United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN, CHIEF JUDGE.
Leslie Romero initiated this action against defendants
Wounded Knee LLC (“WK LLC”), Wounded Knee
Community Development Corporation (“WKCDC”) and
Mark St. Pierre. (Docket 1). Upon plaintiff's motion, the
court dismissed Mr. St. Pierre. (Docket 31). WK LLC has not
formally appeared in the case. WKCDC retained counsel and
appeared. (Docket 32).
claims she was sexually assaulted and harassed while employed
by defendants. (Docket 1). She alleges torts and violations
of Title VII of the Civil Rights Act of 1964 and the South
Dakota Human Relations Act of 1972. Id.
AND FACTUAL BACKGROUND
failed to file answers to plaintiff's complaint, so the
clerk entered default against them. (Docket 14). Plaintiff
filed a motion for default judgment, and the court entered an
order finding she was entitled to default judgment. (Docket
27). The court later acknowledged it will not enter final
judgment in plaintiff's favor until the court makes
findings regarding the specific claims in the complaint on
which it would enter judgment and the appropriate amount of
damages supported by evidence. (Docket 39). While the court
granted plaintiff's motion for default judgment, a final
judgment has not been entered in this case.
prevent an adverse final judgment, WKCDC raised the issues of
tribal court exhaustion and tribal sovereign immunity in a
motion to set aside default judgment. (Dockets 41 & 42).
Plaintiff filed a response requesting more time to conduct
discovery on those issues. (Docket 50). The court informally
communicated with the parties about a discovery timeline and
entered a scheduling order requiring the parties to
participate in discovery on the issues of tribal court
exhaustion and tribal sovereign immunity. (Docket 54). The
On or before February 14, 2018, the parties shall complete
all discovery regarding tribal sovereign immunity and tribal
court exhaustion issues.
On or before March 16, 2018, WKCDC shall file a brief
regarding tribal sovereign immunity and tribal court
On or before April 6, 2018, plaintiff shall file a
On or before April 20, 2018, WKCDC shall file its reply.
Id. at p. 2 (emphasis in original).
January 3, 2018, WKCDC filed a motion under Federal Rule of
Civil Procedure 12(b)(1) to dismiss for lack of subject
matter jurisdiction claiming the defense of tribal sovereign
immunity. (Docket 55). WKCDC alleges its connection with the
Oglala Sioux Tribe provides WKCDC with tribal sovereign
immunity. Id. The court entered an order holding
that motion in abeyance pursuant to the scheduling order.
then filed a motion seeking an order granting various forms
of relief: imposing sanctions on WKCDC; holding WKCDC in
contempt; striking pleadings; deeming requests for admissions
admitted; and scheduling a damages hearing. (Dockets 58 &
59). Plaintiff's memorandum, supported by an affidavit
from Sara Frankenstein, plaintiff's counsel, details
WKCDC's violations of the court's order. (Docket 59
at pp. 1-8); (Docket 60). WKCDC failed to respond to
“Plaintiff's Interrogatories, Requests for
Production of Documents, and Requests for Admission to
Defendant [WKCDC].” (Docket 60 at p. 3). Ms.
Frankenstein hand-delivered this discovery request to
WKCDC's counsel, Deborah Dubray, on November 17, 2017,
and responses were due December 18, 2017. Ms. Frankenstein
e-mailed Ms. Dubray about the overdue responses on December
19, 2017. Id.
the next two weeks, Ms. Frankenstein attempted to schedule a
meet and confer with Ms. Dubray on the late discovery.
Id. at pp. 3-4. They scheduled a meet and confer
call for January 3, 2018, but on the morning of January 3,
Ms. Dubray sent an e-mail to Ms. Frankenstein cancelling the
call and indicating she would file a Rule 12(b)(1) motion to
dismiss, which Ms. Dubray did that day. Id. at p. 4.
January 4 and 8, 2018, Ms. Frankenstein e-mailed Ms. Dubray
about arranging a meet and confer, but Ms. Dubray did not
respond. Id. Ms. Frankenstein spoke with Ms. Dubray
on the phone on January 9, 2018, about discovery and Ms.
Dubray asserted the case was held in abeyance. Id.
at p. 5. Ms. Dubray stated she had to end their phone call
and would call Ms. Frankenstein back, but she did not.
Id. When Ms. Dubray did not call back, Ms.
Frankenstein e-mailed Ms. Dubray about continuing with
discovery. Id. The next day, January 10, 2018, Ms.
Dubray's verbatim response was: “WKCDC legal
position is that WKCDC is immune from your lawsuit and I see
no purpose in conferring with you on this issue. WKCDC will
not be responding to your discovery request due to their
immunity status and pending Motion to Dismiss.”
Id. at p. 6.
failed to file a timely response to plaintiff's motion on
contempt and sanctions, so the court ordered WKCDC to respond
and it did. (Dockets 61 & 62). Based on plaintiff's
motion regarding contempt and sanctions, the court entered a
show cause order directing authorized representatives of
WKCDC and its counsel of record Deborah Dubray to appear in
person and show cause why they should not be held in ...