United States District Court, D. South Dakota, Western Division
HOLLI TELFORD personally and as assignee of the claims of Brenda Burton, Plaintiff,
RON A. BRADEEN, BRADEEN REAL ESTATE, JEFF STORM, FALL RIVER COUNTY SHERIFF ROBERT EVANS and SA DANE RASMUSSEN, in their official capacities, Defendants.
JEFFREY L. VIKEN CHIEF JUDGE
case centers on an online sale of land in South Dakota to
plaintiff Holli Telford. See Docket 51 at pp. 3-6. The
court dismissed plaintiff's claims against all
defendants. (Dockets 51 & 120). Plaintiff appealed the
court's judgment to the United States Court of Appeals
for the Eighth Circuit. (Docket 134). The Eighth Circuit
remanded the case to this court for the limited purpose of
determining the date plaintiff filed her notice of appeal.
(Docket 140). The court held an evidentiary hearing on this
question on April 24, 2019. (Docket 148). Plaintiff refused
to attend the hearing. At the hearing, defendants called four
witnesses and the court received nine exhibits into evidence.
(Dockets 148 & 149). Based on the evidence the court
received at the hearing, it concludes plaintiff filed her
notice of appeal on December 20, 2018, and that the notice
contains a fraudulent stamp dated December 10, 2018.
following factual recitation is derived from this case's
procedural history and evidence presented at the April 24
hearing. (Dockets 148 & 149).
court dismissed the last of plaintiff's claims and
entered judgment in favor of the last remaining defendants on
August 29, 2018. (Dockets 120 & 121). Plaintiff had 30
days to file a notice of appeal after the date the court
entered judgment. Fed. R. App. P. 4(a)(1)(A). The appeal
deadline passed on September 28. However, plaintiff timely
filed a motion for an extension of time in which to appeal on
October 4. Docket 122; see Fed. R. App. P.
4(a)(5)(A)(i). The court granted the motion and extended
plaintiff's appeal deadline until December 12. (Docket
docket sheet for this case does not record any document filed
between November 28, when the court entered its order
extending plaintiff's appeal deadline, and the passing of
that deadline on December 12. On December 10, however,
plaintiff did file a document in a separate federal case.
Lundahl et al. v. JP Morgan Chase Bank et al., Civ.
17-5069 (Docket 72); see also Evidentiary Hearing
Ex. 101. Because plaintiff is not permitted to file documents
electronically, she typically hand-delivers them to the
clerk's office in Rapid City, South Dakota. (Docket 151 at p.
17). Deputy Clerk Sandra Thielen assisted plaintiff on
December 10 when she delivered the document she wished to
file in the Lundahl case. Id. Ms. Thielen
testified at the evidentiary hearing and the court finds her
Thielen files documents for plaintiff and is familiar with
her and her typical practices when bringing documents to
file. Id. at pp. 14-15, 17-18. Plaintiff would
typically make a copy of the first page of a document she
wished to file and ask the clerk assisting her to stamp the
copied page with a “copy filed” stamp.
Id. at p. 18. The copy filed stamp was a mechanical
stamp used by the clerk's office to memorialize the date
the original was filed. Id. at p. 24. It contained a
changeable date stamp. Id. The clerk's office
decided to discontinue use of the copy filed stamp and the
Rapid City stamp was destroyed. Id. at p. 44. Ms.
Thielen does not have a specific memory of stamping a copy of
the document plaintiff delivered for filing on December 10
with the copy filed stamp, but testified she would have
stamped it upon request. Id. at pp. 20-21.
Sunday, December 16, plaintiff e-mailed Ms. Thielen and
stated she brought a notice of appeal in this case to the
clerk's office on December 10 for filing. Id. at
pp. 34-35; Evidentiary Hearing Ex. 109. Plaintiff stated she
received a stamped copy of the notice of appeal. Ex. 109.
Attached to the e-mail was a scanned copy of a notice of
appeal with a copy filed stamp bearing the date December 10,
2018. Docket 151 at pp. 39-40; Evidentiary Hearing Ex. 103;
Docket 134. Ms. Thielen forwarded the e-mail to Tammy
Ludeman, the Deputy in Charge of the Rapid City clerk's
office. (Docket 151 at p. 32). Ms. Ludeman testified at the
evidentiary hearing and the court finds her credible.
Ludeman asked plaintiff to bring the original document to the
clerk's office and plaintiff agreed to do so on Thursday,
December 20. Id. at pp. 37-38. The document bore a
copy filed stamp dated December 10, 2018. Evidentiary Hearing
Ex. 106; Docket 134. Ms. Ludeman filed plaintiff's notice
of appeal on December 20. (Docket 151 at p. 29). When she
filed the notice of appeal, Ms. Ludeman included a note on
the docket entry stating the notice was received on December
20 and that the clerk's office had no record of receiving
the document on December 10. Id. at p. 46;
Evidentiary Hearing Ex. 104.
Thielen has no recollection of receiving a notice of appeal
when she assisted plaintiff on December 10. (Docket 151 at p.
25). She would have recalled receiving a notice of appeal
because they are time sensitive and require additional work.
Id. After plaintiff contacted the clerk's office
regarding the notice, Ms. Thielen checked the shred pile of
original documents she keeps after scanning them and did not
find the notice. Id. at p. 26. The original copy of
the document plaintiff brought to file in the
Lundahl case on December 10 was in Ms. Thielen's
shred pile. Id.
Eighth Circuit remanded this case for an evidentiary hearing
to determine the date the notice was filed. (Docket 140). The
court contacted the parties via e-mail to schedule a suitable
time for the hearing. (Docket 151 at pp. 5-6). In that e-mail
conversation, plaintiff made clear she did not intend to
appear at any evidentiary hearing. Id. at pp. 6-9;
see also Dockets 141 & 142 (copies of e-mails
from plaintiff to the court). The court decided to proceed
with the hearing without plaintiff, given her repeated
declarations that she would not appear at any evidentiary
hearing. (Docket 151 at pp. 8-9).
the hearing, defendants moved for leave to inspect the notice
of appeal plaintiff brought to the clerk's office on
December 20. (Docket 144). They proposed that Wendy Carlson,
a document examiner, inspect the notice. Id. The
court granted the motion. (Docket 147). Ms. Carlson examines
documents and handwriting to determine authenticity of
authorship. (Docket 151 at p. 57). She possesses
certification from the International School of Forensic
Document Examination and West Virginia University.
Id. at p. 55. She has examined more than 20, 000
documents since 2008 and testified as an expert witness