<< COB0000001 >> IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ELOULSE PEPION COBELL, et al, ) ) Plaintiffs, ) ) V. ) Case No. 1:96CV01285 ) (Judge Lamberth) GALE A. NORTON, Secretary of the Interior, ) ) Defendants. ) DEFENDANTS' MOTION FOR LEAVE TO FILE SURREPLY The Department of the Interior Defendants ("Interior Defendants) respectfully move for leave to file the attached Defendants' Surreply to Plaintiffs' Reply re. (I) Plaintiffs' Motion to Strike Defendants' Opposition to Edith Blackwell Contempt Spec~fications; and (2) Motion for Enlargement of Time to Reply to Such Opposition. Plaintiffs' Reply claims that Interior Defendants' service of The Governmenb Response to Plaint ifs' Bill of Particulars and Supplemental Memnorandum in Support of Plaint ifs' Motion for an Order to Show Cause Why Edith Blackwell Should Not Be Held in Contempt in Connection With the Overwriting of Backup Tapes (filcd Aug. 12, 2002) to Elliott Levitas was defective. Specifically, plaintiffs claim that service by mail to Elliott Levitas was not effective because of the two year absence of Mr. Levitas on plaintiffs' pleadings and the absence of Mr. Levitas's name on the pleading Interior Defendants' were responding to: Plaintiffs' "Bill of Particulars" for Edith Blackwell in Support of Plaint ifs' Motion for Order to Show Cause Why Interior Defendants, and their Counsel, Should Not be Held in Criminal Contempt for Destroying E-Mail and Supplemental Me~norandum of Points and Authorities in Support of Criminal Contempt. << COB0000002 >> Interior Defendants seek leave to file a Surreply because plaintiffs did not make this argument in their original Motion, and Interior Defendants should be given an opportunity to respond since Mr. Levitas is still counsel of record and plaintiffs have specifically and recently requested that Mr. Levitas continue to receive service of pleadings in this action. For these reasons, Interior Defendants respectfully request leave to file the attached Defendants' Surreply to Plaintiff' Reply re: (1) Plaint ffs' Motion to Strike Defendants' Opposition to Edith Blackweli Contempt Specifications; and (2) Motion for Enlargement of Time to Reply to Such Opposition. Counsel for plaintiffs have stated that they oppose this motion. Respectfully submitted, ROBERT D. McCALLUM, JR. Assistant Attorney General STUART F. SCHIIFFER Deputy Assistant Attorney General J. CHRISTOPHER KOHN MICHAEL F. HERTZ - D.C. Bar No. '261495 Dodge Wells Senior Trial Counsel D.C. Bar No. 425194 Tracy L. Hilmer D.C. Bar No. 421219 Trial Attorney Commercial Litigation Branch Civil Division P.O. Box 261 Ben-Franklin Station Washington, D.C. 20044 (202) 307-0474 DATED: September 6, 2002 -2- << COB0000003 >> TN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ELGUISE PEPION COBELL, et al., ) ) Plaintiffs, ) ) v. ) Case No. 1:96CV01285 ) (Judge Lamberth) GALE A. NORTON, Secretary of the Interior, ) ~t~L ) Defendants. ) DEFENDANTS' SURREPLY TO PLAINTIFFS' REPLY re: (I) PLAINTIFFS' MOTION TO STRIKE DEFENDANTS' OPPOSITION TO BLACKWELL CONTEMPT SPECIFICATIONS; AND (2) MOTION FOR ENLARGEMENT OF TIME TO REPLY TO SUCH OPPOSITION Plaintiffs' Reply claims that Interior Defendants' service of The GovernmenI~ Response to Plaint ffs'Bill of Particulars and Supplemental Memorandum in Support ofPlaint~ffs 'Motion for an Order to Show cause JT~y Edith Blackwell Should Not Be field in Contempt in Connection With the Overwriting of Backup Tapes (filed Aug. 12, 2002) on Elliott Levitas was defective. Plaintiffs state that because Mr. I,evitas has not appeared on a brief in two years and because his name did not appear on Plaintiffs' Bill of Partictdars, scrvicc to Mr. Levitas was ineffective. However, when a party is represented by more than one attorney, proper service upon any of the party's attorneys, under any of the means set forth in Rule 5(b), constitutes proper service upon the party. See, e.g., Daniel Int'l Corp. v. Fischbach & Moore, Inc., 916 f.2d 1061, 1063 (5th Cir. 1990) ("The burden is to serve all other parties. This does not require service on each of several counsel appearing on behalf of a party."); accord Buchanan v. Sherrill, 51 F.3d 227, 228 (10th Cir. 1995) (per curiam) (citing Daniel); Travers v. Computing Analysis Corp., 178 F.3d 1286, << COB0000004 >> 1999 WL 285859 ** 2 (4th Cir. May 7, 1999) (table) (unpublished opinion) ("When a party is reprcsentcd by more than one attorney, proper service upon any one of them satisfies the requiremcnts of Rule 5.") (citing Buchanan v. Sherrill). Elliot Levitas entered his appearance in this litigation on March 15, 1999. See Notice of Appearance for Elliot Levitas. Exhibit 1. He i-emains counsel of record for plaintiffs. Ilis active participation for purposes of service upon plaintiffs is further documcnted in recent correspondence. On October 31, 2001, Dennis M. Gingold wrote to J. Christopher Kohn and Mark E. Nagle requesting suspension of mail service to Mr. Gingold, Thaddeus Halt, and Keith Harper. In this letter, Mr. Gingold stated that "Mr. Levitas will continue service via U.S. mail service." (Exhibit 2) (emphasis added). On May 23, 2002, Elliott H. Levitas wrote Sandra P. Spooner stating his preference for notification by fax or email of the location of depositions to be taken by the Court Monitor. Mr. Levitas continued, "For all other purposes of service and notification, please continue to serve or notify me by first class mail as you have been doing in the past." (Exhibit 3) (emphasis added). Mr. Levitas clearly remains counsel of record for plaintiffs, and service on plaintiffs through Mr. Levitas was effective. Additionally, defendants did not receive service of plaintiffs' Reply in any manner on August 27, 2002 — the date set forth in plaintiffs' certificate of service. Defendants received the Reply by facsimile transmission on August 29, 2002, and only after defendants' agent contacted plaintiffs to ask if the Reply had been served. Thus, there is a question as to the accuracy of plaintiffs' own certificate of service. Defendants, however, believe this petty nonsense should. end here. Hopefully, plaintiffs have learned that people who live in glass houses should not cast stones. << COB0000005 >> CdNCLUSION For the foregoing reasons and those stated in Defendants' Opposition to (I) Plaint~ffi" Motion to Strike Defendants' Opposition to Edith lllackvt'ell Contempt Spec~fi ca/ions; and (2) Motion for Enlargement of Time to Reply to Such Opposition, plaintiffs' motion to strike the Blackwell Opposition should be denied. Respectfully submitted, ROBERT D. McCALLUM, JR. Assistant Attorney General STUART E. SCHIIFEER Deputy Assistant Attorney General J. CHRISTOPHER KOI{N MICHAEL F. HERTZ Directors D.C. Bar No. 261495 Dodge Wells Senior Trial Counsel D.C. Bar No. 425194 Tracy L. 1-lilmer D.C. Bar No. 421219 Trial Attorney Commercial Litigation Branch Civil Division P.O. Box 261 Ben Franklin Station Washington, D.C. 20044 (202) 307-0474 DATED: September 6, 2002 -3- << COB0000006 >> UNITED STATES DISTRICT COURT FOR TIlE DISTRICT OF COLUMBIA ) ELGUISE PEPION COBELL, et al., ) ) Plaintiffs, ) Civil Action No. 96-CV-1285 (RCL) ) v. ) ) GALE A. NORTON, et al., ) ) Defendants. ) ORDER Upon consideration of Defendants' Motion for Leave to File Surreply, and the entire record in this case, it is this ______ day of_____, 2002, hereby ORDERED that Defendants' Motion be, and hereby is, GRANTED; and it is FURTHER ORDERED that Defendants' lodged Surreply to Plaintiffs' Reply re: (I) Plaintiffs' Motion to Strike Defendants' Opposition to Blackwell Contempt Specifications; and (2) Motion for Enlargement of Time to Reply to Such Opposition shall be filed in the record as of this date. Honorable Royce C. Lamberth United States District Judge << COB0000007 >> cc: Tracy Hilmer Dodge Wel]s Civil Division P.O. Box 875 Ben Franklin Station Washington, D.C. 20044-0875 Fax (202) 616-3085 Sandra P. Spooner John T. Stemplewicz Cynthia L. Alexander Commercial Litigation Branch Civil Division P.O. Box 875 Ben Franklin Station Washington, D.C. 20044-0875 Fax (202)514-9163 Dennis M Gingold, Esq. Mark Brown, Esq. 1275 Pennsylvania Avenue, N.W., Ninth Floor Washington, D.C. 20004 Fax (202) 318-2372 Keith Harper, Esq. Native American Rights Fund 1712 N Street, N.W. Washington, D.C. 20036-2976 Fax (202) 822-0068 Elliott Levitas, Esq. 1100 Peachtree Street, Suite 2800 Atlanta, GA 30309-4530 Amy Berman Jackson Trout & Richards 1100 Connecticut Avenue, N.W. Suite 730 Washington, D.C. 20036 Fax: (202)463-1925 << COB0000008 >> CERTIFICATE OF SERVICE I hereby certify that, on September 6, 2002, 1 served the foregoing DEFENDANTS' SURREPL Y TO PLAINTIFFS' REPLY re: (1) PLAINTIFFS' MOTION TO STRIKE DEFENDANTS' OPPOSITION TO BLA CKWELL CONTEMPT SPECIFICA TTONS; AND (2) MOTION FOR ENLARGEMENT OF TIME TO REPLY TO SUCH OPPOSITION and DEFENDANTS' MOTION FOR LEA VE TO FILE SURREPL Y by first-class mail, postage prepaid, and by facsimile transmission, pursuant to agreement, upon: 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 Fax No.: (202)822-0068 Washington, DC. 20004 Fax No.: (202)318-2372 and by U.S. Mail only upon: Elliott Levitas, Esq. 1100 Peachtree Street, Suite 2800 Atlanta, GA 30309-4530 Courtesy copies provided to: Alan L. Balaran, Esq. Special Master 1717 Pennsylvania Avenue, N.W. 12th Floor Washington, D.C. 20006 Joseph S. Kieffer, III Court Monitor 420 7th Street, N.W. Apartment 705 Washington, D.C. 20004 Amy Berman Jackson Trout & Richards 1100 Connecticut Avenue, N.W. Suite 730 Washington, D.C. 20036 Sean P. Schmergel << COB0000009 >> AO 458 (Rev. 6/98 DC) -APPEARANCE ftw tI~L? ~i~trirt of (!Fohtmhiu ELOIJISE PEPION COBELL, et al., Plaintiffs, APPEARANCE V. BRUCE BABBITT, et al., CASENUMBER: 1:96 CV 01285 (RCL) Defendants. To the Clerk of this Court and all parties of record: Enter my appearance as counsel in this case for the Plaintiffs, ELOUISE PEPION COBELL, et al. March 15. 1999 ___________________________________ Date Signature 3B47~8 ~1linli H T.~u'iI-~ BAR IDENTIFICATION NO. Print Name 1100 Peachtree Street, Suite 2800 Address Atlanta. CA 30309 City Stare Zip Code 404—815—6450 Phone Number EXHIBIT 1 Defendants' Surreply << COB0000010 >> CERTIFICATE OF SERVICE I hereby certify that on this 16th day of March 1999, copies of the forgoing Notice of Appearance was sent via United State first-class mail, postage prepaid, to: Counsel of Record: Phillip A Brooks, Esq. Environment and Natural Resources Division Department of Justice 601 Penn. Avenue, NW Room 5616 Washington, DC 20044-0663 Of Counsel: Edith Blackwell, Esq. In grid Falanga, Esq. Connie Lundgren, Esq. Daniel Mazella, Esq. Office of the Solicitor Office of General Counsel Division of Indian Affairs Department of Treasury Department of Interior 401 14th Street, S.W. 1849 C Street, NW MS-6456 Room 531 Washington, DC 20240 Washington, DC 20237 Elliott II. Levitas << COB0000011 >> •20231P,2372 2001—10—31 17:04:01 (GMT), page 1 FAX COVER ShEET .ro ib4s__ 64'' A _________________ COMPANY FAXNUMiBER 12025147450 ______________________ FROM Geoffrey Rernpel ____________ _______ DATE 2 001—10—31 ________ RE Fax from Geoffrey Rempel ___________________ COVER MESSAGE Memo: none EXHIBIT 2 Defendants' Surreply << COB0000012 >> 12023 2372 ZOOI—10—31 17:Oq:01 (ONT), page 2 — Dennis M Gingold P.O. Box 14464 Washington, D.C. 20044-4464 202 661-6380 Fax 202 318-2372 VIA FACSIMILE October31, 2001 Mark E. Nagle Judiciary Center Building 555 Fourth Street, N W., F~oom 10-403 Washingtou, D.C. 20001 J. Christopher Kohn United State3 Department o~Justicc Civil Division P.O. Bo 975 Ben Franklin Station Washington. DC. 20044-0875 Re: Cobellv Norton 1:96CV01285 Dear Messrs Nagle and Kohn: In light of the recent contamination of Department of Justice majirooms with anthrax and the ongoing threat to the United States Postal Service, generally, plaintifTh respectfially request that you suspend indefinitely mail service to the following individuals; Dennis M. Gingold. ESq. Mark K. Brown, Esq. 1275 Pennsylvania Avenue, NW. 9'~ Floor Washington, D.C. 20004 Thaddeus Holt, Esq. P.O. Box 440 Point Clear) AL 36564 << COB0000013 >> 1202 .~2372 2001-10—31 17:04:01 (ONT), page 3 Keith Harper, Esq. Native American Rights Fund 1712 N Street, NW. Washington, D.C. 20036-2976 Service in the alternative, including all relevant correspondence, filings (w/ attachments, exhibits, etc.), and other documents, can be completed via facsimile at the following numbers: Dennis M. Gingold, Esq and Mark K. Brown, Esq 202.3 18.2372 Keith Harper, Esq. Native American Rights Fund 202.822.0068 Mr. Levitas will continue service via U.S. mail service, Of course, facsimile service may not be appropriate for ceilain material. Please contact Geoffrey Rempel (202.661.6381) to coordinate alternative arrangements. Thank you. Very truly yours, Dennis M. Gingold cc: Brian Ferrell (by facsimile) Alan Balaran (by facsimile) Elliott Levitas (by facsimile) Keith Harper (by facsimile). 2 << COB0000014 >> MAY. 23. 2002 32 6PM K IL P.4P II S T0?f SN 110.2916 P. Suite 900 601 14th St., NW p~ K ILPATRICK Washin~toi, DC 20005-201S ~ STOCKTOPJ LLP r202 508 s~oo f ~oa 508 w.KiIp~tnckStacktoi~. corn Attorneys at Law dircct di~1 202 50~ 5815 May 23, 2002 ELeviI~chiZKiIpatrickS!c~cktortcorn FAX RECIPI E NT! COMPANY! PHONE NO, FAX NO. CITY, STATE, COUNTRY Sandra P. Spooner 202-514-9163 Department of Justice Washington, DC Elliott H. Levitas 2 FROM PAGES (WITH COVER) 8800 38321/190923 REFERENCE I'JO CLIENT/MATTER NO. PLEASE CALL 202 508 5816 IF YOU HAVE DIFFICULTY WITH THIS TRANSMISSION. CONFIDENTIALITY NOTE: The InformatIon contaIned in this fax message is being transmitted to and Is Intendod for tho use of the lndv;dual named above, lithe reader of this message Is not the Intondod reCipient, you are hereby advised that any dIssemInation, dIstribution or copy of thIs fox is strictly prohIbited. If you have received this fax in error, pleas. ImmedIately notify us by tolophone and destroy this fax message. COM MENTS TO BE COMPLETED BY KS OPERATIONS CENTER TRANSMISSION RECEIPT DATEJTIME: _________________________________________ COMPLETED BY: ___________________________ JOB CODE CH)~LOTT1 L~tW4 MIAMI RALLI(JH RE5TCIJ ST~i~Ou4 WA5XiHCTON MANSTOtI4AJ.LM EXHIBIT 3 Defendants' Surreply << COB0000015 >> HAY 23 2@62 3:36PM FILPATPJCE STOCKON NO. 2916 P. 2 ~ K ILPATRICK Suitt 900 607 ~4th Si., NW STOCKTON LLP \V:shing:on DC 20005-201 S I 202 S0~ 5800 f 202 508 5~S8 Attorneys at La~~ www.KiIparickS~cck:on.com May 23, 2002 dirce~ diII 202 508 SS1S ELc\'iias@KiJ~atrickStockbn. corn Via Facsimile and U.S. Mail Sandia P. Spooner, Esq. Deputy Director, Commercial Litigation Branch Depaitinent of Justice, Civil Division P.O. Box 375 Ben Franklin Station Washington, D.C. 20044-0875 Re: Cobell~ et al. V. Norton, et al. Civil Action No. 1:96 CV 01285 (Judge Lamberth) Dear Ms. Spooner. With regard to the Court Monitor's request that you notify Plaintiffs' counsel concerning the location in Washington, D.C. for taking the depositions referred to in the Court Monitor's letter to you of May 1 5,1 would appreciate your notifying me of this information by email or by fax, as you jxefer. My email address is c.l~vitas~k~]~atrickstockton,corn, and my fax number is 404-541-3230. For all other purposes of service and notification, please continue to serve or notify me by first class mail as you have been doing in the past. Thank you for your cooperation. Elliott U~ Levitas EHL/crb cc: Dennis M. Gingold Joseph S. Kieffer, III Ai1.?!~[Dfl4t,@S~)4 IBR~)F.cCL5 eHA~LO,1~ ~ONO~ MI~M~ A~L~F~i ~1'O~I SOC.(I4OLM WA~HrNOY~N w~M1O'~.SALEM