The strange and terrible saga of Eagle Nation Cycles in Neenah, Wisconsin got a little stranger last week.
Federal District Judge William C. Griesbach dismissed a lawsuit filed against the city of Neenah and its police department by Eagle Nation Cycles and four individuals: Steven V. Erato, Michael L. Funk, Wendy Williamson and Lottie A. Tucker and he ordered their lawyer, Cole White, to pay $1,500 in court costs.
The story couldn’t have gotten any more terrible. Neenah police shot and killed Funk in December 2015 during a surreal Swat standoff in which Funk and Erato were held hostage by a man named Brian T. Flatoff. It was the second time Eagle Nation Cycles had been Swatted.
According to the lawsuit, a Swat team first executed a search warrant on Eagle Nation on September 21, 2012 in hopes of finding “a complex drug manufacturing and distribution operation in conjunction with the Hells Lovers motorcycle gang and suggested activities and persons in the facility as if it were an episode of the television series, Sons of Anarchy.” The raid, as the lawsuit described it, was “fruitless” but Erato was charged with 14 felony counts, including 13 counts of being a felon in possession of a firearm – although he didn’t actually possess a firearm. He spent eight days in jail and the experience contributed to the breakup of his marriage.
Funk, Williamson and Tucker also complained that they had been traumatized by the Swat raid.
The next day, the Neenah Fire Marshall, building inspector, water inspector and police chief inspected the building that housed Eagle Nation Cycles, several other businesses and several apartments. Erato owned the building and the inspection found numerous violations. Erato was told he could no longer lease units in his building.
The suit alleged the city was trying to “force Eagle Nation Cycles out of business. Eagle Nation Cycles is located on a prime piece of property located in a developmental district of downtown. Finding a large cache of drugs would have resulted in an easy acquisition of property for the city.”
So Erato, Funk, Williamson and Tucker sought $50 million in punitive damages, $200,000 in compensatory damages and $200,000 in lost income.
As is usual, the defendants moved for a dismissal of the suit. About a month before Funk was killed, the defendants moved for dismissal on the grounds that White, the lawyer, refused to present his clients to be deposed in Milwaukee on November 5.
White replied that traveling to Milwaukee “would be nearly impossible for several of the Plaintiffs (who) are disabled individuals, two of whom sustained their disabilities defending this Nation and its interests in Vietnam and that these disabilities have been made worse by the Defendants’ action to the point that the Plaintiffs’ have become all but shut-ins as a result of the significant PTSD incurred at the hands of the Defendants’ and their actions.”
White also replied that the defendants had refused to meet with the complainants last summer. And, finally he argued that notice of the depositions had been sent to the wrong address.
Judge Griesbach didn’t buy it. In his dismissal he wrote:
“The unexplained failure to appear, which followed the unexplained failure to respond to three attempts to schedule the depositions, makes it difficult to believe that Plaintiffs’ counsel ever alerted defense counsel to any potential difficulties relating to travel or other scheduling matters. If these assertions were true, it would have been sensible and simple enough to respond to the requests to schedule the depositions rather than to ignore them.”
“Although the Defendants do not raise the issue, I cannot avoid noting that the allegations they raise do not appear to be isolated incidents. A review of PACER (the web based system that allows Public Access to Court Electronic Records) indicates that Plaintiffs’ counsel has appeared in four federal cases in this district, and three of them (now including this one) involve failures to follow rules. In one of the cases, which was recently before this court, counsel failed to respond to a motion for summary judgment, leaving the facts undisputed and leaving his client no chance to win. After dragging the defendants through more than a year and one-half of litigation in which they were alleged to have terminated the plaintiff due to her race – among the most serious allegations leveled in today’s society – Plaintiff’s counsel did not even respond to a properly supported and briefed summary judgment motion. In another case, this one before Magistrate Judge Callahan, Plaintiff’s counsel failed to follow local rules requiring proposed findings of fact, and also failed to file a response to the Defendants’ proposed filings. Judge Callahan observed that ‘The plaintiffs must bear the consequences of their failure to properly respond to the defendants’ summary judgment submissions and, thus, any fact not properly disputed by the plaintiffs is construed as an admission of the defendants’ proposed findings of fact for the purposes of the defendants’ motion.’ It is therefore unfortunately evident that counsel’s failure to respond – to emails, motions, letters, notices, etc. – has become a pattern.”
“In this case, dismissal is warranted not least because the undisputed failures to communicate appear to have been an almost reckless affront to normal procedures and good faith. Litigation is not something to be conducted casually. Even the mere filing of a lawsuit can affect someone’s reputation, and definitely affects their pocketbook.”
“A party cannot simply lodge allegations of this nature against city officers and employees and then deny them the opportunity to timely discover the evidence on which they are based so they can obtain a prompt disposition of them in court. Meaningful participation in the discovery process is not too much to ask, particularly when that process was initiated by counsel’s decision to file a lawsuit in the first place. Attorneys who approach litigation as though it is something to be undertaken haphazardly
do so at their own risk.”
Griesbach dismissed Eagle Nation Cycles’ suit with prejudice, which means that none of the surviving defendants can refile it. It is finished.