USA v. Moore et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
PHILLIP MOORE and MATTHEW
BERNSTEIN,
Defendants.
5:21-CR-50148-JLV
ORDER DENYING MOTION TO
COMPEL (DOC. 58) AND MOTION
FOR JOINDER (DOC. 59)
Defendant, Phillip Moore, filed a motion to compel the government to
turn over certain discovery. 	(Doc. 58). 	Defendant, Matthew Bernstein, filed a
motion for joinder to the motion to compel. 	(Doc. 59). 	The pending motion was
referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and
United States District Judge Judge Jeffrey L. Viken’s Standing Order dated
April 1, 2018.
DISCUSSION
District of South Dakota Criminal Local Rule 47.1(A) states that “[b]efore
filing a discovery motion, the certification required under D.S.D. Crim. LR 16.1
must be met.” 	Local Rule 16.1 states “[a] party filing a motion concerning a
discovery dispute must file a separate certification describing the good faith
efforts of the parties to resolve the dispute.”
“[T]he application of local rules is a matter peculiarly within the district
court's province.” 	Chrysler Credit Corp. v. Cathey, 977 F.2d 447, 449 (8th Cir.
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1992) (internal quotations omitted); Reasonover v. St. Louis Cnty., 447 F.3d
569, 579 (8th Cir. 2006) (“District courts have broad discretion to . . . enforce
local rules.”). 	A movant’s failure to comply with the meet and confer
requirement may dictate denial of his motion. 	United States v. Wicks, No. 11-
CV-5027-JLV, 2012 WL 1576000, at *2 (D.S.D. May 3, 2012) (analyzing D.S.D.
Civ. LR 37.1, which, like Crim. LR 16.1, requires parties to “file a separate
certification describing the good faith efforts of the parties to resolve the
dispute.”). 	The goal of these requirements is to make sure that discovery
motions are not brought before the court that the parties could have resolved
informally between themselves. 	Id.
Mr. Moore’s motion does not provide any description of efforts made by
either party to resolve the dispute, nor did Mr. Moore file a separate
certification describing his efforts to meet and confer with the Assistant United
States Attorney regarding the request set forth in his motion. 	Simply informing
the court of the existence of a discovery request that has been unanswered falls
short of the requirements of D.S.D. Crim. LR 47.1(A) and 16.1.
Likewise, Mr. Bernstein’s motion does not provide any description of
efforts made to resolve the dispute or a separate certification describing efforts
to meet and confer regarding the discovery request.
Defendants therefore have failed to comply with Local Rules 47.1(A) and
16.1. 	Accordingly, it is
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ORDERED that Defendant Phillip Moore’s motion to compel discovery
(Doc. 58) and Defendant Matthew Bernstein’s motion for joinder (Doc. 59) are
denied without prejudice.
NOTICE OF RIGHT TO APPEAL
Pursuant to 28 U.S.C. § 636(b)(1)(A), any party may seek reconsideration
of this order before the district court upon a showing that the order is clearly
erroneous or contrary to law. 	The parties have fourteen (14) days after service
of this order to file written objections pursuant to 28 U.S.C. § 636(b)(1)(A),
unless an extension of time for good cause is obtained. 	See FED. R. CRIM. P.
58(g)(2); 59(a). 	Failure to file timely objections will result in the waiver of the
right to appeal questions of fact. 	FED. R. CRIM. P. 59(a). 	Objections must be
timely and specific in order to require review by the district court.
DATED this 31st day of March, 2022.
BY THE COURT:
DANETA WOLLMANN
United States Magistrate Judge
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