| UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK |
|
| THE ONEIDA INDIAN NATION OF NEW YORK,
et al. Plaintiffs, and THE UNITED STATES OF AMERICA, v. THE COUNTY OF ONEIDA, NEW YORK AND THE COUNTY OF MADISON, NEW YORK |
DEFENDANTS’ MEMORANDUM OF LAW IN OPPOSITION |
|
| NIXON, HARGRAVE, DEVANS & DOYLE LLP G. Robert Witmer, Jr., Esq. INTRODUCTION Plaintiffs and the United States move this Court for leave to amend their complaints to join an additional plaintiff and many new defendants and a defendant class action consisting of twenty thousand private landowners. They also seek leave to amend their complaints to include a claim for repossession of the land at issue and a claim for additional money damages. The Counties strenuously oppose these amendments on several grounds. Joinder should be denied since it will substantially prejudice the Counties’ right to a speedy and inexpensive resolution of their dispute with the Plaintiffs and the United States and fails to satisfy the requirements of Rule 20(a) of the Federal Rules of Civil Procedure. Furthermore, the requests for leave to amend the complaints to join a defendant class consisting of twenty thousand private landowners should be denied on the basis that the amendment would be futile and is sought in bad faith. Finally, the requests for leave to amend the complaints to include a claim for repossession of the land at issue and additional money damages should be denied on the basis that such amendments are sought by the Plaintiffs and the United States in bad faith. BACKGROUND Madison County and Oneida County (the "Counties") have been defending against the land claims of the Oneida Indians for over twenty-nine years. Since 1970, the Plaintiffs have been litigating their claim – piece by piece – to over five million acres of land located in the State of New York. The litigation between the Plaintiffs and the Counties has been costly, extremely complex and is long overdue for resolution. Since Plaintiffs did not bring all of their claims in a single proceeding, the Counties have been forced to defend against them in several different actions. In the first action, commenced in 1970 (the "1970 case"), Plaintiffs chose to limit their claim to two years’ rent on 871.92 acres of the land claimed by them. Although the 1970 case involved the validity of only one treaty between the Oneidas and the State of New York, the case nonetheless spanned almost three decades and included a full trial on liability, a full trial on damages resulting in a judgment for $16,694, and countless motions in between. The 1970 case was also no stranger to the appeal process. The case ended up in the Court of Appeals for the Second Circuit twice and the Supreme Court of the United States twice. Oneida Indian Nation of N.Y. v. Cty. of Oneida, 464 F.2d 916 (2d Cir. 1972), rev’d, 414 U.S. 661 (1974); Oneida Indian Nation of N.Y. v. Cty. of Oneida, 434 F. Supp. 527 (N.D.N.Y. 1977), aff’d, 719 F.2d 525 (2d Cir. 1983), aff’d in part and rev’d in part, 470 U.S. 226 (1985). The 1970 case is still pending with the parties having recently spent several months briefing the question of whether the Counties occupied the land in issue in good faith. After receiving a favorable decision on the issue of liability in the 1970 case, Plaintiffs commenced additional actions against the Counties. In 1978 and 1979, actions were commenced to litigate the validity of two more treaties between the Oneidas and the State of New York. These actions continued for ten years and received consideration by this Court and the Court of Appeals for the Second Circuit on several occasions. Oneida Indian Nation of N.Y. v. State of N.Y., 520 F. Supp. 1278 (N.D.N.Y. 1981), aff’d in part and rev’d in part, 691 F.2d 1070 (2d Cir. 1982), cert. denied, 474 U.S. 823 (1985); Oneida Indian Nation of Wisconsin v. State of N.Y., 649 F. Supp. 420 (N.D.N.Y. 1986), aff’d, 860 F.2d 1145 (2d Cir. 1988), cert. denied, 493 U.S. 871 (1989). Plaintiffs commenced the present action against the Counties in 1974 seeking to litigate their claim to approximately 250,000 acres of land. This time Plaintiffs seek to litigate the validity of more than thirty separate instruments, documents and letters patent. As a result, the present action will be the most complex of all. The Counties seek, and are entitled to, a just, speedy and inexpensive resolution of the claims asserted against them by the Plaintiffs and the United States. Fort Howard Paper Co. v. Standard Havens, Inc., 901 F.2d 1373, 1379 (7th Cir. 1990), reh’g denied, 1990 U.S. App. LEXIS 8941 (7th Cir. 1990); Portsmouth Baseball Corp. v. Frick, 21 F.R.D. 318, 320 (S.D.N.Y. 1958), aff’d, 278 F.2d 395 (2d Cir. 1960); A. Cherney Disposal Co. v. Chicago & Suburban Refuse Disposal Corp., 68 F.R.D. 383, 386 (N.D. Ill. 1975) (defendants have an interest in and right to an expeditious determination of the claims against them). However, as a result of the piecemeal manner in which the Plaintiffs’ land claims have been prosecuted, the Counties have been engaged in litigation with the Plaintiffs for decades. And now, by proposed amendments to their complaints after nearly thirty years of litigation against the Counties, Plaintiffs and the United States seek to introduce into the litigation an additional plaintiff, many new defendants and a defendant class action consisting of twenty thousand private landowners. Contrary to Plaintiffs’ and the United States’ suggestion, these are not simple, routine amendments. Rather, these amendments are quite substantial and will inject further complication, expense and delay into a litigation which is already unduly protracted and complex. For the reasons set forth below, since the proposed amendments will substantially prejudice the Counties’ right to a speedy and inexpensive resolution of their dispute with the Plaintiffs and the United States, such amendments should not be permitted. ARGUMENT
A. The Joinder Of An Additional Plaintiff, Several New Defendants And A Defendant Class of Twenty Thousand Private Landowners Will Significantly Delay Resolution Of The Counties’ Dispute With The Plaintiffs and the United States Although leave to amend shall be freely given when justice so requires, see Fed. R. Civ. P. 15(a), the law is nonetheless clear that a plaintiff’s request for leave to amend its complaint should be denied where the proposed amendment would prejudice the defendant. Barrows v. Forest Laboratories, Inc., 742 F.2d 54, 58 (2d Cir. 1984) (prejudice to opposing party is "touchstone" of district court’s authority to deny leave to amend). If a proposed amendment would require the defendant to expend significant additional resources or significantly delay resolution of the dispute between the plaintiff and the defendant, leave to amend should be denied. Champlain Enter., Inc. v. U.S., 945 F. Supp. 468, 476 (N.D.N.Y. 1996); Ross v. Houston Indep. Sch. Dist., 699 F. 2d 218, 229 (5th Cir. 1983). By their proposed amendments, Plaintiffs and the United States seek to join a number of new parties, including an additional plaintiff, several additional defendants and a defendant class consisting of twenty thousand private landowners residing within the claim area. To say that the joinder of these parties will complicate the present action to the prejudice of the Counties is an understatement. First, it cannot be disputed that the introduction of an additional plaintiff and entirely new group of defendants (particularly the introduction of twenty thousand private landowners in the form of a defendant class action) will significantly delay resolution of the Counties’ dispute with the Plaintiffs and the United States. To begin with, if this Court orders the certification of a defendant class in this case, recent amendments to the Federal Rules of Civil Procedure may permit the Counties immediately to appeal such order to the Court of Appeals for the Second Circuit. Fed. R. Civ. P. 23(f). Thus, the certification of a defendant class may result in immediate delay of the present action due to the taking of an appeal from the certification order issued by this Court, if either the District Judge or the Court of Appeals so orders. In addition to the initial and immediate delay which will be caused by the introduction of a defendant class action, the proposal to introduce an additional plaintiff and several new defendants will otherwise cause delays in the present action. First, Plaintiffs’ land claims litigation is nearly thirty years old. The litigation has been extremely complex to this point. Many sophisticated issues of law and fact have been litigated by the Plaintiffs and the Counties over the years. New counsel for added parties will need a reasonable amount of time to become familiar with this complex litigation and to prepare an adequate defense of their clients. Second, Plaintiffs and the United States are simply wrong when they state that "the liability issues [in the present action] are primarily legal in nature and largely decided, and thus will require little discovery." See Plaintiffs’ Memorandum at 18 and U.S. Memorandum at 6. As an initial matter, the conclusion that the liability issues in the present action are "largely decided" is astounding. No court has even begun to consider whether all but one of the numerous transactions challenged by the Plaintiffs and the United States in the present action are valid. Even more astounding is the conclusion that determining the validity of the transactions will "require little discovery." Plaintiffs are seeking to litigate the validity of more than thirty separate instruments, documents and letters patent. The question of whether these transactions are valid (for example, whether there was federal approval or authorization of the transactions) is highly fact-intensive and therefore will require substantial investigation and historical research. Thus, the Counties strongly disagree with Plaintiffs’ and the United States’ casual suggestion that the present action will "require little discovery." Id. Discovery is crucial to determining liability in the present action, and the defendants must be afforded a reasonable opportunity to obtain discovery as to any matter which is relevant to the subject matter of the action, whether it relates to claims or defenses. Fed. R. Civ. P. 26(b)(1). Given the large number of transactions sought to be set aside and the sheer age of the transactions, discovery will likely be a lengthy and difficult process. This process will be further complicated -- and the time needed to complete discovery increased -- by the fact that each of the new parties sought to be joined will be entitled to participate in discovery. Third, if Plaintiffs and the United States are permitted to introduce many new parties into the present action, no longer will the action just be burdened by motion practice between the Counties, the Plaintiffs and the United States; the action will need to accommodate motion practice between the Plaintiffs, the United States, the Counties, an additional plaintiff and the additional defendants. Fourth, if Plaintiffs and the United States are permitted to introduce many new defendants into the present action, not only will the Counties’ defenses to the Plaintiffs’ and the United States’ claims need to be litigated, any defenses asserted by the new defendants will also need to be litigated. Most significantly, fact-specific defenses of private landowners whose titles may be traceable to certain of the challenged transactions and the equitable considerations related to particular defendants may be raised and will need to be fully and fairly litigated. See Defendants’ Memorandum of Law in Opposition to Plaintiffs’ Motion to Certify the Defendant Class (the "Counties’ Certification Opposition") filed herewith, at 5 (each class member has a due process right to present individual defenses). The time that will be required to resolve all of the claims and defenses that would be presented in the expanded litigation is anyone’s guess. If nothing else, the delay that will occur due to the need to litigate individual defenses of twenty thousand private landowners is sufficiently prejudicial to the Counties’ right to a speedy resolution of their dispute with the Plaintiffs and the United States to require denial of the request to join the landowners as defendants. Fifth, the introduction of a multitude of new parties into the present action raises the possibility of cross-claims and counterclaims. Thus, the Counties may suffer additional delays due to the litigation of cross-claims and counterclaims which may be asserted among the parties. Furthermore, cross-claims and counterclaims will expand the scope of discovery beyond the substantial discovery already required relative to the validity of the transactions challenged by the Plaintiffs and the United States. Additional discovery, of course, will take additional time. Sixth, if Plaintiffs and the United States are permitted to introduce many new defendants into the present action, and if the Court determines liability in all respects against the defendants, not only will the amount of damages due and owing by the Counties, if any, need to be litigated, but the damages due and owing by each of the new defendants, if any, will also need to be litigated. As with the prospect of litigating the individual defenses of the new defendants, the prospect of litigating the amount of damages owed by each defendant (particularly each private landowner within the defendant class) will prove to be a daunting task. In the 1970 case in which the Counties were the only defendants, a multi-day trial was required just to assess the amount of damages due and owing by the Counties for two years’ rent on fewer than 900 acres of land; and the question of the Counties’ good faith is still pending before this Court. It will necessarily take a very substantial time to assess the value of all of the properties possessed by the proposed defendants in this case so that the amount of damages owed, if any, can be determined together with counterclaims, cross-claims, offsets and defenses (including the good faith of each landowner). As demonstrated by the recent experience of the Counties and the Plaintiffs in the 1970 case, just determining whether the proposed defendants occupied their various properties in good faith so as to afford a set-off for the value of any improvements is a very time-consuming, fact-intensive process. B. The Joinder Of An Additional Plaintiff, Several New Defendants And The Certification Of A Defendant Class Will Require The Counties To Expend Significant Additional Resources To Defend The Claims Asserted Against The Counties Not only will joinder of an additional plaintiff, several new defendants and the certification of a defendant class significantly delay resolution of the Counties’ dispute with the Plaintiffs and the United States, it will cause the litigation of such dispute to be significantly more expensive to the Counties. First, as discussed above, joining a multitude of parties into the present action – particularly joining a defendant class consisting of twenty thousand private landowners – will, among other things, lead to additional motion practice, and require the litigation of more cross-claims and counterclaims, and significantly expand the scope of discovery – all of which will significantly increase the cost to the Counties to resolve their dispute with the Plaintiffs and the United States. Second, the Counties will incur even more costs if twenty thousand private landowners are joined and certified as a defendant class in this case. The Plaintiffs and the United States would thrust the Counties into the role of class representative with all of its attendant burdens. While the class action may, in the view of the Plaintiffs and the United States, be a procedural device which places all the private landowners within their grasp, it would impose substantial financial burdens on the Counties. Thus, not only will the Counties be required to incur the delay which would be caused by the inclusion of a defendant class action in this case, they would also be required to shoulder the costs, burdens and responsibilities of serving as class representative. As the Counties have demonstrated, the joinder Plaintiffs and the United States seek is not ordinary or simple. It will drastically change the nature of the litigation which is presently before the Court, injecting complication, expense and delay into a litigation which is already complex and protracted. Since joinder in this case will significantly delay resolution of the Counties’ dispute with the Plaintiffs and the United States, and will require the Counties to expend significant additional resources to defend the claims asserted against them, joinder should not be permitted. II. The Request To Amend The Complaints To Join Private Landowners As A Defendant Class Should Be Denied Because The Amendment Would Be Futile In addition to considerations of delay and expense, the law is clear that a plaintiff’s request for leave to amend its complaint should be denied if the amendment would be futile. Champlain Enter., Inc., 945 F. Supp. at 475. As is more fully set forth in the Counties’ Opposition to Certification filed with this memorandum, since the proposed defendant class does not qualify for certification under Rule 23 of the Federal Rules of Civil Procedure and certification of the proposed class would be unconstitutional, it would be futile to permit the Plaintiffs and the United States to amend their complaints to join the landowners as a defendant class. Accordingly, the amendment should be denied.
III. The Request To Amend The Complaints To Join Private Landowners As A Defendant Class, Seek The Remedy Of Possession And Seek Additional Money Damages Should Be Denied Because The Amendments Are Sought In Bad Faith The law is clear that a plaintiff’s request for leave to amend its complaint should be denied where the proposed amendment is sought in bad faith. Barrows, 742 F.2d at 58; Vine v. Beneficial Fin. Co., Inc., 374 F.2d 627, 637 (2d Cir. 1967), cert. denied, 389 U.S. 970 (1967). Rule 15(a) abhors dilatory tactics and likewise should not be used by a party to engage in legal gamesmanship. Fort Howard Paper Co., 901 F.2d at 1379. At the time the Plaintiffs and the United States filed their complaints in the present action, and even at the time the Plaintiffs filed their complaint in the 1970 case, they did not seek the drastic remedy of possession nor did they seek to bring private landowners into this litigation, threatening them with the possible loss of their homes. Rather, Plaintiffs and the United States merely pursued two counties in upstate New York as defendants and sought limited relief from them. For example, in the 1970 case, Plaintiffs only sought to recover money damages from the Counties for two years’ rental value of the land occupied by the Counties. Similarly, the complaints in the present action seek only to recover money damages from the Counties from 1951 forward rather than the entire period in which the Counties have been in possession – nearly two hundred years. But the Plaintiffs and the United States knew, or certainly should have known, at the time they filed their complaints in the present action (and, in the case of the Plaintiffs, even at the time they filed their complaint in the 1970 case), that they could have sought repossession of the land and they could have named the landowners as defendants. Neither Plaintiffs nor the United States claim that they did not initially sue the landowners because they just became aware, through inadvertence or otherwise, of facts indicating that they may have a cause of action against the landowners. Nor do Plaintiffs or the United States allege that they did not seek the remedy of possession because they just recently learned that such remedy may be available. The only reason Plaintiffs offer for not initially seeking the remedy of possession or suing the landowners is that they wanted to prosecute their land claims in a manner which would cause "minimal disruption." See Plaintiffs’ Memorandum at 15. However, in light of the fact that the Plaintiffs now seek to prosecute their land claims in a manner which will cause maximum disruption, this is an entirely inadequate explanation for Plaintiffs’ conduct and choices. If Plaintiffs were genuinely concerned about avoiding disruption to present owners of the land, they, and the United States on their behalf, would not be seeking the amendments to the complaints that are sought today. It appears that the only "disruption" the Plaintiffs were concerned about when they filed their complaint in the present action and the 1970 case was the disruption that their desire to retake possession of the land and sue private landowners residing thereon would have upon the viability of their case in federal court. Drastic pursuits and remedies such as this can cause courts to conclude that judicial resolution is not proper for a particular dispute and that resolution of the dispute is more appropriately found in the political arena. But by refraining from pursuing private landowners as defendants or seeking drastic relief (and continually representing to this Court that they did not intend to seek such relief), Plaintiffs managed to have certain claims judicially resolved in other actions and now argue (although the Counties disagree) that these other actions have established "controlling legal principles" which they intend to apply to secure the magnitude of relief they intended to secure all along. This is not good faith. See Vine, 374 F.2d at 637 (plaintiff found to have acted in bad faith where plaintiff chose not to set forth all grounds for relief in first complaint in order to see how he would first fare on a prior motion to dismiss). Similarly, Plaintiffs’ and the United States’ new interest in repossessing the land and suing private landowners residing thereon strongly indicates an intent on the part of the Plaintiffs and the United States to force a settlement with the State of New York. In fact, Plaintiffs appear to concede that their amendments are designed to coerce a settlement with the State of New York, or at least to punish the State of New York for not arriving at a settlement which is satisfactory to them. According to the Plaintiffs, "it has always been apparent to the parties to this case, as well as to the State of New York, that if the Oneidas’ claims to the subject lands were not settled, litigation involving the entire area would have to occur." See Plaintiffs’ Memorandum at 2. Since "[s]ettlement has not happened," the Plaintiffs state that they are now seeking a "complete remedy." Id. at 2-3. The Court of Appeals for the Second Circuit has affirmed a district court’s denial of leave to amend a complaint where the amendments sought were "extravagant and potentially coercive" and were sought to transform the lawsuit into a "battle for…high stakes," creating the danger that the plaintiffs would force a settlement with the defendant. See Barrows, 742 F.2d at 57-60. Likewise, this Court should not permit the Plaintiffs or the United States to coerce a favorable settlement of the land claims at issue here through abusive use of Rules15(a) and 20. In short, Rules 15(a) and 20 of the Federal Rules of Civil Procedure are not licenses for legal gamesmanship and are not intended to be used by plaintiffs to engage in coercive conduct. Plaintiffs and the United States knew before they filed their complaints in this action that they could have sought possession of the land, could have sued private landowners and could have sought money damages for the period prior to 1951. But they each made conscious, tactical decisions not to do any of these things and have offered no good faith basis for those choices. Accordingly, since Plaintiffs’ and the United States’ proposed amendments are sought in bad faith, they should be denied. IV. The Request To Amend The Complaints To Join The Additional Defendants Should Be Denied Because The Requirements Of Rule 20(a) Are Not Satisfied A. Plaintiffs And The United States Fail To Show That A Question Of Law Or Fact Common To All Defendants Exists In The Present Action Finally, the Plaintiffs’ and the United States’ requests to amend their complaints to join the additional defendants should be denied for the simple reason that the joinder sought will not satisfy the requirements of Rule 20(a) of the Federal Rules of Civil Procedure. Rule 20(a) permits joinder of additional defendants "if any question of law or fact common to all defendants will arise in the action." Fed. R. Civ. P. 20(a) (emphasis added). Since Plaintiffs and the United States fail to show that a single question of law or fact common to all defendants (current and proposed) will arise in the present action, joinder should be denied. The Plaintiffs and the United States are seeking to invalidate more than thirty separate instruments, documents and letters patent. The Plaintiffs and the United States argue that the "commonality" requirement of Rule 20(a) is satisfied because their claims against "all defendants…share the common question of whether [all the instruments, documents and letters patent] are void..." See Plaintiffs’ Memorandum at 21 and the U.S. Memorandum at 8. But whether all of the instruments, documents and letters patent are void is not a question shared by all the current and proposed defendants. For example, some of the current and proposed defendants may trace their titles to a particular challenged transaction, while the remaining defendants do not. The Plaintiffs’ and the United States’ claims against the remaining defendants would thus have nothing to do with (and the remaining defendants would not be concerned with) whether that particular transaction was valid or void. Accordingly, Plaintiffs’ and the United States’ assertion that their claims against all current and proposed defendants share the question of whether all the transactions are void is not true. In short, Plaintiffs’ and the United States’ papers fail to show any question of law or fact that is common among all the current and proposed defendants. This is not surprising since such a showing would be an impossible task. The only way that a common question of law or fact could exist in the present action is if all the current and proposed defendants traced their titles to at least one particular challenged transaction. Rule 20(a) would then be satisfied because all the current and proposed defendants would truly share one common question: whether that particular transaction was valid or void under federal common law, the Trade and Intercourse Act or the Treaty of Canandaigua. In the absence of any showing by the Plaintiffs and the United States, however, that all the current and proposed defendants trace their title to at least one of the challenged transactions, there can be no question of law or fact common to all the current and proposed defendants. Thus, joinder is far from "appropriate" under Rule 20(a) – it is impermissible. See Plaintiffs’ Memorandum at 21 and the U.S. Memorandum at 8 (asserting that joinder is appropriate under Rule 20(a)). CONCLUSION Despite the Plaintiffs’ and the United States’ attempts to characterize the present action as fresh, new litigation against the Counties, the true fact remains that the Counties have been defending against the Oneida land claims for an unreasonable, inordinate amount of time. The litigation between the Plaintiffs and the Counties may finally be addressing the remaining issues, and the Counties have a right to have it come to a speedy, inexpensive conclusion. Since the Plaintiffs’ and the United States’ requests to amend their complaints to join additional defendants and an additional plaintiff will substantially prejudice this right, the amendments should be denied. In addition to considerations of delay and expense, the Plaintiffs’ and the United States’ requests to amend their complaints to join the additional defendants should be denied because the Plaintiffs have not shown that the joinder sought satisfies the requirements of Rule 20(a) of the Federal Rules of Civil Procedure. Additionally, the request to amend the complaints to join twenty thousand private landowners as a defendant class action should be denied since the amendment would be futile. Finally, the Plaintiffs’ and the United States’ requests to amend their complaints to join private landowners as a defendant class, to include a claim for repossession and to seek money damages since 1795 should be denied since such amendments are sought in bad faith to cause maximum disruption and to coerce a settlement with the State of New York. Dated: February 25, 1999 Nixon, Hargrave, Devans & Doyle llp By: |
|