USA v. Flying Horse et al

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Case 5:20-cr-50035-KES Document 258 Filed 07/21/21 Page 1 of 4 PagelD #: <pagelD>

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA

WESTERN DIVISION

UNITED STATES OF AMERICA, 95:20-CR-50035-JLV-01

Plaintiff,
REPORT AND RECOMMENDATION
vs.

JOSEPH FLYING HORSE,

Defendant.

Pending are Defendant’s Requests for Entry of Default and Motion to
Grant Unopposed Motions (Docs. 56, 64, and 251). Based on a careful
consideration of all the relevant pleadings, the Court respectfully makes the

following:

RECOMMENDATION

It is respectfully recommended that Defendant’s Requests for Entry of

Default be denied.

JURISDICTION

Defendant is charged in an Indictment with Possession of a Stolen
Firearm in violation of 18 U.S.C. §§ 922(j) and 924(a)(2) and Possession of a
Firearm While Under Indictment in violation of 18 U.S.C. §§ 922(n) and
924(a)(1)(D). The pending Motions were referred to the Magistrate Judge
pursuant to 28 U.S.C. § 636(b)(1)(B) and United States District Judge Jeffrey L.

Viken’s Standing Order dated April 1, 2018.

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION
GPO

Case 5:20-cr-50035-KES Document 258 Filed 07/21/21 Page 2 of 4 PagelD #: <pagelD>

FACTUAL BACKGROUND

The defendant filed the pending Requests for Entry of Default (Docs. 56,
64) on July 13%, 2020, and July 20th, 2020, respectively. However, both
documents are dated July 10%, 2020 and contain the exact same language and
appear to be duplicates. The Motion to Grant Unopposed Motions was filed on
June 3, 2021

The defendant argues the court should enter a default judgment against
the Government because they failed to respond to his Motion to Dismiss, filed
July 2nd, 2020. (Doc. 51). In support of his motion at Dockets 56 and 64, he

cites vaguely to Fed. R. Civ. P. 8(e) and McGirt v. Oklahoma, 140 8.Ct. 2452

(2020). In the Motion to Grant Unopposed Motions, the defendant cites civil
cases wherein the court granted unopposed motions to dismiss.

On July 14, 2020, this Court issued an order notifying the Government
that their response to the defendant’s Motion to Dismiss was due on July 9th,
2020 and ordered the Government to file a response by July 20%, 2020. (Doc.
59). The Government responded to the Motion to Dismiss and the Requests for
Entry of Default on July 16th, 2020. (Doc. 62). The Government solely
addresses the merits of the Motion to Dismiss and did not weigh in on the
timeliness of their response.

DISCUSSION

D.S.D. Crim. L.R. 47.1(C) states, in relevant part, “[o]n or before 7

calendar days after service of a motion and brief, unless otherwise specifically

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ordered by the court, all opposing parties must serve and file a responsive brief

containing opposing legal arguments and authorities in support thereof.”
However, “[Pllaintiffs failure to respond to defendants’ motions to

dismiss “does not automatically compel resolution of [the motions] in favor of

[defendants].”’ Meyer v. JP Morgan Chase Bank, 2016 WL 11609168 (D.S.D.

2016) (citing United States v. One Parcel of Real Prop., 27 F.3d 327, 329 n.1

(8th Cir, 1994), (see also Canada v. Union Elec. Co., 135 F.3d 1211, 1213 (8th

Cir, 1997) (“When a motion would be dispositive of the merits of the cause if
granted, courts should normally not treat a failure to respond to the motion as
conclusive.”))

Here, the defendant is requesting the court enter a default judgment on
his motion to dismiss (Doc. 51) because the Government failed to respond ina
timely fashion. While it is true the Government’s response was untimely, an
entry of default is not appropriate in this case. After being notified of their
need to file a response, the Government did so within the timeframe set out in
this Courts order at Docket 59.

Additionally, the defendant’s motion to dismiss argues, in short, that his
case should be dismissed because the Government has “acquiesced to its lack
of personal-matter jurisdiction over the Defendant....” This motion, if granted,
would be dispositive of this case. As such, the court has considered the Motion
to Dismiss on its merits which is discussed in another Report and
Recommendation filed at this same date. The defendant’s request for entry of

default is denied.

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CONCLUSION

For the aforementioned reasons, the Court respectfully
RECOMMENDS the defendant’s Requests for Entry of Default and Motion

to Grant Unopposed Motions (Docs. 56, 64, and 251) be denied.

NOTICE TO PARTIES

The parties have fourteen (14) days after service of this Report and
Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1),
unless an extension of time for good cause is obtained. Failure to file timely
objections will result in the waiver of the right to appeal questions of fact.
Objections must be timely and specific in order to require de novo review by the

District Court. Thompson y. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v. Black,

781 F.2d 665 (8th Cir. 1986).

DATED this ¢//staay of July, 2021.
BY THE COURT:

biotelell

DANETA WOLLMANN
United States Magistrate Judge