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Romero v. Wounded Knee, LLC

United States District Court, D. South Dakota, Western Division

August 30, 2018

LESLIE ROMERO, Plaintiff,
v.
WOUNDED KNEE, LLC d/b/a SIOUX-PREME WOOD PRODUCTS, a South Dakota limited liability company; and WOUNDED KNEE COMMUNITY DEVELOPMENT CORPORATION, a South Dakota corporation, Defendants.

          ORDER

          JEFFREY L. VIKEN, CHIEF JUDGE.

         INTRODUCTION

         Plaintiff 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).

         Plaintiff 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.

         PROCEDURAL AND FACTUAL BACKGROUND

         Defendants 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.

         To 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 order stated:

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 exhaustion.

On or before April 6, 2018, plaintiff shall file a response brief.

On or before April 20, 2018, WKCDC shall file its reply.

Id. at p. 2 (emphasis in original).

         On 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. (Docket 57).

         Plaintiff 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.

         During 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.

         On 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.

         WKCDC 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 ...


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