Jt Memoof Law Support Motto Alter Judgmt1 6 08ecf

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Frank J. Steinhauser, III, et. al., Civil No. 04-2632 JNE/SRN Plaintiffs, v. JOINT MEMORANDUM OF LAW OF PLAINTIFFS IN SUPPORT OF City of St. Paul, et. al., MOTION TO ALTER AND AMEND JUDGMENT DATED Defendants. DECEMBER 19, 2008 Sandra Harrilal, et. al., Civil No. 05-461 JNE/SRN Plaintiffs, v. Steve Magner, et. al., Defendants. Plaintiffs in Steinhauser, III, et al., and Sandra Harrilal and Steven R. Johnson in Harrilal, et al., through their undersigned counsel, submit this Joint Memorandum of Law in support of their motion to alter and amend the judgment entered by the Court against Plaintiffs on December 19, 2008 (ECF Doct. 264, Steinhauser, et al.; ECF Doct. 243, Harrilal, et al.) and for reconsideration of both the Judgment and the Court’s Order for judgment dated December 18, 2008 (ECF Doct. 263, Steinhauser, et al.; ECF Doct. 242, Harrilal, et al.).

INTRODUCTION Moving Plaintiffs request that the Court alter and amend the judgment entered against them wherein the Court dismissed with prejudice Plaintiffs’ Federal Fair Housing claims contained within Count III of the Third Amended Complaint of the Steinhauser, et al. plaintiffs (ECF Doct. 60 filed 10-19-05), and within Count III of the Third Amended Complaint of Plaintiffs Sandra Harrilal and Steven Johnson in Harrilal, et al. (ECF Doct. 65, filed 5-4-07). Moving Plaintiffs request that the Court reconsider the judgment and order for judgment under the provisions of Rule 59(e) of the Federal Rules of Civil Procedure, on the basis that the Court made manifest errors of fact and law by: (1) holding that Plaintiffs had belatedly raised their claim that Defendants’ conduct challenged by Plaintiffs had violated Defendants’ duty to affirmatively further fair housing (“AFFH”) under 42 U.S.C. Sections 3601, et seq.; and by (2) failing to resolve on the merits Plaintiffs’ claims that Defendants’ conduct violated their AFFH duties under the standards applicable to summary judgment motions. FACTS The Court’s Order dated December 18, 2008 (ECF Doct. 263, Steinhauser, et al.; ECF Doct. 242, Harrilal, et al.), provides in footnote 4 on page 11, the following: Counsel for Plaintiffs argued for the first time at oral argument that the federal HQS preempts the City’s housing code and that Defendants’ conduct violated their duty to affirmatively further fair housing. As 2

Plaintiffs did not raise these arguments in their motion papers (despite describing the duty in their recitation of the facts), Defendants have had no opportunity to address them. Plaintiffs’ belated claims of preemption and violation of the duty to affirmatively further fair housing are insufficient to avoid summary judgment. See Exhibit “1,” attached to Affidavit of John R. Shoemaker dated January 6, 2009 filed herein (hereinafter referred to as “Shoemaker Affidavit”). Other than the comment referenced in footnote 4, of the Court’s 53 page Order of December 18, 2008, the Court did not address any aspect of Plaintiffs’ claim that the conduct of Defendants challenged by Plaintiffs constituted violations of Defendants’ duties to affirmatively further fair housing (“AFFH”) under Title VIII of the Civil Rights Act of 1968 and Amendments thereto (Federal Fair Housing Act), 42 U.S.C. Sections 3601, et seq. See ECF Doct. 263, Steinhauser, et al.; ECF Doct. 242, Harrilal, et al. Plaintiffs filed and served their Joint Memorandum of Law twenty days prior to the Court hearing on Defendants’ motion for summary judgment held on September 12, 2008. See for example ECF Doct. 255, Steinhauser, et al, filed August 23, 2008. Defendants received a copy of Plaintiffs’ Memorandum through the Court’s electronic case filing system on August 23, 2008. Plaintiffs filed an Amended Joint Memorandum of Law on August 25, 2008 because Plaintiffs had exceeded the word count restrictions of the local rule. See 3

ECF Doct. 258, Steinhauser, et al.; ECF Doct. 237, Harrilal, et al.). Defendants raised no objections to any aspect of Plaintiffs’ filing of either version of the Memorandum of Law. In Plaintiffs’ Joint Memorandum of Law in Opposition to Summary Judgment (hereinafter, “Plaintiffs’ Memorandum of Law”), Plaintiffs specifically detailed their claims that the challenged conduct of Defendants constituted violations of Defendants’ duty to affirmatively further fair housing (“AFFH”) under 42 U.S.C. Section 3601, et seq. Plaintiffs did expressly state in their “Argument” section of their Memorandum of Law that Defendants conduct violated Defendants’ AFFH duties: Despite knowledge of [ ] the City’s higher code standard, Defendant City, Mayor Kelly, Director Dawkins and Defendant inspectors, vigorously applied that code in violation of their affirmative duty to further federal housing policies. This is reason alone for this Court to deny Defendants’ motion and send this case to the jury. See e.g., Exhibit “2,” attached to Shoemaker Affidavit, “Plaintiffs’ Joint Memorandum of Law in Opposition to Summary Judgment – Amended,” pp. 39, second to last paragraph (emphasis added). A second example of Plaintiffs’ express statement of their claims and arguments that Defendants’ conduct violated their AFFH duties is set forth on page on page 56 of Plaintiffs’ Memorandum of Law in the heading, 4

CITY’S REQUIREMENTS OF ‘CODE COMPLIANCE’ CERTIFICATION VIOLATES THE MINNESOTA BUILDING CODE, IS A VIOLATION OF FEDERAL FAIR HOUSING, THE CITY’S AFFIRMATIVE DUTY TO FURTHER FAIR HOUSING, AND AS SUCH VIOLATED A CLEARLY ESTABLISHED RIGHT Plaintiffs’ Memorandum of Law, p. 56 , Exh. 2, Affidavit of Shoemaker (emphasis added). Plaintiffs expressly referenced the Court to the Supplemental Expert Opinion of Plaintiffs’ expert Don Hedquist as supporting Plaintiffs claims that Defendants had violated their fair housing duties including AFFH duties by illegally requiring “code compliances” to “present code” in violation of State Building Code. See Plaintiffs’ Memorandum of Law, p. 57, last full parag. (Hedquist’s expert reports, Second Affidavit of John R. Shoemaker, ECF Doct 251, Steinhauser, et al., parag. No. 7, Exhibit 145). A third example of Plaintiffs’ express statement of their claims and arguments that Defendants’ conduct violated their AFFH duties is set forth on page on pages 68 and 69 of their Memorandum of Law: Kelly’s ‘high quality’ housing standard was contrary to purposes of HUD funding and certifications by City officials and employees – there was no real disclosure of how high the standard actually was in comparison to HQS, or that the actual applied standard to those without political power was in violation of the State’s Building Code. Moreover, the City and PHA failed to conduct a fair analysis of whether consistent application of a higher City code in the inner city that had vulnerable low-income, 5

‘protected class’ housing, would be an impediment to fair housing. Plaintiffs’ Joint Memorandum of Law, pp. 68-69, Exh. “2,” Affidavit of Shoemaker (emphasis added). Plaintiffs also made arguments in the “Introduction” and “Facts” section of their Memorandum of Law that Defendants had violated the AFFH duty. For example, see pages 2-3 of Plaintiff’s Memorandum of Law wherein Plaintiffs stated: … Defendants failures to disclose federally mandated ‘analysis of impediments’ (AI) to affordable housing related to Defendants’ affirmative duty to further fair housing (AFFH).” In over four years of discovery herein, Defendants have failed to produce, and Plaintiffs have been unable to discover, any evidence that Defendants ever conducted an AI for disclosure to the U.S. Department of Housing and Urban Development (HUD) and the public related to whether the ‘protected class’ was adversely impacted by the City’s application of its “heightened code enforcement standard” and illegal policy of removing ‘grandfathering rights’ under the Minnesota State Building Code through ‘Code Compliance’ inspections and certifications applied to older inner-city housing stock disproportionately occupied by ‘protected class’ members. This issue is not to be taken lightly, as falsification of AFFH certifications in return for hundreds of millions of dollars in federal funding and spoliation of documents related thereto through destruction of internal documents, 6

including e-data and e-mail communications, have serious implications. Defendants spoliation of written communications, including e-mails and other e-data for the years prior to 2005, has left Plaintiffs, HUD and the public without the key evidence HUD required the City to maintain related to the Defendants Fair Housing certifications and obligations. HUD regulations require the City to conduct a full and fair analysis of impediments to fair housing in the City, to identify those impediments, including those based on the City’s legislative code, rules, procedures and practices related to fair housing and ‘protected classes,’ its illegal demands to the private market landlords in the City to meet expensive ‘code compliance’ inspections and its creation of other barriers to fair housing. The City’s illegal “Code Compliance” requirements subverting grandfathering protections for older buildings in violation of the State Building Code, brings into question whether the City falsified its certifications to HUD through material non-disclosures. Exh. “2,” Shoemaker Affidavit, pp. 2-3 (emphasis added). In Plaintiffs’ Memorandum of Law, Plaintiffs set forth in great detail a multitude of conduct by Defendants that Plaintiffs claimed violated Defendants’ AFFH duties. See for example pages 2-23, 27-28, 35-51, 56-57, and 68-69, Exh. “2,” Shoemaker Affidavit. As part of the March 2008 submissions in support of Plaintiffs’ renewed motion for sanctions, Defendants’ and the Court had once again been apprised of 7

Plaintiff’s continued claims that Defendants’ conduct challenged by Plaintiffs was “in direct contradiction to the affirmatives made by City officials and Defendant City on an annual basis to HUD that the City was furthering fair housing and following all applicable HUD regulations.” See Exh. “3,” Shoemaker Affidavit, parag. 7, pp. 4-5; see also parags. 5-7, pp. 3-5, Id. ARGUMENT The Rules of Civil Procedure provide several methods by which judgments may be re-examined by the Court at the request of a party. One available vehicle to a party is a motion to alter or amend a judgment under Rule 59(e), Fed.R.Civ.P. The rule does not specify the reasons that will support such a motion and provides only that such motions “must be filed no later than 10 days after entry of the judgment.” The ten-day time period begins to run the day after entry of the relevant ruling, see Fed.R.Civ.P. 6(a), and weekend days and legal holidays (here, Christmas and New Year’s Day) are excluded from the period. Fed.R.Civ.P. 6(a) (2) and (4). Here, the Court’s Judgment was entered on December 19, 2008. After excluding weekends and Christmas and New Year’s Day from the period for filing such motion, the ten-day time period expires at the end of the day on January 6, 2009. Any motion which questions the correctness of a judgment is functionally a Rule 59(e) motion. See Innovative Home Health Care, Inc. v. P.T.O.T. Assocs. of the Black Hills, 141 F.3d 1284, 1286 (8th Cir. 1998). 8

Rule 59 (e) “was adopted to clarify a district court’s power to correct its own mistakes in the time period immediately following entry of judgment.” 141 F.3d at 1286 (citations omitted). Rule 59 (e) motions seek a substantive change in a judgment. BBCA, Inc. v. United States, 954 F.2d 1429, 1432 (8th Cir.), cert. denied, 506 U.S. 866 (1992). The Eighth Circuit Court of Appeals has adopted a standard of review of Rule 59(e) motions that provides a district court with broad discretion in determining whether to grant such a motion and the decision will not be reversed absent a clear abuse of discretion. Global Network Techs., Inc. v. Regional Airport Auth., 122 F.3d 661, 665 (8th Cir.1997). An abuse of discretion will only be found if the court's judgment was based on clearly erroneous factual findings or erroneous legal conclusions. Perkins v. U S West Communications, 138 F.3d 336, 340 (8th Cir.1998). Rule 59(e) motions serve a limited function of correcting “manifest errors of law or fact or to present newly discovered evidence.” Hagerman v. Yukon Energy Corp., 839 F.2d 407, 413 (8th Cir.), cert. denied, 488 U.S. 820, 109 S.Ct. 63, 102 L.Ed.2d 40 (1988). The Eighth Circuit has stated an additional ground for granting a motion to alter or amend a judgment: a court has the power to revisit its prior decisions when “the initial decision was ‘clearly erroneous and would work a manifest injustice.’” Starks v. Rent-A-Center, 58 F.3d 358 (8th Cir.1995) (quoting Christianson v. Colt Indus.Operating Corp., 486 U.S. 800, 817, 108 S.Ct. 2166, 100 L.Ed.2d 811 9

(1988)). However, “a motion to amend should [not] be employed to introduce evidence that was available at trial but was not proffered, to relitigate old issues, to advance new theories, or to secure a rehearing on the merits.” Fontenot v. Mesa Petroleum Co., 791 F.2d 1207 (5th Cir.1986). Here, the Court made manifest errors of fact that Plaintiffs had argued for the first time at oral argument that Defendants’ conduct violated their duty to affirmatively further fair housing and that Plaintiffs did not raise these arguments in their motion papers and thus Defendants did not have an opportunity to address the AFFH duty claims. As can be seen above, the Court was mistaken in determining that: (1) Plaintiffs had raised for the first time their AFFH violations claim at the last minute at oral argument – this was clearly incorrect as Plaintiffs had fully argued the claim in their Memorandum of Law submitted to the Court and Defendants weeks before the hearing; (2) Plaintiffs’ claims that Defendants had violated their AFFH duties were not raised in Plaintiffs’ motion papers despite describing the duty in Plaintiffs’ recitation of the facts – this conclusion of the Court was also mistaken as Plaintiffs had not only detailed the AFFH duty of Defendants and all related facts in the “Facts” section of Plaintiffs’ Memorandum of Law, but Plaintiffs had also made the arguments in the Introduction and Argument sections of their Memorandum; (3) “Defendants have had no opportunity to address” the violation of AFFH 10

argument – this conclusion was also incorrect as Defendants had received through the Court’s ECF system a copy of Plaintiffs’ Memorandum of Law weeks prior to the oral argument. Defendants had addressed in their Reply Memorandum one claim of many made by Plaintiffs in their Memorandum related to the violations of Defendants’ AFFH duty. Defendants simply choose to ignore the remaining arguments of Plaintiffs and failed to refute the supporting evidence submitted by Plaintiffs to support their arguments and claims that the challenged conduct violated Defendants’ AFFH duties; (4) Plaintiffs claim that Defendants had violated their AFFH duties was a “belated claim” – this was an error of law and based upon an errors of fact; and (5) Plaintiffs’ claim that Defendants had violated their AFFH duties was insufficient to avoid summary judgment. Plaintiffs submit that when the Court reopens these cases, and applies the standard of summary judgment, taking all evidence submitted by Plaintiffs as true and looking at the evidence in a light most favorable to Plaintiffs, factoring in Defendants failure to address Plaintiffs’ claims, that the Court will deny Defendants’ motion for summary judgment on the Fair Housing Claims of Plaintiffs related to Defendants’ AFFH duties. CONCLUSION Relief is warranted in these cases under Rule 59 (e). Plaintiffs request that the Court grant Plaintiffs’ motion for reconsideration to correct the clear errors of law and fact underlying the judgment, and to prevent the manifest injustice of wrongfully depriving Plaintiffs of their timely stated and supported claims that 11

Defendants, through the conduct Plaintiffs challenged, violated their affirmative duty to further fair housing. Plaintiffs request that the Court reopen these cases so that the Court can reconsider the actual claims Plaintiffs expressly raised before the Court in opposition to Defendants’ motion for summary judgment, and in so doing and applying the standards applicable to summary judgment motions, fully resolve on the merits Plaintiffs claims that Defendants’ conduct violated their AFFH duties. SHOEMAKER & SHOEMAKER, P.L.L.C. Dated: January 6, 2009 By: s/ John R. Shoemaker John R. Shoemaker (Attorney Lic. #161561) International Plaza, Suite 200 7900 International Drive Bloomington, Minnesota 55425 (952) 224-4610 Attorneys for Plaintiffs Steinhauser, et. al. Attorneys for Plaintiffs Sandra Harrilal and Steven Johnson in Harrilal, et. al. 12

Jt Memoof Law Support Motto Alter Judgmt1 6 08ecf

by Sharon Anderson on Jan 07, 2009

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Jt Memoof Law Support Motto Alter Judgmt1 6 08ecf — Document Transcript