Free 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., ) ) ) Plaintiffs, ) ) v. ) ) THE UNITED STATES OF AMERICA ) ) Defendant. ) ____________________________________)

Case No. 03-2684L Hon. Charles F. Lettow Electronically filed on March 29, 2007

DEFENDANT'S RESPONSE TO AMENDED MOTION TO SUBSTITUTE LEGAL COUNSEL (Dkt 438) Defendant, the United States, submits this response to the Amended Motion To Substitute Legal Counsel filed by "the Shirley Abdo-Arrow Family." (Dkt No. 438). This response is filed in conjunction with Defendant's previous responses (Dkt. Nos. 430 and 431) to Movants' original Motion to Substitute Counsel. The United States continues to take no position on the substitution of counsel but notes continuing discrepancies in the list of individuals provided in Movants' latest filing. The United States further objects to Movants' attempt to use this motion for substitution of counsel as a vehicle to add additional intervenors to the case at bar. Movants claim that their latest amended pleading is intended to address the concerns Defendant had regarding the inconsistency of the names in Movants' original motion to substitute counsel with the list of parties previously given leave to intervene in this case. (Movants' Mot. at ¶ 5). Movants assert that they have now reviewed prior pleadings and that this latest list of parties is consistent with the list included in their March 8, 2007 Revised Third

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Amended Complaint (Dkt. No. 435) (Movants' Mot. at ¶¶ 10). However, a comparison of Movants' latest substitution of counsel list to those names provided in the March 8th Revised Third Amended Complaint continue to show confusing discrepancies. While some of these discrepancies may be simple typographical errors, Defendant is entitled to certainty regarding who exactly Ron Volesky and Gary Montana intend to represent in this litigation and some means to verify that these individuals have been previously granted leave to intervene. The following are some of the inconsistencies:1/ 9. There are two "James Abdo's" listed in Movants' motion. Defendant presumes that these individuals are intended to match up with "James Abdo, Sr." and "James Abdo, Jr." in the March 8th Revised Third Amended Complaint but this is not made clear in the motion.2/ 17. The March 8th Revised Third Amended Complaint lists a "Joan Roan Eagle" but no "Joan Roan Eagle-Abdo." Defendant presumes these are the same person but cannot be certain based on the information provided.

By no means is this list exhaustive. There are additional spelling discrepancies between the names provided in this motion and those in the March 8th Revised Third Amended Complaint that have not been specifically highlighted in this response because it was fairly apparent that the discrepancy was due to typographical errors. For instance, there is no "Helen Schunk" or "Lucy Schunk" listed in the March 8th Revised Third Amended Complaint. However, there is a "Helen Shunk" and a "Lucy Shunk" listed therein. Additionally, it appears that the spelling for "Allishia Abdo," and "Vanessa Abdo" differ slightly from their spelling in the Revised Third Amended Complaint ("Allisha Abdo" and "Vannessa Abdo"). Given the shear number of Plaintiffs/Intervenors in this case, it should be incumbent upon Movants to be consistent in the use and spelling of the individuals' names in order to avoid continued confusion regarding the number and identity of the parties.
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Paragraph numbers correspond to Movants' list on pages 3-6 of their Amended Motion for Substitution of Counsel. 2

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17.

There is no "Bryson Jones" listed in the March 8th Revised Third Amended Complaint.

18.

The March 8th Revised Third Amended Complaint lists a "Tara Roan Eagle" but no "Tara Roan Eagle-Abdo." Defendant presumes these are the same person but cannot be certain based on the information provided.

Although Defendant takes no position regarding the substitution of counsel, Defendant continues to object to the addition of any intervenors who have failed to meet the Court's deadline of July 12, 2006. The motion should be denied to the extent it attempts to add new parties to the case, including the persons listed above in this memorandum. Furthermore, in order to alleviate future discrepancies and confusion, Defendant requests that Messrs. Montana and Volesky provide to the Court and the parties a complete corrected caption and, in a format to be determined, an electronic list setting forth the complete list of the correct names of the individuals they represent. In addition to the discrepancies described above, Defendant objects to Movants' apparent attempt to "add-on" additional interveners by way of this motion to substitute counsel. (Movants' Mot. at ¶¶ 6, 7 and 8). First, Movants summarily assert that it is their "good faith" belief that Josh B. Abdo and Sylvan S. Abdo were listed as John Does in prior "motions or Complaints" and "may have been listed on the Lydia Ferris Group." (Movants' Mot. at ¶ 6). A review of the Lydia Ferris Group list reveals that there is no reference to a Josh B. Abdo and Sylvan S. Abdo in that list. If Movants wish to amend their complaint to substitute real names for fictitious names, they should file a motion to amend their complaint and explain the basis for such an amendment. See Sassi v. Breier, 584 F.2d 234 (7th Cir. 1978) (permitting plaintiff to

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substitute real names for fictitious names upon discovery of the true identity of certain defendants); see also Fludd v. U.S. Secret Service, 102 F.R.D. 803 (D.D.C 1984). An "amended motion to substitute counsel" is not a proper vehicle to raise such an issue for the first time. Second, Movants refer to three minors, Aleena Zephier, Jacob J. Abdo and Megan Hope Abdo, who were not listed in prior filed motions or Complaints in Intervention. (Movants' Mot. at ¶¶ 7 and 8). It is unclear from Movants' motion whether they are seeking the intervention of these "add-on minors" within the boundaries of their motion or whether they are simply conceding that these individuals have not previously been granted leave to intervene but that Messrs. Montana and Volesky move to represent them nonetheless. Defendant requests that this Court reject Movants' motion to the extent it attempts to add these individuals as new parties to the case. Defendant has no objection to the removal from the list of the individuals listed in paragraph 9 of Movants' motion. Dated: March 29, 2007 MATTHEW J. MCKEOWN Acting Assistant Attorney General Environment and Natural Resources Division

s/Laura Maroldy by Thomas Zia 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] Attorney of Record for the Defendant 4

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THOMAS ZIA SARA CULLEY Trial Attorneys Natural Resources Section Environment and Natural Resources Division United States Department of Justice Washington, D.C. 20044-0663

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 29th day of March, 2007, I directed that the NOTICE OF ELECTRONIC FILING of the foregoing DEFENDANT'S RESPONSE TO AMENDED MOTION TO SUBSTITUTE LEGAL COUNSEL (DKT 438) 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: March 29, 2007

/s Laura Maroldy by Thomas Zia Laura Maroldy

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