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| Case Name Case Number Judge |
Nature of Suit Summary |
|---|---|
| Kunzer v. Magill 09-1950 DSD/FLN Chief Judge Daniel L. Hovland 10/29/2009 |
000 No Nature of Suit Code Used The Plaintiff filed an action against the former United States Attorney for the District of Minnesota for failure to prosecute. The Defendant filed a motion to dismiss. The Court granted the Defendant’s motion to dismiss, finding that the United States Attorney was protected by absolute immunity as to the exercise of his discretion and judgment in determining whether to initiate a prosecution. |
| USA v. Tyrone Roper 4-08-cr-22 Chief Judge Daniel L. Hovland 10/21/2009 |
000 No Nature of Suit Code Used An indictment was filed against the defendant in the Western District of Kentucky. The defendant was arrested in the District of North Dakota and requested a Rule 20 Transfer of his case to North Dakota. The defendant has failed to appear at scheduled hearings in this district. The Government filed a motion to vacate the Rule 20 Transfer, arguing that the defendant’s failure to appear is in violation of the rule. The Court granted the Government’s motion and vacated the Rule 20 Transfer, finding that by failing to appear at the scheduled hearings, the defendant is continuing to maintain a de facto not guilty plea to the charges. |
| Nokota Horse Conservancy, Inc. v. Bernhardt, et al. 1-09-cv-24 Chief Judge Daniel L. Hovland 10/20/2009 |
840 Trademark The plaintiff filed a motion for temporary restraining order and/or preliminary injunction, arguing that the defendants should be enjoined and restrained from using the mark “NOKOTA” in any way, including at a pending roundup sale of horses. The Court granted the plaintiff’s motion for temporary restraining order, finding that the Dataphase factors weigh in favor of the issuance of a temporary restraining order. |
| XTO Energy, Inc. v. Schmidt 4-09-cv-66 Chief Judge Daniel L. Hovland 10/20/2009 |
290 All Other Real Property The Plaintiff filed an ex parte motion for a temporary restraining order, arguing that the Defendant should be enjoined from interfering with the Plaintiff’s attempts to access the Defendant’s property for geophysical operations. The Court granted the motion, finding that the Dataphase factors for issuance of a temporary restraining order were satisfied. |
| Medcenter One Health Systems, et al. v. Health & Human Services 1-08-cv-63 Chief Judge Daniel L. Hovland 10/13/2009 |
151 Medicare Act The Plaintiffs filed a motion for summary judgment and the Defendant filed a cross-motion for summary judgment. The Court granted the Plaintiffs’ motion and denied the Defendant’s motion, finding that the Administrator of the Centers for Medicare and Medicaid Services’ decision was arbitrary and capricious. |
| Clausen v. National Geographic Society, et al. 4-08-cv-103 Chief Judge Daniel L. Hovland 10/9/2009 |
440 Other Civil Rights The defendants filed a motion for judgment on the pleadings, arguing that the plaintiff lacks standing to pursue the Title IX, breach of contract, state law discrimination, and fraud claims. The defendants further argue that the plaintiff’s state law retaliation claims are barred by the applicable statute of limitations and that they do not owe the plaintiff a fiduciary duty. The Court granted the defendants’ motion for judgment on the pleadings, finding that the plaintiff’s claims under the state whistle-blower statute and the state Human Rights Act are time-barred, and that the plaintiff failed to assert a valid Title IX, breach of contract, actual fraud, or constructive fraud claim. As such, all claims should be dismissed as a matter of law. |
| USA v. Kyle Ray DeCoteau 4-08-cr-37 Chief Judge Daniel L. Hovland 9/1/2009 |
000 No Nature of Suit Code Used The defendant underwent a competency evaluation and a competency hearing was held. The Court found that the three-part scheme for determining mental competency to stand trial was met. |
| Arnegard, et al. v. Farm Service Agency, et al. 4-08-cv-83 Chief Judge Daniel L. Hovland 8/19/2009 |
190 Other Contract The plaintiffs filed a motion for summary judgment, arguing that they were not in violation of their federal farm loan and that the liquidated damages, penalties, and future farm loan constrictions were not warranted. The defendants filed a motion for summary judgment, arguing that substantial evidence supported the agency’s findings. The Court denied the plaintiffs’ motion for summary judgment and granted the defendants’ motion for summary judgment, finding that the agency’s determination was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. |
| Brown v. Flying J, Inc. 1-08-cv-59 Chief Judge Daniel L. Hovland 8/14/2009 |
442 Employment The defendant filed a motion for summary judgment, arguing that the plaintiff failed to prove that the defendant knew or should have known of the racial harassment the plaintiff endured; that the harassment affected a term, condition, or privilege of his employment; and that the defendant failed to take prompt and remedial action to end the harassment. The defendant also argued that the plaintiff did not establish that he was terminated either on account of his race or in retaliation for complaining of racial harassment. The Court granted the motion for summary judgment, finding that the defendant took prompt, remedial action reasonably calculated to end racial harassment in the workplace; that the plaintiff was not terminated on account of his race; and that the defendant did not retaliate against the plaintiff for complaining of racial harassment. |
| Puklich v. John E. Potter 1-06-cv-90 Chief Judge Daniel L. Hovland 8/12/2009 |
442 Employment The defendant filed a motion for summary judgment, arguing that the plaintiff failed to prove that the defendant knew or should have known of sexual harassment the plaintiff endured and failed to take prompt and effective remedial action to end the harassment. The defendant also argued that the plaintiff did not establish that the sexual harassment affected a term, condition, or privilege of her employment. The Court granted the motion for summary judgment, finding that the defendant took prompt remedial action reasonably calculated to end the sexual harassment of the plaintiff in the workplace. |
| Gladue, et al. v. USA 4-07-cv-69 Chief Judge Daniel L. Hovland 8/12/2009 |
240 Torts to Land The defendant filed a motion for summary judgment, arguing that it was not liable for the alleged negligence of an independent contractor and that it was not liable for its own alleged negligence and trespass. The Court granted the motion for summary judgment, finding that under the Federal Tort Claims Act the defendant was not liable for the alleged negligence of its independent contractor, and that the plaintiffs failed to show that the defendant was directly liable for its own negligence and trespass. |
| Roemmich v. Eagle Eye Development, LLC, et al. 1-04-cv-79 Chief Judge Daniel L. Hovland 8/11/2009 |
160 Stockholders' Suits The defendants filed a motion for execution of judgment in which they sought the foreclosure of the plaintiff’s membership interest in Eagle Eye Development, LLC. The Court denied the motion, finding that the North Dakota Limited Liability Company Act does not allow foreclosure as a remedy when enforcing a judgment against a judgment creditor’s membership interest in a limited liability company. |
| USA v. Darren Michael Henry 4-09-cr-06 Chief Judge Daniel L. Hovland 7/16/2009 |
000 No Nature of Suit Code Used The defendant filed a motion in limine requesting that the Court instruct the jury in the upcoming trial that he faces a 15-year mandatory minimum sentence if convicted of sexual exploitation of a minor. The Court denied the motion, finding that a defendant does not have a Sixth Amendment right to a jury instruction on a mandatory minimum sentence. |
| Roemmich v. Eagle Eye Development, LLC, et al. 1-04-cv-79 Chief Judge Daniel L. Hovland 7/7/2009 |
160 Stockholders' Suits The Defendants moved to allow lay and expert testimony at a hearing for the pending motion to enforce judgment. The Defendants requested that Leland Bertsch and Eagle Eye Development’s accountant, Jon Wagner, be allowed to provide lay testimony at the hearing and that Professor Carter Bishop be allowed to provide expert testimony at the hearing. The Court granted in part and denied in part the motion, finding that Bertsch and Wagner will be allowed to provide lay testimony but that Professor Bishop will not be allowed to provide expert testimony. |
| USA v. William Dean Sandland 1-07-cr-100 Chief Judge Daniel L. Hovland 6/19/2009 |
000 No Nature of Suit Code Used The defendant filed a motion for habeas corpus relief under 28 U.S.C. § 2255, arguing that he had received ineffective assistance of counsel and that the Court had violated his rights. The Court dismissed the motion, finding that the defendant failed to show that defense counsel’s performance was deficient or, if defense counsel was deficient, that the defendant’s defense was prejudiced. Further, the defendant failed to show that the Court made a constitutional or jurisdictional error, or that there was a complete miscarriage of justice. |
| Gustafson v. Poitra, et al. 4-09-cv-16 Chief Judge Daniel L. Hovland 6/17/2009 |
230 Rent Lease & Ejectment The plaintiff filed a motion for injunctive relief to enjoin and restrain the defendants from interfering with the plaintiff’s access to and possession of fee land located within an Indian reservation. The plaintiff and defendant Sandra Poitra entered into a settlement agreement in which the parties agreed that Poitra no longer had any right or claim to the land. The Court sua sponte ordered a dismissal of the case, finding that the parties resolved the federal dispute. |
| EOG Resources Inc. v. Badlands Power Fuels LLC, et al. 4-08-cv-38 Chief Judge Daniel L. Hovland 6/9/2009 |
190 Other Contract The plaintiff filed a motion for summary judgment, arguing that the indemnity provisions within a contract for oil well services were valid and enforceable under Texas law. The Court granted the motion, finding that the indemnity provisions were valid and enforceable. |
| EOG Resources Inc. v. Badlands Power Fuels LLC, et al. 4-08-cv-38 Chief Judge Daniel L. Hovland 6/9/2009 |
190 Other Contract The plaintiff filed a motion for summary judgment, arguing that defendant Badlands Power Fuels performed work for the plaintiff under a verbal work order and that the recital description of Badlands Power Fuels’ business in a contract for oil drilling services did not limit the scope of the agreement. The Court granted the motion, finding that it was within the normal course of business for Badlands Power Fuels to perform work for the plaintiff pursuant to verbal work orders, and that the recital description of Badlands Power Fuels’ business did not limit the scope of the agreement. |
| Burke v. ND Department of Correction & Rehabilitation, et al. 1-07-cv-04 Chief Judge Daniel L. Hovland 6/5/2009 |
550 Civil Rights An inmate filed a complaint with the Court under 42 U.S.C. § 1983, alleging statutory and constitutional violations, including interference with the free exercise of religion, lack of adequate medical care, retaliation for exercising his constitutional rights, failure to protect, refusal to accommodate his disability, and cruel and unusual punishment. The defendants filed a motion for summary judgment. The Court granted the motion, finding that the inmate failed to raise a genuine issue of material fact as to a statutory or constitutional violation of his rights. |
| EOG Resources Inc. v. Badlands Power Fuels LLC, et al. 4-08-cv-38 Chief Judge Daniel L. Hovland 6/5/2009 |
190 Other Contract Defendant B.O.S. Roustabout filed a motion for partial summary judgment, arguing that an indemnity provision within a contract for oil well services was inconspicuous and, therefore, unenforceable under Texas law. The Court denied the motion, finding that the indemnity provision was conspicuous and that it created a mutual indemnity obligation on the contracting parties. |
| Miner v. Standing Rock Sioux Tribe, et al. 1-08-cv-105 Chief Judge Daniel L. Hovland 5/20/2009 |
442 Employment The Defendants filed a motion for judgment on the pleadings, arguing that the Court lacks jurisdiction over the action pursuant to the holding in Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978). The Plaintiff filed a motion for summary judgment, arguing that the holding under Santa Clara Pueblo is not applicable and that she is entitled to judgment as a matter of law. The Court granted the Defendants’ motion for judgment on the pleadings and denied the Plaintiff’s motion for summary judgment, finding that the Court lacks subject matter jurisdiction over the action pursuant to Santa Clara Pueblo. |
| Holbach v. Bertsch, et al. 1-09-cv-14 Chief Judge Daniel L. Hovland 5/20/2009 |
550 Civil Rights The Plaintiff filed a motion for preliminary injunction, arguing that the Court should require the North Dakota Department of Corrections and Rehabilitation to remove a phone block that has prevented the Plaintiff from talking to his son. The Court denied the motion, finding that the Plaintiff did not satisfy any of the factors required for a preliminary injunction as set forth in Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109 (8th Cir. 1981). |
| USA v. Melvin Troy Twoshields 1-06-cr-19 Chief Judge Daniel L. Hovland 5/14/2009 |
000 No Nature of Suit Code Used The defendant filed a motion for habeas corpus relief under 28 U.S.C. § 2255, arguing that he had received ineffective assistance of counsel. The Court dismissed the motion, finding that the defendant did not show that defense counsel’s performance was deficient or, if defense counsel was deficient, that the defendant’s defense was prejudiced. |
| Hoff, et al. v. Elkhorn Bar, et al. 1-08-cv-71 Chief Judge Daniel L. Hovland 5/12/2009 |
360 Other Personal Injury The Defendants moved for judgment on the pleadings on the Plaintiffs’ dram shop and wrongful death claims. The Court granted in part and denied in part the motion. The Court granted judgment on the pleadings on the Plaintiffs’ dram shop claims, finding that North Dakota’s dram shop statutes prevent the intoxicated person’s family from recovering under the statutes. The Court denied judgment on the pleadings on the Plaintiffs’ wrongful death claims, finding that the Defendants owed a duty of reasonable care to its customers. |
| Anderson v. Hess Corporation 1-07-cv-65 Chief Judge Daniel L. Hovland 5/5/2009 |
360 Other Personal Injury A third party filed a motion to intervene after the case had settled. The Court denied the motion, finding that the third party did not have a recognized interest in the lawsuit and that intervention would unduly prejudice the parties. |
| Gustafson v. Poitra, et al. 4-09-cv-16 Chief Judge Daniel L. Hovland 4/15/2009 |
230 Rent Lease & Ejectment The Plaintiff filed an ex parte motion temporary restraining order, arguing that the Defendants should be enjoined from interfering with the Plaintiff’s access to and possession of the Plaintiff’s property. The court granted the motion, finding that the Dataphase factors for issuance of a temporary restraining order were satisfied. |
| USA v. Karl Robert Irwin 1-05-cr-21 Chief Judge Daniel L. Hovland 3/31/2009 |
000 No Nature of Suit Code Used The Defendant requested copies of his trial transcript and sentencing transcript so that he could file a habeas corpus petition pursuant to 28 U.S.C. § 2241. The Court denied the request for a copy of the trial transcript, finding that a trial transcript has no connection or relevance to a Section 2241 motion. The Court granted the request for a copy of the sentencing transcript. The Court ordered that the sentencing hearing be transcribed and a copy be made available to the Defendant and the Court. |
| Tweed, et al. v. Schuetzle, et al. 1-06-cv-32 Chief Judge Daniel L. Hovland 3/23/2009 |
550 Civil Rights The Plaintiff inmates filed a motion for injunctive relief, arguing that the Defendants should be enjoined from prohibiting the Plaintiffs from communicating via United States mail for purposes of this case. The Plaintiffs also filed a motion for extension of time to file an objection to the Report and Recommendation on their Rule 60(b)(3) motion to vacate judgment. The Court granted the motion for extension of time but denied injunctive relief, finding that none of the Dataphase factors for issuance of injunctive relief was satisfied. |
| USA v. Kyle Ray DeCoteau 4-08-cr-37 Chief Judge Daniel L. Hovland 3/17/2009 |
000 No Nature of Suit Code Used The Defendant filed a motion to suppress statements that he made to law enforcement officers, arguing that he was subject to custodial interrogation without first being read his Miranda rights and that his statements were involuntarily made as a result of mental limitations. The Court denied the motion, finding that the Defendant was not in custody for purposes of Miranda. The Court determined that mental limitations alone are insufficient to render statements involuntary – there must also be evidence of coercive police activity. The Court found that the record was devoid of any evidence that police engaged in overreaching or coercive conduct. The Defendant’s statements to law enforcement officers are admissible. |
| USA v. Patrick Timothy McMorrow 1-03-cr-80 Chief Judge Daniel L. Hovland 3/10/2009 |
000 No Nature of Suit Code Used The defendant filed a motion for habeas corpus relief under 28 U.S.C. § 2255, arguing that he was being improperly held in a special housing unit in prison, that he did not have access to legal resources, that an FBI agent falsely testified at trial, and that he received ineffective assistance of counsel. The Court dismissed the motion, finding that it did not have jurisdiction over the first two claims and that the last two claims were not timely filed within the one-year limitation period. |
| White Body, Jr. v. Mukasey, et al. 4-08-cv-101 Chief Judge Daniel L. Hovland 3/2/2009 |
530 General The Petitioner filed a motion under 28 U.S.C. § 2241 for habeas corpus relief. The Court reviewed the motion and concluded that the motion should be reclassified as a 28 U.S.C. § 2255 motion. Pursuant to Morales v. United States, 304 F.3d 764 (8th Cir. 2002), the Court, prior to reclassifying the motion, informed the Petitioner of the restrictions on second or successive Section 2255 motions and of the one-year limitation period on filing Section 2255 motions. Additionally, the Court provided the Petitioner an opportunity to either consent to the reclassification or to withdraw the Section 2241 motion. |
| USA v. Karl Robert Irwin 1-05-cr-21 Chief Judge Daniel L. Hovland 2/27/2009 |
000 No Nature of Suit Code Used The Defendant filed a letter with the Clerk of Court in which he requested copies of his trial transcript, sentencing transcript, and docket sheet so that he can file a Section 2255 motion for habeas corpus relief. The Court ordered the Defendant to show cause by April 3, 2009, as to why he should be entitled to receive copies of the trial transcript and sentencing transcript despite having failed to obtain authorization from the Eighth Circuit Court of Appeals to file a second or successive Section 2255 motion, and despite the fact that the filing of any such petition would fall beyond the one-year period of limitation. |
| USA v. Julian Spottedhawk Ramirez 1-07-cr-47 Chief Judge Daniel L. Hovland 2/19/2009 |
000 No Nature of Suit Code Used The Defendant filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody, arguing (1) that defense counsel was ineffective for failing to seek the suppression of statements that Defendant made to law enforcement officers; (2) that defense counsel was ineffective for failing to investigate whether law enforcement officers investigated other suspects for the crimes charged against him; and (3) that the statements he made to law enforcement officers were in violation of Miranda v. Arizona, 384 U.S. 436 (1966). The Court dismissed the motion, finding that the Defendant did not receive ineffective assistance of counsel. |
| EOG Resources, Inc. v. Badlands Power Fuels LLC, et al. 4-08-cv-38 Chief Judge Daniel L. Hovland 2/18/2009 |
000 No Nature of Suit Code Used One Defendant filed a motion to dismiss the complaint on the ground that the Court lacks subject matter jurisdiction over the action. The Defendant attempted to realign a co-Defendant as a party plaintiff, arguing that the legal interests of the Plaintiff and the co-Defendant are closely aligned. Realignment of the co-Defendant as a plaintiff would have defeated diversity jurisdiction. The Court denied the motion, finding that an actual controversy exists between the Plaintiff and the co-Defendant. |
| USA v. Fidel Diaz-Quintana 1-08-cr-64 Chief Judge Daniel L. Hovland 2/6/2009 |
000 No Nature of Suit Code Used The Defendant filed a motion to suppress evidence, arguing that he was unlawfully detained by law enforcement officers in violation of his Fourth Amendment rights and that evidence secured during the unlawful detention was obtained in violation of his Fifth Amendment rights. The Court denied the motion to suppress evidence, finding that the Defendant was lawfully detained while his immigration status could be determined and was not under custodial arrest until after it was discovered that he had a criminal and immigration history. Any evidence obtained prior to the custodial arrest is admissible, as are the Defendant’s incriminating statements made after he was read his Miranda rights. |
| USA v. Sebastian Joseph Feist 1-08-mc-06 Chief Judge Daniel L. Hovland 1/28/2009 |
000 No Nature of Suit Code Used The Defendant filed a motion to reconsider the Court’s order for payment of the statutory filing fee in an appeal. The Court denied the motion, finding that the Prison Litigation Reform Act, 28 U.S.C. § 1915, permits district courts to require the payment of a filing fee, to waive all fees, or to impose partial filing fees. The Court found that the Defendant has sufficient funds to pay the filing fee over time in accordance with 28 U.S.C. § 1915. |
| Gillette v. ND Disciplinary Board Counsel, Brent Edison 4-08-cv-102 Chief Judge Daniel L. Hovland 1/14/2009 |
440 Other Civil Rights The Plaintiff filed a motion for declaratory judgment and injunctive relief. The Plaintiff sought a declaration that North Dakota disciplinary law does not apply on an Indian reservation. The Plaintiff also filed a motion for injunctive relief to enjoin the North Dakota Disciplinary Board from administering state disciplinary proceedings against him. The Defendant filed motions to dismiss, contending that the doctrine of abstention, as announced in Younger v. Harris, 401 U.S. 37 (1971), applies. The Court granted the motions to dismiss, finding that the Younger doctrine of abstention applies. The Court denied the motion for declaratory and injunctive relief as moot. |
| Gravalin v. Reliance Standard Life Insurance 3-07-cv-71 Chief Judge Daniel L. Hovland 1/13/2009 |
110 Insurance The Plaintiff filed a complaint for the wrongful denial of benefits under the Employment Retirement Income Security Act. Each party brought a motion for summary judgment. The Court granted the Plaintiff’s motion for summary judgment and denied the Defendant’s motion for summary judgment. The Court found that under a de novo review of the life insurance policies, the effective date of the retirement benefits at issue was October 20, 2006. Therefore, the Plaintiff’s husband died within the conversion period of the life insurance policies and the Plaintiff is entitled to the life insurance benefits. |
| Anderson v. Hess Corporation 1-07-cv-65 Chief Judge Daniel L. Hovland 1/12/2009 |
360 Other Personal Injury The Defendant filed a motion in limine to suppress any causation testimony by the Plaintiff’s medical experts. The Defendant filed a motion for summary judgment in the event that the Court granted the motion in limine in full and excluded causation testimony. The Court granted in part and denied in part the motion in limine, finding that the Plaintiff’s treating medical physician could testify as to causation because he performed a differential diagnosis. The Court denied the motion for summary judgment as moot. |
| Krosch, et al. v. JLG Industries, Inc., et al. 1-07-cv-45 Chief Judge Daniel L. Hovland 12/19/2008 |
365 Personal Injury - Product Liability The Defendants filed motions for summary judgment on the Plaintiffs’ strict liability and negligence claims. The Court granted the summary judgment motions brought by defendants JLG Industries and P-Q Controls. The Court found that the Plaintiffs did not present expert witness testimony or sufficient evidence to support their strict liability claims, and that the Plaintiffs did not present credible evidence or expert witness testimony to satisfy the elements of their negligence claims. The Court denied the summary judgment motion brought by defendant Dakota-Montana Hardware, finding that the issue of spoliation is a genuine issue of material fact that precludes summary judgment. |
| USA v. Billy Dean Sandland 1-07-cr-100 Chief Judge Daniel L. Hovland 12/18/2008 |
000 No Nature of Suit Code Used The Defendant filed a motion to appoint counsel to assist in applying for habeas corpus relief. The Court denied the motion, finding that there is not a constitutional right to counsel in habeas corpus proceedings, that the interests of justice do not require the appointment of counsel, and that neither the claims nor the facts giving rise to them appear to be complex. |
| USA v. Melvin Troy Twoshields 1-06-cr-19 Chief Judge Daniel L. Hovland 12/9/2008 |
000 No Nature of Suit Code Used The Defendant filed a motion to appoint counsel, arguing that counsel is necessary for his 28 U.S.C. § 2255 motion because he does not have sufficient access to the law library and he is not capable of assisting in his own defense. The Court denied the motion, finding that there is not a constitutional or statutory right to counsel in habeas proceedings, that the interests of justice do not require the appointment of counsel, and that neither the claims nor the facts giving rise to them appear to be complex. |
| USA v. Patrick Timothy McMorrow 1-03-cr-80 Chief Judge Daniel L. Hovland 12/5/2008 |
000 No Nature of Suit Code Used The Defendant filed a motion for to appoint counsel, arguing that counsel is necessary for his 28 U.S.C. § 2255 motion because he is unable to afford counsel, his imprisonment will greatly limit his ability to litigate, and he has little access to jailhouse lawyers because he is in special housing. The Court denied the motion, finding that there is not a constitutional or statutory right to counsel in habeas proceedings, that the interests of justice do not require the appointment of counsel, and that neither the claims nor the facts giving rise to them appear to be complex. |
| Wilhelm v. Credico, Inc., et al. 1-05-cv-02 Chief Judge Daniel L. Hovland 12/5/2008 |
480 Consumer Credit The Defendants filed a motion for summary judgment, contending that their previously-served Rule 68 Offer of Judgment moots the case. The Court denied the motion, finding that the Rule 68 Offer of Judgment does not moot the case, and reserved the issues of liability and damages for the jury to resolve. |
| Geokinetics USA, Inc. v. Marmon, et al. 4-08-cv-104 Chief Judge Daniel L. Hovland 12/3/2008 |
290 All Other Real Property The Plaintiffs filed a motion for an ex parte temporary restraining order, arguing that the Defendants should be enjoined from interfering with the Plaintiff’s attempts to access the Defendants’ property for the Plaintiff’s geophysical operations. The court granted the motion, finding that the Dataphase factors for issuance of a temporary restraining order were satisfied. |
| Wilhelm v. Credico, Inc., et al. 1-05-cv-02 Chief Judge Daniel L. Hovland 12/2/2008 |
480 Consumer Credit The Plaintiff filed a motion for class certification. The Court denied the motion, finding that the Plaintiff failed to satisfy the requirements of Rule 23(a) of the Federal Rules of Civil Procedure. |
| Pressdough of Bismarck, LLC v. A&W Restaurants, Inc., et al. 1-08-cv-62 Chief Judge Daniel L. Hovland 11/24/2008 |
196 Franchise The Defendants filed a motion to transfer venue pursuant to 28 U.S.C. § 1404(a), contending that the action should be transferred to the Western District of Kentucky, where an action between the same parties is pending. The Court granted the motion, finding that the interests of justice weigh in favor of consolidating the actions in the Western District of Kentucky. |
| Amerind Risk Management Corp. v. Malaterre, et al. 4-07-cv-59 Chief Judge Daniel L. Hovland 11/14/2008 |
110 Insurance The Plaintiff filed a motion for summary judgment, contending that the Tribal Court lacks subject-matter jurisdiction over the dispute because the Plaintiff is a nonmember of the Tribe. The Court, applying the rule first articulated in Montana v. United States, 450 U.S. 544 (1981), concluded that the first Montana exception applied and that the Tribal Court has not exceeded its jurisdiction by exercising authority over the Plaintiff. The Court denied the motion and sua sponte granted summary judgment in favor of the Defendants. |
| USA v. Lawrence W. Wallace 1-06-cr-66 Chief Judge Daniel L. Hovland 11/10/2008 |
000 No Nature of Suit Code Used The Defendant filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody, arguing that he was mentally incompetent to plead guilty and that he received ineffective assistance of counsel because his defense counsel did not investigate the Defendant’s competency. The Court dismissed the motion, finding that the Defendant was mentally competent to plead guilty and that he did receive ineffective assistance of counsel. |
| Standing Rock Housing Authority v. US Equal Employment Opportunity Commission 1-08-cv-52 Chief Judge Daniel L. Hovland 11/10/2008 |
442 Employment The Defendant filed a motion to dismiss asserting that the Court did not have subject matter jurisdiction over the Plaintiff’s claims. The Court granted the motion, finding that the case was not ripe for judicial review. |
| USA v. Sebastion Joseph Feist 1-08-mc-06 Chief Judge Daniel L. Hovland 11/10/2008 |
000 No Nature of Suit Code Used The Defendant filed a motion to issue a writ of audita querela, arguing that the United States Parole Commission and its associated laws expired on November 1, 2002, and was not extended until November 2, 2002. Therefore, the Defendant contended that he should have received a parole release date because the extension of the Parole Commission was ineffective because the Parole Commission had already ceased to exist as of November 1, 2002, and could not be further extended. The Court denied the motion, finding that an alternative post-conviction remedy was available, namely, a motion pursuant to 28 U.S.C. § 2241. |
| Burke v. ND Department of Correction & Rehabilitation 1-07-cv-04 Chief Judge Daniel L. Hovland 11/3/2008 |
550 Civil Rights The Plaintiff filed a motion for a temporary restraining order. The Court denied the motion finding that the Plaintiff had not met his burden of establishing irreparable harm and that the granting of injunctive relief would not serve the public interest. |
| Bray v. Portfolio Recovery Assoc. LLC, et al. 1-08-cv-88 Chief Judge Daniel L. Hovland 10/27/2008 |
480 Consumer Credit The Plaintiff filed a motion for a temporary restraining order to enjoin the State district court from proceeding with debt collection action against the Plaintiff. The Court denied the motion, finding that the Plaintiff failed to satisfy his burden under Rule 65 of the Federal Rules of Civil Procedure and the Anti-Injunction Act. |
| USA v. Daniel R. Belgarde 4-07-cr-14 Chief Judge Daniel L. Hovland 10/10/2008 |
000 No Nature of Suit Code Used An inmate filed a petition under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. The Court denied the petition, finding that the Defendant failed to prove ineffective assistance of counsel. |
| Magelky v. BNSF Railway Co. 1-06-cv-25 Chief Judge Daniel L. Hovland 10/1/2008 |
330 Federal Employers Liability The Defendant moved for a judgment as a matter of law that it did not violate the Federal Safety Appliance Act and that the Plaintiff’s injuries were not caused by the Defendant’s violation of the Federal Safety Appliance Act. The Defendant also moved for a new trial on causation and economic damages and, alternatively, a remittitur on economic damages. The Court denied the motion for a judgment as a matter of law, finding that the jury had a legally sufficient evidentiary basis for its verdict. The Court denied the motion for new trial, finding that the jury’s verdict was not against the weight of the evidence, the Court did not abuse its discretion, the jury instructions properly informed the jury of the substantive law, and no comments made by the Plaintiff’s counsel were plainly unwarranted, clearly injurious, or prejudicial. The Court denied the motion for remittitur, finding that the jury’s damage award was not unreasonable. |
| USA v. Shondo Billie 4-05-cr-12 Chief Judge Daniel L. Hovland 9/17/2008 |
000 No Nature of Suit Code Used An inmate filed a petition under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. The Court denied the petition, finding that the Defendant failed to prove ineffective assistance of counsel. |
| USA v. Patrick Timothy McMorrow 1-03-cr-80 Chief Judge Daniel L. Hovland 9/15/2008 |
000 No Nature of Suit Code Used The Petitioner filed a motion for appointment of counsel, arguing that the appointment of counsel is necessary for his petition for habeas corpus relief pursuant to 28 U.S.C. § 2255 because he does not have legal training and does not have access to a law library or other legal assistance. The Court denied the motion, finding that there is not a constitutional or statutory right to counsel in habeas proceedings, that the interests of justice do not require the appointment of counsel, and that neither the claims nor the facts giving rise to them appear to be complex. |
| Brooks, et al. v. Wiesz 4-08-cv-07 Chief Judge Daniel L. Hovland 8/26/2008 |
370 Other Fraud The Defendant filed a motion to dismiss, contending that the Court lacks subject matter jurisdiction to probate the decedent’s will and administer the assets of the estate. The Court granted the motion to dismiss, finding that the North Dakota state probate court is the appropriate forum to bring the action. |
| Prudential Insurance Company of America v. Goodiron, et al. 4-08-cv-33 Chief Judge Daniel L. Hovland 8/20/2008 |
110 Insurance Defendant Eileen Goodiron filed a motion for summary judgment, contending that she is entitled to her late husband’s life insurance proceeds as the widow and beneficiary named under the policy. Defendant Nathan P. Goodiron filed a motion for summary judgment, contending that he is entitled to the life insurance proceeds as the principal beneficiary. The Court granted Eileen Goodiron’s motion for summary judgment and denied Nathan P. Goodiron’s motion for summary judgment, finding that Nathan P. Goodiron’s beneficiary status under the policy fails and, therefore, Eileen Goodiron takes as the contingent beneficiary. |
| Bell v. State of North Dakota 1-08-cv-22 Chief Judge Daniel L. Hovland 7/29/2008 |
530 General The Petitioner filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. The Respondent filed a Motion to Dismiss the petition. The Court found that the Petitioner is not entitled to any relief on his petition because it is a second or successive petition over which the Court lacks jurisdiction. In the alternative, the Court found as a matter of law that the Petitioner’s petition was time-barred. |
| Magelky v. BNSF Railway Co. 1-06-cv-25 Chief Judge Daniel L. Hovland 7/28/2008 |
330 Federal Employers Liability The Plaintiff filed a Stipulated and Controverted Bill of Costs. The Plaintiff sought the taxation of costs against the Defendant in the amount of $52,090.48. The Defendant agreed to the taxation of costs in the amount of $15,236.34, leaving $36,854.14 in controverted costs. The Court awarded costs and disbursements to the Plaintiff in the amount of $15,236.34, which represented the taxable costs and disbursements to which the parties had agreed. The Court declined to award any portion of the controverted costs. |
| Freedom From Religion Foundation, Inc., et al. v. Olson, et al. 1-07-cv-43 Chief Judge Daniel L. Hovland 7/16/2008 |
440 Other Civil Rights The Defendants filed motions to dismiss, contending that the Plaintiffs did not have standing to sue based on their status as taxpayers. The Court granted the motions to dismiss, finding that the Plaintiffs did not have state taxpayer standing to sue the State of North Dakota or the director of the Ward County Social Services Department, and that the Plaintiffs did not have municipal taxpayer standing to sue the director of the Pierce County Social Services Department. |
| Reems, et al. v. United Healthcare Services, LLC, et al. 1-07-cv-88 Chief Judge Daniel L. Hovland 7/14/2008 |
791 Empl. Ret. Inc. Security Act The Defendants filed a motion to dismiss. The Court granted the motion to dismiss finding that the Plaintiffs had not exhausted their administrative remedies before filing their claims under ERISA, and that no exception to the exhaustion requirement is applicable. |
| USA v. Chad Allen Mutschelknaus 1-08-cr-17 Chief Judge Daniel L. Hovland 7/9/2008 |
000 No Nature of Suit Code Used The defendant moved to suppress evidence obtained as a result of a search warrant. The defendant contends (1) that probable cause was not established for the issuance of a search warrant because the allegedly illegal images, or at least a specific description of the images, were not included with the search warrant application, and (2) that the search of the defendant’s computer and electronic storage media was in violation of Rule 41(e)(2)(A) of the Federal Rules of Criminal Procedure. The Court denied the motions, finding that based on the totality of the circumstances there was probable cause to issue a search warrant, and that the forensic analysis of the electronic equipment was done within a reasonable amount of time not in violation of Rule 41(e)(2)(A). |
| USA v. Micheal L. Fisher, Arniel Schaff, Fisher Sand and Gravel Co., Inc. 1-08-cr-26 Chief Judge Daniel L. Hovland 7/9/2008 |
000 No Nature of Suit Code Used The Government moved for a Rule 44(c) inquiry into joint representation, contending that defense counsel’s dual representation of the co-defendants created a significant risk of a conflict of interest. Subsequently, the corporate co-defendant retained separate counsel, transforming the issue from one involving dual representation to one involving successive representation. The Court found that the defendants were fully apprised of the potential for a conflict of interest and their right to effective assistance of counsel; the defendants and their counsel had the opportunity to identify and address potential conflicts of interest; and the defendants expressed the desire to be represented by their attorneys of choice. The Court found that the defendants voluntarily, intelligently, and knowingly waived their Sixth Amendment right to the effective assistance of conflict-free counsel. |
| USA v. Jeffery Andahl 1-08-cr-28 Chief Judge Daniel L. Hovland 7/8/2008 |
000 No Nature of Suit Code Used The Government filed a motion for a preliminary order of forfeiture, contending that the Defendant no longer has any right to possess firearms or ammunition. The Court granted the motion, finding that pursuant to 18 U.S.C. § 922(g)(1) and (3), it is unlawful for the Defendant to possess any firearms or ammunition. The Court entered a preliminary order of forfeiture of property. |
| USA v. Larry Young, et al. 1-07-mc-09 Chief Judge Daniel L. Hovland 6/27/2008 |
000 No Nature of Suit Code Used The Defendant submitted an application requesting leave to proceed in forma pauperis in an appeal of an adverse order. The Court found that the order denying the Defendant’s contempt of court motion is an interlocutory order which is not appealable until a final judgment has been entered. The Defendant’s application to proceed in forma pauperis was denied as moot and the Court retained jurisdiction to enter an order of garnishment. |
| USA v. Larry Young, et al. 1-07-mc-09 Chief Judge Daniel L. Hovland 6/27/2008 |
000 No Nature of Suit Code Used The Government directed a writ of garnishment to the Garnishee. The Court found, after a garnishment hearing, that the Government had met its burden of proof in establishing that the Defendant’s claims of exemption would not affect the amounts withheld for garnishment and the Government complied with all statutory requirements for the issuance of the post-judgment remedy granted. The Court ordered the Garnishee to pay the sum of twenty-five percent of the Defendant’s disposable earnings for application toward the Defendant’s criminal monetary penalties. |
| USA v. Walter James Weddell 1-08-mc-02 Chief Judge Daniel L. Hovland 6/17/2008 |
000 No Nature of Suit Code Used The petitioner filed a motion to review his sentence and, in the alternative, a motion for writ of audita querela. The Court dismissed the motion for lack of jurisdiction finding that relief via a writ of audita querela is not available when other post-conviction relief is available, and that a habeas corpus petition under 28 U.S.C. § 2241 is available in the petitioner’s district of incarceration. |
| Torstenson v. USA, et al. 1-07-cv-41 Chief Judge Daniel L. Hovland 6/10/2008 |
362 Personal Injury - Med. Malpractice Defendant Marsella filed a motion for summary judgment. The Court granted the motion finding that the two-year statute of limitations had run and the doctrines of equitable estoppel and equitable tolling were not applicable. |
| USA v. Kimhong Thi Le 1-05-cr-02 Chief Judge Daniel L. Hovland 6/9/2008 |
000 No Nature of Suit Code Used The defendant filed a petition under 28 U.S.C. § 2255 to withdraw her guilty plea. The Court denied the motion finding that the defendant entered the guilty plea knowingly and voluntarily, that there was a sufficient factual basis for the plea, and that the defendant had not met her burden of showing that her attorney rendered ineffective assistance or that the defendant was in any way prejudiced by the attorney’s assistance. |
| Rutherford v. Rutherford, et al. 1-06-cv-81 Chief Judge Daniel L. Hovland 6/9/2008 |
290 All Other Real Property The defendant filed a motion for costs and attorney’s fees. The Court denied the motion finding that an award of attorney’s fees and costs was not merited because the plaintiff’s action was not frivolous or filed in bad faith, and in its discretion also denied the defendant’s alternative request for costs. |
| USA v. Elaine Incognito 1-06-cr-82 Chief Judge Daniel L. Hovland 6/4/2008 |
000 No Nature of Suit Code Used The Government moved to limit the Defendant’s garnishment hearing, or in the alternative, to quash the hearing. The Court granted the motion to limit the garnishment hearing, finding that the hearing should be limited to (1) the probable validity of any claim of exemption by the judgment debtor and (2) compliance with any statutory requirement for the issuance of the post-judgment remedy granted. The Court denied the motion to quash. |
| USA v. Ervin Leo St. Claire, Jr. 4-07-cr-80 Chief Judge Daniel L. Hovland 6/2/2008 |
000 No Nature of Suit Code Used The defendant filed a motion to sever his trial. The Court denied the motion, finding that joinder of the offenses was proper and that the defendant would not be prejudiced by joinder of the offenses. |
| USA v. C.P.A. 4-07-cr-97 Chief Judge Daniel L. Hovland 5/29/2008 |
000 No Nature of Suit Code Used The Government moved to transfer the defendant, a juvenile, to adult court pursuant to 18 U.S.C. § 5032, in accordance with the Federal Juvenile Justice and Delinquency Prevention Act. An evidentiary hearing was held on May 6, 2008, during which testimony was presented. The Court determined that the alleged offense was transferable under 18 U.S.C. § 5032. The Court found that the statutory factors used to determine whether a transfer would be in the interests of justice weighed in favor of a transfer. The Court granted the Government’s motion to transfer the defendant to adult court. |
| Rutherford v. Rutherford, et al. 1-06-cv-81 Chief Judge Daniel L. Hovland 5/12/2008 |
290 All Other Real Property The Defendant filed a motion for summary judgment and the Plaintiff filed a cross-motion for summary judgment. The Court granted the Defendant’s motion and denied the Plaintiff’s motion finding that the Plaintiff was barred by the doctrine of res judicata from bringing her quiet title action. |
| USA v. Larry J. Young 1-07-mc-09 Chief Judge Daniel L. Hovland 5/1/2008 |
000 No Nature of Suit Code Used The defendant filed a motion to dismiss the Government’s garnishment proceeding. The Court denied the motion, finding that the garnishment was not barred by the ex post facto clause; that the commingling of civil and criminal actions is permitted to enforce a criminal restitution judgment; that the defendant has been afforded his due process rights; and that the defendant’s claim for exemptions is not a basis for dismissal. |
| Burke v. ND Department of Correction & Rehabilitation 1-07-cv-04 Chief Judge Daniel L. Hovland 4/28/2008 |
550 Civil Rights The Plaintiff filed a motion for a temporary restraining order against a correctional officer at the North Dakota State Penitentiary. The Court denied the motion, finding that the Plaintiff failed to meet his burden under Rule 65 of the Federal Rules of Civil Procedure and that not one of the Dataphase factors weighed in favor of a temporary restraining order. |
| USA v. Joseph Lamarr Minnifield 4-08-cr-06 Chief Judge Daniel L. Hovland 4/25/2008 |
000 No Nature of Suit Code Used The defendant filed a motion to dismiss count one of his indictment charging him with possessing a firearm. The Court denied the defendant’s motion, finding that under the Commerce Clause, Congress is allowed to regulate the possession of firearms that have been transported at any time in interstate commerce. |
| Geraci v. Women’s Alliance, Inc., et al. 1-07-cv-12 Chief Judge Daniel L. Hovland 4/24/2008 |
360 Other Personal Injury The defendants filed motions for summary judgment. The Court granted the motions, finding that the doctrine of res judicata prohibits the plaintiff from re-litigating two claims and bringing seven new claims on behalf of his children when he previously brought an action on his own behalf. |
| CDI Energy Services, Inc. v. West River Pumps, Inc., et al. 1-07-cv-85 Chief Judge Daniel L. Hovland 4/15/2008 |
190 Other Contract The plaintiff filed a motion to amend the complaint to add a claim for punitive damages. The Court denied the motion finding that there was not sufficient evidence to support a finding by the trier of fact of oppression, fraud, or actual malice so as to support an award of punitive or exemplary damages. |
| Neigum v. BNSF Railway Company 1-06-cv-26 Chief Judge Daniel L. Hovland 4/10/2008 |
330 Federal Employers Liability The Defendant filed motions in limine to exclude evidence from the trial. The Court granted in part and denied in part the motions. The Court excluded the following: evidence that this action is the Plaintiff’s sole remedy and that the Plaintiff is ineligible for workers’ compensation; testimony by the Plaintiff’s expert as to specific legal standards or legal conclusions; evidence that the Defendant’s operating standards establish a legal standard of care; testimony by the Plaintiff’s experts other than what is contained in the medical records; and evidence of subsequent remedial measures offered to prove negligence. The Court allowed the following: testimony by the Plaintiff’s expert as to the existence and cause of the alleged malfunction, whether the Defendant failed to provide a reasonably safe place to work, and whether the Defendant was negligent; evidence of the Defendant’s operating standards for uses other than establishing a legal standard of care; evidence of alternative or safer methods of work; and the causation testimony of the Plaintiff’s treating physician. |
| USA v. Nancy Elizabeth Ferneau 1-03-cr-46 Chief Judge Daniel L. Hovland 4/8/2008 |
000 No Nature of Suit Code Used The defendant filed a motion to modify or reduce her sentence. The Court denied the motion, finding that recent amendments to the United States Sentencing Guidelines have no impact on the defendant’s total offense level, criminal history points, or criminal history category designation and, therefore, a modification or reduction in the defendant’s sentence is not warranted. |
| CSX Transportation, Inc. v Superior Grains, Inc. 4-07-cv-34 Chief Judge Daniel L. Hovland 3/31/2008 |
190 Other Contract The defendant filed a motion for summary judgment. The Court denied the motion finding that documents relied upon by the defendant in support of its motion were not admissible for lack of authentication and, therefore, the defendant failed to support its motion for summary judgment. |
| Wilkie v. Department of Health & Human Services 4-07-cv-27 Chief Judge Daniel L. Hovland 3/24/2008 |
440 Other Civil Rights The Defendant filed a motion to dismiss the Plaintiff’s claims. The Court granted the motion to dismiss as to the Plaintiff’s Title VII claim, finding that it did not possess subject matter jurisdiction due to a failure to exhaust administrative remedies. The Court denied the motion to dismiss as to the Plaintiff’s remaining tort claims and constitutional claims and held the claims in abeyance pending a final administrative decision. |
| USA v. Todd Christopher Zastoupil 1-04-cr-76 Chief Judge Daniel L. Hovland 3/20/2008 |
000 No Nature of Suit Code Used The defendant filed a motion for extension of time to file a petition under 28 U.S.C. § 2255. The Court denied the motion finding that it lacked jurisdiction because the motion for extension of time was not filed with a petition under § 2255, nor could the motion be construed as a petition under § 2255. |
| State of North Dakota v. Simple.net, Inc. 1-08-cv-02 Chief Judge Daniel L. Hovland 3/3/2008 |
440 Other Civil Rights The plaintiff filed a motion to remand the action to state court. The Court granted the motion finding that the defendant had failed to establish the requisite subject matter jurisdiction and that removal was untimely. The Court also denied the defendant’s motion for leave to file a verified complaint finding that there was no basis in fact or law for such a filing. The Court denied the plaintiff’s motion for sanctions, but granted the plaintiffs attorneys’ fees and costs associated with the ill-advised removal. |
| Karst v. Bannon, et al. 4-07-cv-01 Chief Judge Daniel L. Hovland 2/19/2008 |
360 Other Personal Injury The plaintiff filed a motion to amend complaint for punitive damages against both defendants. The Court denied the plaintiff’s motion finding that the City of Fairview, Montana is a municipality and is immune from punitive damages as is the defendant police officer in his official capacity. The Court also denied the plaintiff’s motion as to the defendant police officer in his individual capacity finding that there is insufficient evidence to establish a factual basis to support a claim for punitive damages. |
| USA v. William Dean Sandland aka Billy Dean Sandland 1-07-cr-100 Chief Judge Daniel L. Hovland 2/7/2008 |
000 No Nature of Suit Code Used The defendant filed a motion in limine seeking to exclude evidence of previous sales of methamphetamine by the defendant. The Court denied the motion in limine finding that the evidence of past drug involvement was relevant to establish knowledge and intent and was admissible under Federal Rule of Evidence 404(b). |
| Wheeler v. Schuetzle, et al. 1-07-cv-75 Chief Judge Daniel L. Hovland 2/7/2008 |
550 Civil Rights The defendant filed a motion for injunctive relief requesting that he be required to be present when his documents were photocopied, that he be transferred to another institution, and that prison staff be prevented from opening his mail. The Court denied the defendant’s motion finding that the defendant did not meet his burden and had not established that the imposition of an injunction was warranted. |
| USA v. Ellery Agard 1-07-cr-86 Chief Judge Daniel L. Hovland 1/29/2008 |
000 No Nature of Suit Code Used The defendant filed a motion for a bill of particulars seeking the identification of specific incidents of alleged contact and the corresponding dates. The Court denied the motion holding that time is not a material element of the offenses charged and that a bill of particulars would serve no legitimate purpose as the defendant should be able to glean the dates from the discovery materials. |
| USA v. Patrick T. McMorrow 1-03-cr-80 Chief Judge Daniel L. Hovland 1/24/2008 |
000 No Nature of Suit Code Used The defendant filed a petition for habeas corpus relief under 28 U.S.C. § 2255. The Court dismissed the petition without prejudice finding that the defendant’s pleading only stated claims for relief under 42 U.S.C. § 1983 and therefore the Court lacked subject matter jurisdiction over the petition. |
| Dakota West Credit Union v. CUMIS Insurance Society, Inc. 1-07-cv-16 Chief Judge Daniel L. Hovland 1/24/2008 |
110 Insurance The defendant filed a motion for summary judgment and the plaintiff filed a cross motion for summary judgment. The Court granted the defendant’s motion for summary judgment and denied the plaintiff’s motion for summary judgment finding that the “Buyer’s Bill” relied upon by the plaintiff in loaning funds was not a counterfeit document or a document of title under the definitions contained in the credit union bond and therefore the plaintiff’s loan loss was not covered by the credit union bond. |
| Barnes, et al. v. Zurn Pex, Inc., et al. 1-07-cv-74 Chief Judge Daniel L. Hovland 1/9/2008 |
385 Property Damage Product Liability The Defendants filed a motion to stay litigation pending a class certification decision in a first-filed action. The Court denied the motion, finding that the requested stay was neither necessary nor in the interests of justice because a class certification determination by another district court is not a forgone conclusion. |
| USA v. Adam Christopher Cooke 4-07-cr-36 Chief Judge Daniel L. Hovland 1/9/2008 |
000 No Nature of Suit Code Used The Defendant filed a motion to suppress evidence. The Court denied the Defendant’s motion, finding that there was substantial basis in the record for the state judicial officer to find probable cause for the issuance of an arrest warrant and a search warrant. |
| Hart v. Bertsch, et al. 1-06-cv-80 Chief Judge Daniel L. Hovland 1/7/2008 |
550 Civil Rights The defendants filed a motion for summary judgment. The Court granted the motion finding that the plaintiff failed to present any evidence that reflects that the defendants acted with deliberate indifference with respect to the plaintiff’s medical care. |
| Stroklund, et al. v. Thompson/Center Arms Company, Inc., et al. 4-06-cv-08 Chief Judge Daniel L. Hovland 1/4/2008 |
365 Personal Injury - Product Liability The Plaintiffs attempted to offer “rebuttal” expert testimony. The Court, sua sponte, ordered the exclusion of the “rebuttal” expert testimony and supplemental opinions of the Plaintiffs’ case-in-chief expert witness, finding that the offering of the “rebuttal” expert witness was not timely made, the “rebuttal” expert witness is being offered to advance new theories, and that the supplemental opinions of the case-in-chief expert witness are an attempt to insert the “rebuttal” expert witness’s testimony into the trial. |
| Stroklund, et al. v. Thompson/Center Arms Company, Inc., et al. 4-06-cv-08 Chief Judge Daniel L. Hovland 1/2/2008 |
365 Personal Injury - Product Liability The parties filed numerous motions to exclude the testimony of expert witnesses. The Court denied the motions, finding that the expert witnesses disclosed by the parties are all qualified by background, education, training, knowledge, or experience to render opinions at trial. |
| CDI Energy Services, Inc. v. West River Pumps, Inc., et al. 1-07-cv-85 Chief Judge Daniel L. Hovland 12/13/2007 |
190 Other Contract The plaintiff filed a motion for a temporary restraining order (TRO) and preliminary injunction. The Court initially granted the motion for a TRO, but subsequent to the show cause hearing denied the motion for a preliminary injunction finding that the evidence in the record does not support the issuance of a preliminary injunction and the equities weigh in favor of not granting such a drastic remedy. |
| Nelson, et al. v. First National Bank & Trust Co. of Williston 4-06-cv-99 Chief Judge Daniel L. Hovland 12/11/2007 |
190 Other Contract The Defendant filed a motion for attorney’s fees and expenses. The Court denied the Defendant’s motion, finding that the trust agreement and North Dakota law did not authorize the Defendant to be awarded attorney’s fees for defending its own actions made while managing the trust agreement. |
| USA v. Gordon Sonnenberg 1-06-cr-78 Chief Judge Daniel L. Hovland 11/29/2007 |
000 No Nature of Suit Code Used The Defendant filed a motion to exclude the application of a sentence enhancement based on a prior state conviction. The Court denied the Defendant’s motion, finding that the Defendant’s 1968 Iowa state conviction can be used to trigger a sentence enhancement pursuant to 18 U.S.C. § 2252(b)(1). |
| USA v. Douglas John Delorme 4-07-cr-62 Chief Judge Daniel L. Hovland 11/29/2007 |
000 No Nature of Suit Code Used The Defendant filed a motion in limine to exclude the presentation by the Government of evidence of Defendant’s prior bad acts. The Court denied in part the Defendant’s motion finding that evidence from convictions for a prior assault and witness tampering charge are admissible under rule 404(b) and 403, and that evidence of an alleged incident of witness tampering was inadmissible because its probative value is substantially outweighed by its prejudicial effect. |
| Monson, et al. v. Drug Enforcement Admin, et al. 4-07-cv-42 Chief Judge Daniel L. Hovland 11/28/2007 |
890 Other Statutory Actions The Plaintiffs sought a declaratory judgment that the Controlled Substances Act does not prohibit their cultivation of industrial hemp pursuant to their state licenses. The Court granted the Defendants’ motion to dismiss, finding that: (1) the Court has subject matter jurisdiction; (2) the Plaintiffs have standing; (3) industrial hemp is a controlled substance under the Controlled Substances Act; and (4) the Controlled Substances Act does not violate the Commerce Clause. |
| Wheeler v. Schuetzle, et al. 1-07-cv-75 Chief Judge Daniel L. Hovland 11/21/2007 |
550 Civil Rights The Plaintiff filed a motion for protective order and sought injunctive relief. The Court denied the motion finding that the Plaintiff had not met his burden of establishing irreparable harm and that the granting of injunctive relief would not serve the public interest. |
| Stroklund, et al. v. Thompson/Center Arms Company, Inc., et al. 4-06-cv-08 Chief Judge Daniel L. Hovland 11/21/2007 |
365 Personal Injury - Product Liability The Defendant filed a motion for summary judgment. The Court denied the motion in part finding that genuine issues of material fact exist as to the Plaintiffs’ claims of negligence, strict product liability, failure to warn, and breach of express warranty and implied warranty of merchantability. The Court granted the motion for summary judgment on the claim of breach of implied warranty of fitness for a particular purpose. |
| Robideaux, et al. v. ND Dept of Corrections & Rehab, et al. 1-04-cv-13 Chief Judge Daniel L. Hovland 11/19/2007 |
440 Other Civil Rights Defendants filed a motion for summary judgment alleging that the class of female inmates failed to establish violations of either the equal protection clause or Title IX. The Court granted summary judgment finding the class of female inmates failed to establish a prima facie case of discrimination under the equal protection clause or Title IX. |
| Allstate Insurance Co. v. Berge, et al. 1-06-cv-60 Chief Judge Daniel L. Hovland 11/6/2007 |
110 Insurance The Plaintiff filed a motion for summary judgment, and the Defendants filed a cross-motion for summary judgment. The Court granted the Plaintiff’s motion finding that the provisions of the intentional or criminal acts exclusion contained in the condominium owners insurance policy applies to all claims which arise from the intentional or criminal acts of any insured, even though additional claims are asserted against other “insured persons” or co-insureds in a different form. |
| Hueske v. State Farm Fire and Casualty Co. 1-06-cv-57 Chief Judge Daniel L. Hovland 10/1/2007 |
110 Insurance The Defendant filed a motion for summary judgment. The Court granted the motion finding that the insured’s activities were continuous and profit motivated and thus satisfied the requirements of the business pursuits exclusion contained in the insurance policy and thereby excluded coverage for those activities. |
| USA v. Gerard Galen Lovejoy 4-07-cr-61 Chief Judge Daniel L. Hovland 9/28/2007 |
000 No Nature of Suit Code Used The Defendant filed a motion to dismiss the indictment. The Court denied the motion finding that the Sex Offender Registration and Notification Act (SORNA) does not violate the non-delegation doctrine of the United States Constitution and that the Defendant’s due process rights were not violated by the absence of actual notice provided to the Defendant of the new federal sex offender registration requirement created by SORNA. |
| Nelson et al. v. First National Bank & Trust of Williston 4-06-cv-99 Chief Judge Daniel L. Hovland 9/25/2007 |
190 Other Contract The Defendant, a trustee, filed a motion for summary judgment contending that it prudently managed the trust after the trustor’s death based on the prudent investor rule. The Court granted the motion for summary judgment, finding that the Defendant acted in reasonable reliance on the trust instrument and acted in good faith. |
| Moore v. Bertsch, et al. 1-05-cv-98 Chief Judge Daniel L. Hovland 8/21/2007 |
550 Civil Rights The Plaintiff and Defendants filed cross motions for summary judgment. The Court granted the Defendants’ motion finding that three of Plaintiff’s claims were barred by the doctrines of res judicata and collateral estoppel; that the Plaintiff was not retaliated against for his use of the prison grievance system; that there is no credible evidence that there exist DNA records outside of those already provided to the Plaintiff; that the Plaintiff has failed to create a genuine issue of material fact as to his claims of deliberate indifference to medical care; and that the “some evidence” requirement was satisfied to support the findings of guilt by the penitentiary’s disciplinary committee. |
| Boyko v. Robinson 4-07-cv-35 Chief Judge Daniel L. Hovland 8/17/2007 |
360 Other Personal Injury The Defendant filed a motion to dismiss. The Court granted the motion finding that exercising personal jurisdiction over the Defendant would violate due process and would offend traditional notions of fair play and substantial justice. |
| USA v. Burdon Fabron Lester 1-07-cr-48 Chief Judge Daniel L. Hovland 8/2/2007 |
000 No Nature of Suit Code Used The Defendant filed a motion in limine seeking to exclude evidence of prior bad acts that he had committed. The Court denied the motion finding that evidence of prior bad acts is admissible for limited purposes and that the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. |
| Smith v. USA 4-06-cv-19 Chief Judge Daniel L. Hovland 7/17/2007 |
360 Other Personal Injury The Defendant filed a motion to dismiss and motion for summary judgment contending that the discretionary function exception to the Federal Tort Claims Act bars the Plaintiff’s claims. The Court granted the motion to dismiss finding that the discretionary function exception applied to the conduct of the BIA law enforcement officers and, as a result, the Court lacked subject matter jurisdiction. |
| USA v. Arthur Lee Crissler 1-06-cr-80 Chief Judge Daniel L. Hovland 7/11/2007 |
000 No Nature of Suit Code Used The Defendant filed a motion to suppress. The Court denied the motion finding there was a substantial basis in the record for the state district court judge to conclude that probable cause existed and that the Defendant failed to make the substantial preliminary showing required to entitle him to a Franks hearing. |
| Mehl, et al. v. Canadian Pacific Railway, Ltd, et al. 4-02-cv-09 Chief Judge Daniel L. Hovland 7/10/2007 |
360 Other Personal Injury The parties filed a notice of settlement and request for preliminary approval of class settlement. The Court entered an order preliminarily approving the class settlement and detailing the manner and means for affecting notice of the settlement and the process and terms for submission of claims and objections to the settlement. |
| DAKDT, Inc. et al v. All Green Acquisition Corp. 1-06-cv-76 Chief Judge Daniel L. Hovland 6/28/2007 |
196 Franchise Defendant filed a motion to dismiss asserting that the Court does not have subject matter jurisdiction over the case or personal jurisdiction over the defendant. The Court denied the motion finding that the plaintiffs’ claims met the requisite amount-in-controversy and that the Court does have both subject matter jurisdiction over the matter, and personal jurisdiction over the parties. |
| Magelky v. BNSF Railway Company 1-06-cv-25 Chief Judge Daniel L. Hovland 6/14/2007 |
330 Federal Employers Liability Plaintiff filed a motion for partial summary judgment. The Court denied the motion finding that there exist genuine issues of material fact regarding the issues of causation and liability under the Federal Safety Appliance Act. |
| USA v. Raymond Azure 4-03-cr-16 Chief Judge Daniel L. Hovland 6/4/2007 |
000 No Nature of Suit Code Used Following a competency hearing and a determination by the Court that the Defendant was not competent to stand trial, the Defendant was hospitalized to determine the likelihood of regaining the ability to stand trail. After it was determined that the Defendant would not regain the ability to stand trial, a dangerousness assessment was performed and a dangerousness hearing was scheduled. After the dangerousness hearing, the Court concluded that the Government had not shown by clear and convincing evidence that the Defendant is presently suffering from a mental disease or defect as a result of which his release would create a substantial risk of bodily injury to another person. |
| USA v. Brett Lain St. John 1-07-cr-32 Chief Judge Daniel L. Hovland 6/1/2007 |
000 No Nature of Suit Code Used One defendant filed a motion for continuance of the trial date to allow additional time for his attorney to complete an investigation and prepare for trial. The government did not object to a continuance, but the co-defendant objected on the grounds that he did not wish to be detained longer than necessary. The Court granted the motion as to both defendants finding that, absent a severance of the defendants, exclusions of time under the Speedy Trial Act attributable to one defendant applies to all co-defendants. |
| USA v. Shawn Leo Barth 1-03-cr-46 Chief Judge Daniel L. Hovland 5/22/2007 |
000 No Nature of Suit Code Used Defendant filed a petition under 28 U.S.C. § 2255 to vacate, set aside or correct sentence asserting ineffective assistance of counsel. The Court denied the petition finding the defendant failed to establish that counsel’s performance fell below an objective standard of reasonableness or that counsel’s performance prejudiced his defense. |
| Moore v. Schuetzle 1-06-cv-79 Chief Judge Daniel L. Hovland 5/18/2007 |
550 Civil Rights The Plaintiff and Defendant filed cross motions for summary judgment. The Court granted the Defendant’s motion finding that the Plaintiff’s confinement in administrative segregation does not violate his Eighth Amendment rights, that the Plaintiff’s has failed to create a genuine issue of material fact as to his claims of excessive force by prison officials, that the Plaintiff was not retaliated against for his use of the prison grievance system, and that the incidents involving the Plaintiff’s mail did not constitute a violation of his constitutional rights. |
| Burke v. ND Department of Correction and Rehabilitation, et al. 1-07-cv-04 Chief Judge Daniel L. Hovland 5/16/2007 |
550 Civil Rights An inmate filed a complaint with the court under 42 U.S.C. § 1983, asserting, inter alia, that he was targeted for retaliation after he filed grievances and that he was discriminated against on the basis of his disability and religion. The court conducted its initial screening of the inmate's complaint as mandated by 28 U.S.C. § 1915A and concluded that he had articulated a number of cognizable claims. Consequently, it directed the Clerk of Court to serve copies of his complaint on the Defendants. |
| National Bank of Harvey v. Bathgate Capital Partners LLC, et al. 1-06-cv-53 Chief Judge Daniel L. Hovland 4/4/2007 |
190 Other Contract Defendants’ filed a motion to dismiss or, in the alternative, to transfer venue. The Court denied the motion to dismiss and granted the motion to transfer venue finding that exercise of personal jurisdiction based on the totality of the circumstances presented would offend traditional notions of fair play and substantial justice and therefore the Court lacked personal jurisdiction over the defendants. |
| Stedman, et al. v. Great American Insurance Company 4-06-cv-101 Chief Judge Daniel L. Hovland 4/3/2007 |
110 Insurance Petitioners filed a petition to confirm an arbitration award, and the Respondent filed a counterclaim and a motion for stay. Thereafter, Petitioners filed a motion to dismiss the counterclaim. The Court granted petitioners’ motion to dismiss the counterclaim finding that the counterclaim was barred as an untimely filed motion to vacate, modify, or correct, and subsequently confirmed the arbitration award and denied the motion for stay as moot. |
| Kunze v. Coad, et al. 1-05-cv-104 Chief Judge Daniel L. Hovland 3/14/2007 |
550 Civil Rights Defendants filed a motion for summary judgment. The Court granted the motion finding that the Plaintiff’s detention in administrative segregation was not retaliatory, the conditions of his confinement did not constitute a violation of his constitutional rights, and his constitutional rights were not violated by the confiscation from his cell of a magazine that belonged to another inmate or the withholding of a catalog sent from someone other than the publisher. |
| Keller Paving & Landscaping, et al. v. Zaste, et al. 4-06-cv-92 Chief Judge Daniel L. Hovland 3/2/2007 |
890 Other Statutory Actions Defendants filed a motion to dismiss asserting that the Court does not have subject matter jurisdiction and that the required exhaustion of tribal remedies had not been completed. The Court granted the motion finding that while a federal question is raised to the extent the plaintiffs question the Tribal Court’s jurisdiction, the parties must first exhaust their tribal remedies before seeking relief in federal district court. |
| Juvenile, Male v. USA 1-07-cv-06 Chief Judge Daniel L. Hovland 2/23/2007 |
530 General Juvenile filed a motion for habeas corpus pursuant to 28 U.S.C. § 2241 asserting that he should receive credit for time served prior to the dispositional hearing as set forth in 28 U.S.C. § 3585(a). The Court granted the petition and directed the Bureau of Prisons to recalculate C.C.’s sentence and to apply any and all credit for time served which he would be due if sentenced as an adult. |
| Encore Operating LP, et al. v. Morris, et al. 1-06-cv-86 Chief Judge Daniel L. Hovland 2/20/2007 |
190 Other Contract Defendant filed a motion to dismiss for failure to state a claim and supported the motion with materials outside the complaint. The Court ignored the materials outside the complaint and denied the motion to dismiss finding that the, taking all inferences in the Plaintiffs’ favor, the complaint satisfied the requirements of Federal Rule of Civil Procedure 8(a). |
| Atkinson, et al. v. McLaughlin, et al. 1-03-cv-91 Chief Judge Daniel L. Hovland 2/15/2007 |
320 Assault, Libel & Slander Plaintiffs filed a motion for leave to amend complaint to assert a claim for punitive damages. The Court granted the motion finding that a reasonable trier of fact could conclude from the evidence that the defendants acted oppressively, fraudulently, and/or maliciously. |
| Rutherford v. Rutherford, et al. 1-06-cv-81 Chief Judge Daniel L. Hovland 2/15/2007 |
290 All Other Real Property Defendant filed a motion for summary judgment. The Court denied the motion finding that the Plaintiff is not collaterally estopped from bringing a quiet title action because her claims of property interest are not identical to the claims decided in the state court’s order, she was not a party or privy in the state court proceeding, and was not provided a fair opportunity to be heard. Further, genuine issues of material fact remain. |
| USA v. Nathan James Thiefoe 4-07-cr-03 Chief Judge Daniel L. Hovland 2/12/2007 |
000 No Nature of Suit Code Used Defendant filed a motion to dismiss the Indictment. The Court denied the motion finding that the Indictment was not multiplicious in that it charged three separate Counts, and each Count required an element of proof that the others did not. |
| USA v. Nancy Elizabeth Ferneau 1-03-cr-46 Chief Judge Daniel L. Hovland 2/2/2007 |
000 No Nature of Suit Code Used Defendant filed a pro se petition under 28 U.S.C. § 2255 to vacate, set aside or correct sentence. The Court denied the petition finding the defendant failed to establish the alleged constitutional violations. |
| National Labor Relations Board v. State of ND 1-06-cv-64 Chief Judge Daniel L. Hovland 2/1/2007 |
950 Constitutionality of State Statutes Plaintiff filed a motion for summary judgment. The Court granted the motion finding that Section 34-01-14.1 of the North Dakota Century Code is in actual conflict with the National Labor Relations Act, specifically Sections 7 and 8 of the NLRA, 29 U.S.C. § § 157 and 158(b)(1), and is preempted by the Supremacy Clause as a matter of law. |
| USA v. Derrick Pretends Eagle 1-06-cr-73 Chief Judge Daniel L. Hovland 1/29/2007 |
000 No Nature of Suit Code Used The Court imposed a non-guideline sentence finding that the defendant’s conduct was unusually heinous, cruel, brutal, or degrading to the victim. |
| Hinsley v. Standing Rock Child Protective Services, et al. 1-05-cv-118 Chief Judge Daniel L. Hovland 1/22/2007 |
360 Other Personal Injury Defendants filed a motion for summary judgment asserting that the discretionary function exception to liability under the Federal Tort Claims Act barred Plaintiff’s tort claims. The Court granted the motion finding that the actions of the Defendants were discretionary in nature and that the conduct was of the kind that the discretionary function exception was designed to protect. |
| Lochthowe v. State Farm Mutual Auto Insurance Co. 4-06-cv-85 Chief Judge Daniel L. Hovland 1/19/2007 |
110 Insurance Plaintiff filed a motion to remand, asserting that the amount-in-controversy requirement had not been satisfied and therefore the Court did not have jurisdiction to hear the case. The Court denied the motion finding that the Defendant had shown, by a preponderance of the evidence, that the amount-in-controversy exceeds $75,000. |
| USA v. Rosalio Guitron-Vargas 1-03-cr-46 Chief Judge Daniel L. Hovland 1/17/2007 |
000 No Nature of Suit Code Used Defendant filed a pro se petition under 28 U.S.C. § 2255 to vacate, set aside or correct sentence alleging ineffective assistance of counsel. The Court denied the petition finding the defendant failed to establish that either trial or appellate counsel’s performance fell below an objective standard of reasonableness or that either trial or appellate counsel’s performance prejudiced his defense. |
| Keller Paving & Landscaping, et al. v. Zaste, et al. 4-06-cv-92 Chief Judge Daniel L. Hovland 1/3/2007 |
890 Other Statutory Actions Plaintiffs filed a motion for temporary restraining order, asserting that the defendants acted inappropriately, and in the opinion of the plaintiffs, without any merits. The Court denied the motion finding that the plaintiffs had failed to establish the existence of factors necessary for a temporary restraining order. |
| Thomas v. USA 4-06-cv-31 Chief Judge Daniel L. Hovland 12/13/2006 |
362 Personal Injury - Med. Malpractice Defendant filed a motion for summary judgment pursuant to section 28-01-46 of the North Dakota Century Code asserting that the plaintiff failed to disclose an expert witness report as required by statute. The Court denied the motion finding that exceptional circumstances existed and that dismissal was not warranted. |
| USA v. Lillian Holen, et al. 1-06-cr-82 Chief Judge Daniel L. Hovland 12/8/2006 |
000 No Nature of Suit Code Used Defendant filed a motion for bill of particulars requesting an itemized listing of every alleged unlawful incident and a motion for severance contending that without separate trials she will be deprived of access to her co-defendants’ testimony. The Court denied both motions finding that the indictment is sufficient to fairly inform the defendant of the facts and conduct alleged against her and that the defendant has failed to establish that her co-defendants actually would testify at a separate trial. |
| LaVallie v. Turtle Mountain Tribal Court, et al. 4-06-cv-77 Chief Judge Daniel L. Hovland 12/1/2006 |
530 General Petitioner filed a petition for habeas corpus relief pursuant to 25 U.S.C. § 1303 of the Indian Civil Rights Act. Respondent filed a motion to dismiss. The Court dismissed the petition finding that the petitioner failed to exhaust tribal court remedies because he was awaiting the outcome of an appeal pending with the tribal court of appeals. |
| Atkinson, et al. v McLaughlin, et al. 1-03-cv-91 Chief Judge Daniel L. Hovland 11/28/2006 |
320 Assault, Libel & Slander Defendants filed a motion for summary judgment. The Court granted the motion in part finding that the two-year statute of limitations was not tolled by the defendants’ absence from North Dakota; the continuing tort doctrine does not apply to defamation claims; the single publication rule does apply to defamation actions which arise out of internet publications and minor, non-substantive modifications do not result in republication; the discovery rule does apply to defamation cases but only in limited circumstances where the defamatory publication is inherently undiscoverable, and the Plaintiffs have raised genuine issues of material fact as to whether defendants’ communications after July 28, 2001 are defamatory in nature. |
| Larson v. Martin, et al. 4-05-cv-47 Chief Judge Daniel L. Hovland 11/28/2006 |
190 Other Contract In a matter tried before the Court, Plaintiff, a construction contractor, sought an award of costs related to idle equipment and operator time, long-haul costs, and supervisory wages. The Court entered judgment against the Defendant, a bonding company, in favor of Plaintiff with regard to the long-haul costs and the supervisory wages and denied the award of costs related to idle equipment and operators. |
| Bankston v. Chertoff, et al. 1-05-cv-124 Chief Judge Daniel L. Hovland 11/9/2006 |
440 Other Civil Rights Defendants filed a motion for summary judgment asserting the plaintiff’s employment discrimination and other claims failed as a matter of law. The Court granted the motion finding the plaintiff failed to establish a prima facie case of sex, age, or disability discrimination; retaliation; hostile work environment; and that the plaintiff’s constitutional and tort claims failed as a matter of law. |
| USA v. Gordon D. Rettinger 4-06-cr-43 Chief Judge Daniel L. Hovland 11/1/2006 |
000 No Nature of Suit Code Used Defendant filed seven motions including a motion for a bill of particulars, a motion to take a deposition of a BIA agent, motions to dismiss for failure to provide exculpatory evidence, loss or destruction of evidence, and outrageous government conduct, as well as several motions for hearings. The Court denied all motions finding that the Indictment fairly informed the defendant of the charges, that there were no exceptional circumstances to allow the taking of a deposition of the BIA agent, and that the government had not acted outrageously or with bad faith with regard to the collection of evidence for trial. |
| Liberty Mutual Insurance Company v. Mandaree Public School District #36 4-06-cv-56 Chief Judge Daniel L. Hovland 10/23/2006 |
190 Other Contract Defendant filed a Motion to Compel Arbitration and to Stay the Litigation, as well as a Motion for Hearing. The Court denied the motion to compel arbitration finding that the incorporation clause in the performance bond did not mandate arbitration by the plaintiff (surety) and that the plaintiff’s withdrawal of consent to arbitrate was valid. The Court denied the motion to stay litigation finding that a discretionary stay was not warranted or appropriate. The motion for hearing was denied as moot. |
| Juvenile v. USA 1-06-cv-46 Chief Judge Daniel L. Hovland 10/19/2006 |
530 General Juvenile filed a motion for habeas corpus pursuant to 28 U.S.C. § 2241 asserting that he should receive credit for time served prior to the dispositional hearing as set forth in 28 U.S.C. § 3585(a). The Court granted the petition and directed the Bureau of Prisons to recalculate D.P.S.’s sentence and to apply any and all credit for time served which he would be due if sentenced as an adult. |
| White v. Crow Ghost, et al. 1-05-cv-42 Chief Judge Daniel L. Hovland 10/11/2006 |
440 Other Civil Rights Defendants filed a motion for summary judgment. The Court granted the motion finding that the defendants actions did not rise to the level of a constitutional violation and that there was no genuine issue of material fact as to the plaintiff’s claims of failure to provide adequate medical treatment, exposure to unsanitary conditions, any violation of bond provisions, or of a failure to train subordinate jailers. |
| McHughes, et al. v. Jacobs 4-05-cv-107 Chief Judge Daniel L. Hovland 10/5/2006 |
350 Motor Vehicle Plaintiffs requested leave to amend their complaint to add a claim for exemplary or punitive damages asserting that there was sufficient evidence to support a showing that the defendant acted with actual malice, fraud, or oppressively. The Court denied the motion finding that the defendant’s post-accident alleged acts and misdeeds lacked relevance and that both the pre-accident and post-accident evidence was not sufficient to support a finding by the trier of fact that a preponderance of the evidence establishes oppression, fraud, or actual malice. |
| Wilhelm v. Credico, Inc., et al. 1-05-cv-02 Chief Judge Daniel L. Hovland 10/4/2006 |
480 Consumer Credit Defendant in a Fair Debt Collection Practices Act action filed a motion for summary judgment asserting that the plaintiff’s claims were filed outside the prescribed statute of limitations. The plaintiff asserted that the defendant engaged in a series of violations and that the statute of limitations began to run as of the most recent violation. The Court granted the motion for summary judgment, finding the serial violations theory was not applicable to a Fair Debt Collection Practices Act action. |
| Baker v. DOI, et al. 4-06-cv-39 Chief Judge Daniel L. Hovland 10/4/2006 |
442 Employment Defendants filed a motion for summary judgment asserting the plaintiff’s claims were untimely. The Court granted the defendants’ motion finding the plaintiff’s claims were untimely. The Court also denied the plaintiff’s motion for leave to extend the time period to file a claim and the plaintiff’s motion for leave to file an amended complaint. |
| USA v. Kennedy, et al. 1-05-cv-84 Chief Judge Daniel L. Hovland 9/29/2006 |
870 Taxes (US Plaintiff or Defendant) Plaintiff filed a motion for summary judgment asserting that the disputed tax assessments were valid and that the defendant had failed to produce any evidence of error in calculating the amount of the assessment. The Court granted the motion finding that the plaintiff had established prima facie validity of the amount of total tax owed for the period in question, and the defendants had failed to produce any evidence to support their position. |
| Blue v. Marcellais 4-06-cv-67 Chief Judge Daniel L. Hovland 9/29/2006 |
530 General Petitioner requested habeas corpus relief pursuant to the Indian Civil Rights Act, 25 U.S.C. § 1303, asserting that he had exhausted all tribal court remedies. The Court denied the petition for habeas corpus relief finding that the petitioner has a petition for stay pending with the tribal appellate court with regard to one charge as well as a trial pending on another charge. |
| New Products Marketing Corp. v. Lowes Companies, Inc., et al. 4-06-cv-35 Chief Judge Daniel L. Hovland 9/21/2006 |
830 Patent Defendant filed a motion to dismiss or alternatively to transfer claiming that the mandatory forum selection clause contained in the contract with the plaintiff precluded venue in North Dakota. The plaintiff contended that the claims were independent of the contract and therefore the forum selection clause did not control. The Court found that the resolution of the claims related to the interpretation and existence of the contract, and accordingly gave significant weight to the mandatory forum selection clause. After considering the remaining factors for forum analysis, the Court granted the motion to transfer. |
| Western Onion Sales, Inc. v. KIDCO Farms Processing, Inc., et al. 1-06-cv-66 Chief Judge Daniel L. Hovland 9/20/2006 |
891 Agricultural Acts The parties filed a stipulation to dismiss, stating they had reached a settlement of the dispute. The Court adopted the stipulation. |
| Western Onion Sales, Inc. v. KIDCO Farms Processing, Inc., et al. 1-06-cv-66 Chief Judge Daniel L. Hovland 9/8/2006 |
891 Agricultural Acts Plaintiffs filed a motion for a temporary restraining order asserting that as a seller of perishable agricultural commodities, it is the beneficiary of a statutory trust provided for by the Perishable Agricultural Commodities Act (PACA), and thus, entitled to a temporary restraining order to prevent dissipation of trust assets. The Court granted the motion for a temporary restraining order. |
| USA v. Carl Kenneth Kabat, et al. 1-06-cr-59 Chief Judge Daniel L. Hovland 9/5/2006 |
000 No Nature of Suit Code Used Defendants filed a motion to dismiss asserting that, according to several international treaties and agreements, the indictment should be dismissed. The Court denied the motion, finding that the laws of the United States do not support the theory that an individual has a right or a responsibility to correct a perceived violation of international law/humanitarian law/tribal law/religious law by willfully destroying government property. |
| Humann v. KEM Electric Cooperative, Inc., et al. 1-05-cv-73 Chief Judge Daniel L. Hovland 8/29/2006 |
710 Fair Labor Standards Act Defendants filed separate summary judgment motions with respect to plaintiff’s claims of equitable estoppel, deceit, tortious interference with employment, defamation, and a federal overtime claim. The Court granted the motions finding that plaintiff was an at-will employee, that there was no evidence of factual misrepresentations to support claims of equitable estoppel or deceit, that tortious interference with employment was not a private cause of action, that there was no evidence of unprivileged publications or damages to support a defamation claim, and that plaintiff’s job duties and responsibilities made her a bona fide exempt employee and therefore not entitled to overtime compensation. |
| Poitra, et al. v. DaimlerChrysler Corporation, et al. 4-04-cv-58 Chief Judge Daniel L. Hovland 8/10/2006 |
355 Motor Vehicle Product Liability The plaintiffs filed a motion to amend complaint to include a claim for punitive damages. The Court denied the motion finding that Sections 32-03.2-11(6)(a), (b) and Sections 32-03.2-11(7)(a),(b) did not allow a claim for punitive damages when a manufacturer complied with safety regulations existing at the time a product was manufactured. |
| Dakota, Missouri Valley and Western Railroad Inc. v. JMA Rail Products Co., et al. 1-06-cv-02 Chief Judge Daniel L. Hovland 8/9/2006 |
385 Property Damage Product Liability Defendants filed a motion to dismiss, asserting that it was a passive, non-manufacturing seller under Section 28-01.3-04(2) of the North Dakota Century Code. The Court granted the motion finding that the defendants satisfied the requirements of Section 28-01.3-04(2) and that product liability as defined by Section 28-01.3-01(2) includes breach of warranty claims. |
| USA v. Melvin Troy Two Shields 1-06-cr-19 Chief Judge Daniel L. Hovland 8/7/2006 |
000 No Nature of Suit Code Used Defendant filed motion for a new trial following a jury’s guilty verdict in a second degree murder case. The Court denied the motion, finding the defendant had failed to establish that a serious miscarriage of justice occurred as to warrant a new trial. |
| USA v. Waylon Christopher Gladue 4-06-cr-09 Chief Judge Daniel L. Hovland 8/7/2006 |
000 No Nature of Suit Code Used Defendant in an involuntary manslaughter case filed a motion in limine to exclude evidence of a prior DUI conviction. The Court granted the motion finding that based upon the unique facts and circumstances presented in the case, such evidence would be unfairly prejudicial to the defendant within the meaning of Rule 403. |
| Mikkelsen v. ConAgra Foods, Inc. 1-05-cv-43 Chief Judge Daniel L. Hovland 7/27/2006 |
190 Other Contract Plaintiff filed motion to vacate arbitration award, asserting that the arbitration award violated North Dakota public policy. The Court denied motion findings that the stipulation of the parties to be bound by the NGFA Trade Rules precluded consideration of the case under North Dakota law and that the arbitration decision did not meet the criteria necessary to trigger a public policy exception for judicial review of an arbitration decision. |
| USA v. Karl Robert Irwin 1-05-cr-21 Chief Judge Daniel L. Hovland 7/25/2006 |
000 No Nature of Suit Code Used The Defendant filed a pro se petition for habeas corpus relief filed under 28 U.S.C. § 2255 contending that his conviction and sentence were unlawful. The Court denied the petition finding that each of the issues raised by the Defendant was devoid of merit. |
| Larson v. Martin, et al. 4-05-cv-47 Chief Judge Daniel L. Hovland 7/25/2006 |
190 Other Contract Plaintiff filed a motion for sanctions alleging counsel for one defendant improperly drafted a letter for another pro se defendant. The Court found, that while the drafting of the letter was ill-advised, sanctions were not warranted. |
| TIG Insurance Company v. Chapman and Chapman, et al. 1-05-cv-24 Chief Judge Daniel L. Hovland 6/30/2006 |
110 Insurance The plaintiff insurance company filed a declaratory judgment action seeking to invalidate a Miller-Shugart settlement agreement. The Court found the Miller-Shugart settlement agreement was invalid and concluded there were genuine issues of material fact as to whether the settlement agreement constituted a “substantial and material” breach of the insurance contract, equating with a lack of cooperation so as to relieve the insurer (TIG) of liability under the contract. |
| Geraci v. Women’s Alliance, Inc., et al. 1-03-cv-129 Chief Judge Daniel L. Hovland 6/29/2006 |
360 Other Personal Injury Defendants filed motions for summary judgment seeking to dismiss Plaintiff’s intentional infliction of emotional distress, negligent infliction of emotional distress, and RICO claims. The Court granted the motions finding that each of the Plaintiff’s claims failed as a matter of law. |
| Corral v. USA 1-06-cv-51 Chief Judge Daniel L. Hovland 6/29/2006 |
550 Civil Rights Petitioner filed pro se pleading entitled “Writ of Error Audita Querela Title 28 U.S.C. § 1651” challenging his criminal sentence. The Court denied the motion. In doing so, the Court explained that the common law writ of error audita querela cannot be used to challenge a sentence on an issue that could be raised in a petition under 28 U.S.C. § 2255. This is true even though Petitioner’s Section 2255 motion would be dismissed as successive. |
| USA v. Melvin Troy Two Shields 1-06-cr-19 Chief Judge Daniel L. Hovland 6/27/2006 |
000 No Nature of Suit Code Used The Government filed a motion in limine seeking to exclude as hearsay certain non-verbal statements of the victim prior to his death. The Defendant opposed the motion contending that the statements were admissible under several exceptions to the rule against hearsay, including the statement under belief of impending death, the statement against interest, and residual exception. The Court rejected the Defendant’s argument and granted the motion. In doing so, the Court found that none of the cited hearsay exceptions allowed for the admission of the victim’s non-verbal statement under the circumstances. |
| Kilber v. Warren Transport, Inc., et al 1-06-cv-49 Chief Judge Daniel L. Hovland 6/22/2006 |
350 Motor Vehicle Parties filed a motion to change venue to remedy an improperly removed case. The Court granted the motion, but treated it as a motion for transfer pursuant to 28 U.S.C. §1404(b). |
| Sloan v. Hartford Life and Accident Insurance Co. 1-05-cv-14 Chief Judge Daniel L. Hovland 5/31/2006 |
791 Empl. Ret. Inc. Security Act The Court issued its findings of fact, conclusions of law, and order for judgment in an ERISA trial on the briefs and a stipulated fact record. The Court determined that the Plaintiff was “totally disabled” under the terms of his former employer’s long-term disability plan, and awarded the Plaintiff damages accordingly. |
| USA v. Ernesto Torres-Monje and Vidal Rivera-Rocha 1-06-cr-18 Chief Judge Daniel L. Hovland 5/22/2006 |
000 No Nature of Suit Code Used The Defendants filed separate motions to suppress evidence challenging both questions posed during a lawful traffic stop, as well as the subsequent search conducted. The Court denied both motions. The Court found that the Trooper’s questions concerning immigration status were permissible and did not lengthen the lawful detention. Furthermore, the Court found that the search was lawful based upon the voluntary consent given by the vehicle’s driver. |
| Fort Berthold Landowners Association, et al. v. US 4-06-cv-43 Chief Judge Daniel L. Hovland 5/19/2006 |
890 Other Statutory Actions Plaintiffs filed a motion for a temporary restraining order. The Court denied the motion, finding the plaintiffs failed to satisfy the requirements of Rule 65 of the Federal Rules of Civil Procedure. |
| USA v. Patrick Timothy McMorrow 1-03-cr-80 Chief Judge Daniel L. Hovland 5/16/2006 |
000 No Nature of Suit Code Used After an appeal by the defendant and a cross-appeal by the United States, the Eighth Circuit remanded the case for re-sentencing. The Court re-sentenced the defendant to 360 months imprisonment. |
| Four v. USA 1-05-cv-01 Chief Judge Daniel L. Hovland 5/10/2006 |
350 Motor Vehicle Defendants filed a motion for summary judgment asserting the United States was immune from suit under the discretionary function exception to the Federal Tort Claims Act. The Court granted the motion finding the that the case fell within this statutory exception to the Federal Tort Claims Act and dismissed the complaint for lack of subject matter jurisdiction. |
| USA v. Vidal Rivera-Rocha 1-06-cr-18 Chief Judge Daniel L. Hovland 5/8/2006 |
000 No Nature of Suit Code Used Defendant filed a motion to sever trial from that of co-defendant, alleging that (1) that without separate trials, he would be deprived of access to co-defendant’s exculpatory statements and (2) because he believed the bulk of evidence was against co-defendant, a jury may convict him simply because of his association with co-defendant. The Court denied the motion finding the defendant had not shown that he would be prejudiced by the joinder of his trial with that of co-defendant. |
| USA v. Charles H. Devine 4-05-cr-98 Chief Judge Daniel L. Hovland 5/5/2006 |
000 No Nature of Suit Code Used Defendant charged with possession of child pornography requested forensic image copies of all computer storage material seized from him for analysis by a forensic expert. The Court granted the motion and set forth specific requirements for the handling of the evidence. |
| Jackson v. Financial Recovery Services, Inc., et al. 1-05-cv-23 Chief Judge Daniel L. Hovland 5/3/2006 |
480 Consumer Credit In a Fair Debt Collection Practices Act case, the defendant debt collector filed a motion for summary judgment. The Court granted the motion finding that the letters and the attached payment slips issued by the debt collector and its account managers did not contain any “false, deceptive, or misleading representations” in violation of the Fair Debt Collection Practices Act and that the letters and payment slips, when viewed through the eyes of the unsophisticated consumer, were not improper, deceptive, or misleading. |
| USA v. Allen M. Kraft 1-06-cr-07 Chief Judge Daniel L. Hovland 5/3/2006 |
000 No Nature of Suit Code Used The Defendant sought judicial notice of a statute contained in the North Dakota Century Code under Rule 201 of the Federal Rules of Evidence. The Court denied the request finding that the rule only allows for judicial notice of “adjudicative” facts. “Legislative” facts, such as laws, are expressly excluded. |
| LaVallie v. May, et al. 4-06-cv-09 Chief Judge Daniel L. Hovland 4/18/2006 |
530 General The Plaintiff filed a petition for habeas corpus relief under Section 1303 of the Indian Civil Right Act. The Defendant subsequently filed a motion to dismiss for failure to exhaust tribal remedies. The Court granted the motion to dismiss on the grounds that the Plaintiff admittedly failed to seek review from the Tribal Court of Appeals prior to filing in federal court as required by the tribal exhaustion doctrine. |
| Wilhelm v. Credico, Inc., et al. 1-05-cv-02 Chief Judge Daniel L. Hovland 4/12/2006 |
480 Consumer Credit The defendant filed a motion for summary judgment asserting its Rule 68 Offer of Judgment rendered the case moot and, in the alternative, asserting it was entitled to summary judgment on the plaintiff’s claims of violation of the Fair Debt Collection Practices Act. The plaintiff filed a motion for partial summary judgement and a motion to certify a class. The Court granted, in part, the defendant’s motion for summary judgment finding there were no genuine issues of material fact as to the claims under the FDCPA for the notice of lawsuit letter and that the defendant was entitled to the bona fide error defense for its miscalculation of interest. The Court denied that portion of the defendant’s motion that sought to dismiss the claims of erroneously reporting debt information to a credit reporting company, finding that the recent addition of another defendant made it premature to rule on this claim. The Court also denied as moot the plaintiff’s motion for partial summary judgment and the motion for class certification. |
| Sailer v. Army Recruiter 1-06-cv-04 Chief Judge Daniel L. Hovland 4/12/2006 |
440 Other Civil Rights Defendant filed a motion to dismiss. The Court granted the motion finding the plaintiff’s claims were barred by the Feres doctrine, res judicata, and the applicable statute of limitations. |
| Olson v. Ford Motor Co. 4-04-cv-102 Chief Judge Daniel L. Hovland 4/3/2006 |
365 Personal Injury - Product Liability After a jury verdict resulting in a 50/50 fault allocation, the Court exercised its discretion under Rule 54(d), and awarded only nominal costs to the Defendant. |
| Bankston v. Chertoff, et al. 1-05-cv-124 Chief Judge Daniel L. Hovland 3/29/2006 |
440 Other Civil Rights The Government filed a motion to strike the names of the individual defendants from the complaint. The Plaintiff filed motions for default judgment as to the individual defendants. The Court found that all claims regarding unlawful employment practices against the individual defendants must be dismissed, but as to the other claims alleged by the plaintiff, declined to strike the individual defendants from the complaint. |
| USA v. Hafner, et al. 1-05-cv-114 Chief Judge Daniel L. Hovland 3/14/2006 |
220 Foreclosure Defendant filed a motion to dismiss under Rule 12(b) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction, insufficiency of process, insufficiency of service of process, and failure to state a claim upon which relief can be granted. The Court denied the motion finding that subject matter jurisdiction existed under 28 U.S.C. § 1345 and finding that the remaining claims were without merit. |
| Mehl, et al. v. Canadian Pacific, et al. 4-02-cv-09 Chief Judge Daniel L. Hovland 3/6/2006 |
360 Other Personal Injury After a train derailment, plaintiffs filed suit alleging several claims. The defendant railroad filed a motion to dismiss, asserting the plaintiffs’ claims were preempted by federal law. The Court granted the motion to dismiss, finding all of the plaintiffs’ claims were preempted by federal law. |
| USA v. Curtis Feather 1-03-cr-22 Chief Judge Daniel L. Hovland 3/3/2006 |
000 No Nature of Suit Code Used The Plaintiff filed a pro se petition under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence. The Court dismissed several of the Plaintiff’s claims due to a waiver of post-conviction relief included in the plea agreement. The Court addressed, but dismissed, the Plaintiff’s claim for ineffective assistance of counsel for failure to prove either element of such a claim. Finally, the Court granted the Plaintiff’s claim that his sentence exceeded the statutory maximum on three of the four counts. The Court remedied the problem by amending the judgment. |
| Gleeson v. Jackson, et al. 1-05-cv-88 Chief Judge Daniel L. Hovland 2/24/2006 |
370 Other Fraud The plaintiff filed suit asserting violations of intellectual property rights. The defendants filed a motion for summary judgment. The Court granted the defendants’ motion for summary judgment finding the plaintiffs claims were time-barred and that the plaintiff failed to establish a prima facie case. |
| Olson v. Ford Motor Co. 4-04-cv-102 Chief Judge Daniel L. Hovland 1/26/2006 |
365 Personal Injury - Product Liability Both parties filed motions in limine regarding alcohol related evidence. The Court denied the Plaintiff’s motion to exclude reference to alcohol consumption finding such evidence to be relevant and admissible. The Court denied the Defendant’s motion to exclude Plaintiff’s expert witness and the Plaintiff’s motion to limit the Defendant to a single expert. Both parties’ experts satisfy Rule 702 of the Federal Rules of Evidence and Daubert and should not be excluded under Rule 403. Finally, the Court granted the Defendant’s motion to exclude the opinion of the investigating officer regarding the role of alcohol in the accident. The officer’s opinion may not be offered by way of testimony or through his crash report. |
| Olson v. Ford Motor Co. 4-04-cv-102 Chief Judge Daniel L. Hovland 1/25/2006 |
365 Personal Injury - Product Liability Defendant in a products liability case filed a motion in limine to exclude evidence of product recalls. The Court granted the motion finding the recalls did not pertain to substantially similar incidents and were inadmissible under Rule 403 of the Federal Rules of Evidence. |
| Olson v. Ford Motor Co. 4-04-cv-102 Chief Judge Daniel L. Hovland 1/25/2006 |
365 Personal Injury - Product Liability Defendant filed a motion in limine to exclude “other incidents” evidence. The Court granted, in part, the motion finding (1) the plaintiff was precluded from introducing “other incidents” evidence during voir dire, opening statements, and during the case-in-chief to prove brake ineffectiveness, relative dangerousness of condition, negligence, and/or a defective condition; (2) the plaintiff was allowed to present generalized evidence of “other incidents” evidence in the case-in-chief for the sole purpose of showing notice and/or to provide a factual basis for an expert witness’ opinion; (3) the plaintiff was prohibited from introducing the specific details of any such “other incidents;” (4) the plaintiff was also prohibited from introducing testimony from specific individuals involved in “other incidents” during the case-in-chief; (5) the Court will revisit the use of “other incidents” evidence for purposes of impeachment, rebuttal, or to establish punitive damages; and (6) the Court set forth a procedure for the parties in the event additional attempt to introduce “other incidents” evidence beyond such evidence addressed in the Court’s order. |
| Olson v. Ford Motor Co. 4-04-cv-102 Chief Judge Daniel L. Hovland 1/25/2006 |
365 Personal Injury - Product Liability Both plaintiff and defendant filed numerous motion in limine to exclude the opinions of the opposing expert witnesses. The plaintiff stipulated to the exclusion of a law enforcement officer, and the Court denied the remaining motions finding each expert met the Daubert standard. |
| McKay v. Indian Health Service, et al. 4-06-cv-03 Chief Judge Daniel L. Hovland 1/25/2006 |
442 Employment Plaintiff filed a motion for temporary restraining order seeking to prevent her employer from entering a five day suspension. The Court denied the ex parte request finding that the Plaintiff had failed to meet her burden under Rule 65(b) of the Federal Rules of Civil Procedure. |
| Olson v. Ford Motor Co. 4-04-cv-102 Chief Judge Daniel L. Hovland 1/6/2006 |
365 Personal Injury - Product Liability Defendant filed motion for summary judgment asserting the plaintiff had failed to set forth sufficient evidence to establish causation in a products liability case. The Court denied the motion finding that there were genuine issues of material fact that required submission of such claims to a jury. |
| USA v. Stephen Marc O’Berry 4-05-cr-24 Chief Judge Daniel L. Hovland 1/6/2006 |
000 No Nature of Suit Code Used The Defendant filed a motion for acquittal following a finding of guilt by way of a jury trial. The Court denied the motion. In doing so, the Court found that a reasonable jury could have found each of the essential elements of the crimes charged beyond a reasonable doubt. |
| Beggs, et al. v. Bismarck Phoenix Equipment, Inc. 1-05-cv-126 Chief Judge Daniel L. Hovland 1/5/2006 |
830 Patent Plaintiffs filed suit for breach of contract and motion for a preliminary injunction requesting the parties be ordered to attend arbitration as set forth in the contract. Defendant failed to respond. Court granted motion for preliminary injunction and ordered the parties to appear for a hearing concerning the alternative relief requested. |
| USA v. Kennedy, et al. 1-05-cv-84 Chief Judge Daniel L. Hovland 1/5/2006 |
870 Taxes (US Plaintiff or Defendant) Two Defendants filed separate, but identical, motions to set aside entry of default judgment. The Court denied the motions. The Court found that neither Defendant had shown good cause to set aside default as required by Rule 55(c) of the Federal Rules of Civil Procedure. |
| Ongstad, et al. v. Piper Jaffray & Co. 1-05-cv-108 Chief Judge Daniel L. Hovland 1/4/2006 |
195 Contract Product Liability The Defendant removed this action to federal court under 28 U.S.C. § 1332(d), as amended by the Class Action Fairness Act of 2005. The Plaintiffs filed a motion to remand the action back to state court based on a lack of federal jurisdiction. The Court granted the Plaintiffs’ motion and remanded the action back to state court finding that the Defendant had not proven by a preponderance of the evidence that the amount in controversy would exceed the $5,000,000 threshold required by the statute. |
| Goodroad v. Tharaldson Lodging II, Inc. 1-05-cv-110 Chief Judge Daniel L. Hovland 12/22/2005 |
442 Employment Defendant filed a motion for a more definite statement alleging the plaintiff’s complaint failed to allege the basis for the Court’s subject matter and personal jurisdiction as well as whether the alleged claims were based on state or federal law. The Court granted, in part, the defendant’s motion, finding that the complaint failed to set forth the basis for the Court’s jurisdiction, but finding that the plaintiff had adequately set forth her alleged causes of action. |
| OBO, Inc. v. Continental Resources, Inc. 1-05-cv-65 Chief Judge Daniel L. Hovland 12/5/2005 |
190 Other Contract Defendant filed a motion to dismiss asserting (1) the plaintiff’s contract claims were barred by the statute of limitations, (2) the plaintiff’s claim for declaratory judgment should fail for lack of a justiciable controversy, and (3) the plaintiff’s unjust enrichment claim is invalid as a matter of law. The Court granted, in part, the defendant’s motion finding (1) the contract claims were not barred by the six-year statute of limitations, (2) the claim for declaratory judgment was inappropriate, and (3) the unjust enrichment claim failed as a matter of law because the parties had an express written contract governing the payment of royalties. |
| USA v. Hjamler Curtis Spotted Bear 4-05-cr-64 Chief Judge Daniel L. Hovland 11/30/2005 |
000 No Nature of Suit Code Used The Defendant filed a motion in limine to exclude evidence regarding two incidents where he allegedly fled from law enforcement. The Court granted the motion finding that the probative value of such “flight” evidence was outweighed by the prejudicial impact under Rule 403 of the Federal Rules of Evidence. Further, the Court denied the Defendant’s request to dismiss the indictment based on the Government’s failure to present exculpatory evidence to the grand jury, and the Government’s elicitation of alleged misstatements by a grand jury witness. Neither of these alleged violations warrant dismissal. |
| Olson v. Ford Motor Co. A4-04-102 Chief Judge Daniel L. Hovland 11/29/2005 |
365 Personal Injury - Product Liability Plaintiff filed motion for leave to file an amended complaint to include claim for punitive damages. The Court granted the motion, finding the evidence submitted by the parties was sufficient, at this stage, to support a finding by the trier of fact that a preponderance of the evidence establishes oppression, fraud, or actual malice. |
| USA v. Kimhong Thi Le C1-05-02 Chief Judge Daniel L. Hovland 11/28/2005 |
000 No Nature of Suit Code Used The Defendant filed a motion to suppress evidence seized from a motor vehicle found along the interstate. The Court denied the Defendant’s motion based on the inventory search exception to the warrant requirement and the doctrine of abandonment. |
| Nagel v. Sykes Realty, Inc., et al. A1-04-61 Chief Judge Daniel L. Hovland 11/16/2005 |
360 Other Personal Injury The Defendants filed a motion for partial summary judgment seeking dismissal of the Plaintiff’s fraud and deceit claim, as well as a portion of the Plaintiff’s negligence claim. The Court granted the motion. In doing so, the Court found that the Plaintiff had failed to provide any evidence to support a claim of fraud or deceit and had not objected to dismissal of that portion of her negligence claim. |
| Young v. All Erection & Crane Rental Corp, et al. A4-04-15 Chief Judge Daniel L. Hovland 11/15/2005 |
365 Personal Injury - Product Liability Defendants filed a motion in limine to exclude the plaintiff’s proposed expert witnesses pursuant to Rule 702 of the Federal Rules of Evidence. The defendants asserted that the plaintiff’s experts were not reliable. The Court denied the motion finding the experts were “reliable” for purposes of Rule 702 and noting that the appropriate means of attacking each expert’s opinions was through cross-examination and the presentation of contrary evidence. |
| Polensky, et al. v. Continental Casualty Company, et al. A1-05-51 Chief Judge Daniel L. Hovland 11/7/2005 |
350 Motor Vehicle The defendant insurance companies filed a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure citing North Dakota case law prohibiting direct actions against insurers. The Plaintiffs resisted the motion asserting that a Nebraska statute which allows direct actions under limited circumstances was applicable. The Court, applying North Dakota choice of law rules, found that North Dakota had the most significant interest in the case and dismissed the action. |
| Barstad v. Weatherford U.S., L.P. A4-04-26 Chief Judge Daniel L. Hovland 11/7/2005 |
360 Other Personal Injury The Court granted summary judgment in favor of the Defendant based on the Plaintiff’s failure to respond to the motion and the lack of evidence to support any of the claims set forth in the complaint. |
| USA v. Jerald Vincent Proell C1-05-82 Chief Judge Daniel L. Hovland 11/7/2005 |
000 No Nature of Suit Code Used The Defendant filed a motion to suppress evidence based on a lack of probable cause, due in part to alleged false statements or misleading information provided to the issuing judge. In denying the motion, the Court found that there was probable cause to justify issuance of the warrants in this case. Additionally, the Defendant failed to make a proper showing under Franks that the law enforcement official deliberately or recklessly offered a false statement or omitted a truthful statement to the issuing judge. |
| USA v. Kennedy, et al. A1-05-84 Chief Judge Daniel L. Hovland 11/3/2005 |
870 Taxes (US Plaintiff or Defendant) The Court granted the United States’ Motion to Strike a packet of protestor-type documents filed in response to the complaint. The documents did not comport with Rule 8(f) and the Federal Rules of Civil Procedure, and the Defendant failed to respond to the United States’ motion. Relying on Rule 12(f) of the Federal Rules of Civil Procedure, the Court ordered the documents be stricken from the record as being immaterial, impertinent, scandalous and frivolous. |
| LaVallie v. USA, et al. A1-04-75 Chief Judge Daniel L. Hovland 11/2/2005 |
890 Other Statutory Actions Plaintiff filed a suit under the Federal Tort Claims Act alleging a law enforcement officer used excessive force during the arrest of the plaintiff. The Government filed a motion for summary judgment asserting the officer alleged to have committed the tortious conduct was a tribal police officer and could not be considered a federal law enforcement officer for purposes of the exception to the Government’s immunity from suit contained in the Federal Tort Claims Act. The Court granted the Government’s motion finding, as a matter of law, that the officer was a tribal officer, and thus, the Government was immune from suit as to any alleged tortious actions taken by the officer. Accordingly, the Court found it was without jurisdiction over the matter. |
| USA v. Mary Ann Locken C4-05-35 Chief Judge Daniel L. Hovland 10/25/2005 |
000 No Nature of Suit Code Used The Defendant filed a “Motion to Dismiss Matter or Withdraw Guilty Plea.” Although there was no basis for dismissing the Indictment, the Court granted the Defendant’s motion to withdraw her guilty plea. The Court found that the Defendant’s proffered reason for seeking withdrawal of her plea was fair and just under the circumstances. |
| USA v. Miller, et al. A1-05-75 Chief Judge Daniel L. Hovland 10/24/2005 |
220 Foreclosure The Government filed a motion for a preliminary injunction requesting two of the defendants be prohibited from withdrawing, removing, encumbering, transferring, offsetting, dissipating, or disposing proceeds from a cattle sale. The defendants failed to respond to the motion, and the Court granted the motion. |
| USA v. Derrick Keys C4-05-37 Chief Judge Daniel L. Hovland 10/12/2005 |
000 No Nature of Suit Code Used The Defendant filed two motions to suppress evidence and a motion to dismiss the Indictment. The Court denied the Defendant’s motion to suppress evidence seized from his van based upon the automobile exception to the warrant requirement. The Court granted the Defendant’s motion to suppress evidence in the form of statements made to officers because the statements were made during the Defendant’s unlawful detention. Lastly, the Court denied the Defendant’s motion to dismiss the Indictment based on the constitutionality of 18 U.S.C. § 922(g)(3). The Defendant is allowed to renew his motion to dismiss the Indictment, if needed, after the trial. |
| Laverdure, et al. v Sky Dancer Casino, et al. A4-05-85 Chief Judge Daniel L. Hovland 10/6/2005 |
440 Other Civil Rights The Plaintiffs filed a motion to dismiss pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure. The Court, in its discretion, granted the motion. In doing so, the Court found that a dismissal would not unfairly affect the Defendants at this early stage of the proceedings. |
| Anheluk v. Ohlsen, et al. A1-04-87 Chief Judge Daniel L. Hovland 10/4/2005 |
360 Other Personal Injury In a legal malpractice case, the defendant filed motion for summary judgment arguing that the undisputed material facts established the plaintiff could not have prevailed in the underlying lender liability action. The Court granted summary judgment finding that the plaintiff failed to establish a factual or legal basis for the underlying lender liability action, and as a result, the legal malpractice claim be dismissed as a matter of law. |
| Roemmich v. Eagle Eye Development, LLC, et al. A1-04-79 Chief Judge Daniel L. Hovland 9/13/2005 |
160 Stockholders' Suits Both parties filed motions for summary judgment based on statute of limitations defenses. The Court found that the Plaintiff’s claims that accrued prior to April 13, 1998, were barred by the six-year statute of limitations in North Dakota and that the Defendants’ counterclaim was time-barred pursuant to Section 28-01-16 of the North Dakota Century Code. The Court also denied the Defendant’s motion for partial summary judgment finding that there were genuine issues of material fact in dispute relative to the personal liability of the individual Defendants. |
| Larson v. Martin, et al. A4-05-47 Chief Judge Daniel L. Hovland 9/9/2005 |
190 Other Contract The Defendant filed a motion to dismiss based on lack of subject matter jurisdiction, or in the alternative for failure to exhaust tribal remedies. Based on the citizenship of the parties and the amount in controversy, the Court had original diversity jurisdiction over the matter pursuant to 28 U.S.C. § 1332. Further, the Plaintiff did not need to exhaust tribal remedies due to the existence of a valid forum selection clause wherein the parties agreed to federal district court being the forum in which disputes over the contract would be litigated. |
| USA v. Shondo Billie C4-05-12 Chief Judge Daniel L. Hovland 8/26/2005 |
000 No Nature of Suit Code Used The defendant was charged in an Indictment with two counts of sexual abuse of a minor and four counts of aggravated sexual abuse of a child. The defendant filed a motion in limine to exclude evidence of a pattern of sexual abuse and confine the Government’s evidence to only the six charged incidents of sexual abuse. The Court denied the motion finding evidence of a pattern of sexual abuse was inextricably intertwined with the charged offenses and, in the alternative, the evidence of a pattern of sexual abuse was admissible under Rules 404(b), 413, and 414 of the Federal Rules of Evidence. |
| Nagel v. Sykes Enterprises, Inc. A1-04-39 Chief Judge Daniel L. Hovland 8/25/2005 |
442 Employment The Plaintiff filed an action under the Americans with Disabilities Act (ADA) and the Worker Adjustment and Retraining Notification (WARN) Act alleging violations of each. The Court granted summary judgment in favor of the Defendant on the WARN claim, finding that the minor technical violation in the Defendant’s WARN notice is not actionable. The Court also granted partial summary judgment in favor of the Defendant on the ADA claim. The Plaintiff’s remaining claim is whether the Defendant failed to provide reasonable accommodations in the form of particular computer equipment requested by the Plaintiff. |
| Nelson, et al. v Farm Credit Services of ND, PCA A4-05-12 Chief Judge Daniel L. Hovland 8/9/2005 |
891 Agricultural Acts Plaintiffs filed an action against Farm Credit Services of North Dakota alleging violations of the Agricultural Credit Act, the Truth in Lending Act, and Regulation Z. The Court granted summary judgment in favor of Farm Credit Services as to all claims. The Court held that the Agricultural Credit Act contains no private right of action, and that the Plaintiffs claims under the Truth in Lending Act and Regulation Z were barred due to the fact that their loan was agricultural in nature. Lastly, the Court dismissed the Plaintiffs claim for fraud as there was no evidence to support such a claim. |
| USA v. Christopher Kobe Rainbow C1-05-34 Chief Judge Daniel L. Hovland 8/9/2005 |
000 No Nature of Suit Code Used Defendant filed motion to suppress statement made to law enforcement officers. The Court denied the motion finding the Defendant was not in custody and his statement were made voluntarily. |
| Martell, et al. v. HHS A4-04-67 Chief Judge Daniel L. Hovland 7/22/2005 |
442 Employment In an employment discrimination suit, the defendant filed a summary judgment motion asserting the plaintiffs failed to exhaust their administrative remedies prior to filing suit. The Court granted the defendant’s motion finding the plaintiffs had not exhausted their administrative remedies because they failed to report the alleged discriminatory conduct within the required 45-day time limit. |
| VanderWal, et al. v. Sykes Enterprises, Inc., et al. A1-04-49 Chief Judge Daniel L. Hovland 7/21/2005 |
790 Other Labor Litigation Defendant filed motion for summary judgment arguing the plaintiffs’ had failed to set forth genuine issue of material fact regarding their claims that the defendant violated the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. §§ 4311 et. seq., (USERRA), by not rehiring them immediately after their return from military service overseas. The Court granted the defendant’s motion concluding that the plaintiffs were promptly rehired and that the plaintiffs failed to set forth evidence showing any actions taken by the defendant were based on their status as members of the military. |
| Shah v. State Farm Mutual Auto Ins. Co. A1-04-72 Chief Judge Daniel L. Hovland 7/21/2005 |
110 Insurance Plaintiff and defendant each filed motions for summary judgment in a case arising from an automobile accident in Canada. The Court granted the plaintiff’s motion and denied the defendant’s motion concluding that the plaintiff was “legally entitled to collect” and could pursue a claim for non-economic damages under to the “under-insured motorist” provision of the insurance policy. |
| USA v. Karl Robert Irwin C1-05-21 Chief Judge Daniel L. Hovland 6/30/2005 |
000 No Nature of Suit Code Used The Defendant filed a motion pursuant to Rule 15 of the Federal Rules of Criminal Procedures seeking Court authorization to depose a potential witness for purposes of preserving his testimony for trial. The potential witness recently suffered a stroke which would jeopardize his ability to appear at trial. Under the circumstances, the Court found that there exists “exceptional circumstances” which warrant the taking of a deposition. |
| Crawford Capital Corp. v. Bear Soldier District, et al. A1-05-78 Chief Judge Daniel L. Hovland 6/29/2005 |
380 Other Personal Property Damage Plaintiff filed motions for an ex parte temporary restraining order and permanent injunction. The Court denied the motion for an ex parte temporary restraining order finding the plaintiff had failed to establish the necessity of an ex parte temporary restraining order under Rule 65 of the Federal Rules of Civil Procedure and Dataphase Systems, Inc., v. C.L. Sys. Inc., 640 F.2d 109, 114 (8th Cir. 1981) (en banc). The Court reserved ruling on the motion for a permanent injunction. |
| Williston Basin Interstate Pipeline v. Dolyniuk Family Trust, et al. A1-03-66 Chief Judge Daniel L. Hovland 6/27/2005 |
210 Land Condemnation Defendant landowners filed motions for costs and attorneys’ fees after reaching a settlement of their claims in a land condemnation case. The Court found that pursuant to N.D.C.C. § 32-15-32 the defendants’ requests for costs and attorneys’ fees were reasonable and granted the motions. |
| USA v. Warren Arthur Olson C4-02-81 Chief Judge Daniel L. Hovland 6/27/2005 |
000 No Nature of Suit Code Used Court denied a petition for habeas corpus under 28 U.S.C. § 2255 finding that the petition was untimely and that the recent United States Supreme Court case of Booker v. United States, did not apply to the defendant’s sentence because a Court could increase or decrease a defendant’s sentence based on criminal history. |
| Carr v. Local 1593 IBEW, et al. A1-04-18 Chief Judge Daniel L. Hovland 6/21/2005 |
720 Labor/Mgmt. Relations The Defendants separately filed motions for costs and attorneys fees upon the Court’s granting of summary judgment as to the Plaintiff’s remaining claims. The Court, in its discretion, did not impose sanctions under 28 U.S.C. § 1927, nor did the Court award costs under Rule 54 of the Federal Rules of Civil Procedure. |
| Wallette v. HHS A4-04-68 Chief Judge Daniel L. Hovland 6/21/2005 |
442 Employment The defendants filed a motion to dismiss pursuant to Rule 12(b) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction and a motion for summary judgment asserting the plaintiff’s Title VII claim of gender-based discrimination should be dismissed for failure to show that the proffered explanation for her non-selection was pretextual. The plaintiff did not oppose the dismissal of any reference to her tort claims, and the Court granted the motion to dismiss. As to the summary judgment motion, the Court found that the plaintiff had failed to present any evidence that created a question of material fact as to whether the defendants’ proffered reasons are pretextual and that the plaintiff had failed to set forth evidence to create a reasonable inference that gender was a determinative factor in the adverse employment decision. Thus, the Court found there were no genuine issues of material fact that precluded the entry of summary judgment in favor of the defendants. |
| Malaterre, et al. v. Amerind Risk Management A4-04-88 Chief Judge Daniel L. Hovland 6/20/2005 |
110 Insurance The Plaintiffs sought declaratory relief to establish insurance coverage for an ongoing tribal court matter. The Court granted the Defendant’s motion to dismiss under the tribal exhaustion doctrine. Based on the parties involved and the nature of the suit, the tribal court must be afforded the first opportunity to address the factual and legal issues presented. |
| USA v. Christopher Kobe Rainbow C1-05-34 Chief Judge Daniel L. Hovland 6/17/2005 |
000 No Nature of Suit Code Used The Defendant made a Motion for Approval of Funds to Take Depositions of eleven witnesses. Rule 15(a) of the Federal Rules of Criminal Procedure states that a prospective witness can be deposed to preserve the testimony for trial. The Court denied the motion finding that the Defendant did not establish the need to preserve the testimony of the witnesses by deposition nor were exceptional circumstances present. |
| USA v. Todd Christopher Zastoupil C1-04-76 Chief Judge Daniel L. Hovland 6/14/2005 |
000 No Nature of Suit Code Used The defendant was convicted by a jury of the offenses of the sexual exploitation of minors and the possession of material involving the sexual exploitation of minors. The Court sentenced the defendant to a term of fifty (50) years for the offense of the sexual exploitation of minors and twenty (20) years for the offense of possession of material involving the sexual exploitation of minors. The sentences are to be served concurrently. |
| State of MN v. Governor of the State of ND A1-04-21 Chief Judge Daniel L. Hovland 6/8/2005 |
950 Constitutionality of State Statutes The Court granted the Defendants’ Motion for Summary Judgment, finding that changes to the North Dakota hunting regulations which differentiate between residents and non-residents do not run afoul of the Privileges and Immunities Clause, nor do the regulations implicate or violate the Commerce Clause. |
| Williston Basin Interstate Pipeline v. Dolyniuk Family Trust, et al. A1-03-66 Chief Judge Daniel L. Hovland 6/7/2005 |
210 Land Condemnation Plaintiff filed a motion for partial summary judgment asking the Court to determine the scope of the right-of-way granted by the FERC in its Certificate of Public Convenience and Necessity. The Court found, as a matter of law, that the Plaintiff was entitled to a 50-foot-wide permanent easement over the remaining Defendants’ tracts of land. |
| USA v. Frank Bohe C1-04-66 Chief Judge Daniel L. Hovland 5/26/2005 |
000 No Nature of Suit Code Used Based on an uncontroverted medical report, the Court found by clear and convincing evidence that the defendant’s release would not create a substantial risk of bodily injury to another person or serious damage to the property of another due to his present mental disease or defect in satisfaction of 18 U.S.C. § 4243(b). |
| Carr v. Local 1593 IBEW, et al. A1-04-18 Chief Judge Daniel L. Hovland 5/18/2005 |
720 Labor/Mgmt. Relations Both the local and international union filed motions for summary judgment regarding the Plaintiff’s fair representation claim. The Court granted both motions, finding that the international union did not owe a duty of fair representation, and further, all of the Plaintiff’s allegations were either untimely or without merit. |
| Rosenau, et al. v. Farm Service Agency A1-02-01 Chief Judge Daniel L. Hovland 5/11/2005 |
891 Agricultural Acts Plaintiffs filed a renewed motion for summary judgment after the remand of this dispute to the defendant agency. The defendant agency also filed a motion for summary judgment. The Court granted the plaintiffs’ motion and denied the defendant agency’s finding that the defendant agency had abused its discretion and acted contrary to law in retroactively applying an administrative policy, and the Court reinstated the plaintiffs’ farm program benefits. |
| Brown, et al. v. Schuetzle, et al. A1-03-127 Chief Judge Daniel L. Hovland 5/4/2005 |
550 Civil Rights Inmates at the North Dakota State Penitentiary filed a civil rights action against several employees alleging a constitutional violation of their First Amendment free-exercise right under 42 U.S.C. § 1983 and statutory violation of the Religious Land Use and Institutionalized Persons Act. The Plaintiffs requested changes to the sweat lodge ceremony. The Court granted summary judgment in favor of the Defendants finding that the Plaintiffs have been afforded a reasonable opportunity to exercise their religious freedoms as guaranteed by the First and Fourteenth Amendments and the Religious Land Use and Institutionalized Persons Act. |
| Mehl, et al. v. Canadian Pacific Railway, Ltd, et al. A4-02-09 Chief Judge Daniel L. Hovland 5/4/2005 |
360 Other Personal Injury Plaintiffs sought class certification of an injury class under Rule 23(b)(3) of the Federal Rules of Civil Procedure and a medical monitoring class under Rule 23(b)(2) of the Federal Rules of Civil Procedure. The Defendants requested an evidentiary hearing on the class certification issue. The Court denied the Defendant’s request for an evidentiary hearing, finding the parties had submitted “sufficient material” to determine the issue of class certification. The Court granted, in part, the Plaintiffs’ motion for class certification, certifying the injury class, as modified, but finding the medical monitoring class did not meet the requirements of Rule 23(b)(2). |
| Paige v. Social Security Administration A4-04-117 Chief Judge Daniel L. Hovland 5/4/2005 |
864 SSID Title XVI The Plaintiff filed an action seeking review of a denial of Disability Insurance Benefits and Supplemental Security Income Benefits under the Social Security Act. The Defendant filed a motion to dismiss predicated upon the untimely nature of the action. The Court granted the motion, finding that the Plaintiff failed to file his action within the sixty-day time period set forth in 42 U.S.C. § 405(g). |
| USA v. Frank Bohe C1-04-66 Chief Judge Daniel L. Hovland 4/28/2005 |
000 No Nature of Suit Code Used The Defendant was previously found not guilty by reason of insanity. In accordance with 18 U.S.C. § 4243 and 18 U.S.C. § 1447(b) and (c), the Court ordered the Defendant to undergo a psychiatric or psychological examination to determine if his release would create a substantial risk of bodily injury to another person or serious damage to property of another. The law provides that a hearing on the subject must be held within 40 days. Curiously, however, the law allows up to 75 days for the examination to be conducted. Since the 40-day time period has elapsed, the Defendant requested to be released. The Court denied the request because the statute does not contemplate release without a finding that he would not create a substantial risk of bodily injury to another person or serious damage to property of another. The statute does not mandate release if the 40-day time period cannot be complied with. |
| Collection Center, Inc. v. C. V. Penfield, et al. A1-05-31 Chief Judge Daniel L. Hovland 4/26/2005 |
190 Other Contract The action was initially filed in state court, but later removed to federal court on the basis of diversity jurisdiction. The Plaintiffs opposed removal on the ground that the Defendants request to do so was untimely. The Court agreed, finding that remand was warranted under 28 U.S.C. § 1447 for failure to comply with the thirty-day time limit for removal as prescribed by statute. |
| USA v. Michael Sullivan C1-03-69 Chief Judge Daniel L. Hovland 4/6/2005 |
000 No Nature of Suit Code Used The Defendant filed a pro se petition under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. The Court dismissed the petition because the Defendant expressly waived his right to bring a Section 2255 motion challenging his conviction or sentence in his Plea Agreement. Furthermore, the Defendant failed to obtain certification from the Eighth Circuit Court Appeals, as required by law, prior to filing a second or successive petition under Section 2255. |
| USA v. Gregory Jerome Cree C4-04-92 Chief Judge Daniel L. Hovland 4/1/2005 |
000 No Nature of Suit Code Used In an aggravated sexual abuse of a child case, the Government advised the Court of potential evidentiary issues, including: (1) the admission of evidence of the Defendant’s prior conviction for child molestation; (2) the admission of a videotape of a forensic interview of the alleged victim; and (3) the admission of testimony by a physician as to statements made by the victim during a medical examination. The Court ruled the Defendant’s prior conviction was admissible and reserved ruling on the issues of the admission of the videotape and statements made to a physician until the evidence is further developed at trial. |
| Goetz v. Social Security Administration A1-04-89 Chief Judge Daniel L. Hovland 3/31/2005 |
863 DIWC/DIWW (405(g)) The plaintiff appealed an adverse decision of the Commissioner of the Social Security Administration denying his application for disability insurance benefits based on allegations of disability due to an obsessive compulsive disorder, a broken pelvic bone, and two broken bones in his back. The Court found the Commissioner’s decision was supported by substantial evidence and dismissed the appeal. |
| USA v. Javier A. Corral C1-02-51 Chief Judge Daniel L. Hovland 3/30/2005 |
000 No Nature of Suit Code Used The Defendant filed a pro se petition under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. The Court denied the petition. The Court found that the Defendant’s sentence did not violate the Sixth Amendment or the Supreme Court’s recent pronouncement in Booker, the Defendant’s facial challenge to 21 U.S.C. § 841 was without merit, and the Defendant failed to prove ineffective assistance of counsel. |
| USA v. Douglas Eugene Gleich C1-03-56 Chief Judge Daniel L. Hovland 3/30/2005 |
000 No Nature of Suit Code Used After the Eighth Circuit held the 5-level enhancement pursuant to § 2G2.2(b)(4) was inapplicable to a defendant’s action of taking a “mooning” picture of a minor boy and transmitting it over the Internet and remanded the matter for resentencing, the Court sentenced the defendant to the high end of the “advisory” Sentencing Guideline range. |
| Ft. Berthold Land and Livestock Association, et al. v. DOI, et al. A4-04-109 Chief Judge Daniel L. Hovland 3/22/2005 |
190 Other Contract Plaintiffs filed an action requesting declaratory or injunctive relief to prevent the BIA from increasing grazing rates and applying the new rates retroactively. The Court dismissed the claim for failure to exhaust administrative remedies under the APA. Dismissal was appropriate because there had been no final agency action. |
| Basin Electric Power Cooperative v. MPS Generation, Inc., et al. A1-05-29 Chief Judge Daniel L. Hovland 3/21/2005 |
190 Other Contract Plaintiff brought suit against Defendants alleging breach of contract claims. Plaintiff sough a preliminary injunction freezing the monies held in an escrow account pending the resolution of the case. The Court found that the Dataphase factors weighed in favor of granting a preliminary injunction and issued a preliminary injunction. |
| ND Family Alliance, Inc., et al. v. Bader, et al. A3-04-115 Chief Judge Daniel L. Hovland 3/21/2005 |
440 Other Civil Rights Plaintiffs’ challenged Canon 5A(3)(d)(i) and (ii), Canon 3E(1), and Article 6, Section 11 of the North Dakota Constitution. The Court found Canon 5A(3)(d)(i) and (ii), the “pledges and promises clause” and the “commit clause” are unconstitutional in the wake of Republican Party of Minnesota v. White, 536 U.S. 765 (2002). However, the Court upheld the constitutionality of North Dakota’s “recusal clause” contained in Canon 3E(1) and Article 6, Section 11 of the North Dakota Constitution. |
| USA v. Chardae Latrese Cynthia Thompson C4-04-86 Chief Judge Daniel L. Hovland 3/21/2005 |
000 No Nature of Suit Code Used The Defendant filed a Motion to Suppress Evidence arising out of a luggage search which took place on a train. The Court denied the motion. The Defendant has consistently denied ownership of the luggage in question, and has maintained the luggage belongs to a relative. Under the circumstances, the Fourth Amendment offers no protection to the Defendant. The Defendant lacks standing to contest the search and may not assert the protections vicariously. Further, the Defendant abandoned any privacy interest in the luggage by disclaiming ownership in the luggage at the time of the search. |
| IBEW Local 1593 v. Dakota Gasification Co. A1-04-137 Chief Judge Daniel L. Hovland 3/10/2005 |
720 Labor/Mgmt. Relations The I.B.E.W., Local 1593 is a bargaining unit that represents approximately 450 employees of Dakota Gassification Company. This action arose out of an arbitration award finding in the Union’s favor that Dakota Gas violated specific provisions of the current collective bargaining agreement by permanently transferring four employees to vacant positions against their will. The Union sought confirmation of the arbitration award, while Dakota Gas sought to vacate the award in part. The Court found that the Arbitrator “stayed within the areas marked out for his consideration” and his award “drew its essence” from the collective bargaining agreement and as such, the award must be upheld. Any modification of the award is unwarranted under the current state of the law. |
| Mentz v. DOI, et al. A1-03-123 Chief Judge Daniel L. Hovland 3/4/2005 |
890 Other Statutory Actions The Plaintiff filed an action against the United States under the Federal Tort Claims Act for damages arising out of a snowmobile accident. The Court granted the Government’s motion to dismiss because there was no evidence to suggest that the employee of the government was acting within the scope of his employment at the time of the accident. As such, the limited waiver of sovereign immunity under the FTCA does not apply. |
| Anne Carlsen Center for Children v. Gov’t of the US Virgin Islands A1-04-98 Chief Judge Daniel L. Hovland 2/16/2005 |
190 Other Contract The Plaintiff filed an action against the Government of the United States, Virgin Islands alleging, among other things, breach of contract. The Virgin Islands filed a motion to dismiss, or, in the alternative, for summary judgment. The Court denied the motion to dismiss finding that it had personal jurisdiction over the defendant and had subject matter jurisdiction over the claims. Further, the Court found that there were genuine issues of material fact to be addressed at trial and denied summary judgment. The parties were ordered to submit supplemental briefs regarding venue. |
| USA v. Bryan Peach C4-04-33 Chief Judge Daniel L. Hovland 2/15/2005 |
000 No Nature of Suit Code Used In a post-Booker sentencing, the Court held that the proper methodology for sentencing in the post-Booker environment is that federal district courts should give the Sentencing Guidelines "substantial weight" and that the Guideline range for sentencing as established by the Sentencing Commission provides a presumptively "reasonable" sentence for district courts to follow. |
| Williston Basin Interstate Pipeline v. Dolyniuk Family Trust, et al. A1-03-66 Chief Judge Daniel L. Hovland 2/9/2005 |
210 Land Condemnation Plaintiff filed a motion to appoint a commission pursuant to Rule 71A of the Federal Rules of Civil Procedure, which allows the Court, in its discretion, to appoint a three-person commission to determine just compensation in a condemnation action. The Court denied the motion to appoint a commission. |
| USA v. William Paul See Walker C1-04-85 Chief Judge Daniel L. Hovland 2/4/2005 |
000 No Nature of Suit Code Used The Defendant, who is charged with Aggravated Sexual Abuse, filed a Motion to Produce one of the child victims for independent examination and interview. The Court denied the motion, finding no violation to the Defendant’s due process or confrontation rights under the circumstances. |
| Moore v. Schuetzle, et al. A1-04-38 Chief Judge Daniel L. Hovland 2/2/2005 |
550 Civil Rights Inmate filed a 42 U.S.C. § 1983 action alleging prison officials violated his constitutional rights by opening his legal mail and providing inadequate medical treatment. The defendants filed a motion for summary judgment and the Court granted the motion finding (1) the inmate failed to set forth a constitutional violation regarding his allegations that prison officials had opened his legal mail and (2) the inmate failed to show the prison officials had acted with deliberate indifference regarding his medical care. |
| DakColl Inc. v. Grand Central Graphics, Inc., et al. A1-04-126 Chief Judge Daniel L. Hovland 1/20/2005 |
820 Copyrights Plaintiff brought an action alleging copyright infringement against three non-resident defendants. The Defendants filed a motion to dismiss for lack of personal jurisdiction, insufficiency of process and improper venue. The Court granted the motion in part. The Court found that the two corporate defendants had sufficient contacts with North Dakota so that the exercise of personal jurisdiction over them satisfied the due process clause. However, the private individual did not, and the claims against her were dismissed. The Court also found that process was sufficient under Rule 4, and that the case was properly venued in North Dakota. Further, the Court held that a change of venue to Minnesota was unwarranted. |
| Harvey v. County of Ward, et al. A4-03-135 Chief Judge Daniel L. Hovland 1/20/2005 |
440 Other Civil Rights After an inmate suicide, the Plaintiff, the surviving spouse, filed suit against the Sheriff, Jail Administrator, and County under 42 U.S.C. § 1983 and various state law provisions. Defendants filed a motion for summary judgment asserting that the officials named in the individual capacity were entitled to qualified immunity and that the County was entitled to summary judgment because the Plaintiff failed to establish that any injury was a result of an official policy or custom of the County. The Court granted the motion for summary judgment finding (1) the officials were entitled to qualified immunity because the Plaintiff failed to establish the officials had knowledge of the inmate’s suicide risk, (2) the County was entitled to summary judgment because the Plaintiff failed to establish the County acted with deliberate indifference, and (3) the remaining state law claims should be dismissed in favor of adjudication in the state court system. |
| USA v. American Horse, et al. A1-04-73 Chief Judge Daniel L. Hovland 1/11/2005 |
220 Foreclosure The Court denied a Defendant’s motion to dismiss under Rule 12(b)(6) in a foreclosure action brought by the United States against a resident of the Standing Rock Indian Reservation over trust land. The Court held that the United States had plead ample facts to support such an action, in spite of 25 U.S.C. § 483a. Additionally, the Court found that a dismissal or stay of the proceedings was unwarranted because the facts of the case did not justify tribal exhaustion under the current state of the law in the Eighth Circuit. |
| Claymore, et al. v. Secretary of Interior A1-04-132 Chief Judge Daniel L. Hovland 12/21/2004 |
230 Rent Lease & Ejectment The Plaintiffs filed a petition for Attorney’s Fees under the Equal Access to Justice Act. The Court granted the petition, finding the Plaintiffs were entitled to recover attorney’s fees and costs. However, the Court found neither an increase in the cost of living nor other special factors existed which justified compensation at a rate higher than the statutory rate of $125 per hour. |
| Burck v. Social Security Administration A1-04-55 Chief Judge Daniel L. Hovland 12/21/2004 |
863 DIWC/DIWW (405(g)) The Plaintiff sought judicial review of the Social Security Commissioner’s denial of his application for disability benefits. The Court remanded the action back to the Commissioner to consider new and material evidence that was not in existence at the time of his hearing before the Administrative Law Judge. |
| USA v. Raymond A. Poitra C4-02-58 Chief Judge Daniel L. Hovland 12/21/2004 |
000 No Nature of Suit Code Used The Defendant filed a pro se petition for habeas corpus under 28 U.S.C. § 2255. The Court granted the petition because his sentence violated the Ex Post Facto clause. However, the Court denied the Defendant’s claims for relief under the Sixth Amendment citing Blakely v. Washington, 124 S.Ct. 2531 (2004), and for ineffective assistance of counsel. |
| Neumiller, et al. v. American Express Financial Advisors, Inc. A1-03-116 Chief Judge Daniel L. Hovland 12/20/2004 |
190 Other Contract Plaintiffs filed an action for breach of contract alleging that the Defendant improperly paid the proceeds of various annuities to charitable beneficiaries. The Court found that the original beneficiary forms were clear and unambiguous and created irrevocable beneficiaries. As a result, a letter that purported to change the beneficiaries was not effective without the consent of the various charities. The Court granted summary judgment in favor of the Defendant because there were no genuine issues of material fact for a jury to resolve regarding the breach of contract claim. |
| Fahlsing v. Social Security Administration A1-04-64 Chief Judge Daniel L. Hovland 12/3/2004 |
863 DIWC/DIWW (405(g)) Plaintiff filed suit seeking judicial review of the Social Security Commissioner’s denial of his application for social security disability insurance benefits. The Court concluded the ALJ decision failed to set forth the reason(s) for rejecting the opinions of the Plaintiff’s treating physician and remanded the matter to the ALJ for supplemental findings under sentence four of 42 U.S.C. § 405(g). |
| Gillette v. Marcellais, et al. A4-04-123 Chief Judge Daniel L. Hovland 12/1/2004 |
440 Other Civil Rights The Plaintiff filed a Motion for Reconsideration pursuant to Rule 59(e) regarding the Court’s denial of Plaintiff’s petition for habeas corpus relief. The Court denied the Plaintiff’s motion because there had been no mistake or manifest error of law that would warrant the amendment or alteration of the Court’s previous judgment. |
| Burgad v. Jack L. Marchus, Inc. A1-03-138 Chief Judge Daniel L. Hovland 11/24/2004 |
365 Personal Injury - Product Liability The Plaintiff filed a complaint against a sports bra retailer for injuries sustained while wearing the product. The Plaintiff alleged failure to warn, negligence, and strict products liability. The Court granted the Defendant’s Motion for Summary Judgment based on the Plaintiff’s failure to show a breach of duty on the part of the Defendant, failure to show causation, and failure to show the sports bra was either defective or unreasonably dangerous as required by North Dakota law. The Court’s decision was based primarily on the Plaintiff’s lack of any expert testimony. |
| Gillette v. Marcellais, et al. A4-04-123 Chief Judge Daniel L. Hovland 11/22/2004 |
440 Other Civil Rights The Plaintiff filed a petition for habeas corpus relief pursuant to Section 1303 of the Indian Civil Rights Act. The Plaintiff’s pre-trial petition alleged bias, defective complaint, failure to provide a hearing on motions, failure to provide a neutral judge, and lack of tribal jurisdiction. The Court denied the petition because the Plaintiff failed to exhaust his tribal remedies. |
| Dubois v. ND Attorney General A4-04-121 Chief Judge Daniel L. Hovland 11/16/2004 |
440 Other Civil Rights Defendant filed a motion to dismiss, alleging the plaintiff did not have standing to pursue his claim that a North Dakota law requiring a “cost bond” before suing the State in a contractual dispute was unconstitutional. The Court granted the motion finding that the plaintiff failed to set forth a concrete and particularized injury which was actual or imminent. |
| Carr v. IBEW, Local 1593 A1-04-18 Chief Judge Daniel L. Hovland 11/12/2004 |
720 Labor/Mgmt. Relations Defendants filed a motion for partial summary judgment, alleging the plaintiff failed to identify the basis for his breach of contract claim. The Court granted the motion, finding the plaintiff had failed to set forth a specific provision in the contract setting forth the duty the plaintiff alleged the Defendants breached. |
| Zidon v. Pickrell A1-04-113 Chief Judge Daniel L. Hovland 11/8/2004 |
320 Assault, Libel & Slander The Court denied the defendant’s Motion to Dismiss for lack of personal jurisdiction and for change of venue. The Court found the defendant had sufficient contacts via the Internet with North Dakota so that the exercise of personal jurisdiction did not offend due process. Further, the Court found that the defendant did not meet her burden of showing that a transfer of venue would be more convenient for the parties and witnesses, or is in the interests of justice. |
| Mehl v. Canadian Pacific A4-02-09 Chief Judge Daniel L. Hovland 11/8/2004 |
360 Other Personal Injury In the context of a class certification motion, the defendants argued the Court lacked jurisdiction over the named plaintiffs. The Court ordered the parties to submit additional briefing on the jurisdiction issue. The Court found the named plaintiffs had alleged damage sufficient to meet the amount-in-controversy requirement to support diversity jurisdiction. |
| Atkinson, et al. v. McLaughlin, et al. A1-03-91 Chief Judge Daniel L. Hovland 11/4/2004 |
320 Assault, Libel & Slander The Defendants filed a Motion to Dismiss for lack of personal jurisdiction, failure to prosecute and for ineffective service of process. The Court found sufficient contacts with North Dakota to exercise personal jurisdiction over the Defendants based on comments made via the Internet, operation of a Web site, and letters sent to residents of North Dakota. The Court further held there was proper service to satisfy Rule 4 of the Federal Rules of Civil Procedure. Lastly, the Court held that dismissal for failure to prosecute was unwarranted based on the facts and the procedural history of the case. |
| Blunt, In re Guardianship/Conservatorship A4-04-119 Chief Judge Daniel L. Hovland 10/29/2004 |
890 Other Statutory Actions A court-appointed guardian and conservator sought to remand an action he had filed against a federal agency back to state court. The Court denied his request, finding that the action required the interpretation of federal law and the remedy, if granted, would compel action on behalf of a federal agency. |
| Merrill Lynch Life Insurance Co. v. Black, et al. A1-03-128 Chief Judge Daniel L. Hovland 10/6/2004 |
190 Other Contract In an interpleader action, claimant Richmond filed a motion for summary judgment alleging that claimant Black had failed to show fraud was involved in the naming of the first claimant as a beneficiary to a life insurance policy. The Court granted the claimant’s motion finding there were no facts or attendant circumstances from which a jury or factfinder could find or infer that the first claimant fraudulently induced the owner of the insurance policy into either marrying him or designating him as the beneficiary of the life insurance policy. The Court directed the Clerk of Court to distribute the insurance policy proceeds to the first claimant. |
| Gooden v. U.S. Department of Interior, et al. A4-03-70 Chief Judge Daniel L. Hovland 10/6/2004 |
360 Other Personal Injury The Plaintiff filed an action under the Federal Tort Claims Act alleging negligent hiring, supervision, and training. The Defendants’ moved for partial summary judgment as to all three of the claims based on the discretionary function exception. The Court granted summary judgment as to the negligent hiring and supervision claims because both claims fell squarely within the exception. However, the Court allowed the Plaintiff to pursue the claim of negligent training because there was an express policy regarding training which renders the discretionary function exception inapplicable. |
| USA v. Diana Courteny Duong, et al. C1-04-50 Chief Judge Daniel L. Hovland 10/6/2004 |
000 No Nature of Suit Code Used Upon motion of the defendant, the Court granted substitute counsel. |
| Kenny v. Mid Dakota Clinic PC, et al. A1-04-108 Chief Judge Daniel L. Hovland 10/1/2004 |
890 Other Statutory Actions Defendants’ filed a motion to dismiss asserting the Court lacked subject matter jurisdiction. The Court granted the motion finding neither diversity jurisdiction nor federal question jurisdiction were present. |
| Williston Basin Interstate Pipeline Co. v. Sheehan Pipeline Construction Co. A1-04-09 Chief Judge Daniel L. Hovland 9/30/2004 |
190 Other Contract The Court granted the Defendant leave to amend its answer to include, among other things, a claim for quantum meruit. The Court recognized that the existence of a written contract may ultimately doom such a claim. However, the Court also recognized the existence of an issue regarding extra-contractual conduct. |
| Zidon v. Pickrell A1-04-113 Chief Judge Daniel L. Hovland 9/29/2004 |
320 Assault, Libel & Slander The Court denied the Plaintiff’s ex parte motion for a temporary restraining order on the grounds that his alleged injury–damage to his reputation–did not justify the issuance of such order. |
| Chase v. US Atty. General A4-02-109 Chief Judge Daniel L. Hovland 9/29/2004 |
720 Labor/Mgmt. Relations In an employment discrimination case, the Defendant filed a motion for summary judgment on the grounds that the Plaintiff had failed to (1) exhaust his administrative remedies, (2) allege a prima facie case of discrimination or retaliation, and (3) show the Defendant’s proffered legitimate, non-discriminatory reasons were pretext for intentional discrimination. The Court granted in part the Defendant’s motion, finding that he had failed to exhaust his administrative remedies as to some claims and had failed to set forth a prima facie case of retaliation as to one of his retaliation claims. The Court allowed the Defendant to proceed with his sex discrimination claim and one retaliation claim. The Court also denied the Plaintiff’s motion for leave to file an amended complaint. |
| USA v. Roy Spinks C4-04-29 Chief Judge Daniel L. Hovland 9/28/2004 |
000 No Nature of Suit Code Used Defendant filed a motion in limine seeking to exclude evidence of his prior drug use and prior involvement in drug transactions. The Court denied the motion finding that, under Rule 404(b) of the Federal Rules of Evidence, the potential danger of unfair prejudice of the evidence did not substantially outweigh its probative value. |
| USA v. Roy Spinks C4-04-29 Chief Judge Daniel L. Hovland 9/28/2004 |
000 No Nature of Suit Code Used A defendant filed a motion seeking to have evidence of his prior convictions excluded. The Court denied the motion finding that the probative value of admitting evidence of the Defendant’s prior felony convictions for possession of methamphetamine and possession of drug paraphernalia outweighed the danger of unfair prejudice. |
| USA v. Diana Courteny Duong, et al. C1-04-50 Chief Judge Daniel L. Hovland 9/24/2004 |
000 No Nature of Suit Code Used Co-Defendants filed a Motion to Suppress evidence seized by law enforcement officers during a warrantless search. The Court found that one of the Co-Defendants did not have standing to challenge the search. Additionally, the Court found that the officers conducted a valid inventory search of the vehicle that precluded their need to obtain a search warrant. In the alternative, the Court recognized that the remaining Co-Defendant abandoned her privacy interest in the vehicle and its contents. |
| Vander Wal v. Sykes Enterprises, Inc., et al. A1-04-49 Chief Judge Daniel L. Hovland 9/10/2004 |
790 Other Labor Litigation A third party filed a motion to intervene. The Court granted the motion finding that both the plaintiff and the third party had common questions of law and that their claims arose out of strikingly similar circumstances. |
| Grabinger, et al. v. Canadian Pacific Railway, et al. A4-04-02 Chief Judge Daniel L. Hovland 9/10/2004 |
245 Tort Product Liability The Court granted the Plaintiff’s motion to voluntarily dismiss her wrongful death and personal injury action without prejudice under Rule 41(a)(2). The Court found that the Plaintiff proffered an adequate explanation for requesting dismissal, dismissal did not amount to a waste of judicial time and resources, dismissal did not prejudice the Defendants, and the Plaintiff was not requesting dismissal in order to avoid an adverse decision or seek a more favorable forum. |
| Anderson, et al. v. Black & Decker Corp., et al. A1-04-91 Chief Judge Daniel L. Hovland 9/9/2004 |
245 Tort Product Liability The plaintiffs sought to remand an action to state court due to the fact that it had been removed to the wrong division of the federal district court. The court denied the motion and transferred the action to the proper division. |
| ND Fair Housing Council, Inc., et al. v. Earl Allen, et al. A1-03-119 Chief Judge Daniel L. Hovland 9/8/2004 |
443 Housing/Accommodations The Court denied an erstwhile plaintiff’s motion for certification of final judgment pursuant Rule 54(b) as the plaintiff had failed to make the requisite showing of hardship or injustice to warrant such certification. |
| Kunze v. Rauser, et al. A1-04-05 Chief Judge Daniel L. Hovland 9/8/2004 |
550 Civil Rights Finding an inmate’s claims regarding the propriety of his administrative segregation and the adequacy of his medical treatment to be without merit, the Court granted motions for summary judgment filed by two groups of named defendants–state employees and contract physicians. |
| Dyer, et al. v. Northwest Airlines Corp., et al. A1-04-33 Chief Judge Daniel L. Hovland 9/8/2004 |
890 Other Statutory Actions The Court granted the defendant’s motion to dismiss the plaintiffs’ claims of breach of contract and violation of the Electronic Communications Privacy Act (18 U.S.C. §§ 2702(a)(1) and (3)), the basis being (1) the plaintiffs had abandoned their breach of contract claims, and (2) the defendant was not subject to the requirements of the Electronic Communications Privacy Act. |
| Vander Wal v. Sykes Enterprises, Inc., et al. A1_04_49 Chief Judge Daniel L. Hovland 8/26/2004 |
790 Other Labor Litigation After entry of default, Defendants moved to set aside default. The Court granted the motion, finding that the factors to be considered in determining whether to set aside an entry of default weighed in the Defendant’s favor. |
| USA v. Arnaldo Losoya-Mancias C4-02-50 Chief Judge Daniel L. Hovland 8/25/2004 |
000 No Nature of Suit Code Used Defendant filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence, citing Blakely v. Washington. The Defendant was challenging a finding by the Court that he was a “career offender” under the Federal Sentencing Guidelines. The Court denied the motion finding that Blakely did not address the Sentencing Guidelines, and that the Blakely decision excludes from its holding findings regarding prior convictions. |
| State of MN v. Governor of the State of ND A1-04-21 Chief Judge Daniel L. Hovland 8/17/2004 |
950 Constitutionality of State Statutes Defendants filed a motion to dismiss alleging that the Plaintiffs lacked standing to pursue their claims and that the Defendants were protected from suit by the doctrine of sovereign immunity. The Court found that the Plaintiffs had standing to bring claims under the Commerce Clause, the Privileges and Immunities Clause, and 42 U.S.C. § 1983, and that the Plaintiffs’ claims were not barred by the doctrine of sovereign immunity. |
| LaFromboise, et al. v. Secretary of HHS A4-04-11 Chief Judge Daniel L. Hovland 8/16/2004 |
362 Personal Injury - Med. Malpractice Plaintiff filed an action under the Federal Tort Claims Act (“FTCA”) alleging medical malpractice. Although the alleged negligent conduct took place on the Turtle Mountain Indian Reservation, the Court applied North Dakota state law to the Plaintiff’s claim having concluded that it is the “law of the place” for purposes of the FTCA. Applying North Dakota law, the Court dismissed the Plaintiff’s medical malpractice action without prejudice for failing to file an expert affidavit within three months of commencing the action. |
| Anderson v. Sullivan A4-04-52 Chief Judge Daniel L. Hovland 8/16/2004 |
380 Other Personal Property Damage Defendant filed a motion for change of venue to federal court in Florida based primarily on a similar case pending in Florida and his health conditions. The Court denied the motion finding that the other case pending in Florida has been dismissed and, although the Defendant’s health may preclude him from attending trial in person, the Defendant had not met his burden of showing that a transfer to Florida was more convenient for the parties or witnesses, or in the interests of justice. |
| Melberg v. Plains Marketing LP A4-03-20 Chief Judge Daniel L. Hovland 8/13/2004 |
350 Motor Vehicle The Court denied the plaintiff’s motion in limine as it pertained to the exclusion of testimony from the defendant’s accident reconstructionist and engineers, finding that the opinions of these experts were arguably reliable, were based on sufficient facts and data, and would assist the trier of fact. However, the Court granted the motion as it pertained to the exclusion of NHTSA frontal crash test videos, finding that (1) the videos did not depict conditions substantially similar to the conditions involved in the collision in dispute, and (2) the evidentiary value of the videos was substantially outweighed by the danger of unfair prejudice, confusion of the issues, and misleading of the jury. |
| Schaaf v. Dahl, M.D., et al. A1-04-59 Chief Judge Daniel L. Hovland 8/3/2004 |
362 Personal Injury - Med. Malpractice In a medical malpractice case, the Defendant filed a motion for summary judgment asserting that the Plaintiff’s claim was time barred. The Court denied the motion for summary judgment, finding that there were genuine issues of material fact as to when the Plaintiff knew, or reasonably should have known, he had a potential claim for medical malpractice. |
| USA v. Bryan J. Peach C4-04-33 Chief Judge Daniel L. Hovland 7/29/2004 |
000 No Nature of Suit Code Used The defendant filed a motion to suppress evidence seized during a warrantless search of his vehicle by a BIA officer outside of his jurisdiction. The Court denied the defendant’s motion, finding that exigent circumstances existed to justify the search and that the extra-jurisdictional conduct of the BIA officer did not constitute a violation of the defendant’s Fourth Amendment rights given the facts of the case. |
| Torske v. Bunn-O-Matic Corporation A4-03-21 Chief Judge Daniel L. Hovland 7/28/2004 |
385 Property Damage Product Liability The defendant filed a motion in limine seeking to exclude all of the testimony from the plaintiff’s experts regarding the cause and origin of a fire. In addition, the defendant filed a motion for summary judgment, the basis being that the plaintiff’s had no witnesses that could substantiate their claims. The Court denied the motion in limine and the motion for summary judgment, finding it was premature to wholly exclude expert opinions as to the cause and origin of the fire. The Court also denied the motion for summary judgment. |
| Graves v. ND State Penitentiary A1-04-16 Chief Judge Daniel L. Hovland 7/22/2004 |
550 Civil Rights The Court granted the State of North Dakota’s motion to dismiss an inmate’s civil rights complaint, finding that the incident of which the inmate complained of did not, as a matter of law, amount to unconstitutional racial discrimination. |
| Carr v. IBEW, Local 1593 A1-04-18 Chief Judge Daniel L. Hovland 7/22/2004 |
720 Labor/Mgmt. Relations Defendants brought a motion for partial summary judgment. The Court granted the motion finding that the Plaintiff’s state law claim for misrepresentation and reliance was preempted by federal law and that the Court lacked jurisdiction over the claim for violation of the North Dakota Labor-Management Relations Act. |
| Vander Wal v. Sykes Enterprises, Inc., et al. A1-04-49 Chief Judge Daniel L. Hovland 7/22/2004 |
790 Other Labor Litigation Defendants filed a motion to dismiss asserting that the Court did not have subject matter jurisdiction over the Plaintiff’s claims and that the Plaintiff had failed to state a claim for which relief may be granted. The Court denied the motion finding: (1) the Plaintiff had alleged a sufficient injury in fact; (2) the Plaintiff’s case is not moot; and (3) the Plaintiff’s case was ripe when it was filed. In addition, the Court found the Plaintiff had adequately stated a claim for which relief may be granted. |
| USA v. Patrick John Bercier C4-04-27 Chief Judge Daniel L. Hovland 7/22/2004 |
000 No Nature of Suit Code Used The Court denied the defendant’s motion to suppress evidence, finding that the defendant had voluntarily consented to the search of his residence and, in any event, that there were exigent circumstances justifying the warrantless search of the defendant’s residence. |
| Dyer, et al. v. Northwest Airlines Corp., et al. A1-04-33 Chief Judge Daniel L. Hovland 7/12/2004 |
890 Other Statutory Actions The Plaintiffs filed a motion requesting a stay pending a decision by the Multi-District Litigation Panel as to whether the action would be transferred to another court for consolidation. The Court found a stay was not warranted and denied the motion. |
| Moore v. Schuetzle, et al. A1-04-38 Chief Judge Daniel L. Hovland 7/12/2004 |
550 Civil Rights The Court denied a plaintiff’s motion for judgment by default and granted the defendants’ request for additional time to file an answer on the grounds that an allowance of additional time to file an answer would not prejudice the plaintiff and would promote the interests of justice in that it would facilitate a resolution of plaintiff’s claims on the merits. |
| Sailer v. Dept. of US Army, et al. A1-04-53 Chief Judge Daniel L. Hovland 7/1/2004 |
320 Assault, Libel & Slander The Court dismissed a plaintiff’s claims against the United States and the State of North Dakota, holding: (1) the plaintiff had not sustained his burden of showing that the United States had waived its sovereign immunity; (2) the plaintiff’s claims against the State were stale; and (3) his request for monetary damages from the State was barred under the Eleventh Amendment waiver of sovereign immunity. |
| USA v. Joshua L. Beaman C4-03-76 Chief Judge Daniel L. Hovland 6/25/2004 |
000 No Nature of Suit Code Used The Court granted the Government’s motion to allow a witness who resided in California to testify at a criminal trial via live video. The Court reasoned that the witness’s appearance via video was permissible under the circumstances and would not violate any rights afforded to the defendant under the Sixth Amendment’s confrontation clause. |
| USA v. Kurt Russell Morin C4-03-63 Chief Judge Daniel L. Hovland 6/16/2004 |
000 No Nature of Suit Code Used The Defendant filed a Motion to Reconsider requesting the Court remove a special condition from his conditions of supervised release which prohibited him from any contact with the victim he assaulted. The Government resisted contending that the special condition prohibiting the Defendant from having contact with the victim was appropriate based upon the nature and circumstances of the offense. The Court denied the motion finding that the condition of supervised release was necessary to deter further criminal conduct by the Defendant and to protect the public, especially the victim. |
| NACCO v. Roth, et al. A4-03-124 Chief Judge Daniel L. Hovland 6/4/2004 |
791 Empl. Ret. Inc. Security Act Plaintiff filed a motion to recover costs and attorney fees pursuant to 29 U.S.C. § 1132(g)(1) . The Court awarded attorney fees of $5,771.50 and costs in the amount of $232.40, for a total judgment of $6,003.90, to be taxed by the Clerk against the Defendant. |
| USA v. Joshua L. Beaman C4-03-76 Chief Judge Daniel L. Hovland 6/3/2004 |
000 No Nature of Suit Code Used Defendant filed a motion to dismiss the charge that he was in possession of an unregistered sawed-off shotgun in violation of 26 U.S.C. §§ 5861(d). The basis for his motion was the shotgun had not been transferred and, therefore, was not subject to registration under the National Firearms Act. The Court denied the motion, noting the loophole to the National Firearms Act described by the defendant had been closed by legislation passed in 1952 and 1958. |
| Connor v. Conklin, et al. A4-04-50 Chief Judge Daniel L. Hovland 6/2/2004 |
440 Other Civil Rights An enrolled tribal member was tried by a tribal court, found guilty of violating the tribal code, and sentenced to sixty days in the tribal jail. The tribal member subsequently filed a petition for habeas corpus relief under the Indian Civil Rights Act, alleging that the tribal court failed to adequately informed him of his rights and had dismissed his charges prior to trial. The Court reviewed the record and concluded that the tribal member’s allegations were devoid of merit. Consequently, the Court dismissed the tribal member’s petition for habeas corpus relief. |
| ND Fair Housing Council, Inc., et al. v. Earl Allen, et al. A1-03-119 Chief Judge Daniel L. Hovland 5/27/2004 |
443 Housing/Accommodations The Court granted in part the defendant’s motion for summary judgment and dismissed claims asserted against the defendant by a fair housing organization on the grounds that the organization lacked standing. |
| Graves v. ND State Penitentiary A1-04-16 Chief Judge Daniel L. Hovland 5/27/2004 |
550 Civil Rights A prisoner filed a motion for injunction in an effort to enjoin the North Dakota State Penitentiary from implementing new policies affecting inmate’s housed in administrative segregation. The Court weighed the Dataphase factors and concluded that the prisoner had not met his burden of establishing the necessity of an injunction under the circumstances. Consequently, the Court denied the prisoner’s motion. |
| Nagel v. Wal-mart Stores, Inc. A1-04-27 Chief Judge Daniel L. Hovland 5/27/2004 |
360 Other Personal Injury Plaintiff filed a motion to remand alleging the Court lacked jurisdiction over the matter because the amount in controversy was less than $75,000. The Court found that regardless of what burden of proof is applied the Defendant had not shown that the amount in controversy exceeded $75,000 as required by 28 U.S.C. § 1332. |
| Moore v. Bachmeier, et al. A1-04-38 Chief Judge Daniel L. Hovland 5/25/2004 |
550 Civil Rights An inmate filed suit against the North Dakota State Penitentiary under 18 U.S.C. § 1983, alleging that penitentiary officials had failed to provide him with adequate medical treatment and had opened his legal mail outside of his presence. The Court conducted a preliminary review of the inmate’s complaint as mandated by 28 U.S.C. § 1915A(a) and concluded that inmate had alleged cognizable claims of deliberate indifference to his medical needs and the opening of legal mail. The court, therefore, directed the Clerk of Court to serve the defendants with a copy of the inmate’s complaint. |
| Farstad v. Social Security Administration A4-04-19 Chief Judge Daniel L. Hovland 5/25/2004 |
863 DIWC/DIWW (405(g)) The plaintiff appealed the denial of her application for disability benefits under the Social Security Act. The Government subsequently filed a Motion for Remand for Further Administrative Action, the basis being that it had yet to locate the plaintiff’s file. The Court denied the Government’s motion, and instead granted the Government an additional sixty days to determine whether it can locate the plaintiff’s file. |
| USA v. Raymond Azure C4-03-16 Chief Judge Daniel L. Hovland 5/25/2004 |
000 No Nature of Suit Code Used The Court entered an order finding a defendant not mentally competent to stand trial. Thereafter, the Court remanded the defendant to the custody of the Attorney General to be hospitalized and evaluated for a reasonable period of time not to exceed four months. When the four months lapsed, the defendant was released, prompting the Government to file a motion requesting that the defendant be ordered to submit for further treatment. The Court denied the motion, however, finding by a preponderance of the evidence that further hospitalization was neither warranted nor appropriate under the circumstances. In addition, the Court informed the parties it would schedule a dangerousness hearing and directed the parties to work out the logistics of the defendant’s dangerousness evaluation. |
| USA v. Robert D. Bailey C4-04-19 Chief Judge Daniel L. Hovland 5/25/2004 |
000 No Nature of Suit Code Used A defendant who was arrested on suspicion of having had sexual contact with a minor signed a waiver of his Miranda rights and proceeded to answer questions posed to him by a tribal investigator. He subsequently filed a motion to suppress the statements he made to the tribal investigator on the grounds he was too intoxicated to knowingly and voluntarily waive his Miranda rights. The Court denied the motion, finding by a preponderance of the evidence that the defendant’s waiver of his Miranda rights was voluntary, knowing, and intelligent. |
| Vallee v. USA, Indian Health Services A1-03-77 Chief Judge Daniel L. Hovland 5/21/2004 |
362 Personal Injury - Med. Malpractice The defendant filed a motion for summary judgment in a medical malpractice action on the basis that the plaintiff had not disclosed an expert witness to support her allegations of negligence. The plaintiff then filed a motion for extension of time to file an expert report. The Court found that the plaintiff had failed to show that good cause existed for an extension of the three-month deadline set forth in Section 28-01-46 of the North Dakota Century Code and that this was not the type of malpractice claim that falls within the “obvious occurrence” exception. The Court denied the plaintiff’s motion for extension of time to file expert report and granted the defendant’s motion for summary judgment dismissing the plaintiff’s claims without prejudice. |
| Hunter v. USA A1-04-08 Chief Judge Daniel L. Hovland 5/12/2004 |
440 Other Civil Rights Former criminal defendant filed a petition for a writ of error corum nobis under 28 U.S.C. §1651(a) alleging his federal convictions in 1980 and 1984 for interstate transportation of stolen bank checks were improperly obtained and should be vacated. The Court dismissed the petition finding that coram nobis relief was not warranted because the petitioner was unable to show that he presently suffered adverse legal consequences which stemmed from his 1980 and 1984 convictions. |
| Azure-Lone Fight v. Cain, Turtle Mountain Tribal Court A4-04-54 Chief Judge Daniel L. Hovland 5/12/2004 |
440 Other Civil Rights A mother filed a petition for habeas corpus relief pursuant to 28 U.S.C. § 2254, challenging the validity of a tribal court order granting her husband temporary custody over the couple’s children. Construing the petition as an application for habeas corpus relief under the Indian Civil Rights Act, 25 U.S.C. § 1301 et seq., the Court dismissed the mother’s challenge on the grounds that she had not exhausted her tribal court remedies and that habeas corpus relief is generally not available to challenge the propriety of tribal court’s custody determinations. |
| USA v. Patrick Timothy McMorrow C1-03-80 Chief Judge Daniel L. Hovland 5/11/2004 |
000 No Nature of Suit Code Used A defendant charged, inter alia, with mailing threatening communications filed a request for substitution of counsel. Defense counsel also filed a motion to withdraw. Following a hearing, the Court concluded that the defendant had demonstrated justifiable dissatisfaction sufficient to warrant the appointment of new counsel. Thus, the Court granted both the defendant’s request and defense counsel’s motion. |
| Hunter v. USA A1-04-08 Chief Judge Daniel L. Hovland 5/5/2004 |
440 Other Civil Rights Petitioner filed a motion for leave to amend his corum nobis petition and, although the Court questioned the merits of the petition, the Court granted leave to amend. |
| Williston Basin Interstate Pipeline Co. v. Sheehan Pipeline Construction Co. A1-04-09 Chief Judge Daniel L. Hovland 5/5/2004 |
190 Other Contract Sheehan filed a pipeline construction lien in North Dakota for services it had performed on Williston Basin’s Grasslands pipeline. In addition, Sheehan filed a breach of contract action against in federal district court in Oklahoma. Williston Basin reciprocated by initiating an action in North Dakota to declare the construction pipeline lien invalid. Thereafter, Sheehan and Williston Basin respectively filed motions to stay or transfer venue in both the North Dakota and Oklahoma actions. The Court determined that the “first to file” rule gave the federal district court in Oklahoma the right to decide whether the case should be heard in Oklahoma. The Court added that it would address Sheehan’s motion once the Oklahoma court had disposed of Williston Basin’s motion. |
| Entzi v. State of North Dakota A1-04-51 Chief Judge Daniel L. Hovland 5/5/2004 |
550 Civil Rights A defendant who had been convicted in state court of two counts of gross sexual imposition filed a petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. The Court summarily dismissed the petition on grounds that it was time barred under 28 U.S.C. § 2244(d). |
| USA v. Cody Serdahl C4-03-61 Chief Judge Daniel L. Hovland 5/5/2004 |
000 No Nature of Suit Code Used The defendant was convicted of sexual abuse of a minor in violation of 18 U.S.C. § 2243(a). According to the sentencing guideline calculations performed by Probation and Pretrial Services, the defendant had an adjusted offense level of 33. The defendant took issue with the guideline calculation. Specifically, he objected to the application of a guideline cross-reference set forth in U.S.S.G. § 2A3.2(c)(1). The Court determined that the cross-reference did not apply as there was insufficient evidence in the record to support a finding the defendant used actual force in the commission of his crime. Court concluded that the defendant was to be sentenced pursuant to the provisions of U.S.S.G. § 2A3.2(a)(3) rather than the cross reference provisions set forth in U.S.S.G. § 2A3.2(c)(1), and that the evidence supported a two-level enhancement under U.S.S.G. § 2A3.2(b)(2)(B). Application of these guideline sections yielded a total offense level of 20. |
| Kunze v. Schuetzle A1-04-31 Chief Judge Daniel L. Hovland 4/30/2004 |
550 Civil Rights A defendant who had been pled guilty in state court to charges of burglary, theft of property, motor vehicle theft, and escape filed a petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. The Court summarily dismissed the petition on grounds that it was time barred under 28 U.S.C. § 2244(d). |
| Moore v. Bachmeier, et al. A1-04-38 Chief Judge Daniel L. Hovland 4/29/2004 |
550 Civil Rights The Magistrate Judge granted an inmate’s request to proceed in forma pauperis and directed the inmate to pay a partial filing fee within 60 days or face dismissal of his complaint without prejudice. The inmate filed a motion for reconsideration, which the Court construed as an appeal of the Magistrate Judge’s order. The Court granted the motion in part, affirming the Magistrate Judge’s order as it pertained to the assessment of an initial partial filing fee. However, the Court concluded that dismissal for failure to pay the initial partial filing fee was inappropriate under the circumstances. |
| Basin Electric Power Cooperative v. PPL Energy Plus, LLC, et al. A1-04-10 Chief Judge Daniel L. Hovland 4/19/2004 |
190 Other Contract The plaintiff was contractually obligated to deliver electricity to the defendants. A disagreement arose as to where delivery was to occur. The defendants submitted a Demand for Arbitration to the plaintiff pursuant to an arbitration clause contained in the power purchase agreement. Thereafter, the plaintiff sought an order from the Court temporarily and permanently enjoining the defendants from arbitrating the dispute on grounds that it was barred by an earlier arbitration. The defendants filed a motion to compel arbitration and to stay or dismiss the action pending arbitration. The Court granted the defendants’ motion to compel arbitration and dismissed the action, finding the dispute appropriate for arbitration under the broad language of the agreement’s arbitration clause. |
| Wilkinson, et al. v. USA A1-03-02 Chief Judge Daniel L. Hovland 4/14/2004 |
360 Other Personal Injury The plaintiffs filed suit against the government, asserting that the government had deprived them of the use of and income generated by land located on the Fort Berthold Indian Reservation. The land had been held in trust by the government for the plaintiffs’ now deceased parents. The Court granted the government’s motion for summary judgment and dismissed the plaintiffs’ action for lack of standing. |
| Merrill Lynch Life Insurance Co. v. Black, et al. A1-03-128 Chief Judge Daniel L. Hovland 4/2/2004 |
190 Other Contract In an Interpleader action, Defendant Richmond filed a Motion for Summary Judgment asserting Defendant Black had no legitimate claim to the proceeds of a life insurance policy. Although based on the evidence, affidavits, and exhibits presented to date, the Court found Defendant Black appears to have little evidence to support her claim. Nevertheless, the Court found that there are genuine issues for trial that preclude summary judgment at this stage. |
| Buckles, et al. v. Indian Health Service A4-02-133 Chief Judge Daniel L. Hovland 3/30/2004 |
890 Other Statutory Actions The Plaintiffs filed an action against the Indian Health Service (“IHS”) seeking damages for the alleged unauthorized disclosure of the Plaintiffs’ medical records by IHS employees to members of the Turtle Mountain Tribal Council. After a one-day bench trial, the Court found that it did not have jurisdiction over the Plaintiffs claim of defamation under the Federal Tort Claims Act and that it did not have jurisdiction to address the Plaintiffs’ retaliation claim. The Court also found the Plaintiffs’ failed to demonstrate that IHS disclosed confidential medical information. The Court dismissed all of the Plaintiffs’ Privacy Act claims against IHS. |
| Burke v. NDDC, et al. A1-02-06 Chief Judge Daniel L. Hovland 3/22/2004 |
440 Other Civil Rights An inmate filed suit against North Dakota Department of Corrections and Rehabilitation (NDDCR) under 28 U.S.C. § 1983, asserting claims for monetary damages and injunctive relief on grounds that he had been denied adequate medical care in violation of the Eighth Amendment. The Court granted NDDCR’s motion for summary judgment, finding that the inmate’s claim for monetary damages were subject to dismissal based on Eleventh Amendment immunity and, given that there were no material facts in dispute, that the inmate was not entitled to injunctive relief. |
| Merrill Lynch Life Insurance Co. v. Black, et al. A1-03-128 Chief Judge Daniel L. Hovland 3/22/2004 |
190 Other Contract A life insurance company filed an Interpleader action with the Court regarding the proceeds of a life insurance policy. The Court granted the insurance company’s summary judgment motion, finding the insurance company had properly initiated the Interpleader action and had deposited the disputed funds with the Court. |
| Efran Cortez-Rayas v. USA A1-03-136 Chief Judge Daniel L. Hovland 3/22/2004 |
510 Motions to Vacate Sentence An inmate filed a motion under 28 U.S.C. § 2255, asserting that defense counsel was ineffective for failing to object to the offense level calculation and for failing to request that the sentence imposed run concurrent with an 8-month sentence in an earlier state case. The Court denied the motion, finding that the inmate had expressly waived his right to file a Section 2255 motion and that the inmate’s assertions regarding ineffective assistance of counsel lacked merit. |
| USA v. Efran Cortez-Rayas C1-02-51 Chief Judge Daniel L. Hovland 3/22/2004 |
000 No Nature of Suit Code Used An inmate filed a motion under 28 U.S.C. § 2255, asserting that defense counsel was ineffective for failing to object to the offense level calculation and for failing to request that the sentence imposed run concurrent with an 8-month sentence in an earlier state case. The Court denied the motion, finding that the inmate had expressly waived his right to file a Section 2255 motion and that the inmate’s assertions regarding ineffective assistance of counsel lacked merit. |
| Graves v. ND State Penitentiary A1-04-16 Chief Judge Daniel L. Hovland 3/19/2004 |
550 Civil Rights An inmate submitted a civil rights claim pursuant 42 U.S.C. § 1983, asserting that he was shown a racially insensitive picture by a guard and later retaliated against by penitentiary staff for filling a grievance. Upon conducting a preliminary review of the inmate’s claim as mandated by the Prisoner Litigation Reform Act, 28 U.S.C. § 1915A(a), the Court concluded that the inmate had arguably satisfied the pleading requirements under 42 U.S.C. § 1983 and ordered the defendant to file a responsive pleading. |
| Mayer, et al. v. Qwest Dex, Inc. A1-04-06 Chief Judge Daniel L. Hovland 3/16/2004 |
720 Labor/Mgmt. Relations The plaintiffs’ union initiated arbitration proceedings on the plaintiffs behalf in accordance with its collective bargaining agreement with the defendant. Dissatisfied with the arbitrator’s decision, the plaintiffs sought to vacate the decision on the grounds that it was erroneous and irrational under North Dakota’s Uniform Arbitration Act. The defendants filed a motion to dismiss, asserting that Section 301 of the federal Labor Management Relations Act preempted the plaintiffs’ state law claims. The Court granted the defendants’ motion and dismissed the plaintiffs’ petition, finding that the plaintiffs’ claims were inextricably intertwined with the collective bargaining agreement and/or substantially dependent upon an analysis of the terms or provisions of the collective bargaining agreement. |
| NACCO v. Roth, et al. A4-03-124 Chief Judge Daniel L. Hovland 3/5/2004 |
791 Empl. Ret. Inc. Security Act The Court granted the plaintiffs’ motion for summary judgment, finding that there were no material facts in dispute with respect to the plaintiffs’ claim that the defendants had been unjustly enriched. |
| Security First Bank ND, et al. v. Erickson, et al. A4-03-83 Chief Judge Daniel L. Hovland 3/4/2004 |
190 Other Contract The plaintiffs initiated an action alleging that their participation in loan participation agreements executed by the parties was induced through knowing and deliberate misrepresentations, both oral and written, by the defendants. They sought to recover under the theories of negligent misrepresentation, fraudulent inducement, and fraudulent conveyance. The defendants filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) and 9(b)(6). The Court granted the motion in part and dismissed the plaintiffs’ claims for negligent misrepresentation and fraudulent induce without prejudice on the grounds that the plaintiffs had failed to plead these claims with the requisite particularity. |
| Molzahn v. Allstate Insurance Co. A4-02-40 Chief Judge Daniel L. Hovland 2/20/2004 |
110 Insurance This action arose out of injuries allegedly sustained by the plaintiff in a car accident. The plaintiff filed a direct action against the wrongdoer’s insurance company. The Court granted the insurance company’s motion for summary judgment and dismissed the action, finding that plaintiff was precluded from bringing a direct action against the wrongdoer’s insurer and that the action was barred under the applicable statute of limitations. |
| Scottsdale Insurance Co. v. Tri-State Insurance Co. of MN, et al. A4-03-32 Chief Judge Daniel L. Hovland 2/20/2004 |
110 Insurance The defendant’s insurer initiated a declaratory judgment action, asserting that it was neither obligated to defend the defendant in parallel state court proceedings nor pay for any damage to the defendant’s product. The insurer subsequently filed a motion for summary judgment. Construing all ambiguities in the defendant’s insurance policy in favor of the defendant, the Court denied the insurer’s motion. |
| Doe, et al. v. Southwest Grain A1-03-04 Chief Judge Daniel L. Hovland 2/18/2004 |
385 Property Damage Product Liability In an action arising out of the sale of allegedly substandard dairy feed pellets, the defendant filed a motion for summary judgment for dismissal of the plaintiffs’ claims for strict responsibility representation, negligent misrepresentation, negligence, fraud, and exemplary damages. The Court granted the motion in part, dismissing the plaintiffs’ claims for strict responsibility representation and exemplary damages. |
| Buckles, et al. v. Indian Health Services A4-02-133 Chief Judge Daniel L. Hovland 2/18/2004 |
890 Other Statutory Actions The Defendant, Indian Health Service (“IHS”), filed a Motion for Summary Judgment seeking summary judgment on all of the Plaintiffs’ claims. The Court granted in part the Defendant’s summary judgment motion. The Court found that the disclosure of medical information between IHS employees did not constitute a violation of the Privacy Act. However, the Court allowed the Plaintiffs to proceed with their Privacy Act claims only as to two specific instances involving the alleged disclosure by IHS employees of confidential medical information to members of the Tribal Council. The Court also allowed the Plaintiffs to proceed with their retaliation and defamation claims. |
| Buckles, et al. v. Indian Health Services A4-02-133 Chief Judge Daniel L. Hovland 2/5/2004 |
890 Other Statutory Actions The Defendant, Indian Health Service (“IHS”), filed a Motion for Summary Judgment seeking summary judgment on all of the Plaintiffs’ claims. The Plaintiffs also filed a Motion for Partial Summary Judgment seeking a determination that IHS violated the Privacy Act. Plaintiff Cheryl LaVallie also sought to dismiss her portion of the suit. The Court dismissed without prejudice Plaintiff Cheryl LaVallie’s claims, and granted in part the Defendant’s Motion for Summary Judgement, finding that the Plaintiffs’ had failed to set forth a valid Freedom of Information Act claim. The Court did not rule on the parties’ motions for summary judgment on the Plaintiffs’ Privacy Act claims. |
| USA v. Shawn Barth, et al. C1-03-46-03 Chief Judge Daniel L. Hovland 2/5/2004 |
000 No Nature of Suit Code Used The defendant filed a motion for release pending sentencing following her conviction of the offense of conspiracy to possess with intent to distribute and intent to distribute methamphetamine. The Court denied the defendant’s motion, finding that she had failed to satisfy the criteria warranting release set forth in 18 U.S.C. § 3143(a)(2). |
| Damron v. ND Commissioner of Corrections, et al. A1-03-122 Chief Judge Daniel L. Hovland 1/26/2004 |
550 Civil Rights The plaintiff filed suit against North Dakota prison officials alleging violations of the Americans with Disabilities Act, the Rehabilitation Act, and Section 1983 of the Civil Rights Act. The Court granted the prison officials’ motion for summary judgment, holding that (1) the plaintiff’s ADA, Rehabilitation Act, and Section 1983 claim against prison officials in their official capacities was barred by the Eleventh Amendment as to monetary relief; (2) the plaintiff’s ADA, Rehabilitation Act, and Section 1983 claim against prison officials in their official capacities as to injunctive relief failed on the merits; (3) the prison officials could not be sued in their individual capacity under the Rehabilitation Act or Titles I, II, and III of the ADA; (4) the plaintiff could not sustain 1983 claims against prison officials acting in their personal capacities given the particular facts of the case. |
| ND Fair Housing Council, Inc., et al. v. Earl Allen, et al. A1-03-119 Chief Judge Daniel L. Hovland 1/23/2004 |
443 Housing/Accommodations Defendants filed a Motion to Bifurcate the Issues of Liability and Punitive Damages and to Limit Discovery. The Court granted the motion as to bifurcation of the punitive damage phase of the trial, noting that the plaintiffs did not oppose bifurcation. However, the Court denied the motion as to limiting discovery, finding that the plaintiffs were entitled to conduct pretrial discovery into all matters which are discoverable, including the defendants’ financial worth. |
| USA v. Cuthbert Rory Flynn Fox III C4-03-90 Chief Judge Daniel L. Hovland 1/21/2004 |
000 No Nature of Suit Code Used Defendant filed a motion for severance of sexual assault offenses arguing that he would be prejudiced if the Indictment were not split into three separate trials. The Government resisted. The Court denied the Defendant’s motion and found that evidence of all three incidents would be admissible in a trial on one of the incidents and that the Defendant had not shown specifically how his Fifth Amendment rights would be violated if the offenses were tried together. |
| State Farm Mutual Auto Ins. Co. v. Kilmer A1-03-120 Chief Judge Daniel L. Hovland 1/16/2004 |
110 Insurance The Court, in its discretion, dismissed the plaintiff’s declaratory judgment action in favor of a parallel proceeding involving the same parties and issues that was pending in a federal district court in Montana. |
| USA v. Jerome Shell C1-02-69 Chief Judge Daniel L. Hovland 1/16/2004 |
000 No Nature of Suit Code Used A defendant who had pled guilty to possessing with the intent to distribute 27.95 grams of cocaine base filed a motion for habeas corpus relief pursuant to 28 U.S.C. § 2255, asserting that (1) he received ineffective assistance from his counsel; (2) the Court erred in refusing to grant him a downward departure; and (3) the substance he possessed was powder cocaine and not cocaine base. The Court summarily dismissed the motion on grounds that the defendant, as part of his plea agreement, had expressly waived his right to bring a Section 2255 motion challenging his conviction or sentence. |
| Heinrick v. SSA A4-03-46 Chief Judge Daniel L. Hovland 1/5/2004 |
864 SSID Title XVI The plaintiff challenged the Social Security Commissioner’s denial of her applications for supplemental security income and disability insurance benefits. The primary basis of the plaintiff’s application was right piriformis syndrome. The Court affirmed the Commissioner’s decision, finding that there was substantial evidence in the record to support the Commissioner’s determination that the plaintiff was capable of performing her past relevant work as a telemarketer and accounts payable clerk. |
| Schaaf v, Dahl, et al. A1-03-15 Chief Judge Daniel L. Hovland 12/31/2003 |
362 Personal Injury - Med. Malpractice The defendant filed a motion for summary judgment to dismiss a medical malpractice action on grounds that the plaintiff had failed to obtain an admissible expert opinion to support his allegation of professional negligence as required by section 28-01-46 of the North Dakota Century Code. The Court construed the defendant’s motion as a motion to dismiss and granted the defendants’ motion to dismiss without prejudice. |
| Barbara Lloyd Designs, Inc. v. Mitsui O.S.K. Lines Ltd, et al. A1-03-79 Chief Judge Daniel L. Hovland 12/31/2003 |
120 Marine Defendants filed a motion to dismiss on the grounds of the doctrines of res judicata, collateral estoppel and law of the case alleging that a state district court judgment dismissing a similar case for improper venue precluded the relitigation of the Plaintiff’s claims in federal court. Plaintiff responded by asserting that the judgment was not a final judgment because a motion to vacate the judgment had been filed and that the Plaintiff had not had the opportunity to appeal to the North Dakota Supreme Court. The Court concluded that dismissing the case on res judicata, collateral estoppel or law of the case grounds would be premature and denied the Defendants’ motion to dismiss without prejudice, subject to renewal once the state district court has resolved the pending motion to vacate and/or the time for appeal has expired. |
| Cycle Hutt, Inc. v. KTM Sportsmotorcyle USA Inc. A1-03-75 Chief Judge Daniel L. Hovland 12/19/2003 |
190 Other Contract Plaintiff neglected to file an answer in the consolidated case and the Defendant sought the entry of default under Rule 55. After the entry of default, the Plaintiff sought to have the default set aside. The Court found that the conduct of the defaulting party was not culpable, that the defaulting party has a meritorious defense, and that the other party would not be prejudiced if the default were excused. In light of the Court’s conclusion to set aside the entry of default, the Court denied the Defendant’s motion for default judgment. |
| Spagnolia v. Dakota Neurosurgical Associates, et al. A1-03-87 Chief Judge Daniel L. Hovland 12/19/2003 |
791 Empl. Ret. Inc. Security Act Defendants sought dismissal of the plaintiff’s ERISA claims on the grounds that the plaintiff had failed to exhaust his administrative remedies and that his claims were barred under the doctrines of res judicata and collateral estoppel. The Court denied the defendants’ motion to dismiss, holding that (1) the exhaustion of administrative remedies would be futile under the circumstances, (2) the plaintiff’s prior state court action did not involve the same parties and was not based upon the same claim as those contained in the present action, and (3) the issues decided in the plaintiff’s earlier state court action were not identical to those raised in the present action. |
| Lavallie v. Schuetzle A1-03-97 Chief Judge Daniel L. Hovland 12/19/2003 |
530 General The petitioner sought a writ of habeas corpus pursuant to 28 U.S.C. 2254, alleging that he was denied effective assistance of counsel and that the sentencing court had no inherent jurisdiction. The Court dismissed the petitioner’s application for relief for, among other things, failure to exhaust his state court remedies. |
| USA v. Joseph Dominic Marcel Maltais C4-03-58 Chief Judge Daniel L. Hovland 12/16/2003 |
000 No Nature of Suit Code Used The defendant sought to suppress evidence seized by law enforcement during a search of his vehicle and trailer. Court denied the defendant’s suppression motion, finding that (1) the initial contact between law enforcement officers and the defendant was consensual; (2) the officers possessed legitimate, reasonable suspicion that criminal activity to justify a Terry stop; (3) the scope and duration of the Terry stop was reasonable under the circumstances; and (4) officers had probable cause to conduct a warrantless search of the defendant’s trailer after a drug sniffing dog had alerted on the trailer. |
| Cromp v. Greyhound Lines, et al. A1-02-92 Chief Judge Daniel L. Hovland 12/12/2003 |
320 Assault, Libel & Slander The plaintiff filed suit against the defendant after she was sexually assaulted by one of its bus drivers. The defendant filed a motion for summary judgment, asserting that its bus driver was acting outside the scope of his employment when he sexually assaulted the plaintiff. In addition, the defendant asserted that it had adequately investigated its driver’s background and that the assault of the plaintiff was not foreseeable. The Court denied the defendant’s motion, concluding that the factual issues in dispute precluded it from granting the defendant summary judgment. |
| USA v. Patrick Timothy McMorrow, Jr. C1-03-80 Chief Judge Daniel L. Hovland 12/11/2003 |
000 No Nature of Suit Code Used A defendant charged with mailing threatening communications, extortion, and threatening the use of a weapon of mass destruction filed motions for a change of venue and for dismissal on grounds that the charges were duplicitous and violated his First Amendment rights. The Court denied the motions, finding that there was no basis for a change of venue, that the charges were not duplicitous, and that the alleged threats did not qualify for First Amendment protection. |
| USA v. Shawn Barth, et al. C1-03-46 Chief Judge Daniel L. Hovland 12/9/2003 |
000 No Nature of Suit Code Used The Defendant filed a motion to exclude evidence of a prior drug conviction as well as all references to his use of illegal drugs. The Court denied the Defendant’s motion, finding that (1) the prior conviction was relevant to the material issue of the Defendant’s knowledge and intent, (2) the conviction had occurred within the last five years, (3) the Defendant’s prior conviction was for a crime similar to the crime for which he was presently charged, (4) the prejudicial value of the prior conviction did not substantially outweigh its probative value, and (5) the Government provided adequate notice to the Defendant under F.R. Evid. 404(b) of its intention to introduce the prior conviction at trial. |
| USA v. Douglas Eugene Gleich C1-03-56 Chief Judge Daniel L. Hovland 12/4/2003 |
000 No Nature of Suit Code Used The Defendant sought to suppress evidence obtained following the execution of three search warrants on the grounds that the warrants were overbroad, that officers exceeded the scope of the first warrant, that officers lacked probable cause to obtain the second warrant, that officers failed to knock and announce their presence before executing the second warrant, and that a Franks violation invalidated the third warrant. The Court denied the Defendant’s suppression motion, concluding that the Defendant’s assertions lacked merit and that none of the evidence seized in connection with the three search warrants was obtained in violation of the Defendant’s Fourth Amendment rights. |
| Roberson v. Goodman, et al. A1-02-127 Chief Judge Daniel L. Hovland 12/2/2003 |
550 Civil Rights An inmate filed an action against the penitentiary’s psychiatrist, asserting that he was given psychotropic drugs and subjected to improper medical treatment in violation of the Eighth Amendment’s proscription of cruel and unusual punishment. Finding no reliable and competent evidence to support the inmate’s claim of an Eighth Amendment violation, the Court granted the psychiatrist’s motion for summary judgment. |
| USA v. Leonard Calvin Charging, Jr. C4-93-51 Chief Judge Daniel L. Hovland 11/25/2003 |
000 No Nature of Suit Code Used The Court granted the Government’s petition to revoke the Defendant’s supervised release, finding by a preponderance of the evidence that the Defendant had violated an express condition of his supervised release. |
| Cycle Hutt, Inc. v. KTM Sportsmotorcycle USA, Inc. A1-03-75 Chief Judge Daniel L. Hovland 11/21/2003 |
190 Other Contract Defendant filed a Motion to Dismiss asserting that the Plaintiff’s claims for breach of a duty of good faith, breach of contract, and unlawful interference with business failed to state claims upon which relief can be granted. The Court granted the Defendant’s motion to dismiss the Plaintiff’s claims for breach of a duty of good faith because North Dakota law does not recognize such a cause of action and granted the Defendant’s motion to dismiss the Plaintiff’s claim for the unlawful interference with business because the Plaintiff failed to allege an independent tortious act by the Defendant. The Court denied the Defendant’s motion to dismiss the claim for breach of contract. |
| USA v. Shawn Barth, et al. C1-03-46 Chief Judge Daniel L. Hovland 11/14/2003 |
000 No Nature of Suit Code Used The Court held a hearing to consider the Defendant’s request for appointment of new counsel. The Court concluded that the Defendant had failed to show a justifiable dissatisfaction with counsel under the circumstances, finding no evidence to show any conflict of interest, an irreconcilable conflict, or a complete breakdown of communications between the Defendant and his court-appointed counsel. Accordingly, the Court denied the Defendant’s request. |
| Gillette v. SSA A4-03-37 Chief Judge Daniel L. Hovland 11/4/2003 |
864 SSID Title XVI The plaintiff challenged the Social Security Commissioner’s denial of her applications for supplemental security income and disability insurance benefits. The Court concluded that the Commissioner afforded insufficient weight to the opinions offered by the plaintiff’s treating physicians and that Commissioner’s determination that the plaintiff was able to perform her past relevant work was not supported by substantial evidence on the record as a whole. Accordingly, the Court reversed the Commissioner’s decision and remanded the matter for an award of benefits. |
| Father Brown v. Mayo Foundation A4-03-22 Chief Judge Daniel L. Hovland 10/31/2003 |
362 Personal Injury - Med. Malpractice A non-resident defendant filed a motion to dismiss a suit filed by a North Dakota resident for lack of personal jurisdiction. The Court granted the defendant’s motion, holding that the defendant lacked the requisite “minimum contacts” with the forum state to warrant the Court’s exercise of personal jurisdiction over the defendant. |
| USA v. Shawn Barth, et al. C1-03-46 Chief Judge Daniel L. Hovland 10/30/2003 |
000 No Nature of Suit Code Used The Defendant filed a motion to suppress the evidence found in a vehicle parked next to his home on the grounds that it was discovered during the course of an unlawful search. Law enforcement officials had arrived at the Defendant’s residence to execute two warrants authorizing the search of specific buildings. In the midst of this activity, two officers entered a vehicle parked next to the Defendant’s home, wherein they found a small quantity of marijuana. When informed that the warrants did not extend to the vehicle, the officers sought out the assistance of a drug sniffing dog. When presented to the vehicle, the dog alerted to the presence of controlled substances. The officers then re-entered the vehicle, this time finding larger quantities of marijuana as well as methamphetamine. The Court denied the Defendant’s motion to suppress, finding that the officers’ actions, while not authorized by the warrants, fell within the automobile exception to the warrant requirement and that the discovery of the controlled substances was inevitable under the circumstances. |
| Stroklund v. Wal-Mart Stores, Inc. A4-03-41 Chief Judge Daniel L. Hovland 10/21/2003 |
442 Employment The Defendant filed a motion for summary judgment, asserting that the Plaintiff had failed to file her claims of employment discrimination/wrongful termination within 300 days as prescribed by Section 14-02.4-19 of the North Dakota Century Code. The matter was referred to the Magistrate Judge, who recommended that the Defendant’s motion be granted. The Plaintiff filed an objection the Magistrate Judge’s Report and Recommendation, asserting that the 300 day window for filing her claims commenced not on the day of her termination, but on the date of her subsequent administrative hearing on her application for unemployment benefits. On review, the Court adopted the Magistrate Judge’s Report and Recommendation, noting that the Plaintiff had not set forth evidence to establish an act of wrongdoing within 300 days of the commencement of her action. |
| Berg v. Social Security Administration A1-03-33 Chief Judge Daniel L. Hovland 10/15/2003 |
864 SSID Title XVI The Court upheld the Social Security Commissioner’s decision regarding the denial of the Plaintiff’s application for Disability Insurance Benefits and Supplemental Security Income. The primary basis of the Plaintiff’s application was chronic pain. The Court found that there was substantial evidence in the record to support the Commissioner’s decision that the Plaintiff did not meet the disability requirements of the Social Security Act. |
| Pruco Securities v. Montgomery A1-03-55 Chief Judge Daniel L. Hovland 10/15/2003 |
190 Other Contract The Plaintiffs filed a Motion for a Stay and to Compel Arbitration or, in the alternative, to Dismiss Defendant-Intervenors’ Counterclaims. In response, the Defendant-Intervenors filed a Motion to Enjoin Arbitration. The Court granted the Plaintiffs’ motion and ordered the NASD Arbitration Panel to address and resolve all pending claims between the parties to this litigation in accordance with the NASD Code of Arbitration Procedure. The Court denied the Defendant-Intervenors’ motion. |
| USA v. Joseph Dominic Marcel Maltais C4-03-58 Chief Judge Daniel L. Hovland 10/9/2003 |
000 No Nature of Suit Code Used The Court granted the Defendant’s Motion for Attorney-Conducted Voir Dire, announcing that it has been, and will continue to be, the practice of the Court in both civil and criminal cases to allow counsel approximately twenty (20) minutes to conduct voir dire. |
| USA v. Robert F. Lippman C4-02-82 Chief Judge Daniel L. Hovland 10/2/2003 |
000 No Nature of Suit Code Used Defendant, Robert Lippman is appealing his conviction of the offense of possession of firearms by a person subject to a court order in violation of 18 U.S.C. § 922(g)(8). He filed a Motion for Stay of Sentence and Release Pending Appeal, under 18 U.S.C. 3143(b). The Court denied his motion, finding that the he had not satisfied the requirements of 18 U.S.C. 3143(b)(1)(B). |
| North Dakota v. Medicare & Medicaid, et al. A1-03-28 Chief Judge Daniel L. Hovland 10/1/2003 |
890 Other Statutory Actions North Dakota filed a motion for summary judgment, seeking judicial review of the United States Department of Health and Human Services’s decision to deny North Dakota full reimbursement for services provided to Indians who were referred by an IHS provider to a non-IHS provider under contract with the IHS. The Court found the decision to be arbitrary, capricious and contrary to the plain meaning of the law. The Court granted North Dakota’s motion and enjoined the Defendants from implementing the policy announced in the disallowance letter dated June 27, 2001 and decision dated October 30, 2002. Additionally, the Court ordered the Defendants to return all monies collected from North Dakota pursuant to this policy for claims dating back to July 11, 1996. |
| Karch v. Equilon Enterprises A1-03-34 Chief Judge Daniel L. Hovland 10/1/2003 |
190 Other Contract The Plaintiff initiated an action against the Defendant for allegedly breaching an oral contract. The Defendant filed a motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). The Court granted the Defendant’s motion, finding that the alleged contract was invalid under North Dakota’s statute of frauds because it was not in writing and by its terms it could not be performed within a year. Additionally, the Court found that the Plaintiff had failed to satisfy the elements necessary to invoke either the doctrine of equitable estoppel or the doctrine of promissory estoppel. |
| Doe v. Hunegs, et al. A1-03-80 Chief Judge Daniel L. Hovland 10/1/2003 |
190 Other Contract The Plaintiff filed suit against the Defendants in state court, asserting that their law firm disclosed the terms of his confidential settlement agreement in an attempt to obtain new clients. The Defendants filed notice of removal to federal court. The Court granted the Plaintiff’s motion to remand the action back to state court, concluding that it lacked of jurisdiction under 28 U.S.C. § 1332 because the amount in controversy was not in excess of $75,000.00. |
| Payer, et al. v. Turtle Mountain Tribal Council, et al. A4-03-105 Chief Judge Daniel L. Hovland 10/1/2003 |
440 Other Civil Rights Tribal members filed an application for a writ of habeas corpus under 25 U.S.C. § 1303 following their removal from the Ojibwa Indian School Board by Tribal Council. The Court dismissed the application, finding that the tribal members had not satisfied the detention requirement contained in 25 U.S.C. § 1303. |
| Slater v. Hartford Life A4-03-93 Chief Judge Daniel L. Hovland 10/1/2003 |
791 Empl. Ret. Inc. Security Act The Plaintiff filed suit against the Defendant, alleging violations of both ERISA and state law. The Defendant filed, and the Court granted, a motion for partial dismissal of the Plaintiff’s state law claims on grounds that they were preempted by ERISA. |
| Valder v. City of Grand Forks, et al. A1-03-68 Chief Judge Daniel L. Hovland 9/30/2003 |
440 Other Civil Rights The Plaintiff, upset that over the fact that he was not allowed to take his alleged service dog into a local courthouse and a mission, filed suit against the City of Grand Forks, Mountainbrooke (an organization funded by the North Dakota Mental Health Association), John Thelen, and Judge Debbie Kleven under the Americans with Disabilities Act, the Rehabilitation Act of 1973, and Title VI of the Civil Rights Act of 1964. The Defendants filed motions to dismiss pursuant to Fed. R. Civ. P. 12, asserting that the Plaintiff had failed to state claims for which relief could be granted. The Court agreed and granted the Defendants’ motions. |
| Interstate Companies, Inc v. Kress Corp. A1-03-73 Chief Judge Daniel L. Hovland 9/30/2003 |
190 Other Contract The Plaintiff charged the Defendant with, amongst other things, violating N.D.C.C. § 51-20.1-03 and breaching its obligation of good faith and fair dealing when terminating a Service Representation Agreement. The Defendant filed a motion to dismiss, asserting that the Plaintiff was not covered by N.D.C.C. § 51-20.1-03 and that no separate cause of action exists for the breach of good faith and fair dealing. The Court granted the Defendant’s motion in part, finding N.D.C.C. § 51-20.1-03 applicable but concluding that no separate cause of action existed for breach of good faith and fair dealing. |
| Dakota Western Bank of ND v. North American Nutrition Co., Inc. A1-03-43 Chief Judge Daniel L. Hovland 9/29/2003 |
190 Other Contract The Defendant, an Ohio corporation with offices in Iowa, filed a motion for a change of venue from North Dakota to Iowa. The basis for the Defendant’s motion was that a majority of the witnesses resided in Iowa and that its dispute with the Plaintiff was governed by Iowa law. The Court denied the Defendant’s motion, finding that neither the convenience of the witnesses nor the interests of justice necessitated a change of venue. |
| Schaaf v. Caterpillar, Inc. A1-02-50 Chief Judge Daniel L. Hovland 9/19/2003 |
365 Personal Injury - Product Liability The Defendant filed a motion to exclude the Plaintiffs’ expert’s testimony regarding the adequacy of warnings on a tractor manufactured by the Defendant. The Court held that, under Rule 702 of the Federal Rules of Evidence and the principles of Daubert v. Merrell Dow Pharmaceuticals, Inc., the Plaintiffs had not shown that their expert was qualified to testify as to the adequacy of warnings on the tractor at issue. Accordingly, the Court granted the Defendant’s motion as it pertained to testimony about the adequacy of the warnings, but added that the expert would be permitted to testify and express opinions on general industry standards; the accepted design process for the manufacture of agricultural equipment and machinery; and the application, if any, of the relevant ANSI/ASAE Standards. |
| Paul Eberts v. Kawasaki Motors Corp. A1-02-43 Chief Judge Daniel L. Hovland 9/9/2003 |
365 Personal Injury - Product Liability The Defendants sought a protective order from the Court that excused them from contacting outside attorneys, claims adjusters, and investigators to aid in the search for documents regarding claims and lawsuits involving three-wheeled all-terrain vehicle accidents. The Defendants offered to provide Plaintiff with the names and addresses of claimants and their attorneys as well as information regarding the courts where these lawsuits were filed along with case captions and docket numbers. The Court, finding the scope of the Plaintiff’s request to be unduly burdensome, granted the Defendants a protective order. The Court also instructed the Defendants to provide the Plaintiff with the information they had offered. |
| Gorley v. SSA A1-03-102 Chief Judge Daniel L. Hovland 9/9/2003 |
864 SSID Title XVI The Plaintiff requested that the Court enjoin the Social Security Administration from terminating his disability benefits pending an Appeals Counsel Review. The Court denied the Plaintiff’s request initially and upon reconsideration because he had failed to exhaust his administrative remedies and had not satisfied the criteria set forth in Rodabaugh v. Sullivan, 943 F.2d 855, 857 (8th Cir. 1991), for waiver of the exhaustion requirement. |
| USA v. Raymond Azure C4-03-16 Chief Judge Daniel L. Hovland 9/2/2003 |
000 No Nature of Suit Code Used The Court, after conducting a competency hearing and applying the three-part scheme for determining mental competency to stand trial outlined in U.S. v. Ferro, 321 F.3d 756, 760 (8th Cir. 2003), concluded that the Defendant lacked the competence necessary to stand trial under the standards enumerated in 18 U.S.C. § 4241(d). The Court subsequently ordered that the Defendant be hospitalized in a suitable facility for a reasonable period of time for further psychological evaluation. |
| West River Telecommunications v. Henry, et al. A4-02-126 Chief Judge Daniel L. Hovland 8/26/2003 |
890 Other Statutory Actions Two telephone cooperatives sought injunctive and declaratory relief from a possessory interest tax imposed by the Three Affiliated Tribes and assessed against rights-of-way and telephone lines used by the cooperatives throughout the Fort Berthold Indian Reservation. The Court, applying the rule first articulated by the Supreme Court in Montana v. U.S., concluded that the Defendants had failed to demonstrate that either of the two exceptions to the rule applied and that the Tribe lacked the authority to promulgate the possessory interest tax. The Court granted the cooperatives summary judgment and permanently enjoined the Tribe from enforcing the possessory interest tax against the cooperatives. |
| USA v. Crystal Lee Fredericks C4-03-23 Chief Judge Daniel L. Hovland 7/28/2003 |
000 No Nature of Suit Code Used The defendant filed a motion to exclude evidence obtained by a federal law enforcement officer upon execution of a tribal search warrant. The defendant claimed that the warrant was invalid for want of probable cause, that the officer failed to comply with the requirements of Fed. R. Crim. P. 41, and that she was never read her Miranda rights at the time of her arrest on tribal charges. The Court denied the motion, holding that the warrant was supported by probable cause, that Fed. R. Crim. P. 41 was inapplicable under the circumstances, and that the defendant received a warning equivalent to the Miranda warning at the time of her arrest. |
| Daniels v. Anderson, et al. A1-02-125 Chief Judge Daniel L. Hovland 7/22/2003 |
440 Other Civil Rights A pro se plaintiff filed civil rights action under 42 U.S.C. §1983, alleging that city and county employees had violated his constitutional rights. He subsequently requested leave to file an amended complaint containing additional state law claims. The Court granted the plaintiff leave, finding that the plaintiff had complied with the standards for amending a complaint as set forth in Fed. R. Civ. P. 15(a) and that the Court’s exercise of jurisdiction over the plaintiff’s state law claims was mandated by the Eighth Circuit’s holding in McLaurin v. Prater, 30 F.3d 982, 984 (8th Cir. 1994). |
| Daniels v. Anderson, et al. A1-02-125 Chief Judge Daniel L. Hovland 7/15/2003 |
440 Other Civil Rights An indigent defendant who had initiated a pro se civil rights action under 42 U.S.C. § 1983 filed a motion for appointment of counsel. The Court denied the defendant’s motion, finding that appointment of counsel was not warranted under the circumstances. |
| Mehl, et al. v. Canadian Pacific Railway A4-02-09 Chief Judge Daniel L. Hovland 7/15/2003 |
360 Other Personal Injury Canadian Pacific, the defendant, appealed the denial of its motion to compel discovery by the Magistrate Judge. Canadian Pacific sought information regarding putative class members. The Court affirmed the Magistrate Judge’s decision, explaining that while discovery in relation to the Fed. R. Civ. P. 23 may be justifiable, Canadian Pacific’s discovery requests were too broad. |
| State of ND v. US Corp of Engineers A1-03-50 Chief Judge Daniel L. Hovland 7/14/2003 |
893 Environmental Matters South Dakota filed a motion for a preliminary injunction, wherein it sought to enjoin the Corps of Engineers from lowering water levels on the Missouri main stem reservoirs. The Court weighed the Dataphase factors and concluded that South Dakota was unlikely to succeed on the merits. The Court also noted that the Eighth Circuit Court of Appeals holding in South Dakota v. Ubbelohde was dispositive and controlling of the legal issues presented in the motion. The Court therefore denied the motion. |
| State of ND v. US Corp of Engineers A1-03-50 Chief Judge Daniel L. Hovland 7/14/2003 |
893 Environmental Matters North Dakota filed a motion for a preliminary injunction requiring the Corps of Engineers to limit releases of water from Lake Sakakawea through September 30, 2003. The Court weighted the Dataphase factors and concluded that North Dakota was unlikely to succeed on the merits. The Court added that the Eighth Circuit Court of Appeals holding in South Dakota v. Ubbelohde seemed to refute the notion that North Dakota’s water quality standards should control the management and operations on the Missouri River. The Court therefore denied the motion. |
| Schaaf v. Caterpillar, Inc. A1-02-50 Chief Judge Daniel L. Hovland 7/10/2003 |
365 Personal Injury - Product Liability The Plaintiffs filed a wrongful death action against the Defendant after their son was run over by a tractor manufactured by the Defendant. The Defendant filed a motion for partial summary judgment, asserting in part that North Dakota law does not allow a parent to recover non-economic damages in action for the wrongful death of an adult child. The Court denied the motion, finding that the such damages were recoverable under Section 32-03.2-04 of the North Dakota Century Code. |
| Williston Basin v. Dolyniuk Family Trust, et al. A1-03-66 Chief Judge Daniel L. Hovland 6/30/2003 |
210 Land Condemnation The Plaintiff initiated a condemnation action against the Defendants pursuant to the Natural Gas Act, 15 U.S.C. § 717 et. seq., to allow for the construction, operation, and maintenance of a buried natural gas pipeline. The Plaintiff also filed a Motion for Immediate Possession. The Court granted the Plaintiff’s motion, finding that there was no real opposition to the Plaintiff’s motion and that the Plaintiff stood to suffer irreparable harm if denied access to the Defendants’ property. |
| Torske v. Bunn-O-Matic Corp. A4-03-21 Chief Judge Daniel L. Hovland 6/25/2003 |
385 Property Damage Product Liability The Defendant filed a motion to join the Plaintiffs’ insurer as a named plaintiff pursuant to Rules 17(a) and 19(a) of the Federal Rules of Civil Procedure on grounds that the insurer was the real party in interest. The Court denied the motion, finding that the Plaintiffs were the real parties in interest under state substantive law. |
| Buckles, et al. v. Indian Health Services A4-02-133 Chief Judge Daniel L. Hovland 6/24/2003 |
890 Other Statutory Actions The Plaintiffs filed suit against Indian Health Services and individual Defendants, asserting tort claims as well as claims under the Privacy Act, 5 U.S.C. § 552a, and the Freedom of Information Act, 5 U.S.C. § 552. The Court granted the Defendants’ motion to dismiss the individual Defendants and ordered that the United States be substituted as a party defendant in place of the individual Defendants. The Court also denied the Plaintiffs request for a jury trial, concluded that they (1) had no right to a jury trial on their Privacy Act and Freedom of Information claims, and (2) had waived any right to a jury trial on their tort claims. |
| Natwick v. Social Security Adm. A4-02-89 Chief Judge Daniel L. Hovland 6/24/2003 |
864 SSID Title XVI The Plaintiff challenged the Social Security Commissioner’s denial of his applications for supplemental security income and disability insurance benefits. The Plaintiff suffered from back pain and had undergone spinal surgery. The Court upheld the Commissioner’s decision, finding that it was supported by substantial evidence. |
| Steinbach v. Schuetzle A1-03-44 Chief Judge Daniel L. Hovland 6/23/2003 |
530 General The Petitioner filed a petition for habeas corpus relief under 28 U.S.C. § 2254, challenging his conviction in state court on charges of murder, obstruction of a government function, and tampering with evidence. The Court dismissed the petition, finding that it was barred by the Antiterrorism and Effective Death Penalty Act’s one-year statute of limitations. |
| USA v. Gabriel Herrara-Perez C4-03-24 Chief Judge Daniel L. Hovland 6/3/2003 |
000 No Nature of Suit Code Used The defendant, an alien who had previously been convicted of an aggravated felony in California and ordered removed to Mexico, was indicted for reentering the United States in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2). The defendant filed a Motion for Dismissal, wherein he collaterally attacked the underlying orders of removal on grounds that they were fundamentally unfair. The Court denied the motion, finding that the defendant had suffered no demonstrable prejudice. |
| State of ND v. USACE A1-03-50 Chief Judge Daniel L. Hovland 5/29/2003 |
893 Environmental Matters The Corps of Engineers filed a motion seeking to dissolve the ex parte temporary restraining order (“TRO”) enjoining it from exceeding specified discharge rates at Garrison Dam and lowering elevation levels of Lake Sakakawea and Lake Oahe. The TRO was entered by state district court Judge Gail Hagerty on April 29, 2003, and extended by this Court on May 7, 2003. The Court concluded that North Dakota did not meet its burden of establishing “immediate” injury, loss, or damage as required by Rule 65(b) of the Federal Rules of Civil Procedure and therefore dissolved the TRO. |
| Pruco Securities v. Montgomery A1-03-55 Chief Judge Daniel L. Hovland 5/29/2003 |
190 Other Contract The Plaintiffs, having obtained a temporary restraining order, sought a preliminary injunction to prevent the Defendant and those acting in concert with him from recruiting its employees. The Court considered the factors set forth in Dataphase Systems, Inc. v. C L Sys. Inc., 640 F.2d 109, 114 (8th Cir. 1981), and concluded that a preliminary injunction would be inappropriate under the circumstances. The Court denied the Plaintiffs’ application for a preliminary injunction and dissolved the temporary restraining order. |
| Pruco Securities v. Montgomery A1-03-55 Chief Judge Daniel L. Hovland 5/22/2003 |
190 Other Contract The Plaintiffs sought a temporary restraining order and preliminary injunction to prevent the defendant and those acting in concert with him from recruiting its employees. Minnesota Life, the defendant’s new employer, filed a motion to intervene as a matter of right pursuant to Rule 24(a)(2) of the Federal Rules of Civil Procedure. The Court granted the motion, finding that the motion was timely filed and that Minnesota Life had satisfied the three-part test set forth in Jenkins v. State of Missouri, 78 F.3d 1270, 1274 (8th Cir. 1996). |
| State of ND, et. al. v. US Army Corp of Engineers, et. al. A1-03-50 Chief Judge Daniel L. Hovland 5/16/2003 |
893 Environmental Matters The Court, in accordance with the consent of the parties, modified the ex parte restraining order entered on April 29, 2003, to permit the Corps of Engineers to release a maximum daily average of 21,500 cfs from Garrison Dam for the remainder of May 2003. |
| USA v. Raymond Azure C4-03-16 Chief Judge Daniel L. Hovland 5/16/2003 |
000 No Nature of Suit Code Used A defendant charged with sexually abusing three children filed a motion for a bill of particulars, asserting, inter alia, that the dates of the offenses as alleged in the Indictment were too vague. The Court denied the defendant’s motion, finding that the dates of the offenses alleged were sufficient under the circumstances and noting that the defendant was in possession of all discovery materials and information available as to the nature of the charges. |
| Pruco Securities v. Montgomery A1-03-55 Chief Judge Daniel L. Hovland 5/13/2003 |
190 Other Contract The Court granted the Plaintiffs’ motion for a temporary restraining order. The Court ordered the Defendant to refrain from recruiting the Plaintiffs’ employees pending a hearing on the Plaintiffs’ application for a preliminary injunction. |
| USA v. William Duran See Walker C1-03-04 Chief Judge Daniel L. Hovland 5/6/2003 |
000 No Nature of Suit Code Used A defendant charged with four counts of sexual abuse of a child filed motions in exclude the testimony of the alleged child victim, evidence of his prior bad acts, and a videotaped interview of the alleged victim. The Court concluded that the alleged child victim was presumed competent to testify at trial. Next, the Court excluded evidence relating to the defendant’s uncharged prior bad acts, but admitted into evidence the defendant’s prior conviction for abusive sexual contact of a child. As for the videotaped interview, the Court concluded that it could be admitted following cross-examination of the alleged child victim, provided that the child had been impeached and the videotape would be offered as a prior consistent statement under Fed. R. Evid. 801(d)(1)(B). |
| Scheeler v. Barnhart, SSA A1-02-87 Chief Judge Daniel L. Hovland 4/23/2003 |
863 DIWC/DIWW (405(g)) The Plaintiff challenged the Social Security Commissioner’s decision to deny her application for disability insurance benefits. The Plaintiff suffered from, among other things, coronary artery disease, peripheral arterial disease with claudication, and diabetes. The Court upheld the Commissioner’s decision, finding that it was supported by substantial evidence. |
| Windhorst v. Barnhart, SSA A1-02-67 Chief Judge Daniel L. Hovland 4/15/2003 |
863 DIWC/DIWW (405(g)) The Court upheld the Social Security Commissioner’s decision regarding the denial of the Plaintiff’s application for disability insurance benefits and Supplemental Security Income. The Plaintiff asserted that he suffered from lupus and therefore was disabled. However, the Court found that there was substantial evidence in the record to support the Commissioner’s decision that the Plaintiff did not meet the disability requirements of the Social Security Act. |
| Decoteau v. Barnhart, SSA A4-02-65 Chief Judge Daniel L. Hovland 4/11/2003 |
864 SSID Title XVI The Court upheld the Social Security Commissioner’s decision regarding the denial of the Plaintiff’s application for Supplemental Security Income. The primary basis of the Plaintiff’s application was chronic obstructive pulmonary disease . The Court found that there was substantial evidence in the record to support the Commissioner’s decision that the Plaintiff did not meet the disability requirements of the Social Security Act. |
| Reutter v. Barnhart, SSA A4-02-70 Chief Judge Daniel L. Hovland 4/4/2003 |
865 RSI (405(g)) The Court reversed the Social Security Commissioner’s decision regarding the denial of the Plaintiff’s Application for childhood insurance benefits. The Plaintiff had challenged the finding of the Commissioner that she was not dependent upon her stepmother for her support. The Court found the Plaintiff’s stepmother had been providing one-half her support and remanded the matter for an award of benefits. |
| Kary v. ExxonMobil A1-03-09 Chief Judge Daniel L. Hovland 3/19/2003 |
190 Other Contract The Court granted the Plaintiff’s motion to remand her proposed class action back to state court, holding that each member of the proposed class did not satisfy the amount-in-controversy requirement and that aggregation of their claims was inappropriate given that the rights the proposed plaintiffs sought to enforce were not common and undivided. |
| Chase v. US Atty. General A4-02-109 Chief Judge Daniel L. Hovland 3/19/2003 |
720 Labor/Mgmt. Relations The Government filed a motion to dismiss the Plaintiff’s Title VII action on sovereign immunity grounds and for alleged improper service of process. The Court denied the Government’s motion, finding that the Plaintiff, who was employed by a federal agency, was afforded the protections of Title VII and that he had cured any defect in service. |
| Aalund v. SSA A1-01-88 Chief Judge Daniel L. Hovland 3/13/2003 |
864 SSID Title XVI The Court upheld the Social Security Commissioner’s decision regarding the denial of the Plaintiff’s Application for disability insurance benefits. The basis of the Plaintiff’s application was a bulged disc in his back. The Court found that there was substantial evidence in the record to support the Commissioner’s decision that the Plaintiff did not meet the disability requirements of the Social Security Act. |
| USA v. Ricky Lee LaFountain C4-02-103 Chief Judge Daniel L. Hovland 3/12/2003 |
000 No Nature of Suit Code Used The Defendant sought to suppress evidence obtained during a search his hotel room and a vehicle in which he was a passenger on grounds that warrants issued by the tribal judge violated Federal Rule of Crimal Procedure 41(a). The Court denied his motion, finding that failure to comply with Rule 41(a) was harmless error and that suppression was not an appropriate remedy. |
| Smart v. Starr A1-01-112 Chief Judge Daniel L. Hovland 3/4/2003 |
440 Other Civil Rights The Court denied the Plaintiffs’ motion for summary judgment on grounds that there were questions of material fact yet to be resolved. The Court granted the Defendant’s motion for summary judgment in part, dismissing the Plaintiff’s claims of sexual harassment, hostile work environment, and constructive discharge. The Court held that the Plaintiff had exhausted her administrative remedies as to her claim of disparate treatment, but that the Plaintiff’s remaining claims were outside the scope of her initial administrative complaint and therefore not properly before the Court. |
| Vukelic v. Bartz A1-01-146 Chief Judge Daniel L. Hovland 2/24/2003 |
440 Other Civil Rights The plaintiff filed suit against the defendants, asserting claims arising out of federal and state law. The defendants filed a motion to dismiss on grounds that they were immune from suit under the doctrine qualified immunity. The Court granted the defendants’ motion, concluding that the plaintiff’s federal claims failed as a matter of law. The Court dismissed the plaintiff’s state claims on its own motion for lack of subject matter jurisdiction. |
| Demery v. DOI A4-01-117 Chief Judge Daniel L. Hovland 2/20/2003 |
360 Other Personal Injury The plaintiff filed a claim against the defendant pursuant to the Federal Tort Claims Act (FTCA), alleging that the defendant failed to properly mark and warn the public of open water on Belcourt Lake. The defendant moved for dismissal, asserting that it was immune from suit under the FTCA’s discretionary function exception. The Court granted the defendant’s motion, holding that the conduct at issue was of the sort that the discretionary function exception was designed to shield. |
| Martell v. DOI A4-01-85 Chief Judge Daniel L. Hovland 1/31/2003 |
320 Assault, Libel & Slander Martell filed suit against the government, asserting claims under Title VII of the Civil Rights Act and the Federal Tort Claims Act. She subsequently abandoned her Federal Tort Claims Act. The government filed a motion for summary judgment of dismissal. It maintained that Martell, by initially pursuing recourse through negotiated grievance procedures, was barred from asserting a Title VII claim as matter of law. The Court concluded that Martell has exhausted her administrative remedies under the negotiated grievance procedures and therefore had satisfied the jurisdictional prerequisites of Title VII. Viewing the facts in a light most favorable to the plaintiff, it concluded that there were genuine issues of material fact in dispute that precluded summary judgment of dismissal. |
| Mehl v. Canadian Pacific A4-02-09 Chief Judge Daniel L. Hovland 1/31/2003 |
360 Other Personal Injury The defendant, Canadian Pacific Railway, Ltd., filed a motion to compel one of the plaintiff’s to resubmit to a deposition, a motion for an order to show cause for a non-party’s failure to answer deposition questions; and a motion for sanctions against plaintiff’s counsel for abuse of discovery practices. The Court denied the motions with prejudice and without costs. To curtail a barrage of future discovery disputes, the Court ordered that additional steps be undertaken by all parties prior to the filing of any future discovery motions. |
| Bullinger v. Trebas, etal. A4-02-13 Chief Judge Daniel L. Hovland 1/30/2003 |
110 Insurance The plaintiffs filed suit against the defendants in state court, asserting state law claims of breach of contract, negligence, negligent or intentional misrepresentation, and misconduct. The defendants, after filing their notice of removal, moved for summary judgment on grounds that the plaintiff’s suit was barred by the terms of their contract and by the Federal Crop Insurance Act. The Court, raising the issue of jurisdiction sua sponte, remanded the action back to state court. The Court held that the Federal Crop Insurance Act did not completely preempt state law causes of action, that diversity jurisdiction was lacking, and that no federal cause of action was stated on the face of the complaint. |
| Davis v. Strata Corp A4-01-83 Chief Judge Daniel L. Hovland 1/24/2003 |
440 Other Civil Rights The plaintiff, an enrolled tribal member, filed suit against the defendant, alleging that the defendant’s credit policy constituted a form of race discrimination prohibited by 42 U.S.C. §§ 3601 et. seq., 2000d, 1982, and 1981 as well as 15 U.S.C. § 1691 et. seq. The defendant filed a motion for summary judgment, asserting that its policy was justified by legitimate, non-discriminatory reasons. The Court granted the defendant’s motion in part, dismissing the plaintiff’s claims under 42 U.S.C. §§ 3601 et. seq., 2000d, and 1982. The Court denied the defendant’s motion with respect to the plaintiff’s claims arising under section 1981 and 15 U.S.C. § 1691 et. seq., finding there were material issues of fact to be resolved concerning the application of these two statutory provisions. |
| United States v. Amy Moser and Denver Evans C4-02-83 Chief Judge Daniel L. Hovland 1/17/2003 |
000 No Nature of Suit Code Used Defendant Denver Evans filed a motion to suppress evidence obtained during a warrantless search by co-defendant Amy Moser’s probation officer of the home Evans shared with Moser. Evans asserted that the search violated the Fourth Amendment in that it was unreasonable and conducted for investigatory rather than probationary purposes. The Court held that the search was constitutional, finding there was a reasonable basis to believe that probation violations were occurring, that the warrantless search was needed for probationary purposes, that the search was reasonable in scope, and that the defendants had consented to the search of their residence. |
| USA v. Robert F. Lippman C4-02-82 Chief Judge Daniel L. Hovland 1/6/2003 |
000 No Nature of Suit Code Used The defendant sought to dismiss an indictment charging him with a violation of 18 U.S.C. § 922(g)(8) on the grounds that the statute was unconstitutional on its face and as it applied to him. Specifically, he asserted that the section 922(g)(8) was overbroad because it allowed his Second Amendment rights to be infringed absent any express judicial findings in the predicate order that he posed a threat to his wife. The Court upheld the constitutionality of section 922(g)(8), finding the restriction on Lippman’s ability to keep and bear arms reasonable and not violative of the Second Amendment. |
| Peterson v. State of North Dakota A1-02-82 Chief Judge Daniel L. Hovland 1/3/2003 |
442 Employment Plaintiff filed civil rights against the State of North Dakota as well as two college administrators in their official and individual capacities, alleging violations of her right to due process under the Fourteenth Amendment as well as her rights under the First Amendment. The Court held that neither the State nor the administrators in their official capacity were amenable to suit under 42 U.S.C. § 1983. The Court also held that administrators in their individual capacity were immune from suit under § 1983 based upon the doctrine of qualified immunity. |
| Halvorson v. Nordell A4-02-47 Chief Judge Daniel L. Hovland 12/26/2002 |
362 Personal Injury - Med. Malpractice The defendant filed a motion to dismiss a medical malpractice action on grounds that the plaintiff had failed to obtain an admissible expert opinion to support her allegation of professional negligence as required by section 28-01-46 of the North Dakota Century Code. The Court denied the defendant’s motion, finding that a physician’s affidavit submitted by the plaintiff was sufficient for purposes of compliance with section 28-01-46. |
| USA v. Micheal Fisher 1-08-cr-26 Judge Daniel L. Hovland 11/17/2009 |
000 No Nature of Suit Code Used The defendant pled guilty to various counts of filing false tax returns and conspiracy to defraud. During the first phase of the sentencing hearing, both parties were afforded the opportunity to present evidence designed to address the disputed facts in the PSR and the parties’ objections to the Sentencing Guideline calculations. The parties then submitted post-hearing briefs. The Court found that a downward departure to criminal history category II is warranted, that the tax loss is greater than $400,000, that a two-level increase for a role adjustment is warranted, and that the defendant is entitled to a two-level reduction for acceptance of responsibility. |
| EOG Resources Inc. v. Badlands Power Fuels LLC, et al. 4-08-cv-38 Judge Daniel L. Hovland 11/17/2009 |
190 Other Contract Defendant Badlands Power Fuels filed a motion for summary judgment, arguing that the indemnity provisions within a contract for oil well services violated the public policy of North Dakota pursuant to N.D.C.C. § 9-08-02. The Court denied the motion, finding that the indemnity provisions did not violate the public policy of North Dakota. |
| Iverson v. Bronco Drilling Company, Inc., et al. 4-08-cv-10 Judge Daniel L. Hovland 11/4/2009 |
360 Other Personal Injury Defendants Petro-Hunt, L.L.C. and RPM Consulting, Inc. filed motions for summary judgment, based on independent contractor status. The plaintiff does not object to RPM Consulting, Inc.’s motion. The Court granted the motions for summary judgment, finding that Petro-Hunt, L.L.C. did not owe the plaintiff a duty to protect him from injuries caused by the acts or omissions of RPM Consulting, Inc. and Kenneth McIntyre, and Petro-Hunt, L.L.C. did not negligently retain control over Bronco Drilling Company, Inc. The claims against Petro-Hunt, L.L.C. and RPM Consulting, Inc. were dismissed as a matter of law. |
| Herschbach, et al. v. Herschbach, et al. 1-09-cv-08 Judge Daniel L. Hovland 11/3/2009 |
290 All Other Real Property The Defendant filed a motion for a change of venue, arguing that there is an identical action pending in the Eastern District of Texas and that the issues could be resolved more efficiently in Texas. The Court granted the motion, finding that the interests of justice compel a transfer of this action to federal court in the Eastern District of Texas. |
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