Case No. 97-113-B

DOUGLAS DRY, et al,

Plaintiffs,

vs.

USA, et al,

Defendants.

Scott Kayla Morrison on behalf of Plaintiffs, DOUGLAS DRY, JUANITA McCONNELL and ROSIE BURLISON, request that the Court set aside the December 8, 1998 Order dismissing the tort claims as having no basis in federal jurisdiction and respectfully states as follows:

1. That the Defendant, United States of America, filed a Motion Dismiss for the lack of subject matter jurisdiction as to Counts 4, 10 and 14 of the Plaintiff's Amended Complaint in the above entitled cause on November 18, 1998.

2. That the Defendant, United States of America, mailed a copy of said Motion to Post Office Box 673, Wilburton, Oklahoma 74578, on the 17th day of November, 1998, see Certificate of Service in Defendant's, United States of America, Motion to Dismiss filed November 18, 1998.

3. That the correct address for Plaintiffs' attorney, Scott Kayla Morrison, is Post Office Box 637, Wilburton, Oklahoma 74578, and at all times, since the filing of this cause of action, has been the address of record with this honorable court.

4. That the Plaintiffs' attorney, Scott Kayla Morrison, received a copy of said Motion on December 5, 1998.

5. That the Plaintiffs' attorney, Scott Kayla Morrison, telephoned Peter Bernhardt, United States Assistant Attorney, concerning the incorrect mailing and to ascertain whether the United States Attorney's Office objected to an extension of time for Plaintiffs in which to plea.

6. Under local Rule 7.1(B) of the local rules of the United States District Court for the Eastern District Court of Oklahoma, a pleading in opposition to opposing party's motion shall be filed within fifteen (15) days, which includes 3 days for mailing allowed by Rule 6(e).

7. That fifteen (15) days from the 5th day of December, 1998, falls on December 20, 1998 and the first working day being December 21, 1998.

8. That Plaintiffs' attorney, Scott Kayla Morrison, and Defendant's attorney, Peter Bernhardt from the U. S. Attorney's Office, agreed that said Plaintiffs' opposition to Defendant's November 18, 1998 Motion would be filed December 14, 1998.

9. That the Plaintiffs' attorney, Scott Kayla Morrison, filed on December 14, 1998 Plaintiffs' objection with brief to the Defendant, United States of America, November 18, 1998 Motion to Dismiss.

10. On December 8, 1998, the honorable Judge Michael Burrage granted Defendant, United States America, November 18, 1998, Motion to Dismiss, stating in part, "that the factual allegations and legal conclusions are deemed confessed, thereby entitling the United States to the relief requested". The Court also evaluated the merits of the United States Motion and "determined that the officers in question were acting pursuant to tribal law at the time of the incidents of which Plaintiffs complain. As a result, without more, this Court finds that the tort claims should be dismissed as having no basis in federal jurisdiction".

11. That Plaintiffs' attorney, Scott Kayla Morrison, received a copy of said December 8, 1998 Order on the 17th day of December, 1998.

12. That the Plaintiffs', through no fault of their own, did not receive a copy of the Defendants', United States of America, November 18, 1998 Motion to Dismiss, until after the fifteen (15) days allowed for them to respond and/or object under Rule 7.1(B).

WHEREFORE, the Plaintiffs' request the December 8, 1998 Order dismissing the tort claims without the benefit of response from the Plaintiffs' be set aside, that the Plaintiffs' Application for Extension of Time to Respond to Defendants' November 18, 1998 Motion to Dismiss be granted, that Plaintiffs' Brief in Response to USA's Suggestion of Lack of Jurisdiction filed December 14, 1998 be accepted by this Court retroactively and that this Court re-address Defendant's November 18, 1998 Motion to Dismiss in conjunction with Plaintiffs' December 14, 1998 Brief in Response to USA's Suggestion of Lack of Jurisdiction.

Respectfully Submitted,

__________________________________________
SCOTT KAYLA MORRISON, OBA #017323
103 _ West Main
Post Office Box 637
Wilburton, Oklahoma 74578
(918) 465-5033
Attorney for Plaintiffs

I, Scott Kayla Morrison, hereby certify that on the 21st day of December, 1998, I mailed a true and correct copy of the above and foregoing, via U.S. Postal Service, postage fully prepaid, to the following:

Peter Bernhardt Eric Janzen
Assistant U. S. Attorney W. G. "Gil" Steidley, Jr.
333 West Fourth Street, Suite 3460 Charles D. Neal, Jr.
Tulsa, Oklahoma 74103 Alison Cave
Steidley & Neal
Post Office Box 1165
McAlester, Oklahoma 74502

__________________________________________
Scott Kayla Morrison