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New Jersey Sand Hill Band of Lenape and Cherokee Indians, et al v. State of New Jersey

March 31, 2011

NEW JERSEY SAND HILL BAND OF LENAPE AND CHEROKEE INDIANS, ET AL., PLAINTIFFS,
v.
STATE OF NEW JERSEY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Katharine S. Hayden, U.S.D.J.

NOT FOR PUBLICATION

OPINION

The plaintiffs in this case, the New Jersey Sand Hill Band of Lenape and Cherokee Indians and its representative Ronald S. Holloway (collectively, "plaintiffs"), seek redress for the alleged conversion and misappropriation of their land and other property rights. In their Third Amended Complaint ("TAC"), plaintiffs seek damages and various forms of equitable relief against the states of New Jersey, New York, and Pennsylvania (the "State Defendants"), as well as the United States government. [D.E. 187.]

I. Factual and Procedural Background

Because the Court writes only for the parties, and because the factual background of this case was previously recounted in an opinion filed on June 30, 2010 [D.E. 175], the Court only briefly states the facts and procedural evolution of the case, focusing on the TAC.

This case has been energetically litigated for more than two years. Plaintiffs filed their initial complaint on February 17, 2009. [D.E. 1.] They filed an amended complaint six days later [D.E. 2] and subsequently applied for a temporary restraining order enjoining enforcement of certain New Jersey laws and regulations related to their claims. [D.E. 5.] The Court denied the application on March 24, 2009. [D.E. 14.] Plaintiffs filed a partial amendment to the amended complaint on April 20, 2009 [D.E. 66], and then filed a complete Second Amended Complaint ("SAC") on May 22, 2009. [D.E. 88.] The SAC named as defendants the State of New Jersey, all 21 New Jersey counties, various state and county officials, and the New Jersey Commission on Indian Affairs. (SAC ¶¶ 21--47.) The defendants moved to dismiss the SAC [D.E. 97, 123], and the Court granted the motion in its June 30 opinion and accompanying order. Thereafter, plaintiffs filed the TAC, which again named the State of New Jersey a defendant, and for the first time pleaded claims against the United States*fn1 and the states of New York and Pennsylvania. The TAC did not name any of the individual defendants or the county defendants.

The TAC asserts four causes of action, one against each named defendant.*fn2 Count 1 alleges that New Jersey defrauded plaintiffs of their land by means of the Treaty of Easton in 1758, specifically by plying plaintiffs' ancestors with alcohol before they signed the treaty. (TAC ¶¶ 41--47.) Count 2 alleges that Pennsylvania's "Walking Purchase" in 1737 was also fraudulent. (Id. ¶¶ 52--55.) Count 3 claims that "New York did coerce, trick, and/or force" plaintiffs into selling the island of Manhattan for $24 in 1626. (Id. ¶¶ 60--64.) Finally, Count 4 claims that the United States, as a successor in interest to the Dutch and British crowns-which actually carried out the above transactions, knowingly consented to the transactions and the State Defendants' unlawful occupations of land that rightfully belonged to plaintiffs' forebears. (Id. ¶¶ 69--75.) As a result of these actions, plaintiffs claim, the defendants have (1) enjoyed the benefits of their unlawful occupations-including monies from taxes, interest, fees, fines, licenses, tolls, and profits (Id. ¶¶ 48, 56, 65, 76); (2) levied unconstitutional taxes (Id. ¶¶ 49, 57, 66, 77); and (3) deprived plaintiffs of their ancestral homelands and sovereignty and forced plaintiffs to renounce their religion and culture. (Id. ¶¶ 50, 58, 67, 78.) Plaintiffs seek several forms of relief, including $27.6 billion in damages, the return of all illegally occupied lands and accompanying water rights, and various other species of equitable relief. (Id. Prayer for Relief.)

The Court's dismissal of the SAC and the subsequent filing of the TAC led to a flurry of motion practice. Plaintiffs filed motions to (1) disqualify/recuse Judges Hayden and Schwartz, (2) set aside the Court's June 30, 2010 order, and (3) enter a default judgment against the United States. Defendants filed motions to dismiss. The Court addresses each in turn.

II. Plaintiffs' Motions to Disqualify/Recuse Judges Hayden and Shwartz and to Set Aside the Court's June 30, 2010 Order*fn3

Plaintiffs move for the disqualification or recusal of the undersigned and U.S. Magistrate Judge Patty Shwartz. [D.E. 183.] The certification attached to the motion invokes the disqualification standards codified in 28 U.S.C. § 455(a) and (b)(1). (Richards Recusal Certif. ¶¶ 47--52.) Section 455(a) states that "[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned," while § 455(b)(1) states that a judge shall disqualify herself "[w]here [s]he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding." Another statute, 28 U.S.C. § 144, states that a judge must recuse herself when a party "files a timely and sufficient affidavit" that the judge has a personal bias or prejudice against him. Under any standard, however, "a party's displeasure with legal rulings does not form an adequate basis for recusal." Securacomm Consulting, Inc. v. Securacom Inc., 224 F.3d 273, 278 (3d Cir. 2000). Plaintiffs' certification conveys displeasure with the Court's rulings and nothing more. It states no facts that suggest that either the undersigned or Magistrate Judge Shwartz have any bias or prejudice concerning any of the parties, or that either judge's impartiality might reasonably be questioned. Therefore, no cause exists to disqualify either the undersigned or Judge Shwartz, and plaintiffs' motion is denied.

Plaintiffs also seek to "set aside" the Court's order of June 30, 2010, which dismissed their SAC. [D.E. 176.] The motion states that the order should be deemed void under Fed. R. Civ. P. 60(b)(4), and asks the Court to reinstate plaintiffs' SAC. (Richards Recusal Certif. ¶¶ 45--46, 53.) The Court notes that simultaneous to the motion, plaintiffs filed a separate motion that also sought to reinstate the SAC [D.E. 182] and was later withdrawn. [D.E. 233, 235.] Because the only relief plaintiffs seek from the June 30, 2010, order is to reinstate the SAC, their decision to withdraw the motion to reinstate renders their motion to set aside the June 30, 2010 order moot. Their quest for relief would have failed anyway. The Third Circuit has stated that a judgment or order may be void if the rendering court lacked jurisdiction over the subject matter or the parties or acted outside the powers granted to it by law. Marshall v. Bd. of Educ., Bergenfield, N. J., 575 F.2d 417, 422 (3d Cir. 1978) (internal citations and quotations omitted). However, a judgment or order is not void merely because it is erroneous. Id. Plaintiffs make no pretense to argue that the Court was without power to issue the June 30, 2010, order. They simply disagree with the outcome. Therefore, relief under Rule 60(b)(4) is inappropriate.

III. Plaintiffs' Motion for Default Judgment Against the United States

Plaintiffs also move for default judgment against the United States. [D.E. 234.] In this motion, plaintiffs contend that because the Court set an August 13, 2010, deadline for defendants to respond to the TAC [D.E. 178], and the United States did not file its answer by that time, a default judgment is proper. The United States, on the other hand, maintains that it was not properly served, that the time for it to respond had not expired when plaintiffs filed the instant motion, and that plaintiffs have not established their claims by sufficient evidence. [D.E. 236.]

First, Fed. R. Civ. P. 4(i) sets out the proper procedure for serving the United States government. The Rule requires the serving party to "deliver a copy of the summons and of the complaint to the United States attorney for the district where the action is brought" and to "send a copy of each by registered or certified mail to the Attorney General of the United States at Washington, D.C." Fed. R. Civ. P. 4(i)(1). The docket reflects that on July 21, 2010, plaintiffs delivered a copy of the summons and TAC to the Attorney General, but did not do the same for the U.S. Attorney for the District of New Jersey. [D.E. 219.] Notably, plaintiffs did effect proper service on the U.S. Attorney for the District of New Jersey [D.E. 240] four days ...


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