Documents 260

Transcription

Documents 260

CASE 0:14-cv-01597-MJD-FLN Document 261 Filed 04/16/15 Page 1 of 1
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Sheldon Peters Wolfchild, et al.,
Case No. 14-CV-1597 MJD/FLN
Plaintiffs,
vs.
Redwood County (Minnesota), et al.,
MOTION FOR COURT TO TAKE
JUDICIAL NOTICE OF LOWER
SIOUX INDIAN COMMUNITY
CORPORATE CHARTER
Defendants.
The Wolfchild Plaintiffs, through their undersigned counsel, hereby move for this
Court to take judicial notice of the Corporate Charter of the Lower Sioux Indian
Community in the State of Minnesota, ratified July 17, 1937, and filed in the Library of
Congress, Division of Documents on November 27, 1937.
Dated: April 16, 2015
/s/Erick G. Kaardal
Erick G. Kaardal, 229647
James V. F. Dickey, 393613
Mohrman, Kaardal & Erickson, P.A.
150 South Fifth Street, Suite 3100
Minneapolis, Minnesota 55402
Telephone: (612) 341-1074
Email: kaardal@mklaw.com
Email: dickey@mklaw.com
Attorneys for Plaintiffs
Plaintiffs,
vs.
Defendants.
NOTICE OF HEARING ON MOTION
FOR COURT TO TAKE JUDICIAL
NOTICE OF LOWER SIOUX INDIAN
COMMUNITY CORPORATE
CHARTER
PLEASE TAKE NOTICE that at a later time designated by the Court, Plaintiffs
will move for this Court to take judicial notice of the Corporate Charter of the Lower Sioux
Indian Community in the State of Minnesota, ratified July 17, 1937, and filed in the Library
of Congress, Division of Documents on November 27, 1937.before the Honorable Michael
J. Davis, Judge of U.S. District Court, in courtroom 15E, 300 South Fourth Street,
Minneapolis, Minnesota.
The motion will be brought upon the pleadings, court file, memoranda, affidavits,
submissions, and oral argument of counsel, and in accordance with Federal R. Civ. P. 12 (b)
(6) and (7).
Dated: April 16, 2015
/s/Erick G. Kaardal
Erick G. Kaardal, 229647
James V. F. Dickey, 393613
Telephone: (612) 341-1074
Email: kaardal@mklaw.com
Email: dickey@mklaw.com
Attorneys for Plaintiffs
Plaintiffs,
vs.
Defendants.
MEMORANDUM OF LAW IN
SUPPORT OF MOTION FOR COURT
TO TAKE JUDICIAL NOTICE OF
LOWER SIOUX INDIAN
COMMUNITY CORPORATE
CHARTER
Pursuant to the Federal Rules of Civil Procedure and the Federal Rules of Evidence,
the Wolfchild Plaintiffs move for this Court to take judicial notice of the Corporate Charter of
the Lower Sioux Indian Community in the State of Minnesota, ratified July 17, 1937, and
filed in the Library of Congress, Division of Documents on November 27, 1937 (“LSIC
Corporate Charter”).
Currently, the Court has before it three post-judgment motions for Rule 11 sanctions
against the Plaintiffs and Plaintiff’s counsel. The LSIC Corporate Charter is relevant to the
“tribal sovereign immunity” portion of the Rule 11 motions because the LSIC Corporate
Charter at paragraph 5(i) has a “to sue and be sued” clause which shows that LSIC, since its
founding, has never had tribal sovereign immunity. Further, LSIC has not undertaken the
paragraph 10 amendment process for amending paragraph 5(i) of its Corporate Charter
which would require federal approvals.
The Court’s March 5, 2015 decision granting the motion to dismiss relied on 25
U.S.C. § 476 (g) which is clearly inapplicable to the LSIC Corporate Charter because § 476
(g) is limited retroactively to “[a]ny regulation or administrative decision or determination of
a department or agency of the United States that is in existence or effect on May 31, 1994.”1
The LSIC Corporate Charter, ratified by the Lower Sioux Indian Community on July 17,
1937, is not a “regulation or administrative decision or determination of a department or
agency of the United States.”
As to the LSIC Corporate Charter’s relevance to the pending Rule 11 motion in this
Court, how could there be Rule 11 sanctions based on Plaintiffs and Plaintiffs’ Counsel
arguing against tribal sovereign immunity existing when such a public document shows LSIC
has never had tribal sovereign immunity?
Statement of Facts
The LSIC Corporate Charter is attached as Exhibit A to the Declaration of Erick G.
Kaardal. The LSIC Corporate Charter at paragraph 5(i) has a “to sue and be sued” clause
which shows LSIC has never had tribal sovereign immunity. LSCIC has not undertaken the
paragraph 10 amendment process for amending paragraph 5(i) of its Corporate Charter
which would require federal approvals.
On April 11, 2015, the LSIC Corporate Charter was found through a chance review
of Library of Congress Records relating to the Lower Sioux Indian Community. On April
11th, Plaintiffs’ counsel was researching on the Library of Congress website at
http://catalog.loc.gov/ and typed in “Lower Sioux Indian Community.” In response, the
Library of Congress identified the LSIC Corporate Charter which Plaintiffs’ Counsel was
able to read and print. On April 11th, Plaintiffs’ counsel read the LSIC Corporate Charter
The Court’s decision also cited to 25 U.S.C. § 476 (f) which proscribes agency actions
prospectively.
1
2
and found that it had a “to sue and be sued” clause at paragraph 5(i). Then, Plaintiffs’
counsel knew it was a significant document to the Court’s determination of tribal sovereign
immunity for LSIC.
Similarly, Prairie Island Indian Community in Minnesota, formed to benefit the same
Loyal Mdewakanton tribe which benefits from LSIC – that is the Plaintiffs’ Class -- had an
identical Corporate Charter. Attached as Exhibit B to the Kaardal Declaration is a copy of
the Corporate Charter of the Prairie Island Indian Community in Minnesota, ratified July 23,
1937, and filed in the Library of Congress, Division of Documents on May 2, 1938 (PIIC
Corporate Charter). The PIIC Corporate Charter at paragraph 5(i) has an identical “to sue
and be sued” clause which shows PIIC has never had tribal sovereign immunity either.
PIIC has not undertaken the paragraph 10 amendment process for amending paragraph 5(i)
of its Corporate Charter which would require federal approvals.
Defendants failed to disclose the LSIC Corporate Charter in their motions to dismiss
and in their Rule 11 motions filed in U.S. District Court.
Counsel sought consent to this
motion from all Defendants on April 15th. By the time of this filing, none of the
Defendants had responded as to the meet-and-confer request. The movants will update
their meet-and-confer statement as the Defendants’ responses come in.
Argument
“Judicial notice may be taken at any time, including on appeal … because [the fact
sought to be noticed] is either ‘(1) generally known within the territorial jurisdiction of the
trial court or (2) capable of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned.’” United States. v. Burch, 169 F.3d 666, 671 (10th
3
Cir. 1999) (citation omitted). See also TH Agric. & Nutrition, LLC v. Ace European Grp. Ltd.,
488 F.3d 1282, 1298 (10th Cir. 2007) (“‘[F]ederal courts … may take notice of proceedings
in other courts, both within and without the federal judicial system, if those proceedings
have a direct relation to matters at issue.’”) (quoting St. Louis Baptist Temple, Inc. v. FDIC, 605
F.2d 1169, 1172 (10th Cir. 1979)).
Specifically, Federal Rule of Evidence 201 provides a process for the Court taking
judicial notice of documents at any time in a proceeding:
Rule 201. Judicial Notice of Adjudicative Facts
(a) Scope. This rule governs judicial notice of an adjudicative fact only, not a
legislative fact.
(b) Kinds of Facts That May Be Judicially Noticed. The court may judicially notice a
fact that is not subject to reasonable dispute because it:
(1) is generally known within the trial court's territorial jurisdiction; or
(2) can be accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.
(c) Taking Notice. The court:
(1) may take judicial notice on its own; or
(2) must take judicial notice if a party requests it and the court is supplied with
the necessary information.
(d) Timing. The court may take judicial notice at any stage of the proceeding.
(e) Opportunity to Be Heard. On timely request, a party is entitled to be heard on the
propriety of taking judicial notice and the nature of the fact to be noticed. If the court
takes judicial notice before notifying a party, the party, on request, is still entitled to
be heard.
(f) Instructing the Jury. In a civil case, the court must instruct the jury to accept the
noticed fact as conclusive. In a criminal case, the court must instruct the jury that it
may or may not accept the noticed fact as conclusive.
The U.S. Court of Appeals for the Federal Circuit in Wolfchild v. United States, Case
No. 2012-5035, 2012-5036 and 2012-5043 granted a similar motion in the Wolfchild
proceeding there. As an aid and convenience to the Court and the parties, the following
documents relating to that granted motion are attached to the Kaardal Declaration:
4
 Wolfchild Cross-Appellants Motion to Take Judicial Notice of
Department’s 2012 Notice of Decision dated January 30, 2013
(Kaardal Dec. Ex. C);
 United States’ Response in Opposition to Wolfchild Cross-Appellants’
Motion to Take Judicial Notice dated February 8, 2013 (Kaardal Dec.
Ex. D); and
 U.S. Court of Appeals for the Federal Circuit Order dated September
27, 2013 granting motion to take judicial notice (Kaardal Ex. E).
The current posture of the District Court proceeding is that the Court has jurisdiction
over three post-judgment Rule 11 motions for sanctions. Rule 11 sanctions are being sought
against Plaintiffs and Plaintiffs’ counsel for their claim in response to the motion to dismiss
that Defendant LSIC is not protected by tribal sovereign immunity.
In this case, the U.S. District Court decision granting the motions to dismiss
considered matters of public and administrative records outside the four corners of the
Plaintiff’s complaint without converting the Rule 12 motion to dismiss into a Rule 56
motion for summary judgment. This approach is consistent with Eighth Circuit practice
under Rule 12. Deerbrook Pavilion, LLC v. Shalala, 235 F.3d 1100, 1102 (8th Cir. 2000), citing
Jackson v. City of Columbus, 194 F.3d 737, 745 (6th Cir.1999) and Sebastain v. United States, 185
F.3d 1368, 1374 (Fed.Cir.1999).
However, this approach can lead to “trouble” if a U.S. District Court grants the Rule
12 motion to dismiss on an incomplete public and administrative record. In this case, the
Court did grant the Rule 12 motion to dismiss while considering an incomplete public and
administrative record. The Defendant LSIC cherry-picked public and administrative records
from its files by not disclosing the “to sue and be sued” clause in the LSIC Corporate
5
Charter. At the time of the Rule 12 motions, the Plaintiffs were not yet entitled to discovery
to receive a copy of the LSIC Corporate Charter. Defendant LSIC’s litigation tactic worked
on the Court who believed at the time of its March 5, 2015 decision that LSIC did not have a
“to sue and be sued” clause – or the Court would have analyzed it.
Instead, the Court wrote in its decision:
The Court finds that the Community is a federally recognized tribe that has
equal sovereign rights, as the Solicitor Opinion from the Department of Interior
issued in 1938 no longer reflects a correct interpretation of current law. See 25 U.S.C.
§ 476(f) (“Departments or agencies of the United States shall not promulgate any
regulation or make any decision or determination pursuant to the Act of June 18,
1934 (25 U.S.C. 461 et seq., 48 Stat. 984) as amended, or any other Act of Congress,
with respect to a federally recognized Indian tribe that classifies, enhances, or
diminishes the privileges and immunities available to the Indian tribe relative to other
federally recognized tribes by virtue of their status as Indian tribes.”), and (g) (“Any
regulation or administrative decision or determination of a department or agency of
the United States that is in existence or effect on May 31, 1994, and that classifies,
enhances, or diminishes the privileges and immunities available to a federally
recognized Indian tribe relative to the privileges and immunities available to other
federally recognized tribes by virtue of their status as Indian tribes shall have no force
or effect.”); see also H.R.Rep. No. 103–781, 3–4 (1994) (providing that all recognized
tribes have equal sovereign rights).
Because there is no evidence or even an allegation that the Community
has waived sovereign immunity with respect to lands in which it has an
interest, the Court does not have subject matter jurisdiction over the
Community in this action, and all claims asserted against the Community
must be dismissed.
Wolfchild v. Redwood Cnty., No. CIV. 14-1597 MJD/FLN, 2015 WL 1000057, at *6 (D. Minn.
Mar. 5, 2015) (emphasis added).
Oh, how the “to sue and be sued” clause of the LSIC Corporate Charter would have
made a difference to the Court! First, 25 U.S.C. § 476(g) does not apply to the LSIC
Corporate Charter because 25 U.S.C. § 476(g) is limited to “[a]ny regulation or administrative
decision or determination of a department or agency of the United States that is in existence
6
or effect on May 31, 1994.”2 The LSIC Corporate Charters and other Indian Corporate
Charters, like the PIIC Corporate Charter, are not a “regulation or administrative decision or
determination of a department or agency of the United States.” Congress could have made
25 U.S.C. § 476(g) applicable to such Corporate Charters, but Congress chose not to include
them within the legal scope of 25 U.S.C. § 476(g). Congress when enacting 25 U.S.C. §
476(g) understood that LSIC and PIIC were different and set up with Corporate Charters in
1937; accordingly, Congress excluded their Corporate Charters from 25 U.S.C. § 476(g). So,
contrary to the Court’s decision, the 1938 Solicitor’s opinion is still the correct interpretation
of the law in 1938 and the law in 2014: LSIC and PIIC have corporate charters which limit
their powers and immunities notwithstanding 25 U.S.C. § 476 (f) and (g). Second, the LSIC
Corporate Charter is LSIC’s founding document where the Department of the Interior
assigns the powers it will have to LSIC. According to this founding document, LSIC doesn’t
have tribal immunity consistent with the 1938 Solicitor’s opinion. It is not fair to say that
LSIC “waived” sovereign immunity because it never had any sovereign immunity to waive.
To state otherwise is a charade -- misstating the legal history. Third, the LSIC Corporate
Charter can not be changed absent an amendment process under paragraph 10 requiring
federal approval – which has not occurred. Fourth, the U.S. District Court decision
erroneously states that here is “no evidence or even an allegation that the Community has
waived sovereign immunity with respect to lands in which it has an interest.” But, now, the
Court knows that the LSIC Corporate Charter has a “to sue and be sued” clause which
means, again, that LSIC never had tribal sovereign immunity in the first place. LSIC cannot
25 U.S.C. § 476(f) is not discussed here because it prohibits certain actions prospectively –
which isn’t the case here where the LSIC ratified its Corporate Charter on July 17, 1937.
2
7
waive tribal sovereign immunity it never had. 25 U.S.C. § 476(f) and (g) do not change that
LSIC has never had tribal sovereign immunity.
The LSIC Corporate Charter clearly shows that LSIC is not an historical tribe with
sovereign powers. Instead, LSIC is a federal corporation delegated powers to serve the
Plaintiffs Class of Loyal Mdewakanton lineal descendants. The LSIC Corporate Charter
states:
Whereas, the Lower Sioux Indian Community of the Lower Sioux Reservation
in Minnesota is a recognized Indian Tribe organized under a constitution and by-laws
ratified by the Community on May 16, 1936 and approved by the Secretary of the
Interior on June 11, 1936, pursuant to section 16 of the Act of June 18, 1934 (48 Stat.
984), as amended by the Act of June 15, 1935… 1. … the aforesaid community is
hereby chartered as a body politic and corporate of the United States of America
under the corporate name “The Lower Sioux Indian Community.”… 3…The Lower
Sioux shall be a membership corporation…
Kaardal Dec. Ex. A.3 The PIIC Corporate Charter in paragraph 1 states the same for PIIC.
Kaardal Dec. Ex. B.
LSIC, as Plaintiffs have argued, is a corporate entity authorized by the federal
government as agent to serve – not harm – the Plaintiffs. PIIC was set up the same way.
Both LSIC and PIIC were intended to include the Loyal Mdewakanton lineal descendants
for benefits, not to exclude them. The federal government set LSIC and PIIC up as agents
with delegated powers to serve the Loyal Mdewakanton lineal descendants. That is what the
Based on Paragraph 3, the corporate name of the community is “Lower Sioux Indian
Community.” To avoid confusion, this memorandum uses “Lower Sioux Indian
Community in Minnesota” or LSIC referring to the federal name provided at the top of the
LSIC Corporate Charter. Prior to the Corporate Charter, the group was known as “Lower
Sioux Indian Community of the Lower Sioux Reservation in Minnesota.” Kaardal Dec. Ex.
A. For the sake of this motion, the differences in nomenclature are unimportant.
3
8
LSIC Corporate Charter and PIIC Corporate Charter show – all consistent with the 1938
Solicitor’s Opinion.
Recalling that the only post-judgment matter left for the Court to decide are the Rule
11 motions, judicial notice of the LSIC Corporate Charter should be taken for the following
reasons. First, the LSIC Corporate Charter is relevant to the pending Rule 11 motion
proceeding. Clearly, the Court did not consider the LSIC Corporate Charter when it made
its decision. If it had, the Court may have denied the Rule 12 motion or at least converted
the motion into a Rule 56 motion for summary judgment since the public and administrative
record are incomplete otherwise. Second, the LSIC Corporate Charter was clearly within the
possession of LSIC at the time of the Rule 12 motion. LSIC was obligated to produce the
document to the Court to avoid the position the Court is now in. To compound matters,
the LSIC has filed a post-judgment Rule 11 motion for sanctions based on the Court’s
interpretation of law based on an incomplete public and administrative record caused by
LSIC’s failure to disclose the “to sue and be sued” clause in the LSIC Corporate Charter.
Conclusion
For the foregoing reasons, the motion to take judicial notice of the LSIC Corporate
Charter should be granted.
Dated: April 16, 2015.
MOHRMAN, KAARDAL & ERICKSON, P.A.
/s/Erick G. Kaardal
Erick G. Kaardal, Attorney No. 229647
Minneapolis Minnesota 55402
Telephone: (612) 341-1074
Facsimile: (612) 341-1076
kaardal@mklaw.com
ATTORNEYS FOR PLAINTIFFS
9
10
Plaintiffs,
vs.
DECLARATION OF
ERICK G. KAARDAL
Defendants.
I, Erick G. Kaardal, declares as follows:
1.
I am counsel for the Wolfchild Plaintiffs in the instant action. I am familiar
and have personal knowledge of the facts contained in this declaration. My declaration is
offered in support of the Wolfchild Plaintiffs Motion to Take Judicial Notice of the
Corporate Charter of the Lower Sioux Indian Community in Minnesota, dated July 17, 1937.
2.
Attached as Exhibit A is a copy of the Corporate Charter of the Lower Sioux
Indian Community in Minnesota, ratified July 17, 1937, and filed in the Library of Congress,
Division of Documents on November 27, 1937 (“LSICIM Corporate Charter”).
3.
The LSICIM Corporate Charter was not in my possession prior to Saturday,
April 11, 2015.
4.
The LSICIM Corporate Charter was found through a chance review of
Library of Congress Records relating to the Lower Sioux Indian Community. On April 11th,
I was researching on the Library of Congress website at http://catalog.loc.gov/ and typed in
“Lower Sioux Indian Community.” In response, the Library of Congress identified the
LSICIM Corporate Charter which I was able to read and print.
5.
Prior to April 11th, I had no idea of the significance of the LSICIM Corporate
Charter to the Lower Sioux Indian Community’s tribal sovereignty arguments in U.S.
District Court.
6.
But, on April 11th, I read the LSICIM Corporate Charter and found that it had
a “sue or be sued” clause at paragraph 5(i). Then, I knew it was a significant document to
the determination of Lower Sioux Indian Community tribal sovereign immunity.
7.
Also, for the court’s and parties’ information, I have attached as Exhibit B a
copy of the Corporate Charter of the Prairie Island Indian Community in Minnesota, ratified
July 23, 1937, and filed in the Library of Congress, Division of Documents on May 2, 1938.
8.
As an aid and convenience to the Court and the parties, I have attached the
following documents from the U.S. Court of Appeals for the Federal Circuit in Wolfchild v.
United States, Case No. 2012-5035, 2012-5036 and 2012-5043:
 Wolfchild Cross-Appellants Motion to Take Judicial Notice of
Department’s 2012 Notice of Decision dated January 30, 2013 (Exhibit
C);
 United States’ Response in Opposition to Wolfchild Cross-Appellants’
Motion to Take Judicial Notice dated February 8, 2013 (Exhibit D);
and
 U.S. Court of Appeals for the Federal Circuit Order dated September
27, 2013 granting motion to take judicial notice (Exhibit E).
2
I DECLARE UNDER PENALTY OF PERJURY THAT THE FOREGOING IS
TRUE AND CORRECT.
Dated:
April 15, 2015
/s/Erick G. Kaardal
Erick G. Kaardal
3
CASE 0:14-cv-01597-MJD-FLN Document 264-1 Filed 04/16/15 Page 1 of 40
Plaintiffs,
vs.
MEET AND CONFER
STATEMENT
Defendants.
I have attempted to meet and confer with Defendants’ counsel regarding the Motion
to Take Judicial notice by sending an email on April 15th to my contact for Defendants’
counsel, attorney Jessica Schwie. She indicated in an email that the Defendants would get
back to me as soon as possible. They have not yet got back to me yet. I am also leaving on
vacation on April 16th. My clients have directed me to file the motion today. Meanwhile, I
will supplement this meet-and-confer statement when the Defendants do get back to me if
there is anything new to report.
/s/Erick G. Kaardal
Telephone: (612) 341-1074
Facsimile: (612) 341-1076
kaardal@mklaw.com
Attorneys and Counselors at Law
150 South Fifth Street
Suite 3100
Erick G. Kaardal
Telephone: 612/341-1074
Facsimile: 612/341-1076
Writer’s E-Mail: Kaardal@mklaw.com
April 16, 2015
Via ECF
The Honorable Chief Judge Michael J. Davis
United States Courthouse
300 South Fourth Street, Suite 15E
Re:
Sheldon Peters Wolfchild, et al. v. Redwood County, et al. (“Wolfchild II”)
Court File No. 14-CV-1597 (MJD/FLN)
Dear Chief Judge Davis:
This letter is in response to the April 8th letter of Ken D. Schueler and Mary Magnuson
asking for two separate reply briefs on their Rule 11 motions and to the April 9th letter of Ken D.
Schueler asking for a reply brief on his motion for Rule 7 Appeal Bond. On both motions, the
attorneys filed substantive memoranda of law in support of their motion; approximately 50 pages
of memoranda have been submitted by Defendants in support of their post-judgment Rule 11 an
Rule 7 motions.
Local Rule 7.1(b)(3) clearly disfavors reply memoranda requiring prior Court
permission. “A court may accept reply papers where a party demonstrates that the papers to
which it seeks to file a reply raise new issues that are material to the disposition of the question
before the court....” 27A Fed. Proc., L. Ed. § 62:360.
Examination of the April 8th and April 9th letters show that counsel have failed to
demonstrate that the memoranda filed in opposition to the Rule 11 and Rule 7 motions “raise
new issues that are material to the disposition of the question before the court.”
First, the April 8th letter, in conclusory fashion, states with respect to the Rule 11
sanctions motion, “Plaintiffs’ 41-page Memorandum in Opposition contains blatant legal and
factual errors that we would like an opportunity to briefly address.” This sentence does not
identify any “new issues” raised in Plaintiffs’ memorandum filed in opposition to the Rule 11
sanctions motion justifying a reply brief. So, this request should be denied.
Second, the April 9th letter, in conclusory fashion, states with respect to the Rule 7 appeal
bond motion, “Plaintiffs’ Memorandum in Opposition to this motion contains inaccuracies that I
April 16, 2015
Page 2
would like the opportunity to briefly address.” This sentence does not identify any “new issues”
raised in Plaintiffs’ memorandum filed in opposition to the Rule 7 appeal bond motion justifying
a reply brief. So, this request should also be denied.
Under the circumstances where the Defendants have failed to meet the legal requirement
for a reply brief, we don’t see any reason for the Court to provide Defendants with “another bite
at the apple” when they haven’t identified in their letters to the Court any new issues in the
response briefs they need to reply to.
Very truly yours,
/s/Erick G. Kaardal
Erick G. Kaardal
EGK/mg
Plaintiffs,
Civil File No. 14-CV-1597
(MJD/FLN)
vs.
Defendants.
PLAINTIFFS’ OBJECTIONS TO BILL OF COSTS
SUBMITTED BY DEFENDANTS CASE, CUNNINGHAM, DAHMS.
KERKHJOFF, MADDOCK, PRUTY, AND UNRUH
INTRODUCTION
The Plaintiffs object to the Bill of Costs submitted by the Defendants Case,
Cunningham, Dahms, Kerkhoff, Maddock, Prouty, and Unruh. Dckt. No. 227. The
Defendants seek $3,106.80 of which only $31.80 is identified as actually copying costs. The
balance of $3,075 are for hourly fees – not copies, excessive, and the records obtained,
unnecessary. Since, the Wolfchild Plaintiffs object to all costs asserted and for the reasons
asserted, the Defendants bill of costs should be denied.
ARGUMENT
The Wolfchild Plaintiffs object to the submitted bill of costs because the costs sought
are hourly fees for others to search existing public records which at the forefront were
unnecessary.
The Wolfchild Plaintiffs, in their First-Amendment Complaint, accurately listed each
defendant’s property within the 12 square mile area claimed by the Plaintiffs. 1 Further, as the
Court accurately noted in its memorandum and order that the Plaintiffs did not dispute the
Defendants had possession of their lands and that land patents for each parcel of land in the
disputed area had been issued by 1891:2
“Plaintiffs do not dispute that by 1891, all land patents for the disputed
area had been issued. Plaintiffs thus had notice, for well over one
hundred years, that others were in wrongful possession of land to
which Plaintiffs now claim title.”3
The records were redundant and added nothing to the record. In fact, the Wolfchild
Plaintiffs First-Amended Complaint admissions of the Defendants’ possession of the
property since 1891 made their subsequent submissions redundant at best but, here,
unnecessary to the jurisdictional legal arguments the Defendants made in their motion to
dismiss.
Federal Rule of Civil Procedure 54 provides that “costs – other than attorney’s fees
should be allowed by the prevailing party.”4 The Eighth Circuit has explained that Rule 54(d)
“represents a codification of the ‘presumption that the prevailing party is entitled to costs.”5
Here, the Defendant Municipalities moved to dismiss the Plaintiff Wolfchild’s First-
See Plts. First-Amend. Comp., Dckt. No. 120.
Id.
3 Memo. & Or. at 25, Dkct. No. 196.
4 Fed. R. Civ. P. 54(d)(1).
5 Greaser v. State, Dept. of Corrections, 145 F.3d 979, 985 (8th Cir. 1998).
1
2
2
Amended Complaint and this Court granted that motion. 6 We do not contest that at the
district court level, they are prevailing parties.7
However, it does not mean the Defendants Case, et al. can recover all costs. The
following costs are recoverable:
(1) Fees of the clerk and marshal; (2) Fees for printed or electronically
recorded transcripts necessarily obtained for use in the case; (3) Fees and
disbursements for printing and witnesses; (4) Fees for exemplification and
the costs of making copies of any materials where the copies are
necessarily obtained for use in the case; (5) Docket fees under section
1923 of this title; (6) Compensation of court appointed experts,
compensation of interpreters, and salaries, fees, expenses, and costs of
special interpretation services under section 1828 of this title. 8
Likewise “federal courts are bound by the limitations set out in [28 U.S.C.] section 1920.”9
Here, the Defendants seek hourly fees of a third-party to obtain public records. We
do not know, nor do the submitted invoices reveal the actual costs of copies (or their
certification costs, if any). Nevertheless, the Defendants here, have not and did not explain
how the obtaining of public records are “exemplification[s].” The Eighth Circuit has adopted
a narrow definitional application of exemplification as found in Black’s Law Dictionary:
“recovery of exemplification costs [is restricted] to only ‘an official
transcript of a public record, authenticated as a true copy for use as
evidence.’”10
See Sheldon Peters Wolfchild, et al. v. Redwood County, et al., Memo. of Law & Or. (Mar. 5, 2015),
Dckt. 196.
7 The matter is presently on appeal. Not. of App., Dckt No. 198.
8 28 U.S.C. § 1920.
9 168th & Dodge, LP v. Rave Reviews Cinemas, LLC, 501 F.3d 945, 957 (8th Cir. 2007).
10 See Kinzenbaw v. Case LLC, No. 05-1483, 2006 WL 1096683, at *3 (Fed. Cir. Apr. 26, 2006)
(recognizing split in the circuits between broad and narrow approaches and identifying
Eighth Circuit’s approach); See Black’s Law Dictionary, 612 Bryan Garner, ed. (8th ed.
Thomson-West 2004).
6
3
Since this Circuit accepts only a narrow application of “exemplification,” it means
that a defendant is entitled only to the “official transcript of a public record, authenticated as
a true copy for use as evidence.” In other words, certification costs of the record as copy costs
of the agency authenticating that record, not for private costs for searches.
The Defendants do not make any argument nor do they cite to any case law that
reflects an entitlement to the recovery for costs related to the searches for public documents,
here, hourly fees. Therefore, the bill of costs for should be denied.
Finally, we also object to the costs of $31.8011 for copies made for the convenience of
the court. The obligation is that of the Court’s own order, but is not an obligation under any
other established Local Rule or the Federal Rules of Civil Procedure. While the Court may
adopt its own rules,12 it does not, we believe fall under § 1920, as fees related to “use in the
case.”
CONCLUSION
The Defendants bill of costs should be denied.
/s/Erick G. Kaardal
Telephone: (612) 341-1074
Facsimile: (612) 341-1076
kaardal@mklaw.com
11
12
Bill of Costs, Dckt. No. 227.
See e.g., Fed. R. Civ. P. 82.
4
(MJD/FLN)
Plaintiffs,
vs.
Defendants.
SUBMITTED BY DEFENDANTS LIPINSKI, JOHNSON, RASUMSSEN,
HELMER, L. LUSSENHOP,J. LUSSENHOP, GUGGISBERG, HANSEN,
ENGSTROM, GOELZ KOKESCH, LUND, AND CROOKS
INTRODUCTION
The Plaintiffs object to the Bill of Costs submitted by the Defendants Lipinski,
Johnson, Rasumssen, Helmer, Larry Lussenhop, Jon Lussenhop, Guggisberg, Hansen,
Engstrom, Goelz, Kokesch, Lund, and Crooks, Dckt. No. 230. The Defendants seek
$5,669.40 of which only $44.40 are identified as actually copying costs. The balance of
$5,625 are hourly fees – not copies, excessive, and the records obtained, unnecessary. Since
the Wolfchild Plaintiffs object to all costs asserted and for the reasons asserted, the
Defendants bill of costs is should be denied.
ARGUMENT
The submitted affidavit of Michelle Christensen, counsel for the Defendants Lipinski,
Johnson, Rasumssen, Helmer, Larry Lussenhop, Jon Lussenhop, Guggisberg, Hansen,
1
Engstrom, Goelz, Kokesch, Lund, and Crooks is explicit in the sought after recovery as
copying costs:
“Exhibit A is an itemization of the costs for copies of property
records….”1
Charges for actual copies are not listed. Therefore, the bill of costs must be denied.
The costs sought are hourly fees of others to search existing public records which at
the forefront were unnecessary. Nevertheless, the Defendants have not argued that costs for
third parties to search for public records are recoverable. Certification of public records for
authenticity of the record are exemplifications and could have been related to costs; however,
those costs were not submitted as recoverable by the Defendants and therefore, the bill of
costs must be denied.
Whatever records the Defendants submitted to the Court, nevertheless, were
unnecessary in the first instance. The Wolfchild Plaintiffs, in their First-Amendment
Complaint, accurately listed each defendant’s property within the 12 square mile area claimed
by the Plaintiffs.2 Further, as the Court accurately noted in its memorandum and order that
the Plaintiffs did not dispute the Defendants had possession of their lands and that land
patents for each parcel of land in the disputed area had been issued by 1891:3
Christensen Aff. (Apr. 3, 2015), Dckt. No. 231.
See Plts. First-Amend. Comp., Dckt. No. 120.
3 Id.
4 Memo. & Or. at 25, Dkct. No. 196.
1
2
2
The records were redundant and added nothing to the record. In fact, the Wolfchild
Plaintiffs First-Amended Complaint admissions of the Defendants possession of the
property since 1891 made their subsequent submissions redundant at best; but, here,
unnecessary to the jurisdictional legal arguments the Defendants made in their motion to
dismiss.
Federal Rule of Civil Procedure 54 provides that “costs – other than attorney’s fees
should be allowed by the prevailing party.”5 The Eighth Circuit has explained that Rule 54(d)
“represents a codification of the ‘presumption that the prevailing party is entitled to costs.” 6
Here, the Defendant Municipalities moved to dismiss the Plaintiff Wolfchild’s FirstAmended Complaint and this Court granted that motion. 7 We do not contest that at the
district court level, they are prevailing parties.8
However, it does not mean the Defendant Municipalities can recover all costs. The
following costs are recoverable:
Fed. R. Civ. P. 54(d)(1).
Greaser v. State, Dept. of Corrections, 145 F.3d 979, 985 (8th Cir. 1998).
7 See Sheldon Peters Wolfchild, et al. v. Redwood County, et al., Memo. of Law & Or. (Mar. 5, 2015),
Dckt. 196.
9 28 U.S.C. § 1920.
5
6
3
Here, the Defendants seek hourly fees of a third-party to obtain public records. We
do not know, nor do the submitted invoices reveal the actual costs of copies. Nevertheless,
the Defendants here, have not and did not explain how the obtaining of public records are
“exemplification[s].” the Eighth Circuit appears to have adopted a narrow definitional
application of exemplification as found in Black’s Law Dictionary:
evidence.’”11
Since this Circuit accepts only a narrow application of “exemplification,” it means
that a defendant is entitled only to the “official transcript of a public record, authenticated as
a true copy for use as evidence.” In other words, certification of the public record as costs of
the agency authenticating that record, not for private costs of searching.
The Defendants cite to no case law that reflects an entitlement to the recovery for
costs related to the searches for public documents, here, hourly fees. Therefore, the bill of
costs for should be denied.
Finally, we also object to the costs of $44.4012 for copies made for the convenience of
the court. The obligation is that of the Court’s own order, but is not an obligation under any
168th & Dodge, LP v. Rave Reviews Cinemas, LLC, 501 F.3d 945, 957 (8th Cir. 2007).
See Kinzenbaw v. Case LLC, No. 05-1483, 2006 WL 1096683, at *3 (Fed. Cir. Apr. 26, 2006)
Eighth Circuit’s approach); See Black’s Law Dictionary, 612 Bryan Garner, ed. (8th ed.
Thomson-West 2004).
12 Christensen Aff. ¶4, Dckt. No. 231.
10
11
4
case.”
CONCLUSION
/s/Erick G. Kaardal
Telephone: (612) 341-1074
Facsimile: (612) 341-1076
kaardal@mklaw.com
13
5
Plaintiffs,
(MJD/FLN)
vs.
Defendants.
SUBMITTED BY DEFENDANT LOWER SOUIX COMMUNITY
The Plaintiffs object to the Bill of Costs submitted by the Defendant Lower Sioux
Community, Dckt No. 248, for costs of $40.80. These represent costs for courtesy copies
submitted to the Court. The costs of $40.801 for copies made for the convenience of the
court. The obligation is that of the Court’s own order, but is not an obligation under any
case.”
1
2
Bill of Costs, Dckt. No. 249.
CONCLUSION
/s/Erick G. Kaardal
Telephone: (612) 341-1074
Facsimile: (612) 341-1076
kaardal@mklaw.com
2
Plaintiffs,
(MJD/FLN)
vs.
Defendants.
SUBMITTED BY DEFENDANT MUNICIPALITIES
INTRODUCTION
The Plaintiffs object to the Bill of Costs submitted by the Municipal Defendants,
Dckt. No. 245. The Municipal Defendants suggest the Wolfchild Plaintiffs should be
punished for their underlying complaint through a Bill of Costs submission of $37,940.65, all
but for $305.50, relate to attorney’s fees.1 Hence, it is an attorney’s fees petition. The
Municipalities cite no case law in their declaration that allow for an award for attorney’s fees
as costs. Thus, the Municipalities Bill of Costs is should be denied.
We also note that the same Defendants have sought Rule 11 sanctions against the
Wolfchild Plaintiffs. See Dckt No. 120.
1
ARGUMENT
This Court has recognized that the “‘basic point of reference’ ‘on questions of
attorney fees is the “American Rule” that ‘[e]ach litigant pays his own attorney's fees, win or
lose, unless a statute or contract provides otherwise’”2 reiterating the U.S. Supreme Court’s
bedrock principle:
“Under the ‘bedrock principle known as the ‘American Rule,” ‘[e]ach
litigant pays his own attorney's fees, win or lose, unless a statute or
contract provides otherwise.’”3
There is no statute nor contract that allows the Defendant Municipalities to collect
attorney’s fees as “costs” under 28 U.S.C. § 1920. Yet here, the Defendant Municipalities
seek to do so in the amount of $37,635.40.4 We note in Exhibit B of the Schwie Declaration
every charge is for attorney fees and every page and every charge of that exhibit must be
disallowed. We offer just a few entries as examples:
Date
7/16/14
Charging Attorney
Partner: JES
8/20/14
Associate: AAL
9/19/14
Partner: JES
Entry
Handling of
collection of records
Documents
Collected Related
…Properties
Analyze and
Research Public
Records Related to
Disputed Area
Hours-Amount
.50 - $105
.70 - $133
6.60 - $1,386
Kaibel v. Mun. Bldg. Comm'n, No. CIV. 11-1231 SRN/JJK, 2012 WL 1314080, at *2 (D.
Minn. Apr. 17, 2012) quoting Hardt v. Reliance Standard Life Ins. Co., ––– U.S. ––––, 130 S.Ct.
2149, 2156–57 (2010).
3 Marx v. Gen. Revenue Corp., 133 S. Ct. 1166, 1175 (2013) quoting Hardt, 560 U.S., at ––––, 130
S.Ct., at 2157 (quoting Ruckelshaus v. Sierra Club, 463 U.S. 680, 683 (1983)).
4 Def. Municipalities Bill of Costs (Apr. 6, 2015), Dckt. No. 245.
2
2
These and other entries like it, reach a total sought of $37,635.40.
Further, the Defendant Municipalities cite no case to support their claim as further
explained below.5
We start with the basics. Federal Rule of Civil Procedure 54 provides that “costs –
other than attorney’s fees should be allowed by the prevailing party.”6 The Eighth Circuit
Court of Appeals has explained that Rule 54(d) “represents a codification of the
‘presumption that the prevailing party is entitled to costs.”7 Here, the Defendant
Municipalities moved to dismiss the Plaintiff Wolfchild’s First-Amended Complaint and this
Court granted that motion.8 We do not contest that at the district court level, they are
prevailing parties.9
However, it does not mean the Defendant Municipalities can recover all costs.
The following costs are recoverable:
Declaration of Jessica E Schwie (Apr. 6, 2015), Dckt. No. 246.
Fed. R. Civ. P. 54(d)(1).
7 Greaser v. State, Dept. of Corrections, 145 F.3d 979, 985 (8th Cir. 1998).
8 See Sheldon Peters Wolfchild, et al. v. Redwood County, et al., Memo. of Law & Or. (Mar. 5, 2015),
Dckt. 196.
10 28 U.S.C. § 1920.
11 168th & Dodge, LP v. Rave Reviews Cinemas, LLC, 501 F.3d 945, 957 (8th Cir. 2007).
5
6
3
The Defendant Municipalities believe they should recover all costs as found under
subsection (4) identified immediately above: “Fees for exemplification and the costs of
making copies of any materials where the copies are necessarily obtained for use in the
case….”12 The Defendants here, try to expand the definitional application of
“exemplification” where the Eighth Circuit appears to have adopted a narrow definitional
application using the same Black’s Law Dictionary as the Defendants:
evidence.’”13
Whether narrow or broad in definition of “exemplification” under § 1920, the statute
does not contemplate that attorney’s fees to review or collect public records were
recoverable costs. Certification of records to authenticate the public record is an example of
exemplification. Regardless, the cases cited by the Defendant Municipalities are inapposite to
support their argument.
For instance, Marmo v. Tyson Fresh Meats, Inc.,14 was a matter that ultimately reached
trial after discovery and partial summary judgment. Further, the case was one of 13 consolidated for
pretrial purposes and thus, the costs were also apportioned among the other 12 because the
materials would be useful in those cases. Marmo does not explain what the details of those
“costs” and certainly did not explain them to mean “attorney’s fees” for the preparation or
collection of the documents.
Schwie Decl. at 5¶4, Dckt. No. 246.
See Kinzenbaw v. Case LLC, No. 05-1483, 2006 WL 1096683, at *3 (Fed. Cir. Apr. 26, 2006)
Eighth Circuit’s approach).
14 Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 765 (8th Cir. 2006).
12
13
4
The cases the Defendant Municipalities do cite to support as “costs incurred by
professionals”15 do not relate to attorney’s fees.
In Swan Carbuerator Co. v. Chrysler Corp., a patent infringement suit, the bill of costs
included the preparation of drawings and charts and models prepared by and charged by a
draftsman;16 not attorneys. Likewise, in another patent infringement case cited by the
Defendant Municipalities, Appliance Inv. Co. v. Western Electric Co., Inc.,17 the bill of costs
included charges incurred in providing simplified drawings “in making clear at the trial the
drawings of patents having a bearing on issues.” The case does not identify the creator of the
drawing, but experience in patent infringement cases of this Court would suggest that the
simplified drawings of a complex patent design would not have been done by an attorney
but a qualified draftsman. Moreover, the case does not reflect that attorney preparation of
drawings as a fee charged, is a “cost” under § 1920.
If this Court were to adopt the rationale of the Defendant Municipalities, it would be
a sea change in the law, nullifying Rule 54’s prohibition of awarding attorney fees as costs,
and the purpose of § 1920. It invites every attorney who reviews a public record or any other
document that is used as evidence in a trial, to circumvent U.S. Supreme Court “bedrock
principle known as the ‘American Rule,’ ‘[e]ach litigant pays his own attorney's fees, win or
lose, unless a statute or contract provides otherwise.’”18
Schwie Dec. at 5¶4, Dckt. No. 246.
Swan Carburetor Co. v. Chrysler Corp., 149 F.2d 476 (6th Cir. 1945).
17 Appliance Inv. Co. v. Western Electric Co., Inc.,61 F.2d 752 (2d Cir. 1932).
18 Marx v. Gen. Revenue Corp., 133 S. Ct. 1166, 1175 (2013) quoting Hardt, 560 U.S., at ––––,
130 S.Ct., at 2157 (quoting Ruckelshaus v. Sierra Club, 463 U.S. 680, 683 (1983)).
15
16
5
We also note that the Defendant Municipalities seek to punish the Plaintiff
Municipalities with their bill of costs. The Defendant Municipalities maintain that the above
noted “costs” of $37,635.40 of attorney fees is related to the $93 they expended to “obtain
copies of public records, which could have and should have been obtained by Plaintiffs prior
to commencing this action….”19 While the Defendant Municipalities may contend that the
public records were for the understanding of the case, they are reminded “[i]n any trial it is
the defendant's obligation to present its side of the controversy, and it is not the plaintiff's
obligation to establish the defendant's theory of the case.” 20 The Defendants appear to imply
that (1) Plaintiffs did not examine the public record; (2) that the Plaintiffs were obligated to
produce the public record wherein the underlying theory of the case related to federal
statutory interpretation of the 1863 Act and related principles of Indian law; and (3) because
the public records were not produced the Plaintiffs should be punished. This is not the
purpose for the bill of costs.
In addition, the records copied by the Defendant Municipalities for which they seek
$37,635.40 were unnecessary for their motion to dismiss. The Wolfchild Plaintiffs, in their
First-Amendment Complaint, accurately listed each defendant’s property within the 12
square mile area claimed by the Plaintiffs.21 Further, as the Court accurately noted in its
memorandum and order that the Plaintiffs did not dispute the Defendants had possession of
Schwie Decl. at 4¶4, Dckt. No. 246.
Swan Carburetor Co., 149 F.2d at 477.
21 See Plts. First-Amend. Comp., Dckt. No. 120.
19
20
6
their lands and that land patents for each parcel of land in the disputed area had been issued
by 1891:22
Finally, we also object to the costs for copies made for the convenience of the court.
The obligation is that of the Court’s own order, but is not an obligation under any other
established Local Rule or the Federal Rules of Civil Procedure. While the Court may adopt
its own rules,24 it does not, we believe fall under § 1920, as fees related to “use in the case.
CONCLUSION
The Defendant Municipalities bill of costs should be denied.
/s/Erick G. Kaardal
Telephone: (612) 341-1074
Facsimile: (612) 341-1076
kaardal@mklaw.com
Id.
Memo. & Or. at 25, Dkct. No. 196.
24 See e.g., Fed. R. Civ. P. 82.
22
23
7

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