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Case 1:03-cv-02684-CFL

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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 February 2, 2007

DEFENDANT'S OPPOSITION TO DUMARCE MOTION TO AMEND SECOND AMENDED COMPLAINT Defendant, the United States, hereby responds to the Motion To Amend Second Amended Complaint (Dkt. No. 397) filed by certain intervenors, the first-listed of which is "Julia DuMarce", represented by Gary J. Montana, Esquire (hereinafter "the DuMarce Group"). The motion should be denied insofar as it seeks to add what appear to be an additional 240 plaintiffs to the case. Movants have not shown good cause why they did not seek intervention until months after the Court's twice-extended deadline for doing so. Furthermore, in the DuMarce Group's earlier (October 2006) Motion to Amend their [First Amended] Complaint in Intervention (which the United States opposed, and which is still pending), 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.] Yet that is what they seek to do, through their January 2007 motion (Dkt. No. 397).

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I.

BACKGROUND

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 plaintiff-intervenors 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. Now, the DuMarce Group has filed a Motion to Amend Second Amended Complaint (Dkt #397), seeking 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; and 3) add 240 additional plaintiff-intervenors. Pls.' Mot. at 2-4. The United States opposes the request to add additional plaintiff-intervenors, 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 five of the named individuals are deceased. Pls.' Mot. at 2. 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 does not concede that the document movants seek to add has any relevance to any claims in the case, is authentic, or is complete.)

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II.

THE REQUEST OF ADDITIONAL PERSONS TO INTERVENE AS MEMBERS OF THE DUMARCE GROUP SHOULD BE DENIED

The United States opposes the DuMarce Group's request to add the over 200 additional persons listed in the proposed 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 subject matter of this litigation was apparent from Plaintiffs' Complaint, filed in 2003. Yet the DuMarce Group's request to add 240 additional persons was filed approximately six 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. "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. "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 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 3

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application for intervention). The DuMarce Group's attempts to explain their delay fails to overcome the untimeliness of their motion and the prejudice to Defendant that will result from adding yet more parties to the case at this stage. The DuMarce Group alleges that thirty-three individuals seeking intervention are 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 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 Third Am. Compl. at 16-18. 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. The allegation, contained in paragraph 11 and Exhibit A, of "confusion" on the part of three of the proposed intervenors regarding the status of their representation in this lawsuit also

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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 that communications broke down with an attorney regarding the status of their representation do not rise to the level of "good cause" to excuse a six month delay in moving for intervention. Likewise, the vague allegation at paragraph 13 that "many of [these] 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" does not rise to the level of "good cause" for the intervention of a group of over 200 additional plaintiffs. See also Pls.' Mot. at ¶ 11 (alleging that eleven of the individuals who seek to intervene were denied representation by the Law Firm of Mohrman & Kaardal). 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. In summary, the DuMarce Group has not given the Court any basis to conclude that every one of the 240 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 Defendant from the addition of over 200 more individuals to the lawsuit. This litigation has generated a substantial volume of filings: over 415 docket entries in this Court including a number of Opinions and Orders from the Court related to

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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 procedural history of DuMarce Group in this case 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. As just one 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). That occurrence is emblematic of the burden on (and part of the undue prejudice to) Defendant resulting from the DuMarce Group's repeated amendments and additions to its group. Yet, this same group has not cooperated with Defendant's request to ease the basic casemanagement 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.

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Defendant 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, Defendant 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.) Defendant'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. III. CONCLUSION

For all of these reasons, the Motion To Amend Second Amended Complaint (Dkt #397) should be denied, insofar as it seeks to add additional plaintiff-intervenors to the case.

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Dated: February 2, 2007.

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

/s/ Laura Maroldy 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

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