Free Order on Motion for Miscellaneous Relief - District Court of Arizona - Arizona

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Case 2:02-cv-00581-EHC Document 616 Filed 09/21/2006 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) ) ) Plaintiff, ) vs. ) U.S. Reservation Bank & Trust; Higher) Investments Technologies, Inc.; Global-) Link Capital Markets, Ltd.; Edward J.) Driving Hawk, Sr.; Leo R. Driving Hawk,) Sr.; John M. Adams; Edmund J. Smedley;) Kenneth S. Harrison; William J. Herisko;) ) and Thomas T. Emerton, III; ) ) Defendants, ) and ) Oyate Development, Inc.; Oyate) Enterprises, LLP; Oyate Trust; River Walk) Development, LLC; HPHC, Inc.;) Ringthunder Racing Stables, Inc.; James) R. Driving Hawk; and Orpha Jane) ) Johnston; ) ) Defendants Solely for ) Purposes of Equitable ) Relief. ) ) Securities and Exchange Commission,

No. CV 02-581-PHX-EHC ORDER

Pending before the Court is Defendant Edward Driving Hawk, Sr.'s ("Defendant") Motion for Leave to File Counterclaim (Dkt. 548) and Motion to Dismiss (Dkt. 549). Plaintiff filed a Response to both Motions. (Dkt. 552.) Defendant did not file a Reply.

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Defendant's Motion for Leave to File Counterclaim On October 1, 2003, the Court previously denied Defendant's Motion for Leave to File Counterclaim. (Dkt. 244.) In that order, the Court stated:
FED. R. CIV. P. 13(e) states "[a] claim which either matured or was acquired by the pleader after serving a pleading may, with the permission of the court, be presented as a counterclaim by supplemental pleading." Driving Hawk seeks to file a counterclaim alleging civil rights violations by Plaintiff during the course of this litigation. In his vague, one-page Counterclaim, Driving Hawk alleges that "[t]he non-Indian Defendants, including but not limited to John M. Adams, have been treated completely differently by Plaintiff." [Dkt. 180]. Driving Hawk asserts that "Defendant John M. Adams has paid off the Plaintiff" and received his assets and business back, while Driving Hawk has been treated differently because of his national origin. [Dkt. 180].

The subject matter of Driving Hawk's counterclaim arose after the litigation began; therefore, the counterclaim is permissive, rather than compulsory. FED. R. CIV. P. 13(b) requires that all permissive counterclaims be of "the subject matter of the opposing party's claim." Plaintiff's claim deals with securities fraud relating to pre-litigation activities, not civil rights during the litigation process. Therefore, the Court will deny Driving Hawk's Motion to File Counterclaim Against Plaintiff. Order dated October 1, 2003, p. 2 (Dkt. 244.) In this case, Defendant again alleges "causes of action against the SEC for violation of his civil rights." Proposed Counterclaim, p. 1 (Dkt. 548.) For the reasons stated in the Court's previous order, the Motion for Leave to File Counterclaim will be denied. Defendant's Motion to Dismiss Defendant's Motion to Dismiss asks that the Complaint be dismissed for failure to state a claim against Defendant. Defendant also re-alleges violations of his civil rights in his Motion to Dismiss. Motion, p. 2 (Dkt. 549.) The section of the motion that discusses Defendant's Motion to Dismiss reads in its entirety: Of the Twenty Million Dollars ($20,000,000) seized from USRBT, Thirteen Million Eight Hundred One Thousand Six Hundred Fifty-Seven Dollars and Twenty-Four Cents ($13,801, 657.24) were approved for payment and the other claims were denied or deferred. Of the persons who the SEC claimed made deposits in USRBT and would be injured unless the Court issued a restraining order and seizure of assets, the Receiver found that Darwin Kal's and Don Storms' claims did not represent their own funds, that Raymond Pena and Mike Battistell had not filed claims, and that Dyer Graham lied at the preliminary hearing on this matter and the funds he claimed were not solely his. Only Peter Epps, Jr. and Richard G. McCarter were approved for payment. -2Case 2:02-cv-00581-EHC Document 616 Filed 09/21/2006 Page 2 of 3

1 Motion, p. 2 (Dkt. 549.) The rest of the Motion discusses alleged civil rights violations 2 against the SEC. The Court, having considered Defendant's Motion and Plaintiff's Response, 3 will deny Defendant's Motion. 4 Accordingly, 5 IT IS ORDERED DENYING Defendant's Motion for Leave to File Counterclaim. 6 (Dkt. 548.) 7 IT IS FURTHER ORDERED DENYING Defendant's Motion to Dismiss. (Dkt. 8 549.) 9 DATED this 19th day of September, 2006. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3Case 2:02-cv-00581-EHC Document 616 Filed 09/21/2006 Page 3 of 3