in the united states district court for the western ... · 4/17/2019 · shanda adams, oba 30811...

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

TRIBAL COUNCIL OF THE CHEYENNE AND ARAPAHO TRIBES OF OKLAHOMA, et al.,

Plaintiffs,

v.

BRIAN FOSTER, et al.,

Defendants.

Case 5:17-c v-01048-SLP

PLAINTIFFS' RESPONSE TO DEFENDANT EDDIE HAMILTON'S MOTION FOR SANCTIONS

January JQ_2018

1

RICK DANE MOORE AND ASSOCIATES, PLLC

BY: -4--,��---=--------- RI c K E MOORE, OBA 12146 [email protected] SHANDA ADAMS, OBA 30811 [email protected] JOHN D.L. CLIFTON, OBA 33148 j [email protected] P.O. Box 721775 Norman OK 73070

· Tel: 405-366-0373

ATTORNEYS FOR PLAINTIFFS

Case 5:17-cv-01048-PRW Document 17 Filed 01/11/18 of 30

Table of Contents Table of Authorities , 4

STATEMENT OF RELEVANT FACTS ; , 7

ARGUMENT AND AUTHORITIES 8

I. Introduction: · , 8

II. Standard of Review ,., 9

III. Nature of Rule 11 Sanctions 11

PROPOSITION I: DEFENDANT'S MOTION FOR SANCTIONS IS NOT WARRANTED OR

APPROPRIATE .,., ., , 12

A. Defendant's Argument on Merits is Appropriate for a Motion Pursuant to Rule 12(b )( 6)

or Rule 56 12

B. Defendant's Motion for Sanctions Fails as a Motion Pursuant to Rule 12(b)(6) ....... 13

C. Defendant's Motion for Sanctions Fails as a Motion Pursuant to Rule 56 13

D. Defendant's Motion for Sanctions is Untimely and Not Ripe for Adjudication 15

PROPOSitlON II: THE DEFENDANT'S MOTION FOR SANCTIONS IS FILED FOR

IMPROPER PURPOSES 17

A. Defendant's Motion is Filed to Avoid Response to the Complaint. 18

B. Defendant's Motion is Part of a Pattern of Depriving the Tribal Council of an Attorney.

18

2


C. Defendant's Motion is Filed for the Purpose of Unduly Burdening Plaintiffs' Counsel

20

PROPOSITION III: DEFENDANT'S COUNSEL HAS A CONFLICT OF INTEREST AND

SHOULD BE DISQUALIFIED : 21

A. There is a Non-Waivable Conflict of Interest Where HDSW is Named as a Co ..

Defendant · � 22

B. Representation of Defendant Hamilton in his Individual Capacity is a Non-Waivable

Conflict.of Interest 24

PROPOSITION IV: DEFENDANT'S M01JON FOR SANCTIONS VIOLATES THE "SAFE

HARBOR" PROVISION OF RULE 11 25

PROPOSITION V: PLAINTIFFS ARE DISMISSING WITHOUT PREJUDICE THEIR

CLAIMS AS TO ALL REMAINING DEFENDANTS 27

CONCLUSION 28

3


Table of Authorities

Cases

Anderson v. Board of School Directors of Millcreek Tp. School District, 574 Fed. Appx. 169 (3rd

Cir. 2014) ..........................................................................•........................................................ 10

Bighorn Capital, Inc. v. Security National Guaranty, Inc., 2015 WL 9489897 *4 (N.D. Cal. 2015)

................................................................................................................................................... 14

Celotex Corp. v. Catrett : 13

Cole v. Ruidoso Mun. Schools 20, 21

Core Laboratories LP v. Spectrum Tracer Services, L.L.C., No. CIV-11-1157-M, 2014 WL

12502726, at *2 (W.D. Okla. Sept. 4, 2014) 21

Flyingman v. First Legislature, et al., Tribal Court of the Cheyenne and Arapaho Tribes, SC-2007-

0002 18

Golden Gate Way, LLC v. Stewart, 2011 WL 3667496 (N.D. Cal. 2011) 11

Harding University v. Consulting Services Group, L.P., 48 F.Supp. 2d 765, 772 26

In re Waldrop, No. 15-14689-JDL, 2016 WL 6090849 20

Inre: Kunstler, 914 F.2d 505,518 17

Lamboy-Ortiz v. Ortiz-Velez, 630 F.3d 228 (1st Cir. 2011) 10

Leslie v. Fielden, No. 10-CV-320-TCK-TLW, 2011 WL 1655969 20

Lichtenstein v. Consolidated Services Group, Inc., 173 F.3d 17, 23 (1st Cir. 1999) passim

Lichtenstein v. Consolidated Svcs. Grp. Inc., 173 F.3d 17, 23 14, 15

Nova Leasing LLC v. Sun River Energy, Inc., 2012 WL 917259 *1 (D. Colo. 2012) 14

Pappas v. Holloway, 787 P.3d 30 (Wash. 1990) 23

4


Rotella v. Wood, 2000, 120 S.Ct. 1075, 528 lLS. 549 11

Sims v. Great Am. Life Ins. Co 20

Telesaurus VPC, LLC v. Power, 888 F.Supp.2d 963, 971 (D. Ariz. 2012) 14

Trinity Mortgage Co., Inc., v. Dryer, No. 09-CV-TKC-FHM, 2010 WL 2474055 (N.D. Okla.

2010) 22

United States v. Stiger, 413 F.3d 1185, 1195 (10th Cir. 2005) 21

White v. General Motors Corp., 908 F.2d 675 at 683 (10th Cir. 1990) 16

Wilkinson v. Hamilton and RESPECT 19

Wilkins.on v. Hamilton et al , 18, 19

Wilkinson v. Hamilton, Kickingbird, Norman, and HSDW 19

Young v. United Parcel Service of America., I�c., 2010 WL 904797 *2 (D. Md. 2010)15, 16, 17,

19

Statutes

12 o.s. §2502(0) ,p,,,,,., 22

Rule l l(c) , , 14, 16

Rule 56(d) , , 14

Other Authorities

Advisory Committee Note on 1993.amendment to Rule 11, 146 F.R.D. 557, 591, and in vol 12A,

App. C ; , 27

Advisory Committee Note to the 1993 Amendment, Reprinted in vol. 12A, App. C 11

Wright & Miller,5AFederal Practice .and Procedures § 1337 Procedural Aspects of Rule 11

Motions(3d. Ed.) Apr.·2017 • · : 21


Wright & Miller, 5A Federal Practice and Procedures, §1335, The Elements of the Standard of

Certification, (3d ed.) April 20 I 7 9, 11, 12

Wright & Miller, SA Federal Practice and Procedures, §1337.2 (3d ed.) April 2017 27

Rules

Local Rule LCvR56.l , 13

Oklahoma Rules of Professional Conduct 1. 7 21

Oklahoma Rules of Professional Conduct 3. 7 21

6


COME NOW the Plaintiffs, by and through counsel of record Rick Dane Moore and

Associates, PLLC, and for this response to the Motion for Sanctions filed herein by Defendant

Eddie Hamilton. Plaintiffs base their requests to deny and dismiss Defendant Hamilton's Motion

for Sanctions on the following:

STATEMENT OF RELEVANT FACTS

1. Plaintiff the Tribal Council of the Cheyenne and Arapaho Tribes first contacted counsel Rick

Dane Moore and Associates early in 2016, and passed a unanimous resolution on May 7,

2016 to hire Rick Dane Moore and Associates in order to act as independent general counsel

to the Tribal Council, for purposes of advising the Tribal Council as to the constitutionality

of certain actions and the rights of the Tribal Council. 1 This Resolution also allowed for the

payment of reasonable attorney fees by the Tribal Council.

2. In or about June 2016, Defendant Hamilton refused to pay the Tribal Council's independent

counsel pursuant to the Resolution passed by the Tribal Council. The matter was heard at the

Tribal District Court level, eventually resulting in Legislative Acts approving the budget of

funds to pay for this counsel, after attempts by Defendant Hamilton to veto the same. 2

3. On or around September 1� 2017, the Tribal Council published a resolution to initiate a RICO

action against the named . Defendants. The. Tribal Council voted unanimously to pass this

resolution on October 7, 2017, after over a year of research and review by the Tribal Council

Coordinator, independent counsel, and other parties associated with the Tribes' government.'

1 Exhibit 1 : Tribal Council Resolution � Exhibit 2: Legislative Veto Override 3 Exhibit 3: Resolution Approving RICO Complaint

7


4. Defendant Hamilton, represented in his personal capacity by Co-Defendant Hobbs, Straus,

Dean and Walker (HSD W), filed a Motion for Sanctions on December 28, 2017, prior to filing

any Answer or Motion pursuant to Rule 12 with the District Court.

5. On January 8, 2017, due to ongoing difficulties in obtaining pay for counsel's prior work in

relation to the RICO Complaint and other general counsel work for the Tribal Council after

the instatement of the new administration, the Plaintiffs are filing a Notice of Voluntary

Dismissal Pursuant to FR. C.P. 4l(a)(l)(A)(i), dismissing this matter without prejudice to

refiling.

ARGUMENT AND AUTHORITIES

I. Introduction:

The Plaintiffs filed this Federal RICO action following years of attempts by the Defendants,

including Defendant Hamilton, his counsel.and other Defendants named herein.to take over the I

government of the Cheyenne and Arapaho Tribes and operate the same for the profit of

Defendants in violation of the Tribes' Constitution and several U.S. Codes. Defendant and his

counsel, upon being served with a spoliation letter alerting them to the pending lawsuit, and prior

to service of the Summons and Complaint, drafted and sentto the Plaintiffs' counsel a Motion

for Sanctions pursuant to Rule 11. On December 28, 2017, the Defendant and his counsel filed

the M. otion for Sanctions herein, which is substantially different from the Motion which the

Plaintiffs' Counsel received on December 6, 2017. The Defendant's Motion for Sanctions is an

inappropriate motion pursuant to Rule 11, as it requires this Court to make substantive

determination of the merits of the case, prior to the completion of Discovery and prior to the

Defendant's filing of an Answer or other allowableresponsive pleading. Because it addresses the

substantive merits of the Plaintiffs' claims, I)efenQant'1 Motion for Sanctions is in the nature of

'l}


a Motion pursuant to Rule 12(b)(6) and/or Rule 56, but fails to conform to the requirements of

either Rule. The Defendant and his counsel, further, have long participated in a campaign

attempting to deprive the Tribal Counsel and its Coordinator of independent legal counsel, and

the Defendant's Motion for Sanctions is filed in furtherance of that campaign and in order to

harass and unduly burden Plaintiffs' Counsel, as well as for the purpose of avoiding filing a

Responsive Pleading pursuant to Rule 7. Defendant's counsel has been the Counsel for the

Executive Branch of the Tribes' government for at least eight (8) years, is named as a Defendant

herein, and cannot represent Defendant Hamilton inhis individual capacity in this suit. Because

the Defendant's Motion for Sanctions herein is substantivelydifferent from the draft Motion

which was sent to Plaintiffs' counsel on December 6, the Defendant has violated the "Safe

Harbor" provision of Rule 11, and his Motion should be dismissed and stricken from the record.

Finally, the Defendant's Motion is untimely, as the Court does not have before it the merits of the

case and has not made any determination as to the merits of Plaintiffs claims or the Defendant's

defenses, if any.

II. Standard of Review

A Motion pursuant to Rule J 1

should not be used to raise issues as to the legal sufficiency of a claim or defense that more appropriately can be disposed of by a motion to dismiss, a motion for judgment on the pleadings, a motion for summary judgment, or a trial on the merits. 4

Here, Defendant's Motion for Sanctions raises questions as to both the legal sufficiency

and the factual veracity of the Plaintiffs' claims brought in their Complaint. The Defendant's

Motion for Sanctions includes language which more closely pertains either to a Motion pursuant

4 Wright & Miller, 5A Federal Practice and Procedures,§ 1335, The Elements of the Standard of Certification, (3d ed.) April 2017

9


to Rule 12(b)(6) (for "failure to state a claim upon which relief can be granted") or Rule 56

(Summary Judgment). Defendant requests, at the outset and in an improper pleading, that this

Court weighs the merits of the Plaintiffs' claims and Plaintiffs' ability to have ascertained the

truth of matters which Defendant is accused of purposely obfuscating.

Further, many, if not most, Courts do not hear Rule 11 Motions prior to the conclusion of

the case on its merits, either by Summary Judgment or trial. Specifically, in Lichtenstein v.

Consolidated Services Group, Inc., 5 the First Circuit held that:

Itwas also entirely appropriate for the court to consider the Rule 11 motion at the conclusion of the bench trial. Courts should, and often do, defer consideration of certain kinds of sanctions motions until the end of trial to gain a full sense of the case and to avoid unnecessary delay of disposition of the case on the merits. This is a sensible practice where the thrust of the sanctions motion is that the institution of the case itself was improper. See 5A Charles Wright & Arthur R. Miller, Federal Practice and Procedure §1337 at 121 (2d ed. 1990).

After service of process, generally, a Defendant has 21 days to file a responsive pleading

or proper Motion to Dismiss, pursuant to Rule 12. Defendant was served with process on

December 22, 2017 and thus the deadline for his filing a responsive pleading pursuant to Rule 7(a)

or a Motion pursuant to Rule 12 is January 12, 2018. Under the Federal Rules of Civil Procedure,

a Motion is not a "pleading" as defined in Rule 7(a), and the Defendant's Motion for Sanctions is

not a proper response to the Plaintiffs' Complaint. The defenses to a Complaint that may be made

prior to the filing of an Answer are specifically enumerated in Rule 12(b), and a Rule 11 Motion

is not included. Likewise, a Rule 11 Motion is not included in any list of Motions which may be

filed prior to filing an Answer to a Complaint. Further, most Courts hold that a Defendant who

5173 F.3d 17, 23 (lstcir. 1999)

10


files a 12(b)(6) Motion directed to only partof a Complaint is still required to file an Answer

pursuant to Rule 7 responsive to those parts of the Complaint to which s/he did not object.

III. Nature of Rule 11 Sanctions

The purpose of Sanctions pursuant to Rule 11 is not to "raise issues as to the legal

sufficiency of a claim or defense that more appropriately can be disposed of by" other allowable

Motions. 6 Rule 11 (b) requires that a person or persons signing a Complaint or other document,

whether an attorney, or a party, attests that the claims therein are warranted ( 1) by the existing

substantive law, or (2) a nonfrivolous argument for the extension, modification, or reversal of the

existing substantive law, or (3) a nonfrivolous argument for the establishment of new substantive

law that would be applicable in the case before the. Court. Generally, the standard for evaluating

conduct pursuant to Rule 11 is "objective reasonableness under the circumstances" at the time the

contention was made. 7 The 1993 Amendment to Rule 11 recognizes that "sometimes a litigant may

have good reason to believe that a fact is true or false, but may need discovery, formal or informal,

from opposing parties or third parties to gather and confirm the evidentiary basis for the

allegation. "8 Rule 11 specifically allows for pleadings based on evidence reasonably anticipated

to be found after furtherinvestigation or discovery} Here, a substantive portion ofthe Plaintiffs'

Complaint revolves around a conspiracy by numerous.individuals, which includes the purposeful

secreting of information from the Plaintiff Tribal Council and other members of the Tribes and

Tribes' Government. Plaintiffs. need not;pursuant to Rule 1 l; submit that they have sufficient

6 Wright & Miller, §1335, id .. 7 Wright & Miller,§ 1335, id. see, e.g.: Anderson v. Board of School Directors of Millcreek Tp. School District, 574 Fed. Appx. 169 (3rd Cir, 20J4); see, e.g. Lamboy-Ortiz v. Ortiz-Velez, 630 F.3d 228 (1st Cir. 201 l)(vacating award of sanctions against plaintiffs in civil rights action because district court improperly appeared to consider failure to prove aspects of a case at trial in determining reasonableness of claim at time of filing.) 8 Wright & Miller,§ 1335, id., Advisory Committee Note to the 1993 Amendment, Reprinted in vol.· 12A, App. C. 9 Rotella v. Wood, 2000, 120 S.Ct. 1075, 528 U.S. 549.

11


d ,,.

evidence on which to base their claims, but are able to submit their Complaint based upon the

information available to them and the reasonable belief that further evidence in support of their

claims will be found upon investigation and discovery.

PROPOSITION I: DEFENDANT'S MOTION FOR SANCTIONS IS NOT WARRANTED OR APPROPRIATE. A. Defendant's Argument on Merits is Appropriate for a Motion Pursuant to Rule 12(b)(6)

or Rule 56

Rule 11 Motions are not to be used to "raise issues as to the legal sufficiency of a claim or

defense that more appropriately can be disposed of by" other allowable motions.l" Because the

Defendant has brought arguments inappropriate for Rule 11 Motion, including arguments as to the

legal and factual sufficiency of the Plaintiffs' claims, his Motion for Sanctions is inappropriately

filed and unwarranted. At best, the Defendant's Motion for Sanctions can be viewed as a disguised

motion pursuant to either Rule 12(b )( 6) or Rule 56. Because the Defendant argues the merits of

the Plaintiffs' claims at great length in the Motion for Sanctions, as opposed to arguing procedural

requirements pursuant to Rule 11, and· because the Defendant has filed his Motion for Sanctions \

prior to filing any Responsive pleading pursuant to Rule 7 or any allowable objection to the

Complaint itself, this Motion cannot be seen as a proper Motion for Sanctions pursuant to Rule

11. 11 Further, because the Defendant does not meet the requirements of either Rule l 2(b )( 6) or

Rule 56, his Motion- cannot be sustained as a disguised Motion to Dismiss· or a Motion for

Summary Judgment.

10 Wright &·Miller, §1335 11 See, e.g. Golden Gate Way, LLC v. Stewart, 2011 WL 3667496 (N.D. Cal. 2011) (Rule 11 is distinct from Summary Judgment and Motions to Dismiss)

12


B. Defendant's Motion for Sanctions Fails as a Motion Pursuant to Rule 12(b)(6)

If treated as a Motion pursuant to Rule 12(b )( 6), the Defendant's Motion for Sanctions fails

for a number of reasons. First, Defendant is still required to Answer whichever parts of the

Complaint he has not objected to, and the Defendant has failed to address which parts of the

Complaint he objects to and it appears he does not intend to respond to any of the Complaint.

Second, on a Motion to Dismiss the complaint pursuant to Rule 12(b )(6), all well-pleaded factual

allegations in the Complaint must be accepted (for purposes of the motion) as true. Defendant's

Motion for Sanctions includes sections in which they dispute factual allegations of the Complaint,

which is not the purpose of a Motion pursuant to Rule l 2(b )( 6). The purpose of a Motion pursuant

to Rule 12(b)(6) is solely to judge the legal sufficiency of the complaint. Further, the purpose of

a Motion pursuant to Rule 11, which Defendant allegedly filed herein, is not to judge the

sufficiency of a Complaint. Finally, a Motion pursuant to Rule 12(b )(6) normally should not

present matters outside of the pleadings. Defendant here has attached a number of affidavits to

his Motion which takes it outside the ambit of Rule l 2(b )( 6).

If a Motion pursuant to Rule 12(b )( 6) presents "matters outside the pleadings," which are

"not excluded by the Court," it must be treated as a Motion for Summary Judgment. See: Rule

12(d). If that were to occur, "all parties" must be given "a reasonable opportunity to present all

the materials that is pertinent to the motion." Rule 12(d)

C. Defendant's Motion for Sanctions Fails as a Motion Pursuant to Rule 56

Rule 56 does allow a Summary Judgment motion to be filed "at any time until 30 days after

the close of Discovery." Nonetheless, Fl- SummaryJudgment motion may be premature when filed

before service of an Answer and after no opportunity for Discovery. The United States Supreme

Court noted in Celotex Corp. v. Catrett that a summary judgment motion filed before any discovery

might be considered "premature";

13


Respondent commenced this action in September 1980, and petitioner's motion was filed in September 1981. The parties had conducted discovery, and · no serious claim can be made that respondent was in any sense "railroaded" by a premature motion for summary judgment. Any potential problem with such premature motions can be adequately dealt with under Rule 56(t) [now renumbered as Rule 56(d)] which allows a summary judgment motion to be denied, or the hearing on the motion to be continued, if the nonmoving party has not had an opportunity to make full discovery.

In contrast, here, the Defendant's Motion is filed prior even to the beginning of Discovery,

and prior to any disclosures having been made by any party in this matter. In fact, the Defendant

sent a "draft" copy of the Motion to the Plaintiff's counsel a number of days before the issuance

of Summons in this matter and approximately two weeks prior to service upon the Defendant.

If the Defendant's Motion for Sanctions is seen as a Motion for Summary Judgment I

pursuant to Rule 56, then it should be denied out-of-hand for failure to comply with Local Rule

LCvR56. l, which requires:

(a) Absent leave of the court, each party may file only one motion under Fed. R. Civ. P. 56.

(b) The brief in support of a motion for summary judgment ( or partial summary judgment) shall begin with a section stating the material facts to which the movant contends no genuine dispute.exists. The facts shall be set forth in concise, numbered paragraphs.

( c) The brief in opposition to a motion for summary judgment ( or partial summary judgment) shall begin with a section responding, by correspondingly numbered paragraph, to the facts the movant contends are not in dispute, and shall state any fact that is disputed. Separately, the brief in opposition may, in concisely numbered paragraphs, state any additional facts the nonmovant contends preclude judgment as a matter of law. The nonmovant shall not present facts that are not material to an issue raised by the movant.

(d) Each individual statement bythe movant dr nonmovant pursuant to paragraph (b) or (c) of this rule shall be followed by citation, with particularity, to any evidentiary material that-the party presentsin support of its position pursuant to Fed. R. Civ. P. 56(c). . .

( e) All material facts set forth in the statement of material facts of the movant may be deemed admitted for the purpose of summary judgment unless specifically controverted by the nonmovant using the procedure set forth above.

14


Defendant's Motion for Sanctions does not include the section required by part (b) of the

Local Rule, and should therefore be dismissed· out-of-hand for failure to conform to the

requirements for filing such a Motion with this Court.

Even if the Defendant's Motion for Sanctions were not dismissed out-of-hand and the

Defendant surmounted the hurdles to having his Motion considered as a Motion for Summary

Judgment pursuant to Rule 56, the Plaintiffsherein would arguably still be entitled to Discovery

prior to any hearing on this Motion, pursuant to Rule 56( d).12 The Plaintiffs have not issued

Discovery to any Defendant, and no exchange. of inf ormation has occurred in this matter. The

Plaintiffs, at this time, do not have the information available to rebut the factual allegations made

by Defendant Hamilton, and, as more thoroughly discussed in the Complaint, this lack of

information is due at least in part to Defendant Hamilton's participation, with his current Counsel,

in two administrations of the Tribes which acted in bad faith and in concealment of their activities.

D. Defendant's Motion for Sanctions is Untimely and Not Ripe for Adjudication

It is a well-established matter of Civil Practice that Motions for Sanctions pursuant to Rule

11 ( c) are generally heard and determined after the disposition of a case on the merits.':' This Court

has not had before it any argument on the merits, and in fact the deadline for Defendant's filing a

pleading responsive to the Complaint has not yet elapsed. That Defendant argues that the

Complaint itself is improper does not bring his untimely Motion for Sanctions outside the purview

of Lichtenstein, but in fact the Court in that case ruled it was "entirely appropriate" for a Rule 11

12 Rule 56(d) When Facts are Unavailable to the Nonmovant: If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or take discovery; or (3) issue any other appropriate order. 13 See: Lichtenstein v. Consolidated Svcs. Grp. Inc., 173 F.3d 17, 23, supra.; Telesaurus VPC, LLC v. Power, 888 F.Supp.2d 963, 971 (D. Ariz. 2012); Bighorn Capital, Inc. v. Security National Guaranty, Inc., 2015 WL 9489897 *4 (N.D. Cal. 2015); Nova Leasing LLC v. Sun River-Energy, Inc., 2012 WL 917259 *1 (D. Colo. 2012).

! I

15


Motion to be determined after a bench trial on the merits "where the thrust of the sanctions motion

is that the institution of the case itself was improper."!"

Defendant filed his Motion for Sanctions prior to any responsive pleading pursuant to Rule

7, and prior to and without filing any of those Motions with the Rules allow to be filed prior to or

concurrent with responsive pleadings. This is not just an unusual procedure, but is, evidently, the

modus operandi of co-Defendant HSDW. Treating the Defendant's Motion for Sanctions as a true

Motion pursuant to Rule 11, though problematic for the reasons stated above (i.e., that it attacks

the merits of the underlying Complaint and requests this Court's adjudication and dismissal of the

case entirely), would additionally lead to the conclusion that this Motion is filed out-of-time, or

alternately that pursuant to Lichtenstein and subsequent decisions in multiple courts, the Motion

for Sanctions should be stayed until a determination on the merits of the case. The thrust of the

Motion for Sanctions, as in Lichtenstein, is that the Plaintiffs filed their Complaint improperly or

for improper purpose, and that determination. cannot be made by this Court until the Court

determines, upon trial and after Discovery and other regular procedures, whether the Complaint

has merit. The near-unanimous position of Courts in these instances is that a Court "must resolve

the claim before ruling on merits of sanctions."15 Defendant's request that the Court issues

sanctions at the outset of litigation, in an apparent attempt to avoid regular procedure, is contrary

to all existing legal authority.

Defendant argues, briefly, that even if the claims of the case are meritorious, the alleged

"improper purpose" of Plaintiffs' filing should somehow allow this Court to dismiss the Complaint

without regard to its merits and before any such determination is made upon a proper Motion or

14 Lichtenstein, supra. 15 Young v. United Parcel Service of America, Inc., 2010 WL 904797 *2 (D. Md. 2010).

16


through regular proceedings. This is incorrect, arld D¢fendant' s Motion for Sanctions, even if

timely filed, cannot be heard or decided prior to a determination of the merits of the case.16

PROPOSITION II: THE DEFENDANT'S MOTION FOR SANCTIONS IS FILED FOR IMPROPER PURPOSES

As briefly mentioned above, Defendant's Counsel has a regular practice of filing Motions

pursuant to Rule 11 at improper times, generally at the outset of proceedings prior to any

determination on the merits of the claims. Given the nature, generally, of Rule 11 Sanctions

available, 17 and the punitive and deterrent purposes of Rule 11 Sanctions, 18 one can and should

infer that Defendant HSDW's strategy of filing Rule 11 Motions prior to the determination of the

merits of cases brought against its clients is a strategy to punish or deter the pursuit of claims

which may otherwise be meritorious, and to threaten with personal liability any attorney or party

who seeks to vindicate their rights against Defendant and/�r its clients.

The Defendant's Motion for Sanctions herein fitswith HSDW's pattern in prior cases, and

with HSDW's patternjof activity allegedby Plaintiffs ·.in their Complaint. Not only is HSDW

legally unable to represent Defendant Hamilton in his individual capacity, but any reasonable

attorney upon good-faith inquiry would realize that one cannot represent a client who is a co ..

Defendant in a case inwhich said attorney is named as a Defendant. That HSDW continues this

pattern of behavior, contrary to the Rules of Professional Conduct, is outrageous and improper

on its face.

16 See: Lichtenstein, Supra.; Young V; UPS, Supra; 5Afed. Prac, &Proc. Civ., 3d Ed. §1337.1 17 Rule l l(c)(4): ... the sanction may include monetary directives; an order to pay a penalty into court; or, if imposed on motion and warranted for effective: deterrence, an order directing. payment to the movant of part or all of the reasonable attorney's fees and other expenses directly resulting from the violation. 18 White v. General Motors Corp., 908 F.2d 675 at 683 (IO" Cir. 1990)

17


A. Defendant's Motion is Filed to Avoid Response to the Complaint

Defendant HSDW has, as noted above, a history of filing Motions pursuant to Rule 11 at the

outset of cases, despite the long-standing practice of Federal District Courts to hear Rule 11

Sanctions Motions after determination upon the merits of Complaints, either at trial or through

proper Rule 12 or Rule 56 Motions or other proceedings.19 The majority of those cases in which

Defendant HSDW has filed Rule 11 Motions are never determined on the merits, and result in the

dismissal of otherwise arguably meritorious claims in order to avoid potential fines and other

applicable sanctions. Should this Court break with general authority and decide the Defendant's

Motion for Sanctions prior to the determination of the merits of this case, the Plaintiffs would be

deprived of the opportunity to conduct Discovery and to have their rights vindicated. This is

apparently the strategy of Defendant HSDW, and that strategy has been effective.

That Defendant HSDW knows or should know that Rule 11 Motions are generally determined

after the determination of the merits of a case, but continues to file alleged Rule 11 Motions at the

outset of cases or in lieu of response to Complaints is indicative of a strategy to harass or intimidate

those who would oppose them into an involuntary relinquishment of the vindication of their rights.

As Defendant's brief states, "The timing of the filing of a complaint can be used to infer improper

purpose.v'" Here, as in numerous other cases, Defendant HSDW has filed a Motion for Sanctions,

long prior to the appropriate time for the Court's determination of Sanctions.21

B. Defendant's Motion is Part of a Pattern of Depriving the Tribal Council of an Attorney.

19 Lichtenstein, Supra., Young v. UPS, Supra, 5A Fed. Prac. & Proc. Civ., 3d Ed. §1337.1 20 In re: Kunstler, 914 F.2d 505, 518 (4th Cir. 1990) 21 Young v: UPS, Supra, 5A Fed. Prac. & Proc. Civ.; 3d Ed. §1337:1

18


Pursuant to prior determinations of the Cheyenne and Arapaho Tribes' Supreme Court, the

Tribal Council, as a branch of the Tribes' government, is entitled to representation by outside

counsel and to the advice of a competent attorney in its decision-making. 22 On May 7, 2016, the

Tribal Council passed a unanimous resolution to hire Rick Dane Moore and Associates as general

counsel to represent and advise the Tribal Council.23 The Tribes' legislature passed a bill approving

this resolution, and approving the contract with Rick Dane Moore and Associates, which included

approval of the payment of hourly and retainer fees to Rick Dane Moore and Associates. The

contract, along with the Resolution of the Tribal Council, was presented to Defendant Hamilton

for his approval of payment of funds. Defendant Hamilton refused to do so. The Tribal Council

and RDMA filed a case in the Tribes' District Court, requesting that Defendant Hamilton be

Ordered to pay such funds.24 The District Court, first, required the matter to be re-presented at the

Legislature. 25 Again, the Legislature approved the payment pursuant to the Tribal Council's

contract. 26 Defendant Hamilton vetoed the Legislation, which the Legislature then voted to

overturn on September 10, 2016.

Prior to the filing of its Complaint herein, the Tribal Council made numerous attempts to

vindicate its right to counsel and to honor its contract with counsel, and each such attempt was

thwarted by Defendant Hamilton and Defendant HSDW. Plaintiff Tribal Council is without any

recourse, absent a Complaint in Federal Court, which will allow it to honor its contractual

obligations. That Defendant Hamilton has unlawfully refused payment of Plaintiffs' attorneys for

over 18 months prior to the filing of the Complaint herein belies the Defendant's argument that

the timing of the Complaint renders it meritless. Now, instead of responding to the allegations in

22 Flyingman, Cheyenne & Arapaho Tribal Court, Case No. SC-2007·0002, December 30, 2009 23 Exhibit 1 24. Wilkinson v: Hamilton et al., Cheyenne & Arapaho Tribal Court, Case No. Civ-2016-106 25 Wilkinson, Id., July 6, 2016 . 26 Legislative Act 6L.,.RS-2016-06-001

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the Complaint, and instead . of filing a proper Motion allowed by the Federal Rules of Civil

Procedure to dismiss the Complaint or for judgment on the pleadings, Defendants HSDW and

Hamilton seek to have this Court exercise punitive and deterrent powers in order to further avoid

the payment of the contract the Tribes have with Rick Dane Moore and Associates, and threaten

Plaintiffs' Counsel with the possibility of personally paying fines and attorney's fees in order to

dissuade the Tribal Council from rightfully obtaining and consulting with independent counsel and

from honoring the contract which has been approved independently by the Tribal Council, the

Tribes' Legislature, and the Tribal District Court.

C. Defendant's Motion is Filed for the Purpose of Unduly Burdening Plaintiffs' Counsel

Rick Dane Moore and Associates is a small, private practice firm located in Norman,

Oklahoma. The firm's full-time staff consists of three attorneys and one office manager, and the

firm frequently hires University of Oklahoma students to serve as part-time clerks. Defendants

Hamilton and HSDW are aware, further, that the Plaintiffs' Counsel have not been paid for their

work, as indicated above. The threat of personal sanctions and the instigation of an ad hominem

attack against Plaintiffs' Counsel is especially onerous, given the nature of the firm.

Defendant HSDWis aware, from its.interaction with Plaintiffs' Counsel in the Tribal District

Court, of the limitations of Plaintiffs' counseL27 Knowing this, the Defendants have chosen to file

a Motion for the purposes of "deterrence" of this Iitigation.i" procedurally prematurely,29 in order

to further burden the Plaintiffs and their attorneys. As the general practice is to determine Rule 11

Motions following determination on the merits of claims, there is no legitimate purpose for which

27 See: Wilkinson v. Hamilton, Supra; Wilkinson \!.Hamilton and RESPECT, Civ-2016-138 in the Tribal District Court of the Cheyenne and Arapaho Tribes; Wilkinson v. Hamilton, Kickingbird, Norman, and HSDW, Civ-2016- 136 in the Tribal District Court of the Cheyenne andArapaho Tribes.

28 Motion for Sanctions, Document 3 at p. 4. 29 Young v. UPS, Supra, 5AFed e , Prac. & Proc. Civ., 3d Ed. §1337.1

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the Defendants could have filed a Rule 11. Motion at the outset. 30 Indeed, filing such a Motion at

the outset of the case causes exactly the kind of "unnecessary delay of disposition of the case on

the merits" which the Lichtenstein Court and Wright & Miller warn against.31

As there is no legitimate purpose and can· be no legitimate purpose for bringing a Motion

pursuant to Rule 11 at the outset of a case, and as it is arguable that such a Motion is not even

permitted by the Rules of Civil Procedure,32 one can and should infer that the Defendants' sole

purpose in filing the Motion for Sanctions was to further burden the Plaintiffs and their as-yet-

unpaid counsel.

PROPOSITION III: DEFENDANT'S COUNSEL HAS A CONFLICT OF INTEREST AND SHOULD BE DISQUALIFIED

HSDW is a co-Defendant named as a conspirator in this action. This Court "has the

inherent power to disqualify counsel 'where necessary to preserve the integrity of the adversary

process. ,,m "In exercising its discretion and determining whether to grant a motion to disqualify,

federal courts must look to 'two sources of authority. "'34 "First, attorneys are bound by the local

rules of the [federal] court in which they appear. "35 "Federal district courts usually adopt the

Rules of Professional Conduct of the states where they are situated.t' " "Second, because motions

to disqualify counsel in federal proceedings are substantive motions affecting the rights of the

30 Lictenstein, Supra. "Courts should, and often do, defer considerations of certain kinds of sanctions motions until the end of trial to gain a full sense of the case and to avoid unnecessary delay of disposition of the case on the merits. This is a sensible practice where the thrust of the sanctions- motion is that the institution of the case itself was improper." (emphasis added) 31 Wright & Miller at § 13 3 7, Supra. 32 See, e.g.: Fed. R. Civ. Pro. Rules 7, 12, 56 33 In re Waldrop, No. 15-14689-JDL, 2016 WL 6090849, at *2 (Bankr. W.D. Okla. Oct. 18, 2016). 34 Leslie v. Fielden, No. 10-CV-320-TCK-TLW, 201 l WL 1655969, at *2 (N.D. Okla. May 2, 2011) (citing Cole v. Ruidoso Mun. Schools, 43 F.3d 1373, 1383 (10th Cir. 1994)); See also Sims v. Great Am. Life Ins. Co. No. 02-CV- 583-K, 2004 WL 5551907, at *11 (N.D. Okla. Aug.13, 2004), vacated and remanded, 207 F. App'x 908 (10th Cir. 2006). - 35 Cole v. Ruidoso Mun. Schools, 43 F.3d 1373, 1383 (10th Cir. 1994). 36 Jd

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parties, they are decided by applying standards developed under federal law."37 Under Tenth

Circuit law, "motions to disqualify are governed by the ethical rules announced by the national

profession and considered in light of the public interest and the litigants' rights. "38 "This Court

has adopted the Oklahoma Rules of Professional Conduct as the standard governing attorney

conduct in this Court. "39

A. There is a Non-Waivable Conflict of Interest Where HDSW is Named as a Co Defendant.

The Oklahoma Rules of Professional Conduct, and Specifically Rule 3.740 and Rule 1.741

require the disqualification of Defendant HSDW from representing Defendant Hamilton for

nonwaivable conflict of interest, where the attorneys have a "personal interest" in the outcome of

litigation. Defendant HSDW stands accused of participating in a conspiracy not only with

Defendant Hamilton, but with the prior governor of the Tribes, Defendant Boswell, and the

Executive branch under both administrations, to weaken the other branches of the Tribes'

government and to allow for the unlawful and unapproved expenditure of millions of dollars in

Tribal gaming funds over the course of nearly a decade, including the appointment of an entire

Impostor Court to replace the Tribes' Supreme Court and multiple instances of advising the

Executive Branch to refuse · to pay government officials and employees who were opposed to

37 Cole, supra note 2 at 1383; United States v. Stig� 413 F.3d 1185, 1195 (10th Cir. 2005). 38 Cole, supra note 2 at 1383. 39 Core Laboratories LP v. Spectrum Tracer Services, L.L.C., No. CIV-11-1157-M, 2014 WL 12502726, at *2 (W.D. Okla. Sept 4, 2014) (citing LCvR 83.6(b)) 40 Rule 3.7: (a) A lawyer shall not act as an advocate at trial in which the lawyer is likely to be a necessary witness, unless: (1) The testimony relates to uncontested issues; (2) The testimony relates to the nature and value of legal services rendered in the case; or (3) Disqualification of the lawyer would work a substantial hardship upon the client. (b) A lawyer may act as an advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule L9 .. 41 Rule 1.7: (a) Except as provided in Paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: ( 1) the representation of one client will be directly adverse to another client; or (b) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or third person, or by a personal interest of the lawyer.

�2


Executive decisions oractions.F J\qdt o-nly-is'HSEQll, along with .its agents and employees, a

"witness" in this matter, but it is a co-Defendant named in this action. HSDW cannot defend itself

while representing Defendant Hamilton, pursuant to Rules 1. 7 and 3. 7 of the Oklahoma Rules of

Professional Conduct. HSDW and its agents will be required to testify and submit to Discovery

as to the contents of their communications with other Defendants including Hamilton and

Boswell, to their knowledge of the Tribes' Constitution and Codes, and to their participation in

the selection of unqualified individuals for positions on the Impostor Court, among other matters.

Defendant HSDW clearly cannot be named as co-Defendants and also serve as counsel to

Defendant Hamilton.

In Trinity Mortgage Co .. Inc., v. Drver, No. 09-CV-TKC-FHM, 2010 WL 2474055 (N.D.

Okla. 2010), the Court held that attorney-client privilege is waived under circumstances where

the attorney in question has represented-the Defendant-client in other, related and underlying

matters. Whereas thatease revolved around a plaintiff's counsel representing the same plaintiff ! '

in a legal malpracticejaction, and the Court found that such representation was grounds for

disqualification, it is doubtless that here, where HSDW and its employees and agents, including

Defendant Kickingbird have been accused of malpractice in their representation of Defendant

Hamilton, Defendant-Boswell, and others, they cannot be permitted to continue to represent

Defendant Hamilton. If the attorney-client privilege is waived in situations where a plaintiffs

counsel may be called as a witness, surely it is waived when a Defendant's counsel is a co-

Defendant and is facing allegations of malpractice. Relying on 12 O.S. §250243, the Northern

42 . ·. ' . . . . · ' · ' · · see: Comp/amt, Paragraphs 41, 56, 59, 76, 78, 80(g), 106, 107, 108, 176, 223(a, g), 226, 232, 234, 251, 252, 258, 259, 263(c-d), 316, 337, 356,}61, 390).

43 12 O.S. §2502(0) provides in relevant part: (D) There is no privilege under this Section (3) as to communication relevant to an issue of bre�9� of duty by the attorney to the clientor by the client to the attorney.

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District of Oklahoma, found, emphasizing the finding of the Supreme Court of Washington in

Pappasv. Holloway, 787 P.3d 30 (Wash. 1990) that:

... the former client's malpractice action against its former attorney constituted a waiver of attorney/client privilege as to all attorneys who are involved in defending the client in the underlying litigation that gave rise to the malpractice suit ... In the present case, there is no need to find an implied waiver because the communications fall outside the privilege as it is defined by applicable law, 12 Okla. Stat. §2502(0)(3).

Not only has HSDW acted as the attorney for the Executive Branch of the Tribes

throughout the past two administrations, and as such participated in the takeover and ouster of

the Tribes' Constitutionally-appointed Supreme Court, but HSDW and Defendant Kickingbird

stand accused, along with the members of the Impostor Court and the Attorney General appointed

to the Tribes under Defendant Boswell, of legal malpractice in representing a branch of the

Tribes' government to the detriment of the other branches and the Tribes' membership. Because

HSDW and its employees and agents stand accused of legal malpractice and of participation in a

RICO ··Conspiracy in the representation of the Tribes' government, HSDW cannot ethically

continue to represent Defendant Hamilton and attorney/client privilege does not apply.

B. Representation of Defendant Hamilton in his Individual Capacity is a Non-Waivable Conflict of Interest ·

Further, as HSDW has been, at least until January 6, 2018, the independent counsel for

the Executive Branch of the Tribes, they have no authority to represent Defendant Hamilton in

his personal capacity where his personal interests are at odds or are placed at odds with those of

the Tribes and/or its Executive Branch. Defendant Hamilton was ousted in a recent election, and

is no longer the Governor of the Tribes, He cannot retain the Tribes' Executive Counsel as his

24


own personal counsel without invoking conflict-of-interest, and the Rules of Professional

Conduct do not allow the Tribes, even if they were so inclined, to waive this specific conflict.

Defendant Hamilton, as ousted prior-governor of the Tribes is not entitled to the use of Tribal

funds to defend himself in his personal capacity in this suit. Not only have the Tribes' legislator

and Tribal Council repeatedly voted against the retention of HSDW as noted above, but no part

of the Tribes' government has, or in fact could, voted or otherwise resolved to allow Defendant

Hamilton individually to be defended by the Counsel for the Executive Branch. As prior

governor, Defendant Hamilton has no right to the use of the Tribes' substantial gaming or other

funds in order to defend against a suit alleging wrongdoing in his personal capacity. If HSDW is

retained as counsel for the Executive Branch by the new Governor of the Tribes, then its duty is

to the current Executive Branch, and it cannot represent the prior Governor in case brought by

the Tribal Counsel against him in his personal capacity. Notwithstanding that, HSDW is a co-

Defendant in this action and has a "personal interest of the lawyer" in Defending against

allegations made in the Complaint against HSDW, which is or may be contrary to the interests of

Defendant Hamilton.

PROPOSITION IV: DEFENDANT'S MOTION FOR SANCTIONS VIOLATES THE "SAFE HARBOR" PROVISION OF RULE 11

The Motion for Sanctions filed herein44 varies dramatically and substantively from that

served upon the Plaintiffs' counsel on December 6, 2017.45 Parties filing Motions for Sanctions

pursuant to Rule 11 are required to givedue notice to the adverse party, and a Rule 11 motion

"must not be filed o.i:- presented to the courtif the challenged paper, claim, defense, contention or

denial is withdrawn orappropriately correctedwithin 21 days after service." Here, the Defendant,

44 Document 13 45 Exhibit 4 Draft of SaoctiTs Motion

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through co-Defendant HSDW, served upon the Plaintiffs' counsel a draft copy of a Motion for

Sanctions" on December 6, 2017. Among other deficiencies included in the Draft Motion and

the final Motion for Sanctions filed with this Court, noted above, the Motion for Sanctions and

attached letter fail to appropriately challenge any specific claim, defense, contention or denial

made in the Plaintiffs' Complaint, and co-Defendant HSDW, in keeping with the strategy

outlined above, requests that the Plaintiffs dismiss their claims entirely in order to avoid the filing

of a Motion for Sanctions. 47 Again, this letter illustrates Defendant HSDW' s improper purposes

in filing a Motion pursuant to Rule 11 : to avoid appropriate procedures pursuant to the Federal

Rules of Civil Procedure, to avoid responding tothe Complaint, and to further harass or intimidate

Plaintiffs and counsel into waiving the vindication of their rights.

Notwithstanding the Defendants' improper purpose in filing the Motion for Sanctions,

Plaintiffs were also not given statutory notice of the Motion for Sanctions, which was

substantially altered atsome point betweenDecember 6 and December 28, when Defendants filed !

the Motion for Sanctions with the Court. 48. Plaintiffs were not given notice of the Defendants'

revised arguments or positions, or chance. to review and respond to these contentions prior to the

filing of the Motion, as required by the "safe harbor" provisions of Rule 11. Rule 11 ( c )(2) requires

that a party filing a Motion pursuant to Rule. l l(c) must serve the motion upon the opposing party, I

who is then granted time to respond by withdrawing the offending paper or argument. The I

Defendants' filing of the- Motion for Sanctions, substantively different from the draft sent to the

Plaintiffs' counsel, defeats and undermines the· purpose ofthe Safe Harbor provision of Rule

11 ( c)(2), which is to "protect litigants from sanctions whenever possible in order to mitigate Rule

46 Exhibit 4 47 Exhibit 5 letter 48 Exhibit 4, Document 13

26


11 's chilling effect, formalize[] procedural due process considerations such as notice for

protection of the party accused of sanctionable behavior, and encourage[] the withdrawal of

papers that violate the rule without involving the district court ... "49 Due Process requires actual

notice of the proceeding or accusations made against the accused party. In this instance, the notice

sent to the Plaintiffs' attorney is not adequate to give notice to the Plaintiffs of the actual Motion

for Sanctions which was filed by Defendants HSDW and Hamilton. Without sufficient notice,

the Defendants have not complied with the requirements of Rule 11 ( c )(2), and the Motion for

Sanctions should be dismissed for failure of due process.

PROPOSITION V: PLAINTIFFS ARE DISMISSING WITHOUT PREJUDICE THEIR CLAIMS AS TO ALL REMAINING DEFENDANTS

On January 8, 2017, Plaintiffs are filing a Notice of Voluntary Dismissal Pursuant to

FR.C.P. 4l(a)(l)(A)(i) herein, dismissing without prejudice all claims against all remaining

Defendants. so Because Rule 11 Sanctions are discretionary in nature, many courts exercise their

discretion to impose minimal or no sanctions where, as here, the harm done by the offending

paper was de minimis given the ultimate withdrawal.51 Given that the Plaintiffs herein are

withdrawing their Complaint, though it is being withdrawn some 11 days after the safe-harbor

period, the Defendants herein have suffered no or de minimis harm as result, and the Motion for

Sanctions should be denied.

49 Advisory Committee Note on 1993 amendment to Rule 11, 146 F.R.D. 557, 591, and in vol 12A, App. C. 50 Plaintiffs previously dismissed with prejudice claims against Defendant Klint Cowan. 51 Wright & Miller, 5A Federal Practice and Procedures, §1337.2 (3d ed.) April 2017; See: Harding University v. Consulting Services Group, L.P., 48 F.Supp. 2d 765, 772 ("if Plaintiffs were in violation of Rule 11 by failing to dismiss the complaint before the expiration of the safe harbor period, this violation was de minimis and therefore does not warrant any sanctions.")

27


CONCLUSION

The Defendant's Motion for Sanctions does not meet the requirements of Rule 11, and due

to its inclusion of discussions on the merits of the Plaintiffs' underlying Complaint cannot be

ruled upon prior to any determination on the merits of the Plaintiffs' case. Defendants' Motion

for Sanctions, by attacking the substantive legal and factual basis of the Plaintiffs' claim, falls

outside the scope of a Rule 11 Motion, and should more appropriately be considered a Motion

pursuant to either Rule 12(b) or Rule 56. Further, Defendant's Motion for sanctions fails to

conform to the standards and requirements of either a Rule 12(b) Motion or Rule 56 Motion, and

in so doing, should be denied.

Further, the Defendants have filed this Motion for Sanctions with the improper purposes

of avoiding response to the Complaint, and of continuing to deprive the Plaintiff Tribal Council

of attorneys whom both the Tribal Council and Tribes' Legislature have repeatedly approved,

and to which the Tribal Council is entitled at law and creating an undue burden upon the Tribal

Council and its attorneys. Defendants have filed their Motion for Sanctions untimely, with the

effect of causing further undue work for attorneys the Defendants have worked to substantively

denied payment. These Defendants know or should know of the limitations faced by the Tribal

Council and its counsel, having caused such limitations by failure to lawfully allow payment of

the Tribal Council's attorney for over a year prior to the filing of the Complaint herein, which

was unanimously approved by the Tribal Council. For these reasons, the Defendants' Motion for

Sanctions itself is in violation of Rule 11 (b) and should be denied.

Defendant Hamilton's alleged counsel, I-ISDW, is a named co-Defendant in the Complaint

filed herein. Because of this, there exists a .non-waivable conflict of interest between Defendant

Hamilton and Defendant HSDW pursuant to Rule 1. 7 of the Oklahoma Rules of Professional

Conduct. Further, as �SDW is a named Defendant, it is likely that HSDW will be called as a I: . ii r I 28


witness in this matter, and HSDW ca11,nr:t represent Defendant Hamilton. Finally, because HSDW :·: f. ; ; ; h I

has been the counsel for the ExecutiveBranch of the Tribes, and has a duty to that branch of the 11.

Tribes' government, and because Defendant Hamilton is no longer the governor of the Tribes,

HSDW cannot represent him in his personal capacity, which is likely adverse to the interests of

the Tribes' current Executive. Because there is a non-waivable conflict of interest in co.,.

Defendant HSDW representing Defendant Hamilton in any capacity, the Motion/or Sanctions

filed on behalf of Defendant Hamilton by Defendant HSDW should be denied.

Defendants violated the "safe harbor" provisions of Rule 11 ( c) in filing with this Court a

Motion for Sanctions which was substantively different from the draft motion which was sent to

the Plaintiffs' counsel to give notice required by the Rule. Defendants' draft motion differs from

the Motion for Sanctions filed herein in numerous ways, and therefore fails the due process notice

requirement of.the safe harbor provision and should therefore be denied.

Plaintiffs are filing a Notice of Voluntary Dismissal Pursuant to F.R.C.P. 41 (a)(l)(A)(i) on

January 8, 2018. This Notice dismisses without prejudice all claims against Defendant Hamilton

and other Defendants. Due to the de minimis nature of any damage suffered by Defendant

Hamilton by the dismissal of this action 11 days· after the end of the alleged safe harbor period,

the Motion forSanctions should be denied,

WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray this Court will DENY the • . . I

Defendant's Motion for Sanctions, and will grant to Plaintiffs any and all other relief which this I .

Court deems just and equitable.

;·;

. 29


Respectfully Submitted on the 9th day of January 2018;

S/Shanda Adams

Rrcx DANE MOORE, OBA.12146 [email protected]

SHANDA ADAMS, OBA 30811 [email protected]

JOHN D.L. CLIFTON, OBA 33148 j [email protected]

P.O. Box 721775 Norman OK 73070 Tel: 405-366-03 73

ATTORNEYS FOR PLAINTIFFS

CERTIFICATE OF SERVICE

This is to Certify that on the gth of January 2017, a trueand correct copy of the above and I

foregoing was served via the Court's ECF system upon the following:

Hobbs, Straus, Dean & Walker 101 Park A venue, Suite 100 Oklahoma City, OK 73102

Attorneys for Defendant Eddie Hamilton

s!Shanda Adams

30


in the united states district court for the western ... · 4/17/2019 · shanda adams, oba 30811...

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