Free Response to Motion - 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 OF AMERICA ) ) Defendant. ) ____________________________________)

Case No. 03-2684L Hon. Charles F. Lettow Electronically filed on February 2, 2007

DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION TO AMEND THIRD AMENDED COMPLAINT TO ADD AND REMOVE CERTAIN NAMED PLAINTIFFS Defendant, the United States, submits this memorandum in opposition to Plaintiffs' Motion To Amend Third Amended Complaint To Add And Remove Certain Named Plaintiffs (Dkt # 406). Defendant does not oppose the removal of the names of identified deceased persons from the caption of the existing Revised Third Amended Complaint.1/ Defendant opposes Plaintiffs' request to add additional Plaintiffs to the case. First, Plaintiffs have failed to show good cause why these additional approximately 180 persons2/ could not have joined the suit before the July 12, 2006, deadline. Even some of those listed as "newborns" were born before that deadline. Plaintiffs themselves acknowledge that the

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Defendant also does not object to the correction of the caption to remove the name of the "Previously Identified Plaintiff to be Removed," whose name is listed by Plaintiffs in Addendum A, "Proposed Additional Plaintiffs and Additional Changes to Caption."
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Defendant arrived at this approximate number by hand-counting the names listed by Plaintiffs in Addendum A, "Proposed Additional Plaintiffs and Additional Changes to Caption."

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"deadline for joinder of Plaintiffs" has "occurred,"3/ yet offered no good cause for more persons to join now. Second, contrary to Plaintiffs' assertions, Plaintiffs' repeated amendments to its Complaint are prejudicial to the United States. The proposed Fourth Amended Complaint is in fact the sixth iteration of Plaintiffs' claims and list of parties submitted to the Court. (Plaintiffs filed in April 2006, and then requested to take back, a proposed Third Amended Complaint (Dkt # 130; Dkt # 231); then filed a proposed Revised Third Amended Complaint in July 2006 (Dkt # 231); then filed another Revised Third Amended Complaint in August 2006 (Dkt # 289). As this Court knows, this case presents severe case management burdens stemming in part from the sheer number of litigants. The more so, as the numbers and names keep changing. With each amendment to Plaintiffs' Complaint, the Defendant has had to expend significant time and resources to accomplish the most basic tasks of understanding what changes Plaintiffs have made to their Complaint and attempting to update and maintain current and accurate records of who is suing it in this case. Plaintiffs' addresses have never been provided. Among other things, this makes it impossible to determine whether two names that appear identical are in fact, the same person, or two different people. In a case in which such matters as lineage, tribal affiliation, and severance of tribal relations may play a significant role, it is particularly important for the Defendant to know for certain who the Plaintiffs (and Plaintiff-Intervenors) are. Plaintiffs' continued amendments prejudice Defendant by making this already-difficult task more onerous.

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Plaintiffs so state in their Motion To Vacate Order To Stay Briefing (Dkt # 405), offering the fact that the deadline for joinder of plaintiffs has passed, as a reason to vacate the stay on their motions for partial summary judgment. (Dkt # 405, at 5.) 2

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In their motion, Plaintiffs seek to add yet more parties. They submitted new Exhibits A, B, and C, to their proposed Fourth Amended Complaint without making clear how the names in their Exhibits A, B, and C relate to the names in the caption of their proposed pleading, or the previous iteration of the Complaint and its Exhibits A, B, and C.4/ Plaintiffs failed to provide the most basic information, such as an accurate number of the existing Plaintiffs; an accurate number of the new persons they wish to add as Plaintiffs; and who purports to sue on behalf of the alleged minor plaintiffs. In addition, Plaintiffs have made no showing why any of the new putative "John Doe" plaintiffs should be allowed to proceed anonymously, and their motion should be denied for this reason, as well as those set forth above. The United States discusses in greater detail below these grounds for denying Plaintiffs' request to add more parties. Defendant has already invested significant time and resources identifying, and attempting to understand, the variances among: (1) the names in the caption of Plaintiffs' Revised Third Amended Complaint filed in July 2006 (Dkt # 231); (2) the names in the caption of Plaintiffs' Revised Third Amended Complaint filed in August 2006 (Dkt # 289); (3) the statements in Plaintiffs' August 24, 2006, Notice of Filing of Revised Third Amended Complaint, including but not limited to the statements of the number of alleged plaintiffs (Dkt # 288); (4) the alreadyconfusing list of minor plaintiffs listed in Plaintiffs' Second Amended Complaint, compared to those in the various Exhibits "A" that Plaintiffs have submitted with the later iterations of their Complaint; and (5) an "electronic" list of names Plaintiffs provided December 19, 2006, only

Plaintiffs describe Exhibit A as consisting of minor plaintiffs born after July 1988; Exhibit B as "Plaintiffs Co-Represented by Mohrman & Kaardal, P.A. and Kettering Law Office; and Exhibit C as "Plaintiffs Co-represented by Mohrman & Kaardal, P.A. and Rawlings, Nieland, Probasco, Killinger, Ellwanger, Jacobs & Mohrhauser LLP." 3

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after various oral requests from former counsel of record Benjamin Longstreth for such a list, and two additional written requests, sent September 27, 2006, and December 8, 2006, respectively. Only after expending significant time and resources trying to reconcile Plaintiffs' varied filings, Defendant identified discrepancies in the numbers and names of purported Plaintiffs listed in those papers. As just one example, in Plaintiffs' Notice of Filing Revised Third Amended Complaint, they stated that the "total number of Plaintiffs in the filed Revised Third Amended Complaint is 7,406, inclusive of Doe Plaintiffs 1-236." [Dkt #288, at 2.]. The Revised Third Amended Complaint that was filed with that Notice, and docketed by the Clerk of the Court as paper #289, however, appears to contain 7,359 names in its caption, inclusive of the John Does; approximately 3,400 names in Exhibit A; and approximately 1,500 names in Exhibits B and C considered together.5/ The December 19, 2006, electronic list of purported Plaintiffs provided by Plaintiffs' counsel contained 7,121 names. Defendant was just approaching the point at which it could begin to formulate specific queries to Plaintiffs to clear up some of these discrepancies, when Plaintiffs sought to amend their Complaint yet again. Plaintiffs' January 2007 request again to amend their repeatedly-amended Complaint muddies the waters further. As just one example of the burden caused by the repeated amendments, Defendant notes that Plaintiffs' proposed Fourth Amended Complaint was accompanied by Exhibits A, B, and C containing thousands of names of purported plaintiffs, unnumbered and in very small type. Exhibit A alone appears to contain well over 3,000 names.

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Just as with the proposed Fourth Amended Complaint, it was not clear whether the names listed in Exhibits A, B, and C were additions to, or overlapped with, the names in the caption of the Complaint. 4

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Defendant cannot tell from Plaintiffs' papers whether the names listed in Exhibits A, B, or C purport to be the same as the names listed in the caption of the proposed Fourth Amended Complaint, or instead, are additions to those names. Furthermore, in addition to failing to make clear how, exactly, Exhibits A, B, and C relate to the names listed in the caption of the proposed Fourth Amended Complaint, Plaintiffs failed clearly to identify which of the putative adult plaintiffs are suing on behalf of which putative minor plaintiffs.6/ The proposed Fourth Amended Complaint contains additional ambiguities. For example, Plaintiffs allege that certain unidentified Plaintiffs are persons "who are not minors but otherwise lack legal capacity" and "appear in this suit by their next friends, the parents or adult siblings." (Proposed Fourth Amended Complaint, ¶ 7.) Plaintiffs proceed to list, in narrative form, certain "best friends." But they do not make clear the relationships of the persons listed or whether these names are in addition to, or already contained in, the caption of the proposed new pleading, nor even whether these are persons who seek to join the litigation or, instead, are already listed in the current (Revised Third Amended) Complaint. Similarly, neither Plaintiffs nor the Kettering Law Office filed a response (nor did they respond informally) to Defendant's Motion To Dismiss, or Strike as Redundant, the Complaint in Intervention Filed by Ke Zephier, et al (Dkt. 262), filed November 30, 2006 (Dkt # 366). It

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Plaintiffs appear to have provided, for the approximately ninety to one hundred new minor Plaintiffs they wish to add via their proposed Fourth Amended Complaint, pairings of alleged "best friends" with the minors on whose behalf they purport to sue. That information does not begin to explain the relationships between those ninety names or minors and the approximately 3,400 alleged minors listed (without any indication of which putative adult plaintiffs are suing on their behalf) in the "Exhibit A" in the current (Revised Third Amended) Complaint or the proposed Fourth Amended Complaint. 5

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therefore remains unclear whether all members of the "Ke Zephier" Group are now listed as Plaintiffs in the pleadings filed by Mohrman & Kaardal, P.A., or whether only some of them (or none of them) are.7/ Plaintiffs also seek, through their motion, to add new "John Doe" plaintiffs to the case. That request should be rejected not only because of its untimeliness and the prejudice to Defendant described above, which flows from the repeated additions of any new parties to the case, but also because Plaintiffs made no showing of why any of those putative new plaintiffs should have the extraordinary status of anonymous plaintiffs; nor whether they are formerlyidentified Plaintiffs who now wish to litigate anonymously, as "John Does." The potential for confusion, and the need to back-track to revise records and attempt to "seal" names already disclosed by Plaintiffs as normal, non-John Doe litigants, are just two examples of the additional prejudice to Defendant that would result from the latter situation. For all of these reasons, Plaintiffs' motion should be denied insofar as it requests to add additional Plaintiffs to the case.

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Plaintiffs stated, in their August 2006 Notice of Filing of Revised Third Amended Complaint and Notice of Withdrawal by Kettering Law Office (Dkt # 288) that "all of the proposed intervenors" on the Ke Zephier Group's Motion to Intervene "have been added as Plaintiffs." [Dkt # 288, at 1]; however, especially given the discrepancies in the numbers set forth in the Notice, compared with the numbers of putative parties that appear on Plaintiffs' other filings, and in the absence of any response to the United States's filing, it remains unclear from examining the names whether that statement is accurate. 6

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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. 20044-0663

OF COUNSEL: Janet Goodwin Angela Kelsey Office of the Solicitor United States Department of the Interior

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