U.S. judge issues rare sanction in wetlands suit

Senior U.S. District Judge Catherine Perry had had enough.

“Defendants have repeatedly failed to comply with numerous orders,” she wrote in a Feb. 20 ruling, referring to a landowner and related entity embroiled in a lawsuit with the federal government involving wetlands conservation.

Decrying what she viewed as the defendants’ “willful violations” and “intentional disregard” of her authority for not having filed pretrial submissions, Perry announced: “The Court’s patience is now at an end.” She struck the defense’s pleadings, in the 33rd month of litigation — clearing the way for a default judgment of $462,000 against the defendants, who own approximately 6,200 acres in Randolph and Macon counties.

This type of sanction, which Perry herself described as “severe,” lies within a judge’s discretion under the rules of federal civil procedure, according to University of Missouri School of Law Professor R. Lawrence Dessem — and it may have a deterrent effect.

“It is a rare sanction,” said Dessem. “Once it is imposed, word travels that those rules mean what they say, and we best not get into a test of wills with a federal judge or she will really drop the hammer on us.”

In this case, the defense attorney — Gillis C. Leonard in Moberly — wrote in an email to Missouri Lawyers Media: “We respect her Honor’s opinions as to procedural deficiencies, for which I take full responsibility. Corrective measures have been taken to avoid repeats.” He did not elaborate further.

Leonard’s client, landowner Curtis Rodgers, said in an interview he was a “little bit confused” about why the judge had ruled as she did. To the best of his knowledge, he said, an employee of his attorney had failed to submit a filing before an important deadline in February. Also around that time, he said, his attorney’s mother died. (The latter assertion is supported by an online obituary.)

Assistant U.S. Attorney Steven Luther said he could not comment because the case is pending.

At the heart of the legal dispute is a perpetual easement that the U.S. Department of Agriculture purchased from Rodgers and his now-deceased wife for $1.12 million in 1998. The government’s goal was to “restore, protect, maintain and enhance the functional values of wetlands.” Rodgers since has transferred ownership of the underlying property to his nonprofit organization, Witness in the Wilderness, which is dedicated to providing outdoors retreats for Christians, according to Guidestar.

The U.S. Attorney’s office filed suit in June 2016 in federal court in the Eastern District of Missouri. The government claimed that Rodgers had violated the easement agreement by building earthen dams and harvesting timber on the property without authorization, and then didn’t respond to the government’s Corrective Action Plan. The government is seeking declaratory, injunctive and monetary relief, including $20,191 for the timber and $441,654 to remove three dams and lower two others to their pre-easement levels.

In 2017, the judge stayed the case after the parties announced their intention to settle, but the negotiations failed. She set the trial for September 2018.

The month before the scheduled trial date, Leonard requested and received a continuance because he was running for circuit judge in the 14th Circuit.

In October 2018, he requested and received another continuance after citing a medical problem with his knee that prevented him from traveling.

At last, the judge set the case for early April 2019. “This is a date certain which was suggested by the parties,” Perry wrote, “and so the Court does not expect to continue this case again.” The defense’s pretrial submissions were already two months past due, Perry noted, so she set a new deadline of Feb. 14 for the submissions.

Again, Leonard failed to file anything by that date. His mother was at that point in the last days of her life, according to an obituary posted on the website of the Royer Funeral Home in Oak Grove.

Perry struck the defense’s pleadings on Feb. 20, writing, “This is not the first, or even the third, Order of this Court that defendants have ignored.”

Eight days later, Leonard finally responded with a motion to set aside the order. He claimed his office had run into “e-filing difficulties”; he did not elaborate on what that meant. He also said his office had spoken to the court clerk’s office about these problems on Feb. 13, 14 and 15, after which time he believed the filing was successful.

Perry denied his motion on March 20. She called it “barebones” and “unsupported by any legal authority or affidavits.” She wrote that Leonard never explained what his filing difficulties had been. Moreover, she wrote, given that these problems appeared to be solved, he still had no explanation for his failure to file other documents she had ordered, including lists of witnesses and exhibits.

Leonard did submit a trial brief, but Perry reviewed it and wrote: “It appears that defendants lack any meritorious defense to plaintiff’s claims.”

She set a hearing for April 8 in Hannibal on the government’s request for damages. The defense may contest the amount, she wrote, but she made clear she would not reconsider her decision to enter a default judgment.

Dessem, speaking in general terms, said that “judicial orders should not be considered good ideas or suggestions to counsel, but mandates that must be obeyed.”

“These are presidentially appointed judges,” he continued. “Do we want them spending their time on questions of true constitutional issues or do we want them spending their time policing attorney behavior on issues that have nothing to do with the merits of the case?”

The case is USA v. Curtis Rodgers et al., 2:16-cv-00040.