Case No. CIV-97-113-B
DOUGLAS G. DRY; JUANITA McCONNELL; and ROSIE BURLISON,
Plaintiffs,
V.
UNITED STATES OF AMERICA; BRUCE BABBITT,
in his official capacity as Secretary of Interior;
ADA E. DEERE, in her official capacity as Assistant
Secretary of Interior for Indian Affairs; JIM FIELDS,
in his official capacity as the successor Muskogee Area
BIA Director; PERRY PROCTOR, in both his official
and individual capacities; DENNIS SPRINGWATER,
in both his official and individual capacities; KAREN
KETCHER, in both her official and individual capacities;
CURTIS WILSON, in his official capacity as the BIA
Contracts Officer; LARRY MINGS, in both his official
and individual capacities; BOB RABON, in both his
official and individual capacities; ROBERT L. RABON,
in both his official and individual capacities; KIM REED,
in both her official and individual capacities; HOPPY
DENISON, in both his official and individual capacities;
BILL BARROW, in both his official and individual
capacities; MIKE RUSSELL, in both his official and
individual capacities; STEVEN FLOWERS, in both his
official and individual capacities; CHRIS WELCH, in both
his official and individual capacities; KENNETH
JOHNSON, in both his official and individual capacities;
BLAKE JOHNICO, in both his official and individual
capacities; CITY OF TAHLEQUAH; JACK ENGLAND,
in both his official and individual capacities; MALCOMB
WADE, in both his official and individual capacities;
NIKY HIBDON, in both her official and individual
capacities; LLOYD JAMES, in both his official and
individual capacities; JOHN WHEAT, in both his official
and individual capacities; NAOMI O'DANIELS, in both
her official and individual capacities; CITY OF CLAYTON;
TERRY BELL, in both his official and individual capacities;
ROWLAND HALL, in both his official and individual
capacities; MIKE VAN HORN, in both his official and
individual capacities; DARREL KIRKES, in both his
official and individual capacities; REBECCA JOHNSON,
in both her official and individual capacities; and JIMMY
LONG, in both his official and individual capacities,
Defendants.
This matter comes before the Court on the Motion to Set Aside December 8, 1998 Order filed by Plaintiffs on December 21, 1998 (Docket Entry #163). On December 8, 1998, this Court granted Defendant United States of America's ("USA") Motion to Dismiss based upon Plaintiffs' failure to respond to the Motion within the time required by this Court's local rules. Plaintiffs now request that the Order be vacated stating that counsel had not received the Motion until December 5, 1998 and that counsel for the USA had acquiesced in an extension to file a response. The parties, however, failed to request an extension from this Court. Plaintiffs contend "[t]hat fifteen (15 days from the 5th of December, 1998, falls on December 20, 1998 and the first working day being December 21, 1998," thereby implying that this Court entered the Order dismissing the claims against the USA prematurely. This Court would refer Plaintiffs and their counsel to EDOK LR 7.1(B) with provides that the respondent to a motion has fifteen (15) days from the filing of the Motion by which to file a response.
Despite this erroneous reasoning and the failure to offer any other reasonable explanation for the failure to respond, the USA has not objected to the request to vacate the December 8, 1998 Order within the time required by this Court's local rules. EDOK LR 7.1(B). Accordingly, the Order will be vacated and Plaintiffs' response to the Motion will be considered.
IT IS THEREFORE ORDERED that the Motion to Set Aside December 8, 1998 order filed by Plaintiffs on December 21, 1998 (Docket Entry #163) is hereby GRANTED. Accordingly, the Order of Dismissal entered December 8, 1998 (Docket Entry #159) is hereby VACATED. Further, the minute order mooting Plaintiffs' response entered December 15, 1998 (Docket Entry #162) is also VACATED. Plaintiffs' response filed December 14, 1998 will be considered in the formulation of an order on the USA's Motion.
IT IS FURTHER ORDERED that the Application for Extension of Time to Respond to Defendant's November 18, 1998 Motion to Dismiss filed by Plaintiffs on December 21, 1998 (Docket Entry #164) is hereby deemed MOOT.
IT IS FURTHER ORDERED that the USA shall file its reply to Plaintiffs' response within eleven (11) days after the date that this Order is filed.
IT IS SO ORDERED this 13th day of January, 1999.
