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

Case 1:03-cv-02684-CFL

Document 446

Filed 03/26/2007

Page 1 of 12

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

Case No. 03-2684L Hon. Charles F. Lettow Electronically Filed on March 26, 2007

DEFENDANT'S OPPOSITION TO DUMARCE MOTION TO REVISE THIRD AMENDED COMPLAINT (Dkt. No. 435) AND DUMARCE MEMORANDUM IN SUPPORT OF MOTION (Dkt. No. 441) Defendant, the United States, hereby responds to the Motion To Revise Third Amended Complaint (Dkt. No. 435) and Memorandum in Support of Motion to Revise Third Amended Complaint (Dkt. No. 441) filed by certain intervenors, the first-listed of which is "Julia DuMarce", represented by Gary J. Montana, Esquire (hereinafter "the DuMarce Group"). This motion should be denied insofar as it seeks to add what appear to be an additional 668 plaintiffintervenors to the case. Movants have not shown good cause why they did not seek intervention until nearly eight months after the Court's twice-extended deadline for doing so. Granting the DuMarce Group's motion would be inconsistent with the principle expressed in HoffmannLaRoche v. Sperling, 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. 165, 172 (1989). I. BACKGROUND

1

Case 1:03-cv-02684-CFL

Document 446

Filed 03/26/2007

Page 2 of 12

The DuMarce Group's original motion to intervene, and a motion to amend its original Complaint in Intervention, were granted by the Court's August 22, 2006, Order in this case. On October 11, 2006, the DuMarce Group filed a Motion to Amend their [First Amended] Complaint in Intervention (Dkt. No. 304). The crux of that motion was a request to add additional plaintiffs to the case, despite the July 12, 2006 deadline for motions to intervene. The United States filed its Opposition to the Motion to Amend the Complaint in Intervention (Dkt. No. 310) on October 23, 2006. At this time, the motion is still pending. In the DuMarce Group's Motion to Amend their [First Amended] Complaint in Intervention, their lawyers "assur[ed] this Honorable Court that they will not attempt in any manner to submit any additional amendments to their Second Amended Complaint." (Dkt. No. 304, at 4.). Disregarding that statement, the DuMarce Group filed a Motion to Amend their Second Amended Complaint in Intervention (Dkt. No. 397) on January 10, 2007 seeking to add an additional 240 plaintiff-intervenors to the case. The United States filed its opposition to the DuMarce Group's request on February 2, 2007 (Dkt. No. 419). The DuMarce Group's motion is still pending. On February 5, 2007, the Court heard argument regarding the numerous motions for intervention in this case. On March 8, 2007, the DuMarce Group filed yet another motion seeking to add additional plaintiffs to this case. See Motion To Revise Third Amended Complaint (Dkt. No. 435). On March 14, 2007, the DuMarce Group filed its Memorandum in Support of Motion to Revise Third Amended Complaint (Dkt. No. 441).1/ The DuMarce Group's latest motion seeks The DuMarce Group's Memorandum in Support of Motion to Revise Third Amended Complaint (Dkt. No. 441) was filed six days after the filing of its Motion To Revise Third Amended Complaint (Dkt. No. 435). RCFC 7(b)(1) provides that a motion may be accompanied by a brief or memorandum. The Rules of the Court of Federal Claims do not appear to 2
1/

Case 1:03-cv-02684-CFL

Document 446

Filed 03/26/2007

Page 3 of 12

to: 1) omit certain individuals listed as Plaintiff/Intervenors on their previously submitted Complaints; 2) add as an exhibit to the Group's previous filings a document that the DuMarce Group identifies as the "Congressional Globe, pp. 514, dated January 26, 1863" marked as Exhibit N; 3) add approximately 668 additional plaintiff-intervenors; and, 4) incorporate the names of forty- two alleged plaintiffs who have previously moved for a substitution of counsel. Pls.' Mot. at 2-8.2/ The United States opposes the request to add additional plaintiffs, for the reasons set forth below in this memorandum. The United States does not oppose the DuMarce Group's request to omit certain individuals from its previous filed Complaints, because the DuMarce Group states that a "lack of substantiated documentation" exists for such individuals and six of the named individuals are deceased. Pls.' Mot. at 2. As noted in its earlier response, the United States does not oppose the DuMarce Group's request to add the exhibit, marked as Exhibit N, to its previously filed and accepted Complaint. The United States, however, does not concede that the document movants seek to add has any relevance to any claims in the case, is authentic, or is complete. In keeping with the United States' Response to Motion to Substitute Legal Counsel (Dkt. No. 424), the United States does not oppose the incorporation of the names of the individuals who have previously moved for a substitution of counsel so long as such individuals contemplate that such a memorandum will be filed subsequent to the corresponding motion. It appears that certain requests made in the DuMarce Group's Motion To Revise Third Amended Complaint overlap with requests made in the Group's Motion to Amend their Second Amended Complaint in Intervention. For example, an examination of Paragraph 2 in each motion shows that many of the same individuals are listed in both pleadings. Plaintiff's request to add the document, marked as Exhibit N, is also made in both motions. In addition, it appears that included within the 668 proposed additional plaintiff-intervenors are the individuals the DuMarce Group sought to add in their Motion to Amend their Second Amended Complaint in Intervention. 3
2/

Case 1:03-cv-02684-CFL

Document 446

Filed 03/26/2007

Page 4 of 12

have already been admitted as plaintiff-intervenors to this case. II. DUMARCE GROUP'S REQUEST TO ADD ADDITIONAL PERSONS TO INTERVENE AS MEMBERS OF THEIR GROUP SHOULD BE DENIED

The United States opposes the DuMarce Group's request to add the over 600 additional persons listed in the proposed Revised Third Amended Complaint as intervenors, because it is untimely, good cause for late filing has not been established, and the addition of new parties prejudices the United States. The DuMarce Group's request to an additional 668 persons was filed approximately eight months after the July 12, 2006, deadline set by the Court. The DuMarce Group's attempt to once again add additional plaintiff-intervenors does not comply with the requirement of timely application for intervention. "In deciding whether to grant a motion to intervene, `the timeliness requirement is of first importance.'" In re Sonus Networks, Inc. Securities Litigation, 229 F.R.D. 339, 345 (D. Mass. 2005) (quoting Caterino v. Barry, 922 F.2d 37, 40 (1st Cir. 1990)) (internal citations omitted). Indeed, "according to the United States Supreme Court, both intervention of right and permissive intervention rely on timely application." Cherokee Nation of Oklahoma v. United States, 54 Fed. Cl. 116, 118 (Fed. Cl. 2002) (citing NAACP v. New York, 413 U.S. 345, 365 (1973)). "If such an application is untimely, intervention must be denied." Id. (emphasis added). "The requirement of timeliness is not a tool of retribution to punish the tardy would-be intervenor, but rather a guard against prejudicing the original parties by the failure to apply sooner." Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir. 1994) (citation omitted). See also John R. Sand & Gravel Co. v. United States, 59 Fed. Cl. 645, 651 (Fed. Cl. 2004), aff'd sub nom. John R. Sand & Gravel Co. v. Brunswick Corp., 143 Fed. Appx. 317 (Fed. Cir. 2005) (denying motion for intervention when the intervenor-applicants delayed approximately sixteen months in 4

Case 1:03-cv-02684-CFL

Document 446

Filed 03/26/2007

Page 5 of 12

filing their motion to intervene and case had progressed beyond the preliminary stage); Standard Space Platforms Corp v. United States, 35 Fed. Cl. 463, 466 (Fed. Cl. 1996) (finding motion to intervene untimely when the intervenor-applicant delayed six months before making an application for intervention). Examination of the DuMarce Group's filing makes clear that its request to add additional plaintiff-intervenors should be denied. For example, the DuMarce Group acknowledges that "the lack of legal expertise and acumen on the part of many potential clients and interveners has caused considerable delay . . . ." Pls.' Mem. at 4. The DuMarce Group attempts to explain away this delay. Such attempts, however, fail to overcome the untimeliness of their motion and the prejudice to the United States that will result from adding yet more parties to the case at this stage. The DuMarce Group makes vague allegations concerning the sufficiency of the notice provided regarding the lawsuit, but offers little details to support their claims.3/ In any event, the subject matter of this litigation was apparent from Plaintiffs' Complaint, filed in 2003. In addition, considerable efforts were made to provide all interested individuals with notice of this lawsuit. Furthermore, the Court extended the deadline for intervention twice. Ultimately, two and a half years passed between the filing of Plaintiffs' Complaint and the July 12, 2006 deadline for intervention. The DuMarce Group also alleges that thirty-three individuals seeking intervention are

The DuMarce Group contends that "notice published in Native American newspapers and the so-called `moccasin telegraph' is not sufficient notice. . . ." Pls.' Mem. at 3. The Group further states that many of the proposed intervenors live on Indian reservations and lack telephone and internet capabilities. Id. The United States notes, however, that "[t]he `timely application' requirement of Rule 24 applies to Indians as well as other litigants." United States v. Alpine Land & Reservoir Co., 431 F.2d 763, 767 (9th Cir. 1970). 5

3/

Case 1:03-cv-02684-CFL

Document 446

Filed 03/26/2007

Page 6 of 12

members of the "Felix Family who have been previously allowed to intervene." Pls.' Mot. at ¶ 7; see also ¶ 8 (alleging that "the Felix Family members now intervening in this matter consist of approximately thirty-three (33) individuals who comprise the first thirty-three names so listed on the proposed Revised Third Amended Complaint in bold lettering."). Examination of the Felix Group's First Amended Complaint, however, shows that these thirty-three individuals have never been identified as members of the Felix Family. Compare Felix Group's First Am. Compl. (Dkt. No. 313) (listing the names of the extended Felix Family members) with Pls.' Proposed Revised Third Am. Compl. at 15. In any event, the Felix Family members have been on notice ­ at a minimum ­ since the Court's Order of August 30, 2006, that Frances Felix would not be permitted to represent any individuals other than her immediate family. See, e.g., Dkt. Nos. 291 and 301. After granting the Felix Group's request for an extension, the Court required that the First Amended Complaint be filed by October 30, 2006. Ct's Order of October 5, 2006 (Dkt. No. 301). Accordingly, if these thirty-three individuals, who are alleged to be extended family members of Ms. Felix, desired to remain as parties to this lawsuit, they were required to secure counsel and file a proper Complaint in Intervention by October 30, 2006. These proposed intervenors make no attempt to show why they failed to do so. In addition, the allegation, contained in paragraph 13 of "a false understanding" on the part of three of the proposed intervenors regarding the status of their representation in this lawsuit also fails to establish good cause for movants' delay. Those individuals were on notice of this lawsuit. The burden lay with them to contact, communicate with, and obtain counsel. Their vague allegations regarding the status of their representation do not rise to the level of "good cause" to excuse their considerable delay in moving for intervention.

6

Case 1:03-cv-02684-CFL

Document 446

Filed 03/26/2007

Page 7 of 12

The remainder of the allegations contained in the DuMarce Group's motion contend, in essence, that certain individuals had difficulty getting legal representation to intervene in this lawsuit filed over three years ago. See, e.g, Pls.' Mot. at ¶ 10 (alleging that twelve of the individuals who seek to intervene were denied representation by the Law Firm of Mohrman & Kaardal); id. at ¶ 13 (alleging that 131 of the individuals who seek to intervene were denied representation by the Law Firm of Mohrman & Kaardal); id. at ¶ 15 (alleging that seven of the individuals who seek to intervene were denied representation by the Pierce Law Firm); id. at ¶ 17 (alleging that "many of those individuals who now seek to be added to the Third Amended Complaint as party plaintiff(s) were denied representation based upon the criteria set out by Mohrman & Kaardal and attorney Kettering"). These allegations do not rise to the level of "good cause" for the intervention of a group of over 600 additional plaintiffs. Even if the difficulty some persons have had in getting legal representation to intervene in this lawsuit, filed over three years ago, constituted "good cause" in the context of this case (which the United States does not concede), the generalized assertions in movants' papers about "many of [these] individuals" on their face do not apply to all of the persons seeking intervention. Such assertions are so vague and incomplete as to be almost meaningless. Moreover, "the inability to retain counsel and experts before expiration of the prescribed time period constitutes no legal justification for [the proposed intervenors'] delay. If it did, the principle of finality underlying filing deadlines, statutes of limitations and legal time bars would be rendered subordinate to the financial and practical vicissitudes of individual litigants." Deukmejian v. Nuclear Regulatory Com'n, 751 F.2d 1287, 1318 (D.C. Cir. 1984).4/ In summary, the DuMarce Group has not given A separate portion of Deukmejian v. Nuclear Regulatory Com'n, 751 F.2d 1287, 1318 (D.C. Cir. 1984) was vacated by San Luis Obispo Mothers for Peace v. U.S. Nuclear Regulatory 7
4/

Case 1:03-cv-02684-CFL

Document 446

Filed 03/26/2007

Page 8 of 12

the Court any basis to conclude that every one of the 668 proposed new plaintiffs has good cause to join the suit late. Weighing against this inadequate showing of good cause for intervention months after the deadlines, is significant prejudice to the United States from the addition of over 600 more individuals to the lawsuit. This litigation has generated a substantial volume of filings: over 440 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 an orderly fashion. For example, the most basic case-management task of keeping track of the names and affiliations of the persons named as plaintiff-intervenors, and their varying allegations and disposition of their motions to the Court, is burdensome and logistically difficult. It becomes even more burdensome and logistically difficult as Plaintiffs and existing Plaintiff-Intervenor groups continually add parties to the case. 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, 473 U.S. at 172. To grant intervention under

Com'n, 760 F.2d 1320 (D.C. Cir. 1985) (vacating section III. B). 8

Case 1:03-cv-02684-CFL

Document 446

Filed 03/26/2007

Page 9 of 12

the circumstances here, long after the Court's cutoff date, would contravene the principle of ensuring "orderly" joinder. Moreover, as is evident from the background set out above, the procedural history of DuMarce Group has been particularly difficult to follow, due to their many filings, amendments, and proposed amendments; the sheer number of persons involved; and the lack of clarity as to who and how many persons seek to join the case. For example, counsel for the United States, in the course of preparing a response to the DuMarce Group's Motion to Amend its [First Amended Complaint], attempted to understand, and count, how many new persons the DuMarce Group sought to add to the case, after reviewing the motion and comparing the captions of the existing and proposed pleadings. (Dkt No. 310, at 2). In its reply to the United States response, the DuMarce Group alleged that the United States had misstated the number of proposed new intervenors and claimed that the miscount was an "attempt [by the United States] to misconstrue the facts." (Dkt. No. 312). A comparison of the DuMarce Group's Proposed Revised Third Amended Complaint and the DuMarce Group's Proposed Third Amended Complaint (requiring six hours to complete) also reveals that approximately thirteen additional names appear on the caption without any discernible explanation. In addition, an attempt over approximately four hours to reconcile discrepancies concerning the names of minors reveals that there appear to be several hundred additional individuals appearing on the DuMarce Group's Revised Third Amended Listing of Minors (marked as Exhibit K) without explanation. These occurrences are emblematic of the burden on (and part of the undue prejudice to) the United States resulting from the DuMarce Group's repeated amendments and additions to its group. Yet, this same group has not cooperated with the United State's request to ease the basic

9

Case 1:03-cv-02684-CFL

Document 446

Filed 03/26/2007

Page 10 of 12

case-management tasks described above, and clarify the related facts, by providing an electronic list of the persons in their group who, they believe, have already been granted intervention. The United States requested most, if not all, counsel for the various intervenor groups to provide undersigned counsel's office with an electronic list of the names of the plaintiff-intervenors whom they represent in this litigation. (When making that request, counsel for the United States told opposing counsel that if it received such lists from all intervenor groups, it would share what it received with any other counsel who wanted a copy.) The United State's counsel made that request to the attorney of record for the DuMarce Group by letter, dated September 27, 2006. Counsel for the DuMarce Group never responded to that letter, and despite the fact that the DuMarce Group is one of the most populous in the case, never provided an electronic list containing the names of the plaintiff-intervenors in their group whose intervention has already been permitted. The undue burden of trying to follow, and manage, the DuMarce Group's repeatedly expanding list of members has been unnecessarily and especially onerous; and the DuMarce Group should not be allowed to add additional parties now especially after "assur[ing]" the Court in its October 2006 filing that it would not seek to add more parties to the case.5/ III. CONCLUSION For all of these reasons, the DuMarce Group's Motion To Revise Third Amended Complaint (Dkt. No. 435) should be denied, insofar as it seeks to add additional plaintiff-

5/

Indeed, even at this late date, counsel for the DuMarce Group states that they "believe in good faith that there still exist numerous individuals who are descendant's [sic] of the 1886 McLeod and 1889 Henton Censuses and other source documents." Pls.' Mot. at 9. This oblique statement suggests that the DuMarce Group's latest filing may not be its last attempt to add additional plaintiffs. 10

Case 1:03-cv-02684-CFL

Document 446

Filed 03/26/2007

Page 11 of 12

intervenors to the case.

Dated: March 26, 2007.

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

Laura Maroldy by Sara Culley 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 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

11

Case 1:03-cv-02684-CFL

Document 446

Filed 03/26/2007

Page 12 of 12

CERTIFICATE OF SERVICE I hereby certify that on this 26th day of March, 2007, I directed that the NOTICE OF ELECTRONIC FILING of the foregoing DEFENDANT'S OPPOSITION TO DUMARCE MOTION TO REVISE THIRD AMENDED COMPLAINT (Dkt. No. 435) AND DUMARCE MEMORANDUM IN SUPPORT OF MOTION (Dkt. No. 441) 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 26, 2007

/s Laura Maroldy by Sara Culley Laura Maroldy