Free Motion to Amend Pleadings - Rule 15 - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
SHELDON PETERS WOLFCHILD, et al., Plaintiff(s), Vs. UNITED STATES, Defendant(s), ) ) ) ) ) ) ) ) ) ) ) ) )

MEMORANDUM OF LAW IN SUPPORT OF REVISED THIRD AMENDED COMPLAINT No. 03-2684L

)
Julia DuMarce; Floyd E. Redwing; ) Lily Renville; Roxanna Red Wing Puchner; ) et al., ) ) Intervenor(s)/Plaintiff(s) ) ) ) Vs. ) ) ) UNITED STATES, ) ) ) Defendant. ) ____________________________________) Gary J. Montana Attorney at Law N. 12923 N. Prairie Rd. Osseo, Wisconsin 54758 Telephone No. 715.597.6464 Telecopy No. 715.597.3508 Ron Volesky Attorney at Law 356 Dakota Ave. So. Huron, South Dakota 57350 Telephone No. 605.352.2126 Telecopy No. 605.352.7871

Attorney(s) for Intervenor(s)/Plaintiff(s) 1

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INTRODUCTION The Intervenor(s)/Plaintiff(s) (hereinafter referred to as "Intervenors") hereby submit this Memorandum of Law in Support of their Motion to Revise their Third Amended Complaint, pursuant to RCFC 15(a), RCFC 19 (a)(2), RCFC 20 and RCFC 24(a). The Intervenors allege each and every one of the identified individuals listed on the Revised Third Amended Complaint-In-Intervention filed on July 31, 2006, are lineal descendants of the loyal Mdewakanton Dacotah Sioux of the State of Minnesota. Based upon the established standard for amending and supplementing pleadings the Intervenors pursuant to RCFC 15(a), as a matter of law should be allowed to amend their original Complaint as justice so requires. Further, their equal protection and due process rights will be violated if such permissive joinder is not allowed as per RCFC 19 (a)(2). The just adjudication of this action requires their joinder as a practical matter. As per RCFC 20

the intervenors now proposing to be added as Plaintiffs in this matter share a right to relief jointly or severally, which arises out of the same actions of the Defendant. Further, the proposed added individuals for intervention claim an interest in the property that is the subject of this action and as a practical matter their ability to protect their rights will be impaired and impeded if not allowed to intervene with the original plaintiffs.1 STATEMENT OF FACTS On July 11, 2006, the Intervenors filed their original Complaint-In-Intervention and in addition filed a Motion for Extension of Time to Intervene, with attached exhibits. On July 19, 2006, the Court denied the Motion to Extend Time to Intervene, but indicated
American Maritine Transp., 870 F.2d at 1560; see also Honeywell Int'l, Inc. v. United States, 71 Fed. Cl. 759, 2006 U.S. Claims LEXIS 176, 2006 WL 1737938, at *1 (June 23, 2006); Klamath Irrigation Dist. v. Untied States, 64 Fed. Cl. 328, 330-33 (2005).
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based upon "just cause" a party could amend their pleadings to add additional intervenors. As indicated in the substantive portions of the Intervernor(s)/Plaintiff(s) Motion to Amend their Second Amended Complaint, there exist hundreds, if not thousands of individuals who were denied representation by Morhman & Kaardal and their associate attorney Kettering based upon erroneous criteria, which narrowed the group to a select few individuals allegedly "certified" by Morhman & Kaardal. It is the belief of the attorney's for the Julia DuMarce Group that adequate notice was not given to all potential members of the beneficiary group. Clearly, notice published in Native American newspapers and the so-called "moccasin telegraph" is not sufficient notice, as potential members of this group, reside in wide and divergent areas of this country and some are stationed in foreign countries. In addition, many of these individuals live on reservations throughout the State of South Dakota, North Dakota, Montana and Nebraska and in many situations lack telephone and internet capabilities. Further, compounding the issue is their false belief as mentioned supra, that if denied representation by Mohrman & Kaardal and their associate attorney Kettering, that any further attempts to fall within the parameters of the beneficiary class is now futile. Many believe that the law firm of Mohrman & Kaardal have some quasi-judicial ability to determine all beneficiaries of the class of loyal Mdewakanton descendants and that the Court will adopt only those plaintiff(s) who have been certified by said attorneys.2

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At no time has any Order of this Court certified Dr. Buttes as an expert genealogist who has the authority to determine members of this class on behalf of the Court.

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Consequently, the Intervenor(s) believe "just cause" exists to allow for the revision of their Third Amended Complaint to include, inter alia, additional adult and minors to intervene for the purpose of determining an all-inclusive class of beneficiaries. Any undue delay relating to the litigation of this matter to it's finality is solely premised upon the manner in which publication and notice were erroneously assumed to be adequate. Clearly the lack of legal expertise and acumen on the part of many potential clients and interveners has caused considerable delay, but by the time hundreds of denied clients of Morhman & Kaardal and attorney Kettering were notified of non-representation their timely ability to find adequate legal counsel had been sorely compromised. ARGUMENT The only issue before the Court is whether the Intervenors should be allowed or permitted to amend their Second and Third Amended Complaint(s) to place additional names of adults on their First Amended Complaint and place additional minors names on Exhibit K of their Complaint. According to RCFC(15)(a):

A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.... The Intervenors request 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 be granted. Based upon RCFC(15)(a) this Court should allow amendments of pleadings "when justice so requires." Id Based upon the factual allegations of the

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Intervenors regarding the unjustifiable lateness of 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. 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 amend pleadings is within the discretion of the trial court." 3 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.

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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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In Foman, supra, the Supreme Court goes on to add that although the opportunity is within the discretion of District Court, an "outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules." Foman, 371 U.S. at 185, 83 S.Ct. at 230. Further this Court has stated in an earlier opinion that: "Mrs. Rodriguez has implicitly recognized this deficiency because she has sought leave to amend her complaint to elaborate her request for general property damages. In this instance, because no answer has been filed, an amended complaint may be submitted as a matter of course by Mrs. Rodriquez RCFC 7, 15(a). Even if the government had filed an answer RCFC 15(a) would obligate the court to grant leave to file an amended complaint "freely ... when justice so requires." " Rodriguez v. United States, 69 Fed. Cl. 487, at 495. In the present situation the allowance of an amendment to the complaint of the intervenors will not cause undue delay, nor will it cause any prejudice to the present plaintiffs or the defendant. Clearly, if any of the additional individuals attempting to be part of this lawsuit are entitled to relief and are denied said relief as a member of the beneficiary class, an immense injustice will have resulted. After decades of a consistent pattern of the government's breach of trust, any and all potential plaintiffs should be allowed to be part of this lawsuit irrelevant of the fact that they have had taken in a few instances, several months or more to find additional legal counsel. Another fact that goes to the heart of this issue is the fact that the law firm of Mohrman & Kaardal and associate Kettering are in most, if not all cases refusing to return evidentiary documents that have been previously submitted to their offices by denied individuals. This leads to the obvious outcome that many individuals now lack

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any evidentiary means to support their position that they should be a member of the beneficiary class. Such actions are not consistent with the underlying purpose of attempting to provide an adequate legal remedy and equal justice to those who have been denied representation by said lawyers and further, compounds their attempts to find additional legal representation due to the fact they do not have access to their supporting genealogical documentation. As the Supreme Court stated in Foman, " 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 . . ." Foman, 371 U.S. at 182, 83 S.Ct. at 230. Clearly, the present identified beneficiary class will be under-inclusive if this Court allows two (2) law firms to dictate the names of the plaintiffs who they feel in their own discretion should be a part of this lawsuit. The present intervenors and those attempting to become part of this lawsuit all believe that the underlying facts or circumstances relating to the loyal Mdewakanton should include all those who now are attempting to intervene and each and every one of them should be afforded an opportunity to test their claims on the merits. This Court in a previous decision (Wolfchild III), elaborated on the factors in the case of American Transport Maritime Transport, Inc. v. Untied States, 870 F.2d 1559, 1561 (Fed. Cir. 1989), regarding the analysis of whether intervention should be allowed, observing that, "[i]tervention is proper only to protect those interests which are of such a direct and immediate character that intervenor will either gain or lose by the direct legal operation and effect of the judgment." American Maritime Transp., 870 F.3d at 1561 (quoting Untied States v. American Telephone & Telegraph Co., 206 U.S. App. 317, 642 F.2d 1285, 1292 (D.C. Cir. 1980))"

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In addition this Court held, ...Each applicant claims a direct and immediate interest in the subject of this action, i.e., the trust created by the Appropriations Acts of 1888, 1889, and 1890. Moreover, those groups of applicants for intervention that assert means of proving descendancy different from the 1886 and 1889 censuses all make good-faith, non-frivolous claims that they are beneficiaries of the trust under the criteria specified in the Appropriation Acts. Wolfchild III, 72 Fed. Cl. 511, 520 (2006) Clearly, the additional intervenor's interests will not be adequately protected by the existing named plaintiff(s) comprising the Julia DuMarce Group now recognized by this Court as party plaintiffs. In this case, the ultimate issue is whether the Plaintiffs are entitled to compensation for the breach of trust committed by the Untied States to the loyal Mdewakanton and their descendants by transferring certain assets belonging to the loyal Mdewakanton to the Indian communities in question pursuant to the 1980 Act.4 The proposed intervenor's interests will not be adequately represented by the present plaintiffs in this matter; consequently, if not allowed to intervene they will not be considered part of the beneficiary class for damage award purposes.5 Further, as stated recently by this Court in Cherokee Nation of Oklahoma v. Untied States, 69 Fed. Cl. 148, 152-153 (Fed. Cl. 2005), this court has recognized that, "...courts will accept as true all well pleaded, non-conclusory allegations in the motion to intervene, absent shame, frivolity, or other objections. See, id. at 258; see also Mendenhall v. M/V Toyota Maru No. 11, 551 F.Ed. 55, 56 n. 2 (5ht Cir. 1977); Reich v. ABC/York-Estes Corp., 64 F.3d 316, 321 (7th Cir. 1995); Southwest Center for Biological Diversity v. Berg, 268 F. 3d, 810, 819-820 (9th Cir. 2001); see also 6 JAMES WM. ET AL., MOORE'S FEDERAL PRACTICE § 24.03, at 24-51 (3d ed. 2002).

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See, Karkuk Tribe of California v. United States, 28 Fed. Cl. 694, 697, (July 1993). See also, Akakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir.2003).

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Absolutely no objection by the Untied States regarding the Julia DuMarce Group's amendments to their First, Second and Third Amended Complaints has any allegations of shame or frivolity as a substantive objection to said amendments. The only objections are that the motions have been untimely and will somehow prejudice the United States. Such blanket objections without any specific factual reasons underlying their arguments undermines the very foundation of the United States arguments against allowing said amendments. No prejudice will occur to the Untied States if the Revised Third Amended Complaint is allowed to be sustained by this Court. According to Belton Indus., Inc. v. Untied States, 6 F.3d 756, 762 (Fed. Cir. (1993) the court must weigh the prejudice to the intervenor if intervention is not allowed and this prong measures only the prejudice caused by a potential intervenor's delay and not that caused by the intervention itself.6 In the present situation, there exist no Court proceedings that if intervention and the Revised Third Amended Complaint is allowed, that the Untied States will somehow be prejudiced. This Court has yet to try the issues of criteria for inclusion in the beneficiary class, no pending motions for summary judgment exist, no discovery has taken place, no depositions have been taken and no determination of damages have been litigated. CONCLUSION 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
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See, John R. Sand & Gravel Co. v. United States, 59 Fed. Cl. 645 (Fed. Cl. 2004), at 651, citing, Utah Ass'n of Counties v. Clinton, 255 F.3d 1246, 1251 (10th Cir. 2001).

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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.

RESPECTULLY SUBMITTED, this 14th day of March, 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) ______/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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