ORDER JEFFREY L. VIKEN, District Judge. INTRODUCTION This matter is before the court pursuant to a motion for remand filed by plaintiff State Farm Fire and Casualty Company (hereinafter "State Farm") on July 15, 2009. 1 (Docket 9). State Farm moves to remand the action to the state circuit court after defendant removed it to federal court. Id. Defendant Valspar Corporation, Inc. (hereinafter "Valspar") resists State Farm's motion to remand. (Docket 11). State Farm's motion was referred to...
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S SUMMARY JUDGMENT MOTION KAREN E. SCHREIER, Chief Judge. Plaintiff, Ryan Boddicker, filed suit against defendant, Esurance, Inc., for violations of the Family Medical Leave Act (FMLA), the Uniformed Services Employment and Reemployment Rights Act (USERRA), and the Consolidated Omnibus Budget Reconciliation Act (COBRA). Esurance moves for summary judgment on all claims. Boddicker resists the motion on the FMLA and COBRA claims. The...
ORDER DENYING IN PART AND GRANTING IN PART DEFENDANTS' SUMMARY JUDGMENT MOTION KAREN E. SCHREIER, Chief Judge. Plaintiff, Michelle Mutua, an African-American female, filed an employment discrimination suit against her employer, Texas Roadhouse, the Sioux Fall store's managing partner, Murray Welder, and the Sioux Falls market partner, Thomas Scheel (defendants). Mutua alleges discrimination and retaliation claims under 42 U.S.C. 1981, Title VII, and the South Dakota Human Rights Act, and a...
OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS ROBERTO A. LANGE, District Judge. On April 9, 2010, Plaintiff Dakota, Minnesota & Eastern Railroad Corporation ("DM & E") filed a Complaint (Doc. 1) seeking injunctive relief to prevent Defendant Kevin Schieffer ("Schieffer") from pursuing a Demand for Arbitration before the American Arbitration Association ("AAA"). On April 15, 2010, the Court held a hearing on DM & E's Motion for Temporary Restraining Order, which the Court denied (...
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT JEFFREY L. VIKEN, District Judge. I. INTRODUCTION ..................................................... 997 II. STANDARD OF REVIEW ............................................... 997 III. FACTS AND PROCEDURAL HISTORY ..................................... 998 IV. DISCUSSION ...................................................... 1002 A. QUALIFIED IMMUNITY ........................................... 1002 B. LAW ON...
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTIVE RELIEF ROBERTO A. LANGE, District Judge. I. INTRODUCTION On June 11, 2010, Plaintiffs Constitution Party of South Dakota, Joy Howe, Marvin Meyer, and Mark Pickens, filed a complaint against Defendant Chris Nelson, South Dakota Secretary of State, alleging First and Fourteenth Amendment and Equal Protection Clause claims. Plaintiffs' claims relate to efforts to get a Constitution...
ORDER DISMISSING COMPLAINT AND DENYING PLAINTIFF'S MOTION FOR PRELIMINARY AND PERMANENT INJUNCTION JEFFREY L. VIKEN, District Judge. INTRODUCTION On May 3, 2010, plaintiff Aloysius Dreaming Bear, a Lakota student and graduating senior at Oelrichs High School, brought suit against the members of the school board and the superintendent of the school district. (Docket 1). Mr. Dreaming Bear alleges defendants violated his right to free speech under the First Amendment by requiring him to wear a...
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT KAREN E. SCHREIER, Chief Judge. Defendant, Midcontinent Communication (Midcontinent), moves for summary judgment on plaintiff, Denise Moberly's, claims of sexual harassment and retaliation under Title VII. Moberly opposes the motion. The motion is granted in part and denied in part. BACKGROUND Viewed in the light most favorable to Moberly, the nonmoving party, the facts are as follows: Moberly was hired in...
MEMORANDUM OPINION AND ORDER RE: PROPOSED JURY INSTRUCTION ON S.D.C.L. 22-24A-19 LAWRENCE L. PIERSOL, District Judge. Defendant Leo Thomas Flynn filed a motion requesting this Court to address the issue of a proposed jury instruction based on S.D.C.L. 22-24A-19. Under FEDERAL RULE OF CRIMINAL PROCEDURE 12(B)(2) a "party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue." Defendant has been indicted on one...
MEMORANDUM OPINION AND ORDER LAWRENCE L. PIERSOL, District Judge. Pending before the Court is the Defendant's Motion to Suppress All Digital and Physical Evidence, Doc. 23, and the Magistrate Judge's Report and Recommendation, Doc. 37. Defendant has filed Objections, Doc. 38, to the Report and Recommendation. The primary facts in support of Search Warrant # 1 in South Dakota were the statements of a now 12 year old girl, ESL, that Mr. Houston, her uncle, had unlawful sexual contact with her...
ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT KAREN E. SCHREIER, Chief Judge. Plaintiff, Larry Jelsma, filed suit against defendant, City of Sioux Falls, for alleged violations of the Americans with Disabilities Act, the Age Discrimination in Employment Act, and the Family Medical Leave Act. The City moves for summary judgment on all claims. The motion is denied. BACKGROUND The facts, taken in the light most favorable to Jelsma, the nonmoving party, are as follows: In 1989, Jelsma...
OPINION AND ORDER DENYING MOTION FOR NEW TRIAL ROBERTO A. LANGE, District Judge. Following a jury trial on July 7, 8, and 9, 2010, Defendant Shana Schmidt was found guilty of assault with a dangerous weapon and assault resulting in serious bodily injury. On July 27, 2010, Schmidt filed a Motion for New Trial (Doc. 84), claiming that her constitutional rights to due process and a fair and impartial jury trial were violated because of the involvement of juror C.W. 1 in deliberations. For the...
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART MOTION TO SUPPRESS EVIDENCE AND STATEMENTS ROBERTO A. LANGE, District Judge. I. INTRODUCTION This matter is before the Court on the Report and Recommendation (Doc. 29) and Corrigendum/Clarification of Report and Recommendation (Doc. 32) issued by the United States Magistrate Judge, which recommends that this Court grant in part and deny in part Defendant Jason Todd Garreau's motion to suppress evidence (Doc. 14). Garreau filed a...
OPINION AND ORDER AFFIRMING DEFENDANT'S CONVICTION ROBERTO A. LANGE, District Judge. On December 10, 2009, Dale Lesmeister ("Lesmeister") was found guilty of the misdemeanor charge of Assault by Striking, Beating, or Wounding under 18 U.S.C. 1152 and 113(a)(4) after a court trial before United States Magistrate Judge Mark A. Moreno. The judgment of conviction was filed on February 24, 2010. (Doc. 39). Lesmeister filed an Amended Notice of Appeal on March 9, 2010. (Doc. 41). Because the...
OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR INJUNCTION PENDING APPEAL ROBERTO A. LANGE, District Judge. I. INTRODUCTION On June 16, 2010, ___ F.Supp.2d ___, 2010 WL 2428651, this Court issued an Opinion and Order (Doc. 26) Granting Defendant's Motion to Dismiss for lack of subject matter jurisdiction. Plaintiff Dakota, Minnesota & Eastern Railroad Corporation ("DM & E") subsequently filed a Notice of Appeal before the United States Court of Appeals for the Eighth Circuit (Doc. 31) on...
MEMORANDUM OPINION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT LAWRENCE L. PIERSOL, District Judge. Defendant Rainbow Play Systems, Inc. ("Rainbow") has moved for summary judgment on Plaintiff Fred Cornell Cone's age discrimination claim. Rainbow briefed the issues, Cone responded to Rainbow's Statement of Material Facts, and the Court has received and reviewed the supplemental argument and materials submitted by Cone in response to this Court's December 16, 2009, Memorandum Opinion and...
OPINION AND ORDER GRANTING MOTION TO DISMISS THIRD PARTY COMPLAINT AND DENYING MOTION TO CERTIFY QUESTIONS ROBERTO A. LANGE, District Judge. Third Party Defendant South Dakota Wheat Growers Association ("SDWGA") moves to dismiss the Third Party Complaint (Doc. 71) and Amended Third Party Complaint (Doc. 84) of Defendant and Third Party Plaintiff Gateway Building Systems, Inc. ("Gateway"). SDWGA moves to dismiss Gateway's claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure for...
OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING MOTION TO SUPPRESS ROBERTO A. LANGE, District Judge. Defendant, Joseph "Jimmy" Reynolds, III, filed a Motion to Suppress (Doc. 25) concerning statements he allegedly made to Calvin Wain ("Officer Waln"), a special agent with the Rosebud Sioux Tribe Law Enforcement Services, on July 21, 2009. Defendant argues that the statements were obtained in violation of Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602, 16 L.Ed.2d 694 (...
ORDER GRANTING MOTION TO CHANGE VENUE ROBERTO A. LANGE, District Judge. I. INTRODUCTION Plaintiff Bell, Inc. ("Bell") started this action in South Dakota in November of 2009, against Defendant IFS Industries, Inc. ("IFS"). Bell manufactures express courier paperboard. IFS supplied Bell with hot melt adhesive for use on the closure flap of several types of such envelopes. The Complaint stated claims for breach of express warranty, breach of implied warranty of fitness for a particular...
OPINION AND ORDER CHARLES B. KORNMANN, District Judge. INTRODUCTION Northern Valley filed this diversity action to collect for amounts allegedly due from Qwest for providing originating and terminating telephone access services. The background of this case is set forth in Northern Valley Communications, LLC v. Qwest Communications Corp., 659 F.Supp.2d 1062 (D.S.D.2009). Briefly, Northern Valley is a competitive local exchange carrier ("CLEC") that offers local telephone service in South...
