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

Case 1:03-cv-02684-CFL

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
SHELDON PETERS WOLFCHILD, et al., ) ) ) Plaintiff(s), ) ) Vs. ) ) ) REPLY TO DEFENDANT'S UNITED STATES, ) RESPONSE TO THIRD AMENDED ) COMPLAINT ) Defendant, ) No. 03-2684L ) ) Honorable Judge Lettow Julia DuMarce; Floyd E. Redwing; ) Lily Renville; Roxanna Red Wing Puchner; ) et al., ) ) Electronically filed on April 9, 2007 Plaintiff(s), ) ) ) Vs. ) ) ) UNITED STATES, ) ) ) Defendant. ) ____________________________________)

The Plaintiff(s) Julia DuMarce Group hereby responds to the Defendant, the United States' response to the Plaintiff(s) Motion to Revise Third Amend Amended Complaint (Dkt. No. 446). The original Plaintiff(s) represented by Mohrman & Kaardal and their associated counsel filed a motion to give notice to all lineal descendants that may be part of the beneficiary class relating to the above-entitled action. This Court in Wolfchild v. United

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States, 62 Fed. Cl. 521 (October 27, 2004) (hereinafter referred to as Wolfchild I) instructed the Plaintiffs to "either move for class certification or ...propose [a] means of providing notice in compliance with RCFC 14(b)." Id. at 555. Further, in Wolfchild v. United States, 68 Fed. Cl. 779, 795 (December 16, 2005) (hereinafter referred to as Wolfchild II), the Court stated that "the parties and the court have endeavored to craft a procedure for providing notice to all lineal descendants who are not now named parties in the action". According this Court in Wolfchild II, "...[p]ublication in which the shall be printed are: · The Circle-Native American News and Arts (Minnesota) ­ published since 1980 (monthly); circulation 15,000. · Native American Press/Ojibwe News (Minnesota) ­ published since 1980 (weekly); circulation 8,000. · Lakota Journal (Rapid City, South Dakota) ­ published since 2000 (weekly); circulation 10,000. · Indian Country Today (National) ­ published since 1981 (weekly); circulation 12,000. Plaintiffs' counsel also are directed to cause notice to be published in additional publications with similar coverage. Plaintiffs' counsel also are directed to cause notice to be in at least one newspaper of general circulation in the Minneapolis-St Paul area, one newspaper of general circulation in the southwestern area of Minnesota, and one newspaper of general circulation that is published in south-central Minnesota. Publication of notice shall occur in these newspapers at least once in each three successive weeks, if such newspapers are, published on a daily or weekly basis..." Appendix A, Id. At 804-805. This publication although extensive does not consider the hundreds of potential members of the beneficiary class that reside outside the State of Minnesota and those who do not read or have access to native based publications. Presently the attorneys' of the Julia DuMarce Group represent potential intervenors and plaintiffs from nearly 20 different states, including Mexico and Denmark. Obviously, many potential individuals that may

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or may not be part of this lawsuit and considered potential members of the beneficiary class would not be aware of this lawsuit based upon the above-indicated publications. Further, many members of the beneficiary class if thoroughly assimilated may have no contact with their relatives on or off the reservations and consequently, may still not have received notice of this lawsuit until recently. Although the Court extended the deadline to intervene twice, many potential members of the beneficiary class were not aware of their rights to find additional representation when denied representation by Mohrman & Kaardal and their various associates. The criteria for those attorneys consisted solely of the 1886 & 1889 Mdewakanton Sioux censuses and individuals had to be screened and approved by Dr. Barbra Buttes, who is a party plaintiff named in the original complaint filed by Morhman & Kaardal. However, Dr. Buttes certification may or may not be suspect based upon her party plaintiff classification. Further, Dr. Buttes admits the "...time consuming" review process of potential intervenors' documentation. Declaration of Dr. Barbra Buttes, Phd., Plaintiffs' Supplemental Opposition, Appendix Volume II, Document 373, pg 504. Obviously, the time period which has allowed Morhman & Kaardal to investigate and complete due diligence regarding their client took nearly three years and their client list is now in the thousands. 1 Further, Morhman & Kaardal have filed as of this date four amended complaints. Although Counsel for the Julia DuMarce Group has attempted to complete due diligence and review each applicant objectively and thoroughly, some individual applicants documents were not discovered in a timely fashion by clients and

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Counsel for the Julia DuMarce Group has had less than 9 months to review hundreds of documents and complete good faith review of potential intervenors' genealogy to decide on their representation of said individuals. In the rush to include all those potential members of the beneficiary class, numerous mistakes and typographical errors were unintentionally committed by counsel and their staff.

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many are still researching in an attempt to locate documents that may or may not exist due the relevant time period of their ancestors' lives. In many situations, birth and death certificates do not exist and unless the individual was Christianized there may or may not be baptismal documentation available. In addition, those that were denied representation by Mohrman & Kaardal and their various associates were not notified in a timely fashion of non-representation and consequently, were just recently contacted by relatives about the ability to retain other legal counsel to assist in their representation. Further, complicating matters was and is the false belief that only the 1886 and 1889 Mdewakanton censuses are to be utilized evidentiary purposes. REPLY TO DEFENDANTS' SPECIFIC OBJECTIONS Defendant indicates in their response to the Julia DuMarces' Groups' Memorandum of Law In Support of Revised Third Amended Complaint that they do not oppose the omission of certain individuals listed within the confines of the Motion to Revise the Third Amended Complaint; nor, do they object to the addition as an exhibit of the "Congressional Globe, pp. 514, dated January 26, 1863"; the incorporation of approximately forty-two plaintiffs who have previously moved for substitution of counsel. (Pls.' Mot. at 2-8). However, defendant does object to the alleged 668 additional plaintiff-intervenors contained on the Revised Third Amended Complaint. This Court has indicated that based upon "good cause" additional parties may be added pursuant to amended pleadings in this matter, subsequent to the July 12, 2006 deadline. The Defendant argues that the approximately 668 additional parties should not be allowed to be added pursuant to the Revised Third Amended Complaint due to lack

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of "good cause" and that allowing joinder of persons because of failure to name said parties on previously filed complaints or their birth after the deadline is inconsistent with Hoffmann-LaRoche v. Sperling, 493 U.S. 165, 170-01 (1989). The Defendant based upon dicta not holding, desires this Court take the legal position that as in the case of the Age Discrimination in Employment Act of 1967 (ADEA) "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 a diligent fashion. Id at 172. Under provisions of the ADEA any one person similarly situated may bring an action on behalf of themselves and other employees. Id. At 167-8. Clearly in the present situation no one member of the beneficiary class may represent the interests of another loyal Mdewakanton descendent. In addition, in this matter each individual must be represented by legal counsel and must be named as a party plaintiff to be included in the beneficiary class. Although, Counsel for the Plaintiffs/Intervenors understands the "distraction" these motions to amend may apparently have caused the Defendant, clients of Mohrman and Kaardal and the Court, it would clearly appear that justice so requires their admission as Plaintiffs in this case. Movants have correctly cited to the analysis of Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230 9L.Ed. 222 (1962), which the Court indicated that: in the absence of any apparent or declared reason ­ such as undue delay, bad faith or dilatory motive on the part of the movant ... undue prejudice to the opposing party by virtue of allowance of the Amendment, futility of the amendment, etc. ­ the leave sought should, as the rule require, be `freely given'. The only issue raised by the Defendant is one of prejudice to the government if additional parties are allowed to join, however, counsel for the Defendant point to no

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specific substantive allegation of prejudice, only general allegations of prejudice. Whether this case involves 2000 or 25,000 plaintiffs should not be a deciding factor regarding prejudice, the Defendant should be more concerned about defending the government against a substantial damage award than narrowing the beneficiary group. It is the movants position that the only reason the present motions to amend are allegedly disruptive is due to the fact that the Defendant continues to object to additional parties becoming involved in this matter. In Cortgiano v. Oceanview Manor Home for Adults, 227 F.R.D. 194, that Court addressed undue prejudice as follows:

...the fact giving rise to the claims of the Additional Named Plaintiffs Therefore, the proposed amendment would not: (a) require defendants to expend significant additional resources to conduct discovery and prepare For trial, or (b) significantly delay resolution in this case. Id. At 202. As mentioned previously, no trial has occurred, nor has a scheduling order been issued setting deadlines for discovery, consequently, movants believe in good faith that their Motion to Revise Third Amended Complaint should be granted. There is no allegation, nor proof that additional plaintiffs being added to this matter will negatively affect the Defendant in any manner, add significantly to trial preparation, or delay the resolution of this case. See, Minter v. Prime Equipment Co., 451 F3d 1196, 1205-08 (2006). According to the Court in Mitsui Foods, Inc. v. United States, 867 F.2d 1401, 1403 (Fed.Cir.1989), "It is well established that the grant or denial of an opportunity to

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amend pleadings is within the discretion of the trial court." 2 Further, the Supreme Court in interpreting Rule 15(a) in Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), stated that Rule 15(a) declares that leave to amend "shall be freely given when justice so requires". The Supreme Court further stated: If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason ­ such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. ­ the leave sought should, as the rule requires, be "freely given." Of course, the grant or denial of an opportunity to amend is within the discretion of the District Court . . . ." Foman, 371 U.S. at 182, 83 S.Ct. at 230 (emphasis added). As indicated in Foman, reasons or a basis for a denial of an amendment to the pleadings under Rule 15(a) may include delay, bad faith, dilatory motive, failure to correct deficiencies which could have been cured earlier and undue prejudice to the non-amending party by allowance of the amendment. See, Mitsui Foods, 867 F.2d at 1403-04.

CONCLUSION

The Intervenors respectfully request the Court grant their Motion to Revise their Third Amended Complaint, removing certain previously named intervenor(s)/plaintiff(s) and adding additional named intervenor(s) and herein reiterate their submission of Exhibits A thorough N incorporated by reference herein. Based upon RCFC(15)(a) this Court should allow amendments of pleadings "when justice so requires." Id. Based upon the factual allegations of the Intervenors regarding the unjustifiable lateness of
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See, Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330, 91 S.Ct. 795, 802, 28 L.Ed. 77 (1971).

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notification of non-representation by certain attorneys and the erroneous belief that denial of representation by Mohrman & Kaardal finalized their ability to be an active participant in this action in future proceedings, clearly underscores the necessity that this Court should grant said Revised Motion to Amend. Furthermore, movants are not attempting to make any additional claims or allegations not contained within their original Complaint-in-Intervention. No additional burden will be placed upon the Defendant, other than additional administrative resources that would not otherwise be normally expended. Within two weeks of this filing the Julia DuMarce Group will be transmitting a complied listing of all intervenors and plaintiffs represented presently by counsel for said group in PDF format to the Defendant Based upon the foregoing the Plaintiff(s) respectfully request that his Honorable Court allow them to amend their First, Second and Third Amended Complaint to be sustained to include other potential plaintiffs who have been denied representation by certain attorneys. More importantly it would seem apparent that "justice so requires" that these individuals have the opportunity to test their claims on the merits. RESPECTFULLY SUBMITTED this 9th day of April, 2007

_________/s/ Gary Montana___________ Gary J. Montana Attorney at Law N. 12923 N. Prairie Rd. Osseo, Wisconsin 54758 Telephone No. 715.597.6464 Telecopy No. 715.597.3508 Attorney for Intervenor(s)/Plaintiff(s)

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______/s/ Ron Volesky____________ Ron Volesky Attorney at Law 356 Dakota Ave. So. Huron, South Dakota 57350 Telephone No. 605.352.2126 Telecopy No. 605.352.7871 Attorney for Intervenor(s)/Plaintiff(s)

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