Free Memorandum in Support of Motion - District Court of Connecticut - Connecticut

Case 2:92-cv-00738-JBA

Document 365

Filed 08/24/2006

Page 1 of 5

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

GOLDEN HILL PAUGUSSETT TRIBE OF INDIANS, Plaintiff, v. M. JODI RELL, GOVERNOR OF THE STATE OF CONNECTICUT, et al. Defendants,

: : : : : : : : :

Civil Action No.: 2:92 CV 00738 (JBA) Lead Case Number

AUGUST 24, 2006

Memorandum of Law in Support of Motion For Judgment On The Pleadings By Defendants Joseph E. Shapiro and Marjorie Shapiro

Defendants Joseph E. Shapiro and Marjorie Shapiro (the "Shapiros") hereby join in and adopt by reference, the Memorandum of Law in Support of Motion for Judgment on the Pleadings of Defendant Governor of the State of Connecticut (the "State"), dated August 2, 2006 (Doc. # 330), the Memorandum in Support of Motion for Judgment on the Pleadings of Defendants The United Illuminating Company ("UI") and The Southern Connecticut Gas Company ("SCG"), dated August 24, 2006 (Doc. # 362), and Section VIII of the United States' Memorandum in Support of Motion to Dismiss Amended Complaint, dated August 24, 2006 (Doc. #359). The Shapiros are only named as defendants in the case originally captioned as Golden Hill Paugussett Tribe of Indians v. Bachyrycz, No. 3:93cv694 (JBA). By Order dated February 23, 2000, the Court consolidated the Bachyrycz case with the above-captioned lead case. Although Plaintiff's allegations in the Bachyrycz case do not contain any allegations against USA, the State, UI or SCG, the motions for judgment filed by the State, UI and SCG, USA's Motion to Dismiss and the supporting memoranda of law are directed to all three of the consolidated cases, and the

Case 2:92-cv-00738-JBA

Document 365

Filed 08/24/2006

Page 2 of 5

arguments put forth by the State, UI and SCG in their briefs and by USA in Section VIII of its brief all apply with equal force to the claims asserted by Plaintiff in the Bachyrycz case. In support of this motion, the Shapiros refer the Court to, rely upon and incorporate by reference the State's Memorandum (Doc. # 331), The United Illuminating Company's and The Southern Connecticut Gas Company's Memorandum (Doc. #363), as well as Section VIII of USA's Memorandum (Doc. # 359). In addition, as discussed below, with regard to Plaintiff's claims against the Shapiros, the equities weigh heavily in favor of the Shapiros and against Plaintiff. The Shapiros are simply the current owners of and in possession of property at 952 Rainbow Trail, in Orange, Connecticut, which Plaintiffs allege was improperly transferred to the Shapiros' distant predecessors in title about 200 years ago. Even were Plaintiff able to prove that it is an Indian tribe which has resided in Connecticut "since time immemorial" (Plaintiff's Amended Complaint, July, 2006 [Doc. # 325], at ¶ 4) ­ which the Bureau of Indian Affairs ("BIA") has already found not to be the case1 ­ Plaintiff should be barred from pursuing its claims in these consolidated actions, under the doctrines of laches, long acquiescence and impossibility (See also, State's Memorandum [Doc. #331]). Plaintiff unreasonably, and without any explanation, delayed two centuries before pursuing its alleged claims. This delay significantly impaired the defendants' ability to defend against Plaintiff's now-ancient claims. The passage of so much time, the remote nature of the alleged transfers and the countless conveyances, subdivision and re-subdivision of the tracts of land in question have significantly impaired and prejudiced the individual defendants' ability

See, State's Memorandum (Doc. # 331 ), p. 5; See also, BIA Final Determination Against Federal Acknowledgement of the Golden Hill Paugussett Tribe, 69 Fed. Reg. 34388 (June 21, 2004), a copy of which final determination is attached to States' Memorandum (Doc. # 331) as Exhibit A. 2

1

Case 2:92-cv-00738-JBA

Document 365

Filed 08/24/2006

Page 3 of 5

to defend against Plaintiff's claims of tribal status and improper transfers. Plaintiff asserted no reasonable justification for its untimely assertion of it claims ­ in fact, it has offered no justification whatsoever. It is simply inequitable, prejudicial and unconscionable, on the highest order, for Plaintiff to wait for two centuries and countless conveyances to have passed before asserting, what have become, ancient claims against numerous current property owners; thereby requiring parties to defend against allegedly improper transfers to their early-American predecessors in title. If Plaintiff actually is an Indian tribe which has resided in Connecticut "since time immemorial," as it alleges, then it should have pursued such claims against the original transferees ­ nearly 200 years ago ­ or within a reasonable time after the alleged improper transfers occurred. Conclusion For the foregoing reasons, as well as for the reasons set forth in the State's Memorandum (Doc # 331), UI's and SCG's Memorandum (Doc # 363) and Section VIII of USA's Memorandum, the Motion for Judgment on the Pleadings By Defendants Joseph E. Shapiro and Marjorie Shapiro should be granted and Plaintiff's Amended Complaint should be dismissed as a matter of law.

Defendants JOSEPH E. SHAPIRO and MARJORIE SHAPIRO

By

Howard R. Wolfe /s/ Howard R. Wolfe, Esq. (Fed. Bar #ct08090) Goldman Gruder & Woods, LLC 125 Mason Street Greenwich, CT 06830 Tel.:(203) 983-6363 Fax:(203) 983-6262 Email: [email protected]

3

Case 2:92-cv-00738-JBA

Document 365

Filed 08/24/2006

Page 4 of 5

Certification I hereby certify that on August 24, 2006, the foregoing was electronically filed, with notice of this filing served by e-mail to all parties by operation of the Court's electronic filing system or by first class United States Mail, postage prepaid, to anyone unable to accept electronic filing. The service list is as follows: Mark Anastasi, Esq. Office of the City Attorney 999 Broad Street, 2nd Floor Bridgeport, CT 06604-4328 Gerald Weiner, Esq. Weinstein, Weiner, Ignal, Vogel & Shapiro 350 Fairfield Avenue P.O. Box 9177 Bridgeport, CT 06601 Michael D. O'Connell, Esq. O'Connell, Flaherty & Attmore 280 Trumbull Street Hartford, CT 06103-3598 John J. Kelly, Jr., Esq. Cantor, Floman, Gross, Kelly, Amendola & Sacramone 378 Boston Post Road P.O. Box 966 Orange, CT 06477 Thomas Behuniak, Esq. 44 Greenwood Circle Seymour, CT 06483 Michael K. Murray, Esq. Anthony M. Feeherry, Esq. Goodwin, Proctor & Hoar 53 State Street Boston, MA 02116 Robert L. Berchum, Esq. Berchum, Moses & Devlin, P.C. 75 Broad Street Milford, CT 06460 Bernard Wishnia, Esq. Roseland Professional Building 204 Eagle Rock Avenue Roseland, NJ 07068 Richard Blumenthal, Esq. Susan Quinn Cobb, Esq. Mark F. Kohler, Esq. P.O. Box 120 Hartford, CT 06141-0120 William A. Wechsler, Esq. Bailey & Wechsler 583 Old Slocum Road Hebron, CT 06248 Gerald L. Garlick, Esq. Linda Clifford Hadley, Esq. Krasow, Garlick & Hadley One State Street Hartford, CT 06103 Henry C. Winiarski, Jr., Esq. 941 Wethersfield Avenue Hartford, CT 06114-3137 Michael S. Hillis, Esq. Dombroski Knapsack & Hillis 129 Whitney Avenue New Haven, CT 06510 Kimball Haines Hunt, Esq. Hunt Leibert Chester & Jacobson 50 Weston Street Hartford, CT 06120-4626

4

Case 2:92-cv-00738-JBA

Document 365

Filed 08/24/2006

Page 5 of 5

Paul Ruszczyk, Esq. Highland Professional Building 408 Highland Avenue Cheshire, CT 06410 Andrew M. Eschen, Esq. U.S. Department of Justice Environment & Natural Resource P.O. Box 663 Washington, DC 20044-6208 John Pirina, Esq. Law Offices of Arnaldo J. Sierra 215 Washington, Street Hartford, CT 06106 Richard L. Albrecht, Esq. Austin K. Wolf, Esq. Cohen & Wolf 1115 Broad St., P.O. Box 1821 Bridgeport, CT 06604 Geoffrey A. Hecht, Esq. Caplan Hecht & Mendel 20 Trumbull Street, P.O. Box 9505 New Haven, CT 06534 Jeffrey Babbin, Esq. Wiggin & Dana One Century Tower 265 Church St., P.O. Box 1832 New Haven, CT 06508-1832 Kenneth M. Rozich, Esq. Law Firm of Edward D. Jacobs P.O. Box 1952 New Haven, CT 06509

Stuart A. Margolis, Esq. Berdon, Young & Margolis, P.C. 132 Temple Street New Haven, CT 06510-2671 James Trowbridge, Esq. Quinnipiac University Law School Clinic 275 Mount Carmel Avenue Hamden, CT 06518-1946 Janet Janczewski, Esq. Southern Connecticut Gas Company 855 Main Street Bridgeport, CT 06604-4918 John B. Hughes, Esq. U.S. Attorney's Office 157 Church Street, 23rd Floor P.O. Box 1824 New Haven, CT 06508-1824 Alexander H. Schwartz, Esq. 3695 Post Road P.O. Box 701 Southport, CT 06490 Thomas Gugliotti, Esq. Updike, Kelly & Spellacy One State Street P.O. Box 231277 Hartford, CT 06123-1277

Howard R. Wolfe /s/ Howard R. Wolfe

5