Free Reply to 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, ) ) Defendant. ) ) ) and ) ) ) DANNY LEE MOZAK, et. al.. )
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No. 03-2684L Hon. Charles F. Lettow

Intervenors. ) ________________________________________________________________________ RESPONSE TO DEFENDANT'S RESPONSE TO MOZAK INTERVENORS' MOTION TO AMEND AMENDMENT TO THE SECOND AMENDED COMPLAINT IN INTERVENTION BACKGROUND Plaintiffs' filed the above-captioned litigation "on behalf of themselves and all other descendants of persons listed on the May 20, 1886 U.S. Mdewakanton census."1 Document 1. In Wolfchild v. United States, 62 Fed.Cl. 521 (2004), the Court acknowledged that "[o]ver 250 individuals are currently named plaintiffs" and that "plaintiffs have filed a motion for leave to amend their complaint to include yet additional named and anonymous plaintiffs." Id. at 524. In March 2005, Plaintiffs filed a motion regarding notice to lineal descendants and to require the United States to provide "Plaintiffs" refer to those persons represented by Mohrman & Kaardal and its joint counsel.
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a list of known lineal descendants.2 Document 63. In ruling on the Plaintiffs' motions, the Court in Wolfchild II 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." 68 Fed.Cl. 779, 795. The procedure is then set out in Appendix A. Id. at 801. The procedure includes a Legal Notice. That notice informs potential plaintiffs that they may contact Morhrman and Kaardal, P.A. or retain their own counsel. It further states that "[i]n all events, you may advise the court at any time if you believe you are not being fairly and adequately represented by counsel." Id. at 802. A deadline of April 28, 2006 was set. Notably, no other counsel represented plaintiffs as of the issuance of Wolfchild II, December 16, 2005.3 The Court has received numerous letters from potential plaintiffs who voiced numerous concerns. See in part Documents 109, 115, 122, 396; and, Court Order dated January 10, 2007 (various letters received by the Court after Wolfchild III issued). The Court extended the deadline to intervene twice. The final deadline set by the Court was July 12, 2006. From the time Appendix A reached the public up to the July 12, 2006 deadline there was a rush to secure counsel and submit motions. Mohrman and Kaardal, through their expert Dr. Barbara Feezor Buttes, had "established a protocol and process concerning how to identify individuals as lineal descendants" which "require[d] [her] to review each document of every individual to ensure the document's weight could link the individual to the 1886 and 1889 censuses of `Loyal Mdewakanton Sioux.'" Declaration of Dr. Barbara Feezor Buttes, PhD., Plaintiffs' Supplemental Opposition 2. In Wolfchild I, the Court instructed Plaintiffs to "either move for class certification or . . . propose [a] means of providing notice in compliance with RCFC 14(b)." 62 Fed.Cl. 521, 555 (October 2004). 3. At about the time Wolfchild II issued, Morhrman and Kaarrdal P.C. entered cocounsel agreements with a couple of attorneys. However, the plaintiffs represented by cocounsel had to be approved by Mohrman and Kaardal before their names were included in its complaints.
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Appendix Volume II, Document 373, page 504. Dr. Buttes further declared "[t]he review process is necessarily time consuming to assure the Court and others that my determinations are accurate." Id. From the onset of this litigation, Mohrman and Kaardal's plaintiff list has grown from a few hundred to several thousand. In contrast to the Mohrman and Kaardal process that was undertaken prior to plaintiffs being listed, the review process for the Mozak Group began after the motion to intervene was granted.4 Prior to the grant of intervenors' motion, it was imperative to gather names and file court documents. Intervenors' review process diligently proceeded. Errors in names, duplications of names and omitted names were discovered. Most of the current applicants were inadvertently left off of prior Complaints. In the Court's Opinion and Order dated August 22, 2006, Document 260, the Court listed the Mozak Group as comprising 808 intervenors. Defendant subsequently requested an electronic list of intervenors. Measures were undertaken to confirm the correctness of the names submitted to the Court while compiling the list for Defendant. Discrepancies were discovered. In several cases, an individual's name was similar to another and one was left off because they were considered to be the same person. In contrast, some individuals were listed twice under different names. There are also circumstances where the documents submitted to counsel were illegible or not received. This is especially true when documents were transmitted or attempted to be transmitted via facsimile. Finally, counsel sought to ensure that individuals were indeed related to the represented group

4. Counsel did have a retired BIA official review documents supporting lineal descendancy to a person appearing on the 1886/1889 censuses prior to the July 18, 2006 hearing. However, there was not time to review each individual's documentation prior to the hearing.
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which required a comprehensive genealogy. Once the genealogy was complete and all the discrepancies accounted for this motion was filed. Response to Defendant's Specific Issues Defendant does not oppose removal or correction of names as requested. Document 439 at 1. Further, Defendant does not oppose the addition of J.E.1 or Sheryl Denney Kramer. Defendant poses the need for additional information pertaining to Chelsey Starr Morales. It states "[t]he position of the United States on the request to add Chelsey Starr Morales to the suit, and on the question whether Chelsey Starr Morale's [sic] other minors" [sic] already listed in the existing version of the Complaint may proceed depends (in part) on the answer to that question." Id. at 2. Information as to the status of Chelsey Starr Morales' children will be disclosed. C.C.A., C.J.W., S.R.W., A.R.H., C.V.H., and K.L.M. are the biological children of Chelsey Starr Morales. In March of 2005, 4 of the 5 children were adjudicated to be Children in Need of Assistance by the Third Judicial Court of Iowa. The fifth child was not born at that time. The four adjudicated children were placed in the temporary care of their maternal grandparents. On June 6, 2006, the Iowa Court reviewed the status of the four children and ruled that the children would remain in the temporary care of the grandparents. Mary Wabasha White, the maternal grandmother, retained counsel herein and listed the four children among others as minor children to also be represented. Mary along with the minors she listed was included on prior Complaints. However, Chelsey also retained counsel herein and listed all of her biological children. Unfortunately, Chelsey and K.L.M. were not listed on prior Complaints. K.L.M. was born after the adjudication of the other four children and has always been in Chelsey's care. On March 1, 2007, the Iowa Court

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reviewed the case again; and, as of March 13, 2007, the maternal grandparents were granted permanency guardianship over the four children.5 Defendant seems to call into question the four "other minors" already listed. However, it is clear that those minors were rightfully named by the court-appointed guardian and should remain in the case. Additionally, because at the time the retainers were filed the children's placement was temporary, Chelsey, their biological mother, had the right to also name them. The current motion to amend requests that Chelsey and her youngest child K.L.M. also be included in this suit. Defendant, in general, opposes all other parties who seek to be added. Good Cause This Court set good cause as a ground for persons joining this litigation after the July 12, 2006 deadline. Good cause is defined as "[a] legally sufficient reason. Good cause is often the burden placed on a litigant (usu. by court rule or order) to show why a request should be granted . . ." BLACK'S LAW DICTIONARY 213 (7th ed. 1999). The movant's were not included in prior complaints for various reasons. Those reasons considered in the context of the background outlined supra along with the attached Affidavit of Counsel constitute a legally sufficient reason why the motion to amend should be granted. The Defendant asserts that "the Mozak Group's Complaint [does] not establish good cause why the new potential intervenors should be added." Document 439. It argues that allowing joinder of persons because of failure to include them in prior complaints or their birth after the deadline is inconsistent with Hoffmann-LaRoche v. Sperling, 493 U.S. 165, 170-01 (1989). 5. The Santee Sioux Nation Tribal Court granted the guardianship and the Iowa State Court dismissed the proceedings and released the children from its jurisdiction March 13, 2007.
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Hoffmann-La Roche addresses the narrow issue of "whether a district court conducting a suit of this type may authorize and facilitate notice of the pending action." Id. at 167. Hoffmann-La Roche was a collective action brought under the Age Discrimination in Employment Act of 1967 (ADEA). Further, the ADEA provides "any one or more employees for and in behalf of himself or themselves and other employees similarly situated" may bring an action against an employer. Id. at 167-8 citing 29 U.S.C. §216(b)(1982 ed.). Here, the Defendant strings together various dicta and surmises that Hoffmann-La Roche expresses the principle "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.'" Document 439 quoting Hoffmann-La Roche at 172. Intervenors' position is that the Hoffman-La Roche Court did not express a new principle per se; it merely observed that under ADEA provisions and Federal Rules of Civil Procedure (FRCP) that federal courts have the authority to exercise control and establish regulations. Specifically, the Court notes that under FRCP 83 and FRCP 16, courts enjoy considerable authority in managing their own affairs--lending further support for the Hoffmann-La Roche Court facilitating notice. Id. at 172-3. Notably, it is the language of FRCP 16, which is akin to RCFC 16, from which Defendant draws the ideas for what it claims is the principle expressed in Hoffmann-La Roche. Interestingly under RCFC 16(b): the court shall . . . enter a scheduling order that limits the time (1) to join other parties and to amend the pleadings; (2) to file motions; and (3) to complete discovery. Intervenors' motion cites to RCFC 15 (Amended and Supplemental Pleadings), RCFC 20 (Permissive Joinder of Parties) and RCFC 21 (Misjoinder and Non-joinder of Parties).

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RCFC 16 is not applicable. In fact, Plaintiffs filed a motion requesting an Order for a joint preliminary status report and preliminary scheduling conference and order August 18, 2006. Document 249. However, this Court in Wolfchild III denied the motion "without prejudice because that motion is premature." 72 Fed. Cl. 511, 540 (August 22, 2006). In the instant litigation no scheduling order has been entered nor has discovery been completed. Movants stated the correct analysis in their Motion to Amend. That is, 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 rules require, be `freely given.' Foman v. Davis, 371, U.S. 178, 182, 83 S.Ct. 227, 230 9L.Ed. 222 (1962). The only factor addressed by Defendant from Foman is prejudice. It states that addition of parties is: (1) disruptive; (2) prejudices the parties' rights and interests in resolving the litigation in a timely fashion; (3) prevented the case from proceeding more expeditiously; (4) burdensome and logistically difficult to keep track of names and affiliations of various intervenors; (5) entitled to have certainty and closure respecting the number, identities and claims of who is suing. Movants counter that Defendant's assertions of prejudice are not substantial. In Cortgiano v. Oceanview Manor Home for Adults, 227 F.R.D. 194, the court addressed undue prejudice as follows: . . . the facts giving rise to the claims of the Additional Named Plaintiffs are the same or virtually the same as those of the named plaintiffs. Therefore, the proposed amendment would not: (a) require defendants to

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expend significant additional resources to conduct discovery and prepare for trial, or (b) significantly delay resolution in this case. Id. at 202 (further citation omitted). In the instant case, the movants seeking to be added state the same claims as other plaintiffs. And as previously stated, discovery has not ensued nor has a trial date been set. Therefore, adding the movants as plaintiffs would not tax Defendant's resources, add significantly to trial preparation, or delay the resolution of this case. In Minter v. Prime Equipment Co., 451 F3d 1196 (2006), the court reviewed issues of timeliness and prejudice as they pertain to granting leave to amend pleadings. Id. at 1205-08. Although the Minter court's review does not discuss the addition of parties, its summation of what constitutes prejudice is relevant. In sum, the cases cited in Minter relate to the effect of granting the amendment on the nonmovant's defense. Id. Hence, if there is no detriment to the nonmovant's defense no substantial prejudice results. Conclusion Movants' are not making new claims or allegations. Further, the applicants herein share a common ancestor with all Mozak Group Intervenors previously listed. Additionally, a joint meeting of counsel has not been held and a scheduling order has not been set. While the addition of Intervenor names may require administrative work for Defendant, the same work would have been required had their names appeared on prior complaints. Nonetheless, Defendant has requested and Intervenors have complied in supplying an electronic list of Intervenors. Finally, no other party except for Defendant has opposed the addition of applicants. In analyzing prejudice, the prejudice to the moving party should its motion be denied must be considered. Here, individuals claiming

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to be lineal descendants and thereby trust beneficiaries would be substantially prejudiced by not being able to protect their rights by having their claims decided on the merits. The attached Affidavit of Counsel is made part of this Response by reference.

Dated: March 26, 2007

/s/ Kelly Hope Stricherz Kelly Hope Stricherz 213 Forest Ave PO Box 187 Vermillion, SD 57069 605.624.3333 [email protected] Attorney for IntervenorPlaintiffs Mozak Group

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