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Bergstrom v. Frascone

United States Court of Appeals, Eighth Circuit

March 6, 2014

James Bergstrom, Plaintiff - Appellant
v.
Sgt. Michelle Frascone, in her individual capacity; Sgt. Vicki Braman, in her individual capacity; Vanessa Rew, an individual; Sgt. Stacey Webb, in her individual capacity; Commander Kris Mienert, in her individual capacity; Sgt. Sue McMahon, in her individual capacity; Det. Chris Donohoe, in his individual capacity; Det. Chris Ployart, in his individual capacity, Defendants - Appellees

Submitted June 12, 2013

Page 572

Appeal from United States District Court for the District of Minnesota - Minneapolis.

For James Bergstrom, Plaintiff - Appellant: Diana Lynn Longrie, Maplewood, MN; Jill Eleanor Clark, Golden Valley, MN.

For Sgt. Michelle Frascone, in her individual capacity, Sgt. Vicki Braman, in her individual capacity, Sgt. Stacey Webb, in her individual capacity, Commander Kris Mienert, in her individual capacity, Sgt. Sue McMahon, in her individual capacity, Det. Chris Donohoe, in his individual capacity, Det. Chris Ployart, in his individual capacity, Defendants - Appellees: Joseph E. Flynn, Leonard Jacob Schweich, JARDINE & LOGAN, Lake Elmo, MN; Peter Joseph Schwingler, STINSON & LEONARD, Minneapolis, MN.

For Vanessa Rew, an individual, Defendant - Appellee: Phillip J. Ashfield, Monica Davies, Calvin Patrick Hoffman, Peter Joseph Schwingler, STINSON & LEONARD, Minneapolis, MN; Beau Daniel McGraw, MCGRAW LAW FIRM, Lake Elmo, MN.

Before LOKEN, BRIGHT, and BYE, Circuit Judges. LOKEN, Circuit Judge, dissenting.

OPINION

Page 573

BYE, Circuit Judge.

James Bergstrom filed suit claiming malicious prosecution and violations of his civil rights. After numerous delays drawing out the discovery period for eighteen months, Bergstrom's attorney failed to comply with a court ordered deadline to submit answers to written discovery requests. The district court dismissed Bergstrom's suit with prejudice for failure to prosecute and failures to comply with a court order and the Federal Rules of Civil Procedure. We vacate the order of dismissal and remand the matter to the district court.

I

In relation to events occurring on April 23, 2010, officers of the Woodbury, Minnesota, Police Department charged Bergstrom with violating an Order for Protection which had prohibited him from having contact with his ex-wife, Vanessa Rew. The charges were later dismissed.

Represented by attorney Jill Clark, Bergstrom filed suit in state court against Rew, Sergeant Michelle Frascone, Sergeant Vicki Braman, Sergeant Sue McMahon, Sergeant Stacey Webb, Detective Chris Donohoe, Detective Chris Ployart, and Commander Kris Mienert (collectively " the Defendants" ). The case was removed to federal court and an initial scheduling order issued on November 17, 2010.

Although the initial scheduling order set the deadline for discovery for November 2011, a series of delays attributable almost exclusively to Clark drew out the discovery period until the middle of 2012. Those delays can be grouped into two main categories. Prior to September 1, 2011, except for one request from Bergstrom to reschedule his deposition, the delays were the product of conflicts with Clark's schedule. On three occasions, Clark asked the Defendants to accommodate those conflicts by rescheduling the depositions of the parties. The Defendants did so. As a result, by the beginning of September 2011, the depositions of only three of the Defendants had been taken. The depositions of three ...


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