Free Response to Motion - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ____________________________________ SHELDON PETERS WOLFCHILD, et al., ) ) Plaintiffs, ) ) v. ) ) THE UNITED STATES OF AMERICA ) ) Defendant. ) ____________________________________)

Case No. 03-2684L Hon. Charles F. Lettow Electronically filed on April 16, 2007

DEFENDANT'S RESPONSE TO TAYLOR GROUP'S MOTION TO AMEND COMPLAINT TO ADD AND REMOVE PLAINTIFFS, AND AMEND THE CAPTION TO CORRECT CERTAIN MISSPELLED NAMES, AND REMOVE JOHN DOE PLAINTIFFS (Dkt 448) Defendant, the United States, submits this response to the Taylor Group's Motion to Amend their Complaint (Dkt No. 448). The Taylor Group moves to amend its Complaint as follows: 1. 2. 3. 4. Dismiss all John and Jane Does; Remove approximately fifteen Plaintiff-Intervenors from the Complaint1/; Correct spelling of certain names (including maiden names); and Add additional intervenors nine months after this Court's July 12, 2006, deadline.

Defendant has no objection to the dismissal of John and Jane Does and the removal of the fifteen Plaintiff-Intervenors. Defendant has no objection in principle to the correction of misspellings and the updating of the names (to reflect maiden names), but there continue to be

Based on Defendant's review of the pleadings it appears, but is not clear, that the group seeks to remove the following fifteen individuals: Selena Marie Taylor, Melvin Taylor, Gene Taylor, Hallie Marie Taylor, Shantel Ann Taylor, Beth Elizabeth Taylor, Royce George Taylor, Dalein Taylor, Robert Lee Taylor-Mace, Tyler Manning, Brooke Marie Lambing, Shelby Lee Lambing, Marcus John and Morgan Gene Jacobs.

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substantial inconsistencies and discrepancies in the group's amended list that make it impossible for Defendant to consent to the amendments sought by the group. Defendant also notes that although in the Complaint and proposed First Amended Complaint movants state that some intervenors or proposed intervenors are minors and therefore bring suit through guardians or next friends, they fail to state which intervenors are minors, nor who, exactly, purports to bring suit or file motions on their behalf as parent, guardian, or "next friend." Lastly, Defendant objects to the group's attempt to add new parties to this litigation despite this Court's clear deadline of July 12, 2006. Defendant's position is explained in greater detail below. A. The Taylor Group's Amended List of Parties Contains Inconsistencies.

Defendant does not oppose the group's stated goal of "cleaning up" the list of parties and intervenors.2/ However, there are substantial inconsistencies between and among the group's list of parties ("Exhibit A"), on the one hand, and the lists in their original Complaint and the proposed First Amended Complaint, on the other, making it impossible to determine who the parties are and exactly what the group is attempting to do by way of its motion to amend, and its proposed First Amended Complaint. Therefore, Defendant objects to the Taylor Group's motion to amend and requests that this Court deny the motion and require the group to submit a clear, complete amended caption and a motion that explains and resolves the many current inconsistencies and discrepancies, some of which include: 1. "Gina Marie Taylor"

The name "Gina Marie Taylor" is included in the Taylor Group's proposed First

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With nearly 20,000 parties involved or attempting to be involved in this litigation, it is vital that the names of parties listed in the various Complaints be complete, clear and consistent. 2

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Amended Complaint. However, there is no "Gina Marie Taylor" listed in the group's original Complaint and there is no explanation in the group's motion to amend who this person is or why she is being included in the proposed First Amended Complaint. 2. "Naleta Taylor" (Exh. A at Page 8)

The Taylor Group moves to amend the Complaint to substitute "Nelitta Rose Taylor" for "Naleta Taylor." However, the group's proposed First Amended Complaint lists both a "Nelitta Rose Taylor" and a "Naleta Taylor." Again, movants' own filings raise more questions about the identity of the parties than they answer. 3. "Marguise Taylor" (Top of Exh. A at Page 8)

The Taylor Group moves to change the name "Marguise Taylor" to "Marguese Taylor." However, the original Complaint lists only a "Marquise Taylor" (with a "q" instead of a "g"). 4. "Marguessa Taylor" (Top of Exh. A at Page 8)

The Taylor Group moves to change "Marguessa Taylor" to "Marguessa Iron Shell Taylor." However, the proposed First Amended Complaint lists only a "Marguessa Iron Shell" (no "Taylor"). Furthermore, the original Complaint lists only a "Marquessa Taylor" (with a "q" instead of a "g"). 5. "Jayson Taylor"

In its proposed First Amended Complaint, the Taylor Group lists a "Jayson Taylor." However, there is no "Jayson Taylor" in the original Complaint. There is a "Jason Wade Taylor." The motion to amend does not address or explain this discrepancy. Defendant has no way to tell whether or not these names refer to the same person.

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6.

"Jason Taylor" (Exh. A at Page 8)

The Taylor Group moves to amend the Complaint to substitute "Jasen Dewayne Robinson Taylor" for "Jason Taylor." However, the group's proposed First Amended Complaint lists only a "Jasen Dewayne Robinson" (no "Taylor"). 7. "Tara Maceana Taylor" (Exh. A at Page 8)

The Taylor Group moves to amend the Complaint to substitute "Tara Maceana Bulizak Taylor" for "Tara Maceana Taylor." However, the group's proposed First Amended Complaint lists only a "Tara Maceana Bulizak " (no "Taylor"). Furthermore, the group's original Complaint only lists a "Tara Taylor," not "Tara Maceana Taylor." 8. "Mariah Ann Taylor"

In its First Amended Complaint, the Taylor Group includes a "Mariah Taylor." In the original Complaint, there is a "Mariah Ann Taylor." The two names may refer to the same person, but the Taylor Group's motion does not address or explain the name change.3/ 9. "Robert Lee Mace, Jr."

In its proposed proposed First Amended Complaint, the Taylor Group includes a "Robert Lee Mace, Jr." In the original Complaint, there is no "Robert Lee Mace, Jr." There is a "Robert Lee Taylor-Mace." The motion to amend does not address or explain this discrepancy. Defendant has no way to tell whether or not these names refer to the same person.

There were also eight instances where middle names were apparently added to the names listed in the proposed First Amended Complaint that were not included in the Original Complaint. The group does not describe or explain these changes in its motion. The names that were changed without explanation are: Larissa Marie Mace LaDeaux, Nora Jane Taylor, Shelly Marie Wold, LaVerne Marie Taylor, Waylon Farron Taylor, Nevitt Joseph Taylor, LaVerna Madea Rose Taylor and Tonya Lee Taylor. 4

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10.

"Izaiah Iron Shell"

In its proposed First Amended Complaint, the Taylor Group includes an "Izaiah Iron Shell." In the original Complaint, there is no "Izaiah Iron Shell." There is an "Izaih Geroge Taylor-Ironshell." The motion to amend does not address or explain this discrepancy. Defendant has no way to tell whether or not these names refer to the same person. The Taylor Group claims that it has been unable to include additional intervenors until now because it was its intent to "Amend the Complaint in Intervention [only] one time." (Group's Mot. at 2). However, the group's latest proposed amended complaint continues to include substantial inconsistencies. Those inconsistencies make it impossible to determine exactly who the parties are or how many potential intervenors there are. In addition, the proposed amended pleading does not make clear which members of the "Taylor Group" have already been granted leave to intervene and which persons are asking leave to intervene now. Defendant is entitled to certainty on these fundamental issues. Defendant objects to the Taylor Group's motion to amend because movants fail to resolve these various inconsistencies and ambiguities. Movants failed to make clear what it is they seek to do. Their motion addresses only a small number of the proposed amendments with specificity, and fails to explain numerous other changes to their Complaint. Their proposed First Amended Complaint fails to make clear or describe how it has been amended, leaving Defendant and the Court no means to identify the proposed amendments and alterations other than to undertake a tedious, line-by-line comparison of the two documents.4/ For instance, movants never list the parties they seek to remove from

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To avoid exactly this type of confusion about the party names and to understand who the parties are, Defendant sent a letter to several parties on September 27, 2006, (including counsel for the Taylor Group), requesting a complete electronic list of all parties represented by those 5

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their Complaint; and the only way to determine who has been removed is to compare the original Complaint with the proposed First Amended Complaint and see what names are missing. (See footnote 1, above). Furthermore, as described in greater detail above, even a line-by-line comparison reveals more questions than it resolves about what the Taylor Group is attempting to accomplish by way of its motion. For the foregoing reasons, Defendant requests that this Court deny the Taylor Group's motion at this time. Defendant favors the "cleaning up" of the Complaint and will reconsider its position if the Taylor Group submits a complete and accurate proposed amended caption that addresses and resolves the many inconsistencies and ambiguities their filings have created. B. The Group Fails to Establish a Basis for the Admission of Additional Intervenors.

The motion also seeks intervention in the case on behalf of two5/ additional potential Plaintiff-Intervenors, despite the Court's deadline of July 12, 2006, for filing motions to intervene. This Court should deny the motion, because the deadline for intervention passed over eight months ago and movants have not shown good cause why they should be permitted to intervene after the twice-extended deadline. To grant the motion to intervene would be inconsistent with the principle expressed in Hoffmann-LaRoche v. Sperling, 493 U.S. 165, 170,

counsel. Defendant repeated its request on December 8, 2006. However, to date, no such list has been provided to Defendant by Taylor Group's counsel.
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Defendant infers that there are only two new movants for intervention based on the fact that only two intervenors are specifically named and listed in Exhibit A of the group's motion to intervene. As discussed in the preceding section, there are additional names in the proposed First Amended Complaint that are not in the original Complaint and that are not discussed specifically in the group's motion. However, there is nothing in any of the pleadings identifying these individuals as additional intervenors. 6

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171 (1989) that the Court should oversee the joinder of additional parties in an orderly manner, a responsibility that includes setting cutoff dates, "as [the Court] was bound to do if the action was to proceed in diligent fashion." 493 U.S. at 172. This lawsuit was filed in 2003. The subject matter of the litigation was apparent from Plaintiffs' Complaint and from the Court's published decisions of October 2004 and December 2005. The Court twice extended the deadline for intervention in this case. It supervised the contents and publication of notice to be provided by the Plaintiffs to potential "lineal descendants." When it extended to July 12, 2006, the deadline for filing motions to intervene, it ordered that anyone who sought intervention after that date had to show good cause for his or her late application. [Dkt. 166]. Yet the Taylor Group's request to add additional persons was filed on March 29, 2007, over eight months after the July 12, 2006, deadline set by the Court. The Court should deny the Taylor Group's request to add additional persons listed in the caption of the Motion to Intervene as intervenors, because it is untimely and movants failed to establish good cause for their late motion.6/ Rule 24 makes timeliness a threshold requirement of any motion to intervene. RCFC 24. See, e.g., Cherokee Nation of Oklahoma v. United States, 69 Fed. Cl. 148, 152 (2005). "`Timeliness is to be determined from all the circumstances. And it is to be determined by the court in the exercise of its sound discretion.'" Id., quoting NAACP v. New York, 413 U.S. 345, 366 (1973). "The court's determination as to timeliness `will not be disturbed' `unless that

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Aside from the timeliness issue, the United States continues to maintain that Plaintiffs, including these potential Plaintiff-Intervenors, are not an "identifiable group of American Indians" within the meaning of the Indian Tucker Act, 28 U.S.C. § 1505. Defendant will not reiterate its arguments on that jurisdictional issue here, but reserves all of its defenses, including but not limited to its defenses on this issue. 7

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discretion is abused.'" Cherokee Nation, supra, 69 Fed. Cl. at 152, quoting NAACP, supra, 413 U.S. at 366. In this case, the question whether any motion to intervene is timely must be considered against the background of this Court's extensions of the intervention deadline, and the requirement that movants show "good cause" for late filing. The Taylor Group's motion fails to provide any basis upon which this Court reasonably could conclude that "good cause" exists for the untimely motion to intervene.7/ In essence, the Taylor Group alleges that these proposed intervenors "were unable to contact Taylor Group attorneys and provide family documentation prior to the deadline set by this Court." (Taylor Group's Mot. at 2). While the motion goes on to discuss the Taylor group in generic terms, it fails to explain why the two potential intervenors did not file a Complaint at the same time as the original Taylor Group or why it took them nearly nine months to file a motion to intervene. The Taylor Group's vague allegations about difficulty in obtaining family documentation do not constitute "good cause" in the context of this long-pending case. In its motion to intervene, the group attempts to establish the potential intervenors as lineal descendants by showing that they are related to already admitted Taylor Group intervenors. (Taylor Group's Mot. at Exh. A). Yet, the group fails to explain why the same method was not available to them over eight months ago

On the very first page of its motion, the Taylor Group states: "The Taylor Group make this motion based on a similar argument as set forth in Plaintiff's Motion to Amend Third Amended Complaint to Add and Remove Certain Named Plaintiffs filed by Plaintiffs Counsel, Mr. Erick G. Kaardal, on January 19, 2007." Incorporation by reference is prohibited by Rule 5.2(b)(3) of the United States Court of Federal Claims, which provides in pertinent part that "[a] brief or memorandum previously filed may not be incorporated by reference; any such incorporation will be disregarded." Therefore, the merits of the Taylor Group's motion rests on the arguments the group asserts in its own motion, not those that may have been asserted by other parties in other papers. 8

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or why they needed "family documentation" to establish that they are the children of existing intervenors. Although "courts will [generally] accept as true all well-pleaded, non-conclusory allegations in [a] motion to intervene," one of the factors the Court should consider is "the length of time during which the would-be intervenor actually knew or reasonably should have known of its right to intervene." Cherokee Nation, 69 Fed. Cl. at 152-53. The Taylor Group provides no detail whatsoever about when the potential intervenors knew about the litigation, what actions they took (if any) to preserve their rights and why they failed to meet this Court's July 12, 2006, deadline. Given the timeliness requirement for intervention under Rule 24, the Orders from this Court requiring that "good cause" be shown as part of any motion to intervene after the various deadlines had passed, and the Court's responsibility to ensure "orderly" joinder, movants' scanty allegations do not establish good cause for additional persons moving to intervene over eight months after the twice-extended deadline. Furthermore, the United States notes that contrary to movants' assertions, prejudice to it will result from the addition of individuals to the lawsuit nearly nine months after the extended deadline. As noted above, this litigation began over three years ago, and it has generated a substantial volume of filings: over 449 docket entries in this Court including a number of Opinions and Orders from the Court related to threshold issues. The continual addition of parties to this case is disruptive and prejudices the parties' rights and interests in resolving the litigation in a timely fashion. The need for the Defendant and the Court to address the several late-filed motions for intervention has prevented the case from proceeding more expeditiously, prejudicing all parties. Keeping track of the names and affiliations of the persons named as Plaintiff-

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Intervenors, and their varying allegations and disposition of their motions to the Court, is burdensome and logistically difficult. This is all the more true where, as here, the various papers filed are full of inconsistencies and raise unresolved questions regarding the identities of intervenors and movants for intervention. Moreover, the United States is entitled to have certainty and closure respecting the number and identities of the persons who are suing it in this action, as well as respecting the claims brought by those persons. Likewise, the Court and the other parties are entitled to certainty and closure regarding the number and identities of all parties. The Hoffman-LaRoche v. Sperling case, on which this Court relied, in large part, for its authority to issue notice concerning this suit to potential plaintiffs (Wolfchild v. United States, 68 Fed. Cl. 779, 797 (2005)("Wolfchild II"), endorses the application of cutoff dates set by the Court in advance, to ensure that joinder proceeds in an orderly fashion. Hoffman-LaRoche, supra, 473 U.S. at 172. To grant intervention under the circumstances here, long after the Court's cutoff date, would contravene the principle of ensuring "orderly" joinder, especially in view of the many unresolved questions intervenors' papers raise about exactly what they seek to do and who movants are. (See, e.g., Part A, above). For all of these reasons, the Taylor Group's Motion to Amend their Complaint (Dkt No. 448) should be denied.

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Dated: April 16, 2007.

Respectfully submitted, MATTHEW J. MCKEOWN Acting Assistant Attorney General Environment and Natural Resources Division

/s Laura Maroldy LAURA MAROLDY Natural Resources Section Environment and Natural Resources Division United States Department of Justice Benjamin Franklin Station, P.O. Box 663 Washington, D.C. 20044-0663 Telephone: (202) 514-4565 Facsimile: (202) 305-0506 Email: [email protected] Attorneys for the Defendant THOMAS ZIA SARA CULLEY Trial Attorneys Natural Resources Section Environment and Natural Resources Division United States Department of Justice Washington, D.C. 20044

OF COUNSEL: Janet Goodwin Angela Kelsey Office of the Solicitor United States Department of the Interior

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CERTIFICATE OF SERVICE I hereby certify that on this 16th day of April, 2007, I directed that the NOTICE OF ELECTRONIC FILING of the foregoing DEFENDANT'S RESPONSE TO TAYLOR GROUP'S MOTION TO AMEND COMPLAINT be sent by U.S. MAIL, FIRST-CLASS POSTAGE PREPAID, to: Kermit A. Belgarde, # 905798 Airway Heights Correction Center NORA UNIT B-39-L P.O. Box 1839 Airway Heights, WA 99001-1839 Francis Felix P.O. Box 141232 Minneapolis, MN 55414 Philip Baker-Shenk Holland & Knight, LLP 2099 Pennsylvania Avenue, NW Suite 100 Washington, DC 20006

Dated: April 16, 2007

/s Laura Maroldy Laura Maroldy

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