Case 1:18-cv JAP-KBM Document 15 Filed 02/05/19 Page 1 of 12

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1 Case 1:18-cv JAP-KBM Document 15 Filed 02/05/19 Page 1 of 12 SHEPPARD MULLIN RICHTER & HAMPTON LLP A Limited Liability Partnership Including Professional Corporations ROBERT J. URAM, Fed. Bar No ruram@sheppardmullin.com JAMES F. RUSK, Fed. Bar No jrusk@sheppardmullin.com Four Embarcadero Center, 17th Floor San Francisco, California Tel: Fax: Attorneys for Defendants-in-Interpleader CALIFORNIA VALLEY MIWOK TRIBE, YAKIMA DIXIE, VELMA WHITEBEAR, ANTONIA LOPEZ, GILBERT RAMIREZ, JR., ANTOINETTE LOPEZ, MICHAEL MENDIBLES, and IVA CARSONER IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO In Re: $323, IN FUNDS BELONGING TO THE CALIFORNIA VALLEY MIWOK TRIBE Case No. 18-cv JAP/KBM Hon. James A. Parker REPLY IN SUPPORT OF MOTION TO TRANSFER VENUE I. INTRODUCTION AND SUMMARY Defendant-in-Interpleader Silvia Burley s Opposition to Motion to Transfer Venue (Opposition, ECF No. 13) devotes only a single page to the subject of venue. It offers no valid reason why this Court should not transfer this action to the Eastern District of California, as requested by Defendants-in-Interpleader Velma WhiteBear, Antonia Lopez, Gilbert Ramirez, Jr., SMRH:

2 Case 1:18-cv JAP-KBM Document 15 Filed 02/05/19 Page 2 of 12 Antoinette Lopez, Michael Mendibles, and Iva Carsoner (collectively, the Tribal Council) and the California Valley Miwok Tribe (Tribe). 1 First, Ms. Burley is simply wrong in claiming that the Tribal Council waived any objection to venue. Second, she offers no support for her claim that the settlement funds at issue in this action represent property situated in the District of New Mexico that makes venue proper here. Third, even if venue were proper here, Ms. Burley has presented no reason why transferring the case under 28 U.S.C. 1404(a) would not be in the interest of justice and the convenience of the parties and witnesses. Ms. Burley spends virtually all of her Opposition arguing issues that are irrelevant to venue and that were already addressed in her motion to lift the stay in this case (ECF No. 8) and her reply in support of that motion (ECF No. 12). Those arguments also fail. Ms. Burley s argument that the Court should resolve this dispute by distributing the Tribe s share of settlement proceeds to the four members of her family rests on the false assumption that they are the only members of the Tribe and ignores the well established legal principle that members of a tribe have no right to assert the tribe s rights. Ms. Burley s argument that the Tribal Council members are not members of the Tribe and have no standing to assert any claim to the interpleaded funds rests on the same false assumption and fails for the same reasons. 1 In addition to Ms. Burley, the Opposition is purportedly submitted on behalf of the General Council and Ms. Burley s family members Rashel Reznor, Angelica Paulk and Tristian Wallace none of which are parties to this action and on behalf of the Tribe, which is a party to this action. (Opposition, p. 1.) However, the Tribal Council, and this law firm, also claim to represent the Tribe. To avoid unnecessary confusion, this brief will refer primarily to the Tribal Council. The Tribal Council does not thereby waive any objection to Ms. Burley s claims that she or her attorney represents the Tribe. SMRH:

3 Case 1:18-cv JAP-KBM Document 15 Filed 02/05/19 Page 3 of 12 In summary, Ms. Burley s Opposition does not refute the Tribal Council s showing, in its Motion to Transfer Venue (Venue Motion, ECF No. 9), that transfer of this case is appropriate. In fact, Ms. Burley s attempt to re-litigate Tribal membership issues in this Court demonstrates the risk of multiple litigation and inconsistent judgments if the case remains here, and reinforces the propriety of transferring the case to the venue Ms. Burley most recently selected to litigate the issues related to this Tribe: the Eastern District of California. II. ARGUMENT Ms. Burley s waiver argument is incorrect. She has failed to show that venue is proper here or that transfer to the Eastern District of California is not in the interest of justice. Her other arguments ask the Court to determine the Tribe s membership, which it lacks jurisdiction to do, and are refuted by the Bureau of Indian Affairs (BIA) decision that she relies on. A. The Tribal Council Has Not Waived Any Objection to Venue. Citing FRCP 12(h)(1), Ms. Burley argues that the Tribal Council waived the defense of improper venue by not raising the defense in its first responsive pleading. (Opposition, p. 17.) This argument fails for two reasons: The Tribal Council has not yet filed a responsive pleading in this case, and the Tribal Council has not attempted to raise the defense of improper venue under FRCP 12. FRCP 12(b) states that certain defenses, including improper venue, must be asserted in the responsive pleading, if one is required, but may also be asserted by motion. A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. Id. A party waives the defense of improper venue if it either (i) omits it from a SMRH:

4 Case 1:18-cv JAP-KBM Document 15 Filed 02/05/19 Page 4 of 12 motion made under FRCP 12, see FRCP 12(h)(1)(A), or (ii) fails to either assert the defense by motion under FRCP 12 or include it in a responsive pleading, see FRCP 12(h)(1)(B). Ms. Burley asserts, without any authority, that the joint motion to stay filed by Defendants-in-Interpleader in this case constitutes a first responsive pleading. (Opposition, p. 17.) But a motion is not a pleading. Bond v. ATSI/Jacksonville Job Corps Center, 811 F.Supp.2d 417, 421 (D.D.C. Sept. 20, 2011) (citing FRCP 7(b)). Only the specific filings listed in FRCP 7(a) which include various types of complaints and answers, and a reply to an answer are pleadings. Id. (citing FRCP 7(a)). The joint motion to stay (ECF No. 5) was not an answer, a complaint or a reply, nor has the Tribal Council filed any of those documents. Mann v. Castiel 681 F.3d 368, 374 (D.C. Cir. 2012) (a motion to stay is neither a responsive pleading, such as an answer or third party complaint nor a dispositive motion raising a defense listed in Rule 12(b) ). Thus, the Tribal Council has not waived the defense of improper venue. Even if the Tribal Council had waived the defense of improper venue, it would not matter, because the Tribal Council s Venue Motion was not a motion to dismiss under FRCP 12 for improper venue and did not raise any defense. The Venue Motion requested that the Court transfer this case to the Eastern District of California, not that it dismiss the case. (Venue Motion, p. 13.) Thus, FRCP 12(h) does not apply. B. Venue Is Not Proper in this District. Although the Tribal Council has not sought dismissal of this case, the question of whether venue is proper in this District is still relevant to deciding whether transfer is appropriate. See 28 U.S.C. 1406(a) ( The district court of a district in which is filed a case SMRH:

5 Case 1:18-cv JAP-KBM Document 15 Filed 02/05/19 Page 5 of 12 laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought. ). 2 The Tribal Council explained in its Venue Motion that venue is not proper in the District of New Mexico because none of the parties to this action resides in this District, and none of the events giving rise to the parties claims occurred in this District. See 28 U.S.C. 1391(b)(1), (2). Ms. Burley claims, without elaboration, that venue is proper under subsection 1391(b)(2) because the interpleaded funds are property that is the subject of the action and the funds are on deposit with the Court Clerk (Opposition, p. 17). See 28 U.S.C. 1391(b)(2) (venue is proper in any district in which a substantial part of property that is the subject of the action is situated ). The Opposition identifies no authority for this claim, and the Tribal Council has been unable to find any. Courts may treat money as property for purposes of determining venue. See, e.g., Kukui Gardens Corp. v. Holco Capital Group, Inc., 664 F.Supp.2d 1103, 1121 (D. Hawai i Dec. 19, 2008) (venue was proper in Hawaii because apartment complex, mortgage on complex, and funds held in escrow related to sale of complex were all located in Hawai i). But this does not imply that the mere presence of funds deposited with a court is sufficient to make venue 2 The Tribal Council did not bring its Venue Motion under 28 U.S.C. 1406(a), because the Tribal Council did not seek dismissal of this case, as section 1406(a) authorizes. C.f. Kukui Gardens Corp. v. Holco Capital Group, Inc., 664 F.Supp.2d 1103, 1119 (D. Hawai i Dec. 19, 2008) (defendants moved court to dismiss case under 28 U.S.C. 1406(a) or, in the alternative, to transfer the case to another district); Jumara v. State Farm Ins. Co., 55 F.3d 873, 878 (3d Cir. 1995) ( while either statute could theoretically provide a basis for the transfer of a case, only 1406 can support a dismissal ). However, both parties briefed the issues of whether venue is proper in this District and whether the case should be transferred. Thus, there is no prejudice to either party if the Court chooses to consider transfer under section 1406(a). C.f. Jumara, 55 F.3d at 878. SMRH:

6 Case 1:18-cv JAP-KBM Document 15 Filed 02/05/19 Page 6 of 12 proper under section 1391(b)(2), absent any further connection to property or events there. See id. The best support for Ms. Burley s position that the Tribal Council has found comes from a district court in another circuit. See Sentry Select Inc. Co. v. LBL Skysystems (U.S.A.), Inc., 486 F.Supp.2d 496, 505 (E.D. Penn. May 18, 2007) (finding that venue is proper in the Eastern District of Pennsylvania because of the nexus between the interpleaded funds (the subject of this case) and this district ). But Sentry Select did not rely on the presence of the interpleaded funds within the district to find venue proper. Instead, the court focused on whether the events giving rise to this action were connected with the district. Id. at 505. The court considered not only the court s own prior judgment giving rise to the interpleaded funds, but also one party s attempt to attach those funds prior to the initiation of this interpleader case, and another party s alleged disbursements of funds, all of which occurred in the Eastern District of Pennsylvania. Id. Thus, Sentry Select does not stand for the proposition that interpleaded funds are property that is the subject of the action, sufficient to make venue proper under 28 U.S.C. 1391(b)(2). Instead, it confirms that the Court should consider whether the events giving rise to the claim, id., occurred in the district. As the Tribal Council explained in its Venue Motion, none of the events giving rise to this action occurred in New Mexico, other than the Court s resolution of the Ramah case a class action that could have been venued anywhere, and which neither the Tribal Council nor Ms. Burley actively participated in. All other events giving rise to the dispute over the Tribe s share of settlement proceeds occurred in the Eastern District of California. (Venue Motion, pp ) SMRH:

7 Case 1:18-cv JAP-KBM Document 15 Filed 02/05/19 Page 7 of 12 Moreover, the record in this case does not show that the interpleaded funds are located in the District of New Mexico. By law, all funds deposited with any federal court in any pending case shall be forthwith deposited with the Treasurer of the United States or a designated depositary, in the name and to the credit of such court. 28 U.S.C This Court has entered Administrative Order No. 16-MC-04-50, requiring compliance with that policy. The record does not show whether the Court deposited the funds with a designated depositary located in the District of New Mexico, but, in either case, it is questionable whether any funds held by the federal courts in this manner are property situated in a particular judicial district as required by 28 U.S.C. 1391(b)(2). Considering all the circumstances, the mere fact that the interpleaded funds were deposited with this Court does not make venue proper here to resolve a dispute that has occurred entirely in the Eastern District of California and that involves only parties who reside there. C. Ms. Burley Has Conceded that Transfer Is Appropriate Under 28 U.S.C Even if venue is proper in this District, the Court should exercise its discretion to transfer the case to the Eastern District of California, see 28 U.S.C. 1404(a). Ms. Burley has offered no reason why the Court should not do so. In its Venue Motion, the Tribal Council met its burden of showing that the interest of justice and the convenience of the parties warrant transfer, because (among other reasons) all parties to the Tribal leadership dispute reside in the Eastern District of California, Ms. Burley has chosen to litigate the dispute there, the dispute is likely to be resolved there, and retaining this case in the District of New Mexico would subject the parties to significant inconvenience and the risk of multiple litigation and inconsistent decisions. (Venue Motion, pp ) The Venue Motion addressed each of the discretionary factors that the SMRH:

8 Case 1:18-cv JAP-KBM Document 15 Filed 02/05/19 Page 8 of 12 Tenth Circuit has instructed the courts to evaluate in considering a motion to transfer venue. (Venue Motion, pp ) The Opposition asserts only that the convenience of witnesses is irrelevant, because the Court can decide which individuals constitute the Tribe, and award the Tribe s settlement funds to them, without witness testimony. (Opposition, p. 17.) As discussed below, the Court lacks jurisdiction to determine Tribal membership. In order to distribute the interpleaded funds, the Court must determine whether the United States Department of Interior has recognized a government for the Tribe. (Order Granting Joint Motion for Stay, ECF No. 7, p. 2.) Because that determination will be made by BIA officials in the Eastern District of California, any potential witnesses are likely to reside there. (See Venue Motion, p. 17.) Even assuming that no witness testimony will be required, Ms. Burley s Opposition does not address any of the other factors supporting transfer, including the convenience of the parties, and the possibility of inconsistent judgments and multiple appeals. (See Venue Motion, pp ) Thus, she has waived any argument she might have made that discretionary transfer is inappropriate. Johnson by Johnson v. Thompson, 971 F.2d 1487, 1499 (10th Cir. 1992) ( In general, we do not address issues not briefed ); see also D.N.M.LR-CIV Rule 7.3(a) (Responses to motions must cite authority in support of the legal positions advanced ). D. The Court Cannot Distribute the Tribe s Funds to Individuals Who Do Not Represent the Tribe. The Opposition argues at length that Ms. Burley, her two daughters and her granddaughter (collectively, the Burley Faction) are the only members of the Tribe, and that the Court can distribute the interpleaded funds to them (and to Yakima Dixie s estate) because [p]aying the members of the Tribe directly is tantamount to paying the Tribe itself SMRH:

9 Case 1:18-cv JAP-KBM Document 15 Filed 02/05/19 Page 9 of 12 (Opposition, p. 13). To the extent this argument is at all relevant to venue, it is simply wrong as a matter of law. As explained in the Tribal Council s response opposing Ms. Burley s motion to lift the stay in this case (ECF No. 11), the Court has no jurisdiction to determine the Tribe s membership. Martinez v. S. Ute Tribe of S. Ute Reservation, 249 F.2d 915, 920 (10th Cir. 1957) (no jurisdiction over individual s challenge to loss of tribal membership). Accord, Prairie Band of Pottawatomie Tribe v. Udall, 355 F.2d 364, (10th Cir. 1966) (no jurisdiction over challenge to tribal membership roll). Moreover, Ms. Burley s claim that the Court can make this determination by relying solely on the Assistant Secretary Indian Affairs December 30, 2015 Decision (2015 Decision) is refuted by the 2015 Decision itself, which states in relevant part, I conclude that the Tribe s membership is more than five people. (Exhibit A to Complaint-in- Interpleader, ECF No. 2, p. 6.) Even assuming, for the sake of argument only, that Ms. Burley s arguments about Tribal membership were correct, her claim would still fail because individual members of the Tribe are not entitled to the Tribe s share of the Ramah settlement. The interpleaded funds belong to the Tribe, which was the Class Member in the Ramah litigation. (Complaint, ECF No. 2, 8.) Individual tribal members do not have standing to claim any right to tribal assets simply by way of their membership. See N. Paiute Nation v. U.S., 8 Cl.Ct. 470, (1985), citing Cherokee Nation v. Hitchcock, 187 U.S. 294, 307 (1902) ( The general rule is that [w]hatever title the Indians have is in the tribe, and not in the individuals ) (internal quotation marks and additional citations omitted). A member s right to tribal property is no more than prospective and inchoate unless federal or tribal law recognizes a more definite right. Id. at 481, quoting F. Cohen, Handbook of Federal Indian Law, 472 (1982 ed.). When the Tribe receives the settlement funds, SMRH:

10 Case 1:18-cv JAP-KBM Document 15 Filed 02/05/19 Page 10 of 12 through its authorized representative, it may decide to distribute the funds to its members or it may not, but that is for the Tribe to decide. Ms. Burley s claim that the members of the Tribal Council are not Tribal members and have no standing to claim any interest in the subject interpleader funds fails for similar reasons. It asks this Court to determine Tribal membership, which the Court cannot do, and rests on the false premise that the Burley Faction are the Tribe s only members, which the 2015 Decision refutes (2015 Decision, p. 6). To the extent Ms. Burley intends to argue that the Tribal Council members actually lack Article III standing to participate in this action, her argument is misplaced: defendants do not have an obligation to establish standing. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, (1992) (describing plaintiff s burden of proving that plaintiff satisfies each of the elements required to establish Article III standing). III. CONCLUSION The Tribal Council has shown that venue in this case is proper in the Eastern District of California and that transferring the case to that district would be in the interest of justice and the convenience of the parties. Ms. Burley has not presented any reason why transferring the case would not be appropriate. The Tribal Council and the Tribe therefore respectfully request that the Court issue an order transferring this matter to the Eastern District of California and transferring the interpleaded funds to the registry of that court. / / / / SMRH:

11 Case 1:18-cv JAP-KBM Document 15 Filed 02/05/19 Page 11 of 12 February 5, 2019 /s/ James Rusk JAMES F. RUSK (Federal Bar No ) ROBERT J. URAM (Federal Bar No ) Sheppard Mullin Richter & Hampton LLP Four Embarcadero Center, 17th Floor San Francisco, California Tel: Fax: Attorneys for Defendants-in-Interpleader California Valley Miwok Tribe, Yakima Dixie, Velma WhiteBear, Antonia Lopez, Gilbert Ramirez, Jr., Antoinette Lopez, Michael Mendibles, and Iva Carsoner SMRH:

12 Case 1:18-cv JAP-KBM Document 15 Filed 02/05/19 Page 12 of 12 CERTIFICATE OF SERVICE I certify that on February 5, 2019, I caused a copy of the foregoing Reply In Support Of Motion To Transfer Venue to be filed with the court using the CM/ECF system, which will send notification of such filing to the parties entitled to receive notice. /s/_james Rusk JAMES F. RUSK SHEPPARD, MULLIN, RICHTER & HAMPTON LLP Attorneys for Defendants-in-Interpleader SMRH: