L     ,;-_
                                                                                                                                 IN THE UNITED STATES DISTRICT COURT      '     '" "' _-;': ! _i!i  '"
                                                  FOR THE DISTRICT OF COLUMBIA                 i_ 9,_ 5  Pi'_  7: _._'5_

                ELOUISE PEPION COBELL, et al.._:.,                   )                             : :,, :- _-: _- :_i t_  [ ,., "'''

                         Plaintiffs,                                          )
                                                                               )
                  v.                                                   )       Case No. 1:96CV01285
                                                                               )       (Judge Lamberth)
                GALE A. NORTON, Secretary of the Interior, et al_..:., )
                                                                              )
                  Defendants.                                       )
                                                                              )
                INTERIOR DEFENDANTS' REPLY BRIEF IN SUPPORT OF MOTION TO STRIKE
                     SCANDALOUS MATERIALS FROM PLAINTIFFS' RESPONSE TO DEFENDANTS'
                  HISTORICAL ACCOUNTING PLAN FOR INDIVIDUAL INDIAN MONEY ACCOUNTS
                         I.       Introduction
                         Plaintiffs' opposition to Interior Defendants' motion to strike scandalous materials from
                their response to Defendants' historical accounting plan ("Plaintiffs' Opposition") makes no
                attempt to address the substantial case law discussing the impropriety of using pleadings as a
                vehicle for launching vile attacks upon individuals. See Motion to Strike at 3-5. Rather than
               attempt to defend their personal attacks upon Mr. Edwards - in a pleading purportedly directed to
               the merits of Defendants' historical accounting plan - plaintiffs seek refuge in a procedural
               objection, t As we explain below, plaintiffs' procedural argument is insupportable and should be
               summarily rejected by this Court.



                                 Plaintiffs also apparently choose to "grant" themselves an enlargement and leave
               to file further arguments by referencing a "concurrently-filed" motion for an order to show cause,
               which they subsequently note will be filed "within 48 hours." Plaintiffs' Response at 3-5 and nn.
               3 and 5.
                                                                      -  1  -





                           II.      Plaintiffs' "Procedural" Objections to the Motion to Strike Are
                                  Without Merit and Should be Summarily Reiected by This Court
                         Plaintiffs initially argue for "strict" construction of the motion to strike against Interior
                Defendants, Plaintiffs' Response at 5-6, but their argument simply reiterates law - consistent with
                the law cited in Interior Defendants' motion to strike - recognizing that motions to strike are
                generally disfavored. See Motion to Strike at 3. Plaintiffs' argument makes no effort, however,
                to address the exception discussed in the motion to strike, i.e., where "scandalous" matter has
                been included in a pleading. See id. at 3-5 (citing and discussing numerous authorities).
                        Plaintiffs cannot credibly deny that their twenty-one page assault upon Mr. Edwards
                satisfies the standard for "scandalous" material under Rule 12(0 of the Federal Rules of Civil
                Procedure. Instead, they contend that because Mr. Edwards' "credibility and representations" will
               be at issue in the upcoming Phase 1.5 trial, they possess an unfettered license to attack him
               publicly within the text of their response to the historical accounting plan.
                        While it is certainly correct that motions to strike are disfavored, Rule 12(0 motions will
               be granted in appropriate circumstances, particularly where pleadings include personal attacks
               such as those contained in plaintiffs' response to the historical accounting plan. A review of the
               outrageous and extensive attacks upon Mr. Edwards confirms that Interior Defendants have more
               than satisfied the requirements to establish grounds for granting a motion to strike.
                        IH.     Plaintiffs' Response to the Historical Accounting Plan is Subject to
                                 Review Pursuant to Rule 12(f)
                        At no point do plaintiffs actually dispute that their statements about Mr. Edwards were
               scandalous. Instead, they argue that their response to the historical accounting plan was not a

               "pleading" and that, accordingly, it is beyond the reach of Rule 12(0. Plaintiffs are plainly

                                                                      -2-





                  wrong.
                         Plaintiffs' argument - based upon an overly narrow reading of Rule 12(f) - apparently
                presumes that their response to the historical accounting plan is not a pleading because it is not
                among the pleadings specifically enumerated in Rule 7(a). Fed. R. Civ. P. 7(a). As a
                consequence, plaintiffs rely upon a series of cases which hold that motions may not be attacked
                by a motion to strike. Plaintiffs' Response at 7 n. 9. 2

                         Plaintiffs' response to the historical accounting plan was not filed as a motion or other
                paper, pursuant to Rule 7(b) of the Federal Rules of Civil Procedure; it was filed in accordance
                with this Court's Order dated September 17, 2002, which set forth a schedule for submissions
                required for the issues to be tried in the Phase 1.5 trial. Cobell v. Norton, 226 F. Supp. 2d 1,
                148-49, 162 (D.D.C. 2002). Because these submissions were designed to frame the issues for the
                Phase 1.5 trial, which was ordered and scheduled in the Court's September 17, 2002 order, they
                can only be reasonably construed to be pleadings.
                        Moreover, while there are cases, such as those cited by plaintiffs in their footnote 9,
                which properly reject the use of a Rule 12(f) motion as a substitute for a response to a motion,
                the courts do not uniformly limit motions to strike to only those pleadings specifically
               enumerated in Rule 7(a). Indeed, in Nault's Automobile Sales, Inc. v. American Honda Motor
               Co., 148 F.R.D. 25 (D.N.H. 1993), the district court ordered stricken, pursuant to Rule 12(0 , a

                        2        Among the cases cited in plaintiffs' footnote 9 is Sidney-Vinstein v. A.H. Robins
               Co., 697 F.2d 880 (9th Cir. 1983). In their parenthetical description of this case, plaintiffs
               virtually quote, without attribution, the text of Westlaw headnote 4 for the case, with two
               exceptions. First, they insert the word "this" before the text "rule providing that .... "Of greater
               significance, plaintiffs omit the next statement in the headnote, which described the appellate
               court's conclusion that the trial court's striking of the motion for reconsideration was harmless
               error.
                                                                      -3 ~




                  memorandum in support of a motion for default, an objection to a motion for a protective order,
                and two additional legal memoranda because they contained scandalous allegations.  148 F.R.D.
                at 35. 3 See also Theriault v. Silber, 574 F.2d 197 (5th. Cir 1978) (order striking "vile and
                insulting references to the trial judge" from notice of appeal) (citing Rule 12(f)), cert. denied, 440
                U.S. 917 (1979).
                         In fact, in Alexander v. FBI, 186 F.R.D. 21 (D.D.C. 1998), this Court relied upon Rule
                12(f) in striking allegations from a motion. In Alexander, the plaintiffs filed a motion seeking
                sanctions for a variety of alleged improprieties. In response, one of the defendants, then-First
                Lady Hillary Clinton, filed a motion pursuant to Rule 12(f) asking the Court to "strike plaintiffs'
                charges that attorney Paul Gaffney 'threatened Plaintiffs' counsel and family.'"  186 F.R.D. at 56.
                This Court, finding no evidence to support the allegation against Mr. Gaffney, granted Mrs.
                Clinton's motion, pursuant to Rule 12(0.
                        Thus, the premise of plaintiffs' argument - that Rule 12(f) affords no basis for striking
               scandalous material from their response to the historical accounting plan - is insupportable as a
               matter of law. This Court has the authority and the duty, pursuant to Rule 12(0, to preserve the
         _.-   dignity cf the Court and to protect individuals, such as Mr. Edwards, from plaintiffs' trarv_arent
               efforts to harass, intimidate, and embarrass him in this public fashion. 4

                        3        Significantly, Nault's Automobile Sales was the principal case discussed in
               Interior Defendants' motion to strike, yet plaintiffs wholly ignore it in their opposition to the
               motion to strike.
                        4        Plaintiffs suggest that this Court cannot order them to remove stricken pleadings
               from their website. Plaintiffs' Response at 8 n. 11. If plaintiffs persisted in publishing a stricken
               pleading through its website, their counsel would be using the website to misrepresent the status
               of a case before this Court. We are confident this Court possesses the power to enter an order
               preventing a party or its counsel from publicly misrepresenting the status of a case before it.
                                                                     -4-




                                                                         Conclusion
                         For the foregoing reasons and the reasons set forth in the motion to strike, Interior
                Defendants respectfully request this Court to enter its order striking sections IV and V from
                Plaintiffs' Response to Defendants' Historical Accounting Plan for Individual Indian Money
                Accounts and to order that plaintiffs remove the offensive sections from www.indiantrust.com.
                                                            Respectfully submitted,
                                                            ROBERT McCALLUM, JR.
                                                            Assistant Attorney General
                                                            STUART E. SCHIFFER
                                                            Deputy Assistant Attorney General
                                                           J. CHRISTOPHER KOHN
                                                           Director         ^            //2



                                                           Deputy Director
                                                           JOHN WARSHAWSKY (D.C. Bar No. 417170)
                                                           Trial Attorney
                                                           Commercial Litigation Branch
                                                           Civil Division
                                                           P.O. Box 875
                                                           P, cn Franklin Station       -
                                                           Washington, D.C. 20044-0875
                                                           (202) 514-7194
               February 25, 2003








                                                                     -5-




                                                             CERTIFICATE OF SERVICE
                         I declare under penalty of perjury that, on February 25, 2003 1 served the foregoing Interior
                Defendants' Reply Brief in Support of Motion to Strike Scandalous Materials from PlaintifJk'
                Response to Defendants' Historical Accounting Plan for Individual Indian Money Accounts by
                facsimile in accordance with their written request of October 31, 2001.
                Keith Harper, Esq.                                       Dennis M Gingold, Esq.
                Native American Rights Fund                          Mark Kester Brown, Esq.
                1712 N Street, N.W.                                      1275 Pennsylvania Avenue, N.W.
                Washington, D.C. 20036-2976                         Ninth Floor
                (202) 822-0068                                           Washington, D.C. 20004
                                                                             (202) 318-2372
                By U.S. Mail upon:
                Elliott Levitas, Esq.
                1100 Peachtree Street, Suite 2800
                Atlanta, GA 30309-4530

                By facsimile and U.S. Mail upon:
                Alan L. Balaran, Esq.
                Special Master
                1717 Pennsylvania Avenue, N.W.
                13th Floor
               Washington, D.C. 20006
               (202) 986-8477
 : .....         By hand upon:-                                                               _            v:           -

               Joseph S. Kieffer, m
               Special Master Monitor
               420 7 th
                                  Street, N.W.
               Apartment 705
               Washington, D.C. 20004
               (202)248-9543