City files response to contempt motion

The City of Libby, through City Attorney Allan Payne, has filed a response to the motion for contempt and award of costs and fees filed by attorneys for Stinger Welding in June. In the response, Payne argued not only were the documents requested by the March 2015 subpoena produced and delivered to Stinger, but also that the motion was procedurally deficient, flawed, misleading and abusive.

“Without having attempted in good faith to resolve the issue without court intervention, and without having filed the requisite motion to compel and obtained an order to the same, Stinger filed the amended motion for contempt and for award of attorney fees and costs – an amended motion which Stinger did not even bother to serve on the city, a non-party to this litigation,” Payne wrote in the response. “In addition to these procedural flaws, as described below, this motion is substantively flawed in that Stinger misleads the court as to the requirement of M.R.Civ.P. 45, and the applicability of that rule to the city’s actions here. With such procedural and substantive deficiencies, as described below, Stinger cannot be granted the relief it seeks in its amended motion for contempt.

“Moreover, even absent these procedural and substantive issues, the city has provided the documents requested in the subpoena duces tecum to Stinger, and further has invited Stinger to review the city’s files itself so it can be assured that is the case, meaning that Stinger’s amended motion is moot in any case.”

Payne’s summation of the applicable facts in the case accuse Stinger’s counsel of lying to the court with inflammatory statements regarding the behavior of Payne and the city in response to the subpoena.

“As is, unfortunately, counsel for Stinger’s usual tactic, Stinger’s ‘factual background’ contains numerous inflammatory and unfounded misstatements, which the city is compelled to correct,” Payne wrote.

Payne’s account of the facts asserts that Stinger served a subpoena on the City of Libby and Lincoln County in March 2015. At the time of service, Payne claims to be the legal representative of both entities with regard to the Stinger matter.

“Of note, in the letter attached to Lincoln County Attorney Bernard Cassidy’s Praecipe, the County Attorney states only that ‘there is no retainer agreement between Lincoln County and Mr. Payne,’” Payne wrote. “Mr. Cassidy does not say that Mr. Payne had not, in the past, represented Lincoln County – including in relation to the subpoena issued to the county by Stinger.”

Payne also cited a letter to the editor published on the opinion page of The Western News Sept. 1, 2015, submitted by former executive assistant to the county commissioners Bill Bischoff on behalf of former commissioners Marianne Roose, Ron Downey and Tony Berget. In the letter, Bischoff and the former commissioners assert they hired Payne, at no cost, to represent the county in matters related to Stinger Welding. 

No official documentation has been produced to support this assertion, nor is there any mention of the Board of Commissioners voting to approve such representation in the commissioners’ published meeting minutes. The Lincoln County Clerk and Recorder’s Office said no such document, not even an engagement letter, exists between the county and Payne.

“Because this was done in meetings without my presence, I can only tell you that an engagement letter has not been located in the Clerk and Recorder’s Office,” wrote Lincoln County Clerk and Recorder Robin Benson in response to a request for an engagement letter between Payne and Lincoln County.

Repeated messages left with Cassidy’s office for clarification of Payne’s status as legal representation for Lincoln County have gone unreturned.

Payne argued the city and county properly notified and duly served Stinger’s counsel with objections to the subpoena, and the Lincoln County Port Authority filed a motion to quash the subpoenas. The motion was denied by the court on the grounds that the port authority did not have legal standing to oppose a motion on behalf of the city and county. Payne also requested a meeting with Stinger’s counsel to confer regarding the requested documents and his objections.

Instead of meeting in good faith, Payne argued, Stinger’s attorneys immediately filed a motion to hold the city and county in contempt and award costs and fees to Stinger. The motion, he argued, constituted a violation of the Montana Rules of Civil Procedure, as opposing counsel failed to first file the requisite motion to compel production of documents requested under the subpoena. 

Payne further argued Stinger’s counsel failed to serve the motion on both the city and county, although the certificate of service attached to the document attests to its service on Payne, who was claiming, at the time, to represent both parties.

In July, Cassidy indicated Lincoln County would comply with the subpoena and furnish the requested documents. Stinger’s counsel then filed an amended motion, dropping the county and requesting only the city and Payne be held in contempt. Payne also argued the amended motion was not served upon the city, although the certificate attached to it also attests to its service on Payne, the duly appointed City Attorney for Libby.

Payne’s final claim in the filing was that the city had produced the documents required under the subpoena, and as such, should be granted the same consideration afforded Lincoln County – the withdrawal of the motion.

“I am writing in response to your letter dated Sept. 1, 2015, regarding the City of Libby’s response to your clients’ subpoena duces tecum in this matter,” Payne wrote to David Cotner, Stinger’s counsel. “I think what you are failing to understand is that the city had no real involvement in the Stinger project and therefore does not have records relating to it other than the resolution and meeting minutes it has produced. A copy of the minutes of a council meeting, which was inadvertently left out of the prior production, is attached.

“For example, from the meeting minutes of Sept. 14, 2009, it appears one City Council member, Mr. Carter, had himself personally obtained a copy of a CDBG grant, evidencing that the city did not have a copy of the grant or other documents related to the Stinger project. With no involvement in the Stinger project and no records, the city did not find any privileged documents to list in a privilege log. It is no more complicated than that.”

Based upon the assertion that the city had complied with the terms of the subpoena, Payne requested counsel for Stinger drop the motion for contempt, as had been done previously when Lincoln County complied with the request.

A public records request filed with Libby City Clerk and Treasurer Glena Hook and copied to Libby Mayor Doug Roll and Payne Sept. 15 went unanswered and unacknowledged as of press time Sept. 17.

Payne’s response, based upon Stinger’s refusal to drop the motion for contempt and the deficiencies he cited with the original motion, included a counter-motion for the court to grant the city costs and fees.

“That said, in improperly filing a motion for contempt, and in refusing to withdraw the same when the requested documents were produced, Stinger and its counsel are abusing this court’s process by multiplying the proceedings here unreasonably and vexatiously, and the city therefore requests that the court deny Stinger’s motion for contempt and order that Stinger pay the city’s attorneys’ fees related to responding to Stinger’s spurious and improper motion,” Payne wrote.

Cotner said he would be filing a formal response with the court within the next two weeks, but declined to comment on what would be specifically included in the response.