Free Motion to Amend/Correct - 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.

Plaintiffs, Vs. United States, Defendant, and Robert Lee Taylor et. al., and Individuals Listed on the Following Pages Intervenors.

Case No. 03-2684L Judge Charles F. Lettow

TAYLOR GROUP MOTION TO AMEND COMPLAINT TO ADD AND REMOVE PLAINTIFFS, AND AMEND THE CAPTION TO CORRECT CERTAIN MISSPELLED NAMES AND REMOVE JOHN DOE PLAINTIFFS The Taylor Group move to add and remove certain parties as Intervenors under the United States Court of Federal Claims Rules 20 and 21 and to amend their Complaint in Intervention against the United States under Rule 15(a) to reflect the party changes. The amended complaint does not add any legal claim or legal allegation. 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. The changes to the caption and identification of proposed additional Taylor Plaintiffs are listed on Exhibit A attached hereto and made a part hereof.

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The Taylor Complaint in Intervention filed by the Taylor Plaintiffs was sent Via FedEx on July 7, 2006. The Complaint in Intervention reached the Clerk of the Court of Federal Claims on July 8, 2006. The Taylor Complaint is stamped "Received" and filed by Leave of the Judge with the Clerk of the U.S. Court of Federal Claims on July 13, 2006. All allegations, facts and exhibits attached thereto are hereby incorporated herein by this reference. Attorneys for the Taylor Plaintiffs have received requests from additional lineal descendants of George Taylor who were unable contact Taylor Group attorneys and provide their family documentation prior to the deadline set by this Court. The Taylor Group Plaintiffs were denied representation by Mohrman & Kaardal and the Kettering Law Firm just prior to the deadline set for intervention. Counsel for the Taylor Group Plaintiffs named those lineal descendants in the initial Complaint in Intervention who had contacted and provided the appropriate family documentation prior to the deadline. Counsel for the Taylor Plaintiffs have been working to incorporate all interested Taylor Group Plaintiffs names and family documentation since the Complaint in Intervention was filed. The process of incorporating those Plaintiffs who are proper lineal

descendants has been time consuming. It has been the intent of the Taylor Plaintiffs to Amend the Complaint in Intervention one time. All Plaintiffs added through the

amended complaint have the same lineal descendancy as the original Taylor Group. All additional Taylor Plaintiffs rely on the same argument as set forth in the Taylor Group Complaint in Intervention. Rule 21 allows for the addition or removal of parties through a motion and order of the court at any stage of an action "on such terms as are just." Rule 20 allows for

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permissive joinder if "they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions, occurrences and if any question of law or fact common to all these persons will arise in the action." The proposed parties meet the requirements of Rules 20 and 21. Also granting the Taylor Groups motion will not prejudice the United States nor cause a delay in the litigation. Courts have allowed the joinder of parties under Rule 20 of beneficiaries in an action against a trustee for breach of fiduciary duty. The addition of certain parties is required because they are trust beneficiaries under the criteria Plaintiffs' established to identify lineal descendants of the May 20, 1886 census and its 1889 supplement, and the law of this case. The additional parties reflect the birth of children of current plaintiffs, siblings of families already identified as plaintiffs not previously designated, and corrections to individuals not previously designated as plaintiffs. The removal of certain parties is due to their choice not to participate with Intervenors. The Taylor Group requests removal of all John Doe plaintiffs. The Taylor Group move to Amend the Caption to correct the inadvertent misspelling of individuals names on the original Complaint in Intervention. Counsel for the Taylor Group received were notified by and supporting evidence of their filing information just days prior to the deadline set by this Court. Due to the time restraints some names were designated incorrectly. Further, the Taylor Group previously listed several Plaintiffs by their maiden names. The Amended Complaint corrects those

previous designations to show Plaintiffs current names along with their maiden name s.

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The United States will not be prejudiced with the joinder or removal of the parties. The litigation remains in its adolescence. Despite the court's disposition of one breach of fiduciary duty, there remain outstanding summary judgment motions on lega l issues of other identified breaches. No final determination of liability has been made nor final relief determined or sought. Furthermore, there is no scheduling order; no

discovery; and the United States, as trustee, has not identified the specific lineal descendants as trust beneficiaries in light of other Intervenors' theories of assertion of how to determine a trust beneficiary. The addition or removal of certain parties will not put the Taylor Plaintiffs in any tactical advantage over the United States. The added parties rely on the same arguments as set forth in the original Taylor Group Complaint in Intervention which was filed on July 13, 2006 prior to the courts deadline. The additional parties' claims arise out of the same transactions or occurrences as the original Taylor Plaintiffs' claims. The additional parties also claim to sue as

individuals on behalf of themselves and all other descendants of persons listed on the May 20, 1886 Mdewakanton census. Virtually all, if not all, of the legal issues, are common among the additional plaintiffs as are the factual issues. Rule 15(a) states that "a party may amend the party's pleadings only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Courts have recognized "[t]he federal rule policy of deciding cases on the basis of the substantive rights involved rather than on technicalities requires that [the] plaintiff be given every opportunity to cure a formal defect in his pleadings." Thus,

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the liberal rule gives effect to the federal policy in favor of resolving cases on their merits instead of disposing of them on technicalities. The addition and removal of certain parties will not prejudice the defendant, is sought in good faith, will not cause undue delay in the litigation, and is not futile for lack of merit and meets the elements of Rule 15(c). The United states is not prejudiced because of the present status of the case; no scheduling order, no discovery, no resolution of pending motions for partial summary judgment on liability, no determination of damages, etc. The United States remains in the same position as before the motion.

CONCLUSION The proposed parties are trust beneficiaries and lineal descendants of an individual on the Mdewakanton 1886 census and its 1889 supplement. Their respective and individual identity correspond with the criteria used by the Court--the law of this case. The proposed parties' claims against the United States also relate back to the previously filed Complaint in Intervention and all have common questions of law and fact. The United States will not lose its present position tactically or strategically if the proposed parties are added. Because of the present status of the case, the United States is not prejudiced. Finally, joinder of the proposed parties as plaintiffs will correct minor technicalities and avoid jeopardizing their right of claim as trust beneficiaries against the United States.

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Therefore, The Taylor Group Motion to Add Plaintiffs and Remover Certain John Doe Plaintiffs should be granted and leave granted to file the submitted Amended Complaint to reflect the changes of parties. Dated this 29th day of March, 2007. /s/Garrett J. Horn Horn Law Office LLC P.O. Box 886 Yankton, SD 57078 (605) 260-4676 Telephone (605) 260-0624 Facsimile Attorney of Record for Intervenors

/s/Creighton A. Thurman Thurman Law Office LLC P.O. Box 897 Yankton, SD 57078 (605) 260-0623 Telephone (605) 260-0624 Facsimile Attorney of Record for Intervenors

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EXHIBIT A Adults With Immediate Family Plaintiff Members Not Previously Designated. Clayton William Hill/Mace, Jr. is another child of Clayton Clayton William Taylor Mace Sr., plaintiff; brother to Larissa Marie (Mace) LaDeaux, plaintiff; brother to Elysia Terrill Mace, plaintiff; brother to Felicia Lea Mace, plaintiff; brother to Destin Ronald Mace, plaintiff; brother to Kieshia Kathleen Mace, plaintiff; brother to Shonda Maggie Mace, plaintiff, who are listed on the Taylor Group Complaint in Intervention. Tashia Shantell Mace is another child of Clayton Clayton William Taylor Mace Sr., plaintiff; sister to Larissa Marie (Mace) LaDeaux, plaintiff; sister to Elysia Terrill Mace, plaintiff; sister to Felicia Lea Mace, plaintiff; sister to Destin Ronald Mace, plaintiff; sister to Kieshia Kathleen Mace, plaintiff; sister to Shonda Maggie Mace, plaintiff, who are listed on the Taylor Group Complaint in Intervention. Previously Designated Plaintiffs With Name Corrections First Name Middle Last Name AKA/MAIDEN

Previous Designation Logan Allen Changed to Logan Allen Austin Previous Designation Clayton William Changed to Clayton William Previous Designation Francisca Changed to Francisca Larissa Previous Designation Esperanza Rosario Changed to Esperanzo Rosario Previous Designation Joshua John Changed to Joshua John

Mace Mace

Taylor Taylor Mace, Sr.

Ladeux Perez-LaDeaux

Mace Mace

Lenners Leners

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Previous Designation Marguise Changed to Marguese Previous Designation Marguessa Changed to Marguessa Previous Designation Jason Changed to Jasen Dewayne Previous Designation Darnel Changed to Darnel Previous Designation Daryl Changed to Daryl Previous Designation Shawn Changed to Shawn Farron Eugene Previous Designation Tara Maceana Changed to Tara Maceana Previous Designation Gregory Allen Changed to Gregory Allan Previous Designation Naleta Changed to Nelitta Rose

Taylor Taylor

Taylor Iron Shell Taylor

Taylor Robinson Taylor

Taylor Robinson

Robinson Taylor

Robinson Taylor

Taylor Denney Taylor

Taylor Bulizak Taylor

Taylor Taylor

Taylor Taylor