immunity serves the important
goal of protecting against the inequity of exposing officials to vicarious liability for the
acts of subordinates and promoting the idea that official accountability is more
appropriately enforced through the ballot . . . than in private civil suits). In light of
these important interests, [u]nless the plaintiffs allegations state a claim of violation of
clearly established law, a defendant pleading qualified immunity is entitled to dismissal
before the commencement of discovery. Mitchell, 472 U.S. at 526 (citations omitted).
Here, however, the Petition does not explain how any of the Respondents violated
any clearly established law. Indeed, the Petition fails to even identify what federal
cause of action would even be alleged in the anticipated Complaint. To allow pretrial
discovery under these circumstances would undermine one of the primary functions of
official immunity. As the United States Supreme Court has stated, Until this threshold
immunity question is resolved, discovery should not be allowed. Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982).
At least one other court has recognized that Rule 27 is not an appropriate means to
avoid applicable immunity defenses. In In re Boland, 79 F.R.D. 665 (D.D.C. 1978), the
district court explained that The difficult and sensitive issues concerning immunity . . .
which underlie the [Rule 27] petition are more properly developed after a complaint and
responsive pleadings have been filed and the issues have been joined by appropriate
Case 4:14-mc-00118-KES Document 12 Filed 10/20/14 Page 15 of 23 PageID #: 71
-
14-mc-00118-KES; 14-mc-00130Respondents Memorandum of Law in Opposition to Petitioners Rule 27 Petition
16
motions than by the truncated procedure sought to be employed here. Id. at 668-69. As
the Boland court recognized, Rule 27 cannot be allowed to circumvent the various
immunity defenses, including sovereign immunity, qualified immunity, Eleventh
Amendment immunity, congressional immunity, prosecutorial immunity, or judicial
immunity.
If Rule 27 is used as Jeff Barth intends to use it, such petitions will become the
new norm before any civil case is filed against government officials. Anyone with an ax
to grind or the desire to annoy governmental officials, including any taxpayer or prisoner
who wishes to establish a RICO claim against government officials, will use this Rule
in the same manner that Jeff Barth is trying to use this Rule. Cf. In re I-35 W Bridge
Collapse Site Inspection, 243 F.R.D. at 354 (If this Court were to [grant the Rule 27
petition], this Court would also have to permit other[s] . . . to do the same.). Using Rule
27 as Jeff Barth is trying to use it, without establishing the existence of a cognizable
federal claim, will become a means to circumvent the immunity defenses that would
otherwise protect government officials and allow for litigious individuals to threaten and
harass officials.
Case 4:14-mc-00118-KES Document 12 Filed 10/20/14 Page 16 of 23 PageID #: 72
-
14-mc-00118-KES; 14-mc-00130Respondents Memorandum of Law in Opposition to Petitioners Rule 27 Petition
17
III. Most importantly, the Petition is properly denied because there is no risk thatany evidence in the Respondents control will be lost.
Rule 27 allows a party to take depositions prior to litigation if [the petitioner] . . .
establishes a risk that testimony will be lost if not preserved. Penn Mut. Life Ins. Co. v.
United States, 68 F.3d 1371, 1373 (D.C. Cir. 1995). The Petition fails, however, to
establish any risk that evidence in Respondents control will be lost. Instead, the Petition
states that Jeff Barth is asking for adequate assurance that relevant information is not
being destroyed, as credible claims have been stated that some Respondents have
shredded documents. (Doc. 1 at 3.)
The credible claims are actually one sentence in an appellate brief pertaining to
an unrelated civil case entitled Hutterville Hutterian Brethren, Inc. v. Jeffrey T. Sveen,
13-3160. (Doc. 1 at 3 (citing Exhibit C at 7 in attached Declaration of Richard
Engels).) Specifically, Paragraph 7 of Exhibit C in Richard Engels Declaration reads as
follows: Attached [as Exhibit C] is a true and correct copy of an excerpt of the
litigation memorandum in re RICO claims from an unrelated case against Mr. Sveen
and his Law Firm. (Doc. 2 at 7 (emphasis added) (citing United States Court of
Appeals for the Eighth Circuit No. 13-3160 Appellants Brief and Addendum page 21 &
22).) A statement in a brief made by the party who lost at the trial court level in an
unrelated case can hardly be considered credible.
Case 4:14-mc-00118-KES Document 12 Filed 10/20/14 Page 17 of 23 PageID #: 73
-
14-mc-00118-KES; 14-mc-00130Respondents Memorandum of Law in Opposition to Petitioners Rule 27 Petition
The brief does not identify which Siegal Barnett business the truck was seen by. 4The building in Aberdeen is located in the heart of the business district at 415 S. MainSt., along with many other Aberdeen businesses. And the Sioux Falls office is in acommercial building at 515 S. Cliff Ave, along with several other business. Thus, bothbusiness locations are surrounded by other businesses that may well have been using theshredding businesss services.
18
More importantly, the supposedly credible claims that support the Petitions
statement that some respondents were shredding documents reads as follows: The
next day, a document shredding truck was observed at Siegel Barnetts offices. (Doc. 2-
3, Ex. C at 1.) That is it; there is no elaboration whatsoever. Jeff Barth, as the Petitioner,
never says that he saw the truck. Richard Engels, the person who signed the Petition and
the Declaration, never says that he saw the truck. There is nothing about why the truck
was there or which business(es) the truck was there to serve. There is nothing about4
whether any documents were even shredded. And to the extent that the statement in the
brief is intended to insinuate wrongdoing, such a conclusion would be patently
unreasonable. Document shredding trucks are used by law firms and businesses in
general on a regular basis. Indeed, document shredding trucks have unquestionably been
seen outside of this courthouse. It would be unreasonable to conclude that someone in
the courthouse was trying to impermissibly destroy evidence based on the trucks
presence. The same is true here.
Case 4:14-mc-00118-KES Document 12 Filed 10/20/14 Page 18 of 23 PageID #: 74
-
14-mc-00118-KES; 14-mc-00130Respondents Memorandum of Law in Opposition to Petitioners Rule 27 Petition
Joop Bollen is the lone respondent in a separate petition filed by Jeff Barth: Jeff5Barth personally and in his capacity as sitting County Commissioner for the County ofMinnehaha, South Dakota, and all others similarly situated v. Joop Bollen, 14-mc-125.
19
Even assuming, for the pure sake of argument, that the truck was outside of the
law firm for some nefarious purpose, the Hutterville Hutterian Brethren, Inc. v. Jeffrey T.
Sveen case is acknowledged as having nothing to do with this matter. (Doc. 2 at 7
(Attached [as Exhibit C] is a true and correct copy of an excerpt of the litigation
memorandum in re RICO claims from an unrelated case against Mr. Sveen and his Law
Firm.) (emphasis added).) In the end, the so called credible claims actually consist of
one statement in a brief in an unrelated case about a document shredding truck being
seen in public and nothing more.
The only other evidence of the need to perpetuate evidence in this case is the
claim that one of the Respondents stole public documents from Northern State
University when he ended his public employment as Director of the South Dakota
International Business Institute. (Doc. 1 at 4 (citing Exhibit H at 12 in attached
Declaration of Richard Engels).) It was not one of the respondents that took the
documents from Northern State University; it was Joop Bollen. (Doc. 1 at 6.) And there5
is nothing to suggest that any of the actual Respondents in this case had anything to do
with Joop Bollens actions.
Case 4:14-mc-00118-KES Document 12 Filed 10/20/14 Page 19 of 23 PageID #: 75
-
14-mc-00118-KES; 14-mc-00130Respondents Memorandum of Law in Opposition to Petitioners Rule 27 Petition
A copy of the Records Retention and Destruction Schedule is located at6http://www.sdbor.edu/services/financeadmin/documents/Bd_Regents_Revised_2012.pdf.
20
In summary, the two allegations establishing the supposed need for Jeff Barths
require[d] adequate assurance are (1) a statement in a brief on an unrelated matter
about a document shredding truck near several businesses, and (2) the actions of
someone who is not even included as a respondent in this Petition. That is not enough to
establish that the named Respondents in the Petition will lose any evidence in their
control.
While Rule 27 does not place the burden on a respondent to establish that
potential evidence is otherwise secure, policies are in place to protect against the
inadvertent destruction of relevant documents in this matter. See, e.g., Records
Retention and Destruction Schedule, South Dakota Board of Regents. Moreover,6
Respondents have attached affidavits from the Board of Regents (James Shekleton), the
Attorney Generals Office (Roxanne Giedde), Northern State University (John Meyer),
and Mike Rounds confirming the existence of a litigation hold that would cover the
relevant documents in a subsequent Complaint on this matter. (Affidavit of James
Shekleton on behalf of the Board of Regents, Ex. 1 (Litigation Hold Letter from South
Dakota Board of Regents); Affidavit of Roxanne Giedd on behalf of the Attorney
Generals Office, Ex. A (Litigation Hold Letter from Office of Attorney General);
Case 4:14-mc-00118-KES Document 12 Filed 10/20/14 Page 20 of 23 PageID #: 76
-
14-mc-00118-KES; 14-mc-00130Respondents Memorandum of Law in Opposition to Petitioners Rule 27 Petition
21
Affidavit of John Meyer on behalf of Northern State University; and Affidavit of Mike
Rounds.) Finally, the threat of a spoliation instruction also exists under South Dakota
law. See Thyen v. Hubbard Feeds, Inc., 804 N.W.2d 435 (S.D. 2011). When
considering the utter lack of evidence to suggest that the Respondents will lose evidence
under their control, the litigation holds and the threat of an adverse spoilation instruction
are more than enough to protect against the loss of evidence. See PegaSync Tech., Inc. v.
Patros, 2014 WL 2763620, at *3 (E.D. Mich June 18, 2014) (denying Rule 27 petition,
but explaining that since all parties have notice of the potential future dispute, if
[respondents] destroy any relevant evidence, it may constitute spoliation; they are
advised to preserve any relevant evidence).
Jeff Barth also requests that this Court take possession of The File too, regardless
of whether or not Petitioners [sic] eventually get to see such information[.] (Doc. 1 at
4.) Not only are the Courts limited resources better utilized for actual cases and
controversies involving people who have actually sustained an injury in fact, Rule 27
does not establish such a procedure. And the authorities identified in support of this
process, United States v. Reynolds, 345 U.S. 1 (1953), and 50 U.S.C. 1806(f), have
nothing to do with Rule 27.
The Reynolds case stands for the irrelevant proposition that sometimes a judge
should not review certain sensitive documents when the federal government asserts the
Case 4:14-mc-00118-KES Document 12 Filed 10/20/14 Page 21 of 23 PageID #: 77
-
14-mc-00118-KES; 14-mc-00130Respondents Memorandum of Law in Opposition to Petitioners Rule 27 Petition
22
national security privilege in a pending civil case. Reynolds, 345 U.S. at 10 (When this
is the case, the occasion for the privilege is appropriate, and the court should not
jeopardize the security which the privilege is meant to protect by insisting upon an
examination of the evidence, even by the judge alone, in chambers.). And the identified
statute outlines the procedure for determining whether electronic surveillance evidence
has been properly obtained under federal law if a hearing would otherwise harm national
security. See 50 U.S.C. 1806(f) (establishing that the district court shall, . . . if the
Attorney General files an affidavit under oath that disclosure or an adversary hearing
would harm the national security of the United States, review in camera and ex parte . . .
materials relating to the surveillance . . . to determine whether the surveillance . . . was
lawfully authorized and conducted). Simply stated, Rule 27 does not allow for Jeff
Barths proposal. More importantly, there is no need to take possession of anything.
IV. The Petition has not been verified by Jeff Barth.
While the reasons stated above call for the suggested misuse of Rule 27 to be
denied, the Petition is also properly denied on at least one procedural ground as well.
Rule 27(a)(1) specifically states that the person who wants to perpetuate testimony . . .
may file a verified petition[.] Fed. R. Civ. P. 27(a)(1) (emphasis added). Here, however,
the Petition has been signed by Richard Engels. (Doc. 1 at 16.) Richard Engels is not
the petitioner; Jeff Barth is. Fed. R. Civ. P. 27(a)(1) (requiring that the petition must be
Case 4:14-mc-00118-KES Document 12 Filed 10/20/14 Page 22 of 23 PageID #: 78
-
14-mc-00118-KES; 14-mc-00130Respondents Memorandum of Law in Opposition to Petitioners Rule 27 Petition
23
titled in the petitioners name). Simply stated, if Jeff Barth is the Petitioner, he must
verify the Petition.
CONCLUSION
Jeff Barth should not be permitted to misuse Rule 27 as he is attempting to do.
There is no identified federal cause of action, and he does not have standing to bring a
federal case. Most importantly, there is no danger of evidence being lost by the
Respondents. The Petition should therefore be denied as it pertains to the Respondents
in this Memorandum.
Dated this 20th day of October, 2014.
FULLER & WILLIAMSON, LLP
/s/ William Fuller William FullerEric Preheim7521 S. Louise AvenueSioux Falls, SD 57108Phone:(605) 333-0003Fax: (605) 333-0007Email: bfuller@fullerandwilliamson.com
epreheim@fullerandwilliamson.comAttorneys for Respondents M. Michael Rounds,Robert Tad Perry, Harvey Jewett, JackWarner, James Shekleton, John Meyer,Dr. James Smith, and the Honorable DennisDaugaard in his capacity as Governor of theState of South Dakota
Case 4:14-mc-00118-KES Document 12 Filed 10/20/14 Page 23 of 23 PageID #: 79
top related