Daywitt v. Harpestead

Background

The court considered two motions filed by Kenneth S. Daywitt, David Jannetta, Steven Hogy, Merlin Adolphson, Michael Whipple, Peter Longergan, and Russell Hatton: (1) a motion to suspend several requirements in Local Rule 7.1 and (2) a motion seeking payment of fees and costs. The court decided both motions on the written submissions without a hearing.

Motion to Suspend Local Rule 7.1

Local Rule 7.1 requires parties to meet and confer in a good-faith effort to resolve issues before filing certain motions. It also requires a statement confirming that the parties met and conferred. The scheduling order required nondispositive motions to comply with these requirements.

The plaintiffs said restrictions at the Minnesota Sex Offender Program facility and COVID-related limits at the Attorney General’s Office prevented them from contacting defendants’ counsel by telephone. They asked the court to suspend the meet-and-confer requirements or extend related deadlines so they could communicate by mail. They also asked the court to order Defendant Johnston to place opposing counsel’s cellphone numbers on the facility’s approved attorney-call list.

The court found that the plaintiffs had not shown good cause to suspend the local rule or modify the scheduling order. The court noted that defendants’ counsel had provided cellphone numbers and mailing addresses and that the plaintiffs had later met and conferred with counsel by telephone about several motions. The court also concluded that the plaintiffs had not shown that conference calls or unmonitored telephone lines were necessary to accomplish the rule’s purpose. The motion to suspend Local Rule 7.1(a), Local Rule 7.1(a)(1), and the identified subsection of Local Rule 7.1(b) was DENIED.

Motion for Payment of Fees and Costs

The plaintiffs asked the court to order defendants to pay reasonable expenses for expert witnesses, depositions, transcripts, and copying. The court understood the request to include anticipated expert-witness expenses and nonexpert discovery expenses, including court reporter and videographer fees and deposition transcripts.

The plaintiffs relied first on Minnesota’s statute allowing certain litigants to proceed without paying court costs. The court rejected that argument for several reasons. The plaintiffs had not met and conferred with defendants’ counsel about the request. The Minnesota statute applies to proceedings in Minnesota state courts and political subdivisions, not this federal-court case. The federal statute governing proceedings without prepayment of fees authorizes only limited payments by the United States and does not provide the broader relief sought. The court also rejected the plaintiffs’ arguments based on the Erie doctrine and procedural due process.

The plaintiffs alternatively relied on Federal Rule of Evidence 706, which permits a court to appoint expert witnesses and allocate their compensation. The court explained that this authority is discretionary and should be used only in compelling circumstances, such as when experts are essential to a fair trial and the interests of justice. The plaintiffs had not identified specific experts, did not know the precise extent of the expert testimony they wanted, and had not shown that expert testimony was indispensable or that the case was so complex that court-appointed experts were necessary. The court therefore denied the request for expert appointment and payment under Rule 706 at that stage. It stated that the plaintiffs could make a later request if they believed they could satisfy the required standard, and that such a request should be directed to the District Judge after rulings on the pending motions.

Disposition

Judge Hildy Bowbeer ordered that the motion to suspend the local rules was DENIED and that the motion for payment of fees and costs was DENIED. This order addressed procedural and litigation-expense requests; it did not decide the merits of the plaintiffs’ remaining First Amendment claims.