OPINION AND ORDER GRANTING MOTION TO REMAND ROBERTO A. LANGE, District Judge. I. INTRODUCTION Plaintiff Push Pedal Pull, Inc. ("Push Pedal Pull") sued Defendants Kent Casperson ("Casperson") and 2nd Wind Exercise Equipment, Inc. ("2nd Wind") (collectively, "Defendants") through a Complaint dated April 25, 2013, Doc. 1-1, and filed in Circuit Court of Minnehaha County, South Dakota. 2nd Wind filed its Notice of Removal, Doc. 1, with this Court on May 24, 2013. Push Pedal Pull filed a Motion...
MEMORANDUM OPINION AND ORDER KAREN E. SCHREIER, District Judge. Plaintiff, Roscoe Wallace, filed suit against defendant, Interbake Foods, LLC, alleging employment discrimination, hostile work environment, and retaliation. Interbake moves for summary judgment on all of Wallace's claims and argues that Wallace failed to exhaust his administrative remedies and is time barred from bringing specific claims. Docket 37. For the following reasons, the court denies Interbake's motion. BACKGROUND The...
MEMORANDUM OPINION AND ORDER LAWRENCE L. PIERSOL, District Judge. Pending before the Court is Defendants' motion for summary judgment, Docket 84. Plaintiff Christopher Keating filed two responses in opposition to the motion, and Defendants have submitted a reply brief. The summary judgment motion will be granted in part and denied in part for the reasons set forth below. DECISION Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment shall be entered "if the...
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT ROBERTO A. LANGE, District Judge. I. Introduction. Plaintiff Federal Trade Commission ("FTC") filed this action invoking federal court jurisdiction under 28 U.S.C. 1331, 1337(a), 1345, and 1355, as well as under provisions of the Federal Trade Commission Act ("FTCA"), 15 U.S.C. 45(a), 45(m)(1)(A), 53(b), 56(a), and 57(b). There is no question about this Court's jurisdiction or venue. The FTC...
MEMORANDUM OPINION AND ORDER LAWRENCE L. PIERSOL, District Judge. Eugene H. Mathison, by his counsel of record, has filed a Petition for Writ of Habeas Corpus under 28 U.S.C. 2241 raising concerns as to whether his conviction and sentence for both money laundering and fraud is valid under the holding of United States v. Santos, 553 U.S. 507, 128 S.Ct. 2020 , 170 L.Ed.2d 912 (2008). Doc. 1. The Respondent filed a Motion to Dismiss arguing that this Court has no jurisdiction over Mathison'...
ORDER DENYING DEFENDANT'S MOTION FOR JUDGMENT AS A MATTER OF LAW KAREN E. SCHREIER, District Judge. Plaintiff, Deane Berg, brought suit against defendants, Johnson & Johnson, Johnson & Johnson Consumer Companies, Inc., and others, alleging claims for strict products liability, negligent products liability, breach of warranties, civil conspiracy, and acting in concert. After the court entered various orders following motions by defendants, the claims that remained for trial were Berg's claims...
MEMORANDUM OPINION AND ORDER RE: MOTIONS FOR SUMMARY JUDGMENT LAWRENCE L. PIERSOL, District Judge. Plaintiff, Karen Brake, brought this action under the Employee Retirement Income Security Act of 1974, 29 U.S.C. 1001, (ERISA) after the Defendant Hutchinson Technology Incorporated Group Disability Income Insurance Plan denied Plaintiff ERISA long term disability benefits under a Buy-Up supplemental plan. Doc. 1. Both parties have moved for summary judgment. Doc. 14, 18. Rule 56 Federal...
MEMORANDUM OPINION AND ORDER RE: ATTORNEY-CLIENT PRIVILEGE WAIVER JOHN E. SIMKO, Magistrate Judge. The Government has requested an Order Directing Former Defense Counsel to Respond to Defendant's Claims of Ineffective Assistance set forth in the Movant's Motion under 28 U.S.C. 2255. The Eighth Circuit Court of Appeals has recognized that the attorney-client privilege may be impliedly waived when a client attacks his attorney's competence and raises the issue of ineffectiveness or...
ORDER LAWRENCE L. PIERSOL, District Judge. By an e-mail of August 29, 2013, Eric Castaneira asked that the Court appoint counsel for him. Mr. Castaneira has demonstrated that he can adequately represent himself in these civil proceedings. The request for Court-appointed counsel is denied. Mr. Castaneira also requested that the Court hold a Zolin review of the evidence Mr. Castaneira intended to present before the hearing on the 4th of September, 2013. There is no reason for a review by the...
ORDER JEFFREY L. VIKEN, Chief District Judge. On March 19, 2013, the defendants were jointly indicted by a grand jury. (Docket 1). In count I, defendants Michael Alford and Philana Red Feather are charged with larceny relating to the property of Patricia Mousseau and others. Id. In count II, defendant Michael Alford is charged with tampering with a witness, a minor, I.T.T., in relationship to the larceny charged in count I. Id. In count III, defendant Michael Alford is charged with...
MEMORANDUM OPINION AND ORDER RE: MOTION TO DISMISS LAWRENCE L. PIERSOL, District Judge. Plaintiffs Hutterville Hutterian Brethren, Inc. (Hutterville), George Waldner, Sr., Tom Waldner, and Kenneth Waldner, brought an action against attorneys Jeffrey T. Sveen, Rodrick L. Tobin, and Harvey C. Jewett, as wall as Siegel, Bamett & Schutz, L.L.P., an Aberdeen, South Dakota law firm. The initial complaint alleged a RICO cause of action under 18 U.S.C. 1962(c) against Defendants Sveen, Jewett,...
ORDER OVERRULING PLAINTIFF'S OBJECTIONS, ADOPTING REPORT AND RECOMMENDATION, AND DISMISSING CASE JEFFREY L. VIKEN, Chief District Judge. INTRODUCTION Matthew C. Kurtenbach brought this action pursuant to 42 U.S.C. 1983 alleging defendants violated his constitutional rights under the Due Process Clause of the Fifth and Fourteenth Amendments, violated the Equal Protection clause of the Fourteenth Amendment, and violated the Eighth Amendment's prohibition against cruel and unusual punishment....
ORDER ADOPTING REPORT AND RECOMMENDATION AND OVERRULING DEFENDANTS' OBJECTIONS JEFFREY L. VIKEN, Chief District Judge. INTRODUCTION On June 5, 2012, Ivan Gibbons, Jr., ("plaintiff"), an inmate at the city jail in Winner, South Dakota, appearing pro se, filed a complaint pursuant to 42 U.S.C. 1983 alleging defendants used excessive force and engaged in racial profiling in connection with his arrest in Martin, Bennett County, South Dakota, on the evening of April 30, 2012. (Docket 1). Ivan...
MEMORANDUM OPINION AND ORDER DENYING MOTION KAREN E. SCHREIER, District Judge. Petitioner, James Michael Wilbourn, moves pro se to vacate his sentence pursuant to 28 U.S.C. 2255. For the following reasons, the motion is denied. BACKGROUND On October 20, 2010, a jury found Wilbourn guilty of conspiracy to distribute 50 grams or more of a mixture or substance containing cocaine base. The court denied Wilbourn's motion for a judgment of acquittal and for a new trial. At the first sentencing...
ORDER GRANTING PLAINTIFFS' MOTION TO AMEND COMPLAINT AND GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS OR IN THE ALTERNATIVE TRANSFER VENUE KAREN E. SCHREIER, District Judge. Plaintiffs, James Kozlowski and Perry Kozlowski, brought claims against defendants alleging causes of action for accounting, breach of contract, fraud and deceit, and tortious interference with a business/contractual relationship. Defendants, Gregory Palmquist, North American National Marketing, LLC,...
MEMORANDUM OPINION AND ORDER RE: MOTIONS TO DISMISS AND FOR SUMMARY JUDGMENT LAWRENCE L. PIERSOL, District Judge. Plaintiff Rochelle Driessen brought a pro se complaint against Defendant, Citibank, N.A., alleging violation of the Electronic Funds Transfer Act and presenting Driessen's allegation that Citibank failed to deposit a million pound lottery winning from the UK National Lottery into an account for her. Doc. 1. Driessen then filed a notice of additional claim stating that she had...
ORDER ROBERTO A. LANGE, District Judge. I. INTRODUCTION PlaintiffHonora Wierzbicki ("Wierzbicki") filed a Complaint as the Special Administrator of the Estate of her mother Mary Josephine Jones ("Jones") under the Federal Tort Claims Act, 28 U.S.C. 1346, alleging that Defendant United States of America ("the Government") was negligent in its care for Jones while Jones was a patient at the Indian Health Services Medical Center at Rosebud, South Dakota ("Rosebud IHS"). Doc. I. Wierzbicki...
MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS' MOTION FOR RECONSIDERATION KAREN E. SCHREIER, District Judge. Defendants move to reconsider the court's previous order granting interim attorneys' fees to plaintiffs and finding plaintiffs to be a "prevailing party." Defendants argue the court failed to consider or analyze a seminal United States Supreme Court decision and Eighth Circuit Court of Appeals' precedent when relying on the later-decided Eighth Circuit case Rogers Group, Inc. v....
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS OR STAY [DOCKET NO. 6] VERONICA L. DUFFY, Magistrate Judge. INTRODUCTION This diversity action is pending before this court alleging that defendant Acuity Insurance, Inc. ("Acuity"), failed in bad faith to pay plaintiff Jeff Whitesell's worker's compensation insurance benefits. Mr. Whitesell seeks both compensatory and punitive damages. Acuity has filed a motion seeking to dismiss, without prejudice, or in the...
OPINION AND ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. 2255 ROBERTO A. LANGE, District Judge. I. INTRODUCTION On October 7, 2008, Petitioner Joseph Paul Young ("Young") was indicted in the United States District Court for the District of South Dakota on three counts of bank robbery in violation of 18 U.S.C. 2113(a). United States v. Young, CR-08-40151-RAL, Trial Dor. 1. 1 Young was tried by a jury, convicted on all three counts, and sentenced to 216...
