Opinion
Case Nos. 04-74700, 07-10083.
October 1, 2009
ORDER
This is a civil forfeiture case. The government seeks forfeiture of several real properties and $75,890.00 in currency on the grounds that they were acquired through or are the proceeds of health care fraud. Pending are Claimant Ali Makki's motion to suppress evidence illegally obtained (Dkt. # 25) and a motion by the government to limit discovery in connection with the motion to suppress (Dkt. # 33).
The docket report lists a motion to lift stay (Dkt. # 19), filed April 24, 2008, as pending. This motion was granted based on the Court's May 6, 2008 order vacating the stay. Also pending is a motion by the government for expedited hearing on its motion to limit discovery (Dkt. # 32). This motion is DENIED AS MOOT.
The gravamen of Makki's motion is the allegation that Makki's brother, Hussein Makki, was a government agent who provided information and documents from Makki's office without probable case and/or was used as a tool by the government to steal documents from Makki's office. As such, Makki argues that evidence obtained as a result of the search warrant is tainted and should be suppressed, along with any "derivative" evidence. Makki also seeks discovery regarding the alleged taint, which includes the depositions of federal agents. The government maintains that the evidence was not illegally obtained and/or would have been inevitably discovered and/or there is an independent source for the evidence.
In its motion to limit discovery, the government argues that Makki should not be entitled to discovery as to any alleged taint until the Court rules on whether the evidence would have been inevitably discovered or derived from an independent source.
Both motions have generated a lot of paper. In an attempt to bring the issues into focus, the Court directed the government to file a draft of the judgment of forfeiture and a statement of material facts in sufficient detail to support the judgment together with the documents cited. The statement of material facts was to trace the evidence (categorically) the government has to date to support its complaints and which was obtained independent of Hussein Makki. The government was also to file the evidence as exhibits. The government filed the requested materials, identifying nine categories of evidence it says are independent of any alleged taint. The government also furnished 29 exhibits which essentially form the evidence supportive of the complaint and which it says were independent of any taint.
At a hearing on the government's motion, in a further attempt to focus the case, the Court directed Makki to submit a paper taking five (5) of the documents appearing in the 29 exhibits as exemplars and explain why they should be suppressed. After Makki identifies 5 documents, the Court will hold a conference.
In the meantime, the parties were directed to begin discovery. The following scheduling order is now in effect: Discovery completed by: January 08, 2010 Motions filed by: February 08, 2010 Final Pretrial Conference set for: Tuesday, May 11, 2010 at 2:00 p.m. Trial set for: Monday, June 07, 2010 at 9:00 a.m.
The parties are also to adhere to the Motion Practice Guidelines attached as Exhibit A to this Order.SO ORDERED.
EXHIBIT A MOTION PRACTICE GUIDELINES
A. Scheduling
1. Motions to dismiss may be filed at any time. Motions for summary judgment should usually be filed following the close of discovery. If additional discovery is necessary, counsel should attempt to secure a stipulation for extension from opposing counsel. If agreement cannot be reached, the party desiring the extension should contact the court's case manager Julie Owens at (313) 234-5160 for direction before filing a motion. 2. After all briefs have been filed (motion, response and reply), the case manager will generally set a date for a hearing. The dates are firm and extensions will be granted only for good cause shown. Again, counsel desiring an extension should contact the case manager. 3. In order to avoid unnecessary travel by counsel, the Court will liberally grant requests to conduct hearings by conference call. The Court will entertain any reasonable suggestion that will reduce the time, expense, and inconvenience required to resolve a case.B. Protective Orders
Protective orders shall not be entered routinely. In addition to the requirements under Local Rule 5.3, which are to be strictly followed, a protective order including a provision for filing a pleading, paper or exhibit, etc. under seal shall be subject to the following limitations: The entire pleading, paper, exhibit, etc. may not be filed under seal. Only the portion of the document(s) which are not to be publically disclosed may be filed under seal. In such instances, the portion to be filed under seal requires an endorsement by the Court on a cover page. A party's presentment to the Court for the endorsement shall be accompanied by an explanation why the portion of the document(s) is confidential.
C. Briefing Guidelines 1. Motions for Summary Judgment
The guidelines which follow are from the Northern District of Illinois Local Rule 56.1, Motions for Summary Judgment. Copies of the Local Rule are available online athttp://www.ilnd.uscourts.gov/LEGAL/NewRules/New00045.htm.
For commentary, see the following article from the Chicago Bar Association: Sanil R. Harjani, Local Rule 56.1: Common Pitfalls in Preparing a Summary Judgment Statement of Facts, 16-OCT CBA Rec. 42 (Oct. 2002), available on Westlaw.
I. REQUIREMENTS
(a) Moving Party. With each motion for summary judgment filed pursuant to Fed.R.Civ.P. 56 the moving party shall serve and file —
(1) any affidavits and other materials referred to in Fed.R.Civ.P. 56(e);
(2) a supporting memorandum of law; and
(3) a statement of material facts as to which the moving party contends there is no genuine issue and that entitle the moving party to a judgment as a matter of law, and that also includes:
(A) a description of the parties, and
(B) all facts supporting venue and jurisdiction in this court.
The statement referred to in (3) shall consist of short numbered paragraphs, including within each paragraph specific references to the affidavits, parts of the record, and other supporting materials relied upon to support the facts set forth in that paragraph. Failure to submit such a statement constitutes grounds for denial of the motion. Absent prior leave of Court, a movant shall not file more than 80 separately-numbered statements of undisputed material fact.
If additional material facts are submitted by the opposing party pursuant to section (b), the moving party may submit a concise reply in the form prescribed in that section for a response. All material facts set forth in the statement filed pursuant to section (b)(3)(C) will be deemed admitted unless controverted by the statement of the moving party.
(b) Opposing Party. Each party opposing a motion filed pursuant to Fed.R.Civ.P. 56 shall serve and file —
(1) any opposing affidavits and other materials referred to in Fed.R.Civ.P. 56(e);
(2) a supporting memorandum of law; and
(3) a concise response to the movant's statement that shall contain:
(A) numbered paragraphs, each corresponding to and stating a concise summary of the paragraph to which it is directed, and
(B) a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon, and
(C) a statement, consisting of short numbered paragraphs, of any additional facts that require the denial of summary judgment, including references to the affidavits, parts of the record, and other supporting materials relied upon. Absent prior leave of Court, a respondent to a summary judgment motion shall not file more than 40 separately-numbered statements of additional facts. All material facts set forth in the statement required of the moving party will be deemed to be admitted unless controverted by the statement of the opposing party.
II. JOINT SUBMISSION
Upon the filing of the above statement and response, the parties shall integrate the moving party's statement and the non-moving party's response in a single document, jointly submitted, so that each paragraph contains the moving party's statement and non-moving party's response. If a non-moving party files an additional statement consistent with section (b)(3)(C), and the moving party files a reply, these statements shall also be jointly submitted in a single document. Please contact the Court with any questions regarding the joint submission.III. REQUIREMENTS FOR EXHIBIT BOOKS AND CASE BOOKS
File EXHIBITS in a separate appendix from the brief. Use a 3 ring binder. Index and tab exhibits. Highlight relevant parts of exhibits.
Counsel are encouraged to supply the Court with copies of only their main cases. Use a 3 ring binder. Index and tab cases. Highlight relevant portions of CASES — note on the title page the relevant pages highlighted and what the case stands for. Copies of cases from the official reporter are preferred. If LEXIS or WESTLAW or another format is used, the case should be submitted in dual column format. COPIES OF CASES SHOULD NOT BE ELECTRONICALLY FILED — they are not part of the original case file but rather assist the Court. They should be delivered directly to chambers.
IV. OTHER MOTIONS
Although these requirements are for motions for summary judgment, counsel are encouraged to follow them to the fullest extent possible for other motions, such as motions for entry of judgment and motions to dismiss.