Free Motion to Amend Pleadings - Rule 15 - 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, ) ) Defendant. ) ) ) and ) ) ) DANNY LEE MOZAK, et. al.. )
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No. 03-2684L Hon. Charles F. Lettow

Intervenors. ) ________________________________________________________________________ MOZAK INTERVENORS' MOTION TO AMEND AMENDMENT TO THE SECOND AMENDED COMPLAINT IN INTERVENTION The Mozak Group of Plaintiff-Intervenors (hereinafter Intervenors) move to add and remove certain parties as plaintiffs under RCFC 20 and 21 and to amend the caption of their Amendment to the Second Amended Complaint in Intervention1 under RCFC 15 to reflect party changes. Intervenors' prior complaints and pleadings are incorporated herein by reference. The Mozak Group and additional parties all claim descendancy from the same person on the 1886 and 1889 Censuses. RCFC 20(a), Permissive Joinder, provides "All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect Per the Court's Order dated July 17, 2006, document number 220, Intervenors' letter was "treat[ed] . . . as an amendment to the second amended complaint in intervention filed on July 13, 2006 [document number 221] by the Mozak group."
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of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action. . . ." Accordingly, the parties herein requesting to be joined "assert [a] right to relief" in the above-captioned litigation "in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and that question[s] of law or fact common to all these persons will arise in the action." Id. RCFC 21, Misjoinder and Non-Joinder of Parties, provides in part "Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just." Additionally, RCFC 15(a), Amendments, provides in part ". . . a party may amend the party's pleading only by leave of court . . . and leave shall be freely given when justice so requires." In its analysis of Rules 15 and 21 of the Federal Rules of Civil Procedure, which closely follow this Court's rules, the United States Supreme Court stated: 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 the amendment, etc.--the leave sought should, as the rules require, be `freely given.' Foman v. Davis, 371 US 178, 182, 83 SCt 227, 230, 9 LEd2d 222 (1962). This Court has applied the Foman analysis in its determination of whether leave to amend should be granted. ATK Thiokol, Inc. v. United States, 72 FedCl 306, 313 (2006); Herndon v. United States, 36 FedCl 198, 202 (1996); see also Wright, Charles Alan, 6 Fed Prac & Proc Civ 2d § 1487.

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Additionally, this Court in its Order dated July 18, 2006, document number 233, ostensibly further requires "a showing of good cause why such potential plaintiffs were unable to request intervention prior to the deadline." Movants respectfully assert that there is neither apparent nor declared reasons of undue delay, bad faith or dilatory motive, repeated failure to cure deficiencies, undue prejudice to other parties in allowance of amendment, or futility of the amendment. Further, good cause can be shown as to why these applicants were not included on prior complaints. For all the reasons stated and because justice so requires, Intervenors and applicants respectfully request that this motion be granted to add and delete the parties listed in Exhibit 1 and leave granted to file the submitted Third Amended Complaint to reflect the changes of the parties. The party changes are attached as Exhibit 1. Dated: February 20, 2007 /s/ Kelly Hope Stricherz Kelly Hope Stricherz 213 Forest Ave PO Box 187 Vermillion, SD 57069 605.624.3333 email: [email protected] Attorney for Intervenor-Plaintiffs Mozak Group

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EXHIBIT 1 I. A. Persons seeking to be added to the Mozak Group of Intervenors: In the months following the grant of intervention to the Mozak Group, counsel

has undertaken to have a complete genealogy of the family created. Using that genealogy in analyzing my client list, the following mistakes/omissions were revealed and the person's name in bold print seeks to be added: 1. Sheryl Denney Kramer and her two adult children Trever Ballheim and Trinty Swank were not submitted as applicants on the Mozak Group's prior complaints. Nevertheless, all three had retained counsel in March 2006 and should have been included in the original Complaint. Unfortunately, Sheryl Denney Kramer was thought to be one and the same as Cheryl Denney Derby. Inadvertently, Kramer, Ballheim, and Swank were not listed. Lori Nieman and her minor son J.A.C., were inadvertently not included in prior Complaints. Lori Nieman's mother and sisters, Doris and Leslie, respectively applied and were granted intervention. Lori Nieman and her son J.A.C. should have appeared on Intervenors' Motion to Amend Replacement Complaint in Intervention dated July 11, 2006. Sandra Guabarrrama is Lori Nieman's sister and was not listed on prior Complaints but should have been. (see 2 above). Siblings Jonathan I. Starr and Gary Starr Redowl and their minor children M.C.S.1, M.C.S.2, and M.C.S.3; T.S.K., A.S.K., M.S.K.1, M.S.K.2, and S.S.K., were inadvertently left off prior complaints. Jonathan and Gary's other siblings were included on prior complaints. Michelle Mendoza (Campbell) and her minor children B.A.Z. and L.S.Z. were inadvertently left off prior Complaints. Michelle's mother, sisters, aunts, uncles and cousins are listed on prior complaints. Chelsey Starr Morales and her minor child K.L.M. were inadvertently left off prior complaints. Chelsey's other minors appear on a prior complaint. Joshua Thomas Starr is Chelsey's adult son who was also inadvertently left off prior Complaints. Maxine Rice and her minor children I.R.Z. and C.R.Z. were inadvertently left off prior complaints. Maxine is a sibling of Jonathan Starr and Gary Redowl. (see 5 above).

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8.

J.E.1, a minor child of Jolene Denney, was inadvertently left off prior complaints. She has a sister whose name is identically spelled with the exception of one letter. The sister is named on prior complaints. It was believed that the children were one and the same because of the similarity of their names. It has now been determined that they are individual children. Raymond Torrez was inadvertently left off of prior complaints. However, his mother, aunts, uncles, cousins and siblings appear on prior complaints. Ally Thomas and her minor child T.T.Z.., were inadvertently left off prior complaints. Ally is the adult daughter of Larry Starr who appears on prior complaints. Michelle Rouillard was inadvertently left off prior complaints. Her siblings Rhonda Rouillard, Dawn Rouillard and Stephanie Nelson all appear on prior complaints. K.J.R. is the minor child of Alicia Medina who appears on complaints. K.J.R. was born after Alicia retained my services and after the July 12, 2006 deadline so was not included on prior complaints. Michael Frank Campbell was inadvertently omitted from prior complaints. His mother Shirley Mae Campbell was included on prior complaints. Steven Bettis was inadvertently omitted from prior complaints. His mother Betty Ann Campbell was included on prior complaints.

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B. Newborns: All of the following Minors (name appears in bold) were born on or after the July 12, 2006 deadline: 1. 2. 3. 4. 5. 6. G.E.B. son of Crestina Curiel; S.E.C. son of Shane Chartier; A.D.5 daughter of Nicola Donodo; F.D.G. son of Francis Goodtrack Jr; E.M.T. daughter of Antonio Towner. D.R.M. daughter of Terri Medina

C. Ashley Rachelle Cunningham was recently adopted by Lester Ossont after a paternity test revealed that he is her biological father. Ashley was not previously submitted as an applicant. However, Lester is on prior Complaints.

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D. Denise Milford and David Lang are the adult children of Elaine Marie Saul. Denise resides in New Mexico; David in Wisconsin. Although Elaine Saul is related to the Mozak Group members she has not participated in this lawsuit to the best of Counsel's knowledge. Elaine purportedly resides in Winnebago, Nebraska. It is believed that Elaine does not want her children to participate in this lawsuit and therefore has not communicated any information to them. However, Denise and David desire to participate in this action as well as Denise's minor children: A.F., N.L., E.M.1, M.M., A.M.R-S, M.S.2, M.S.3, M.S.4, and H.T. E. E.V. is the biological child of Amanda Palacios who appears on prior Complaints. E.V.'s siblings are all listed on prior Complaints. E.V. was inadvertently left off prior complaints. II. Names in bold type to be deleted from Mozak Group of Intervenors: A. B. C. D. Edward L. LeMay. He is the same person listed as Edward D. LeMay. Nancy Ann Denney. She is the same person listed as Nancy Ann Remington. Cecelia A.R. Solis. She is the same person listed as Cecelia Lopez. Tony Mozak. He is the same person listed as Anthony Mozak.

III. Correction to Name A. Lee Stabler Redwing should be Lee Redwing Stabler.

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