United States of America v. Scott Thompson d/b/a Isosceles LLC

Filing 28

ORDER denying 8 Motion to Dismiss; denying as moot 9 Motion for Extension of Time to Answer; denying as moot 8 Motion to Extend; denying as moot 16 Motion to Extend Deadlines; denying as moot 16 Motion for Extension of Time to Answer; granting in part and denying in part 17 Motion for Leave to Proceed in forma pauperis. Signed by Chief Judge Jeffrey L. Viken on 5/2/16. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.

CIV. 15-5060-JLV
ORDER

SCOTT THOMPSON, Individually, and
d/b/a ISOSCELES LLC,
Defendant.
Before the court is defendant Scott Thompson’s motion to dismiss the
government’s complaint (Docket 8), motion for an extension of time to file an
answer to the complaint (Docket 9), motion for an extension of time to
respond to the government’s motion for summary judgment (Docket 16), and
motion for leave to proceed in forma pauperis. (Docket 17). The government
filed a motion for summary judgment and a motion to dismiss Mr.
Thompson’s counterclaims. (Dockets 12 & 23).
Mr. Thompson’s motion to dismiss the government’s complaint for
fraud on the court is made pursuant to Fed. R. Civ. P. 60(b)(3) and (d)(3).
(Docket 8). The allegations in the motion reference Mr. Thompson’s separate
criminal trial before this court where Mr. Thompson was convicted of two
counts of false claims, two counts of submitting false documents to a
department or agency of the United States, two counts of wire fraud, and one
count of receiving stolen government money. United States v. Scott

Thompson, CR. 11-50054-JLV, Docket 295 at p. 1 (hereinafter “Thompson
Criminal”).
“To prevail on a Rule 60(b)(3) motion, [litigants] must show, ‘with clear and
convincing evidence, that the opposing party engaged in a fraud or
misrepresentation that prevented the movant from fully and fairly presenting its
case.’ ” Harley v. Zoesch, 413 F.3d 866, 870 (8th Cir. 2005) (quoting Atkinson v.
Prudential Property Co., 43 F.3d 367, 372-73 (8th Cir. 1994)). “A finding of
fraud on the court is justified only by the most egregious misconduct directed to
the court itself, such as bribery of a judge or jury or fabrication of evidence by
counsel. . . .” Greiner v. City of Champlin, 152 F.3d 787, 789 (8th Cir. 1998)
(emphasis added) (internal quotation marks and citations omitted).1
Mr. Thompson’s motion to dismiss is without merit. Mr. Thompson’s
arguments relate to his criminal proceeding and are properly raised in a
criminal appeal, which Mr. Thompson did not pursue, or a habeas action.
Mr. Thompson’s unsupported assertions fail to demonstrate by clear and
convincing evidence that the government engaged in a fraud or
misrepresentation in his criminal case such that he was unable to fully and
fairly present his case. The motion is denied.
On April 11, 2016, Mr. Thompson filed an answer and asserted
counterclaims against the government. (Docket 20). His motion for an
1“Rule

60(d)(3) functions as a saving clause: it allows courts to ‘set aside a
judgment for fraud on the court’ without a strict time bar.” Williams v. Dormire,
No. 4:10-CV-1413 CAS, 2010 WL 3270111, at *2 (E.D. Mo. Aug. 17, 2010)
(quoting Fed. R. Civ. P. 60(d)(3)).
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extension of time to file an answer to the government’s complaint is therefore
denied as moot. See Docket 9.
On April 15, 2016, Mr. Thompson filed a response to the government’s
motion for summary judgment. (Docket 21). On April 17, 2016, Mr.
Thompson filed a statement of disputed material facts. (Docket 22). Mr.
Thompson’s motion requesting additional time to respond to the
government’s motion for summary judgment is therefore denied as moot.
See Docket 16.
Mr. Thompson moves the court for leave to proceed in forma pauperis and
provided the court with his financial information. (Docket 17). The in forma
pauperis statute provides that “any court of the United States may authorize the
commencement, prosecution or defense of any suit, action or proceeding, civil or
criminal, or appeal therein, without prepayment of fees or security therefor . . . .”
28 U.S.C. § 1915(a)(1). The court reviewed Mr. Thompson’s financial
information. Noticeably absent from Mr. Thompson’s application to proceed in
forma pauperis is any reference to the $87,637.89 in restitution this court
ordered Mr. Thompson to pay in monthly installments. See Thompson
Criminal, Docket 295 at pp. 4-5. Notwithstanding this omission, the court finds
Mr. Thompson is indigent and qualifies for in forma pauperis status. The
motion is granted as to Mr. Thompson personally. To the extent Mr. Thompson
requests in forma pauperis status for Isosceles LLC, the motion is denied. See
Rowland v. California Men’s Colony, Unit II Men’s Advisory Council, 506 U.S.
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194, 196 (1993) (holding that only natural persons qualify for in forma pauperis
treatment under § 1915).
Good cause appearing, it is
ORDERED that defendant’s motion to dismiss the complaint (Docket 8)
is denied.
IT IS FURTHER ORDERED that defendant’s motion for an extension of
time file an answer (Docket 9) is denied as moot.
IT IS FURTHER ORDERED that defendant’s motion for an extension of
time to respond to the government’s motion for summary judgment (Docket
16) is denied as moot.
IT IS FURTHER ORDERED that defendant’s motion to proceed in forma
pauperis (Docket 17) is granted in part and denied in part consistent with the
above analysis.
IT IS FURTHER ORDERED that if either party seeks a Form 52 Order
prior to the court’s resolution of the government’s pending motions for
summary judgment and to dismiss Mr. Thompson’s counterclaims, a request
demonstrating the necessity of further discovery must be made within
fourteen (14) days from the date of this order.
Dated May 2, 2016.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE
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