Lamont v. Haig

• Decision Date: 24 May 1982
• Docket Number: Civ. A. No. 81-5048.
• Citation: 539 F. Supp. 552
• Parties: Agnes LAMONT; Gladys Bissonette; Ellen Moves Camp; Eugene Hawk; Marvin Ghost Bear; Edgar Bear Runner; Oscar Bear Runner; Severt Young Bear; Rachel White Dress; Helen Red Feather; Eddie White Dress; Vicki Little Moon; Madonna Gilbert; Lorelei Means, and Carla Blakey, Plaintiffs v. Alexander HAIG; Wayne Colburn; Richard Kleindienst; Joseph T. Sneed; Charles D. Ablard; Joseph H. Trimbach; Ralph E. Erickson; Harlington Wood, Jr.; Kenneth Belieu; Rolland Gleszer; Edmund Edwards; John Hay; and Volney F. Warner, Defendants.
• Court: U.S. District Court — District of South Dakota

539 F. Supp. 552

Agnes LAMONT; Gladys Bissonette; Ellen Moves Camp; Eugene Hawk; Marvin Ghost Bear; Edgar Bear Runner; Oscar Bear Runner; Severt Young Bear; Rachel White Dress; Helen Red Feather; Eddie White Dress; Vicki Little Moon; Madonna Gilbert; Lorelei Means, and Carla Blakey, Plaintiffs v. Alexander HAIG; Wayne Colburn; Richard Kleindienst; Joseph T. Sneed; Charles D. Ablard; Joseph H. Trimbach; Ralph E. Erickson; Harlington Wood, Jr.; Kenneth Belieu; Rolland Gleszer; Edmund Edwards; John Hay; and Volney F. Warner, Defendants.

Civ. A. No. 81-5048.

United States District Court, D. South Dakota, W. D.

May 24, 1982.

Terrance A. Sidley, Alexandria, Va., James Leach, Rapid City, S. D., Kenneth E. Tilsen, St. Paul, Minn., David Engdahl, Tacoma, Wash., for plaintiffs.

Stanley Dalton Wright, Brook Hedge, and Ann M. Gulyassy, Dept. of Justice, Civ. Div., Washington, D. C., for defendants.

MEMORANDUM OPINION

DONALD J. PORTER, District Judge.

CASE SUMMARY

Defendants moved to dismiss this case on the grounds that there is a lack of personal jurisdiction over defendants, that the allegations of the complaint are vague, conclusory, and insufficient, and that the plaintiffs have failed to state a claim as to either their claim for violations of their constitutional rights or their claim for violations of several federal criminal statutes, including the Posse Comitatus Act, 18 U.S.C. § 1385. After due consideration of the briefs and argument of the parties, the Court must find that it does presently lack jurisdiction over all but one of the defendants, but that plaintiffs will be given an opportunity to make proper service. The Court also finds that the complaint does not state a cause of action under the criminal statutes urged. The Court does find, however, that a constitutional cause of action is stated, but that plaintiffs will be required to amend their complaint because of the vague and conclusory nature of their allegations.

BACKGROUND

Six years after its filing in the District of Columbia, see Lamont v. Haig, 590 F.2d 1124 (D.C.Cir.1978), this action was transferred in 1981 to the District of South Dakota under 28 U.S.C. § 1406(a). At that time, defendants renewed their motion for judgment on the pleadings, raising a number of arguments which had been urged at various times in the course of the litigation but were never decided.

The complaint arises from the Indian occupation of Wounded Knee, South Dakota, in 1973. Plaintiffs are all apparently residents of Wounded Knee who were, they allege, kept from their homes in that village or forcibly confined in the village while it was surrounded by federal law enforcement officers. The principal claim of plaintiffs is that the substantial use of military personnel in support of the government activity, which was, plaintiffs claim, engineered by defendants, violated an implied constitutional right of plaintiffs to be free from the use of the military to enforce civil laws. Plaintiffs also allege that they are entitled to sue for damages for violations of 18 U.S.C. § 1385, which prohibits the use of the military "as a posse comitatus, or otherwise to execute the law."¹

DISCUSSION

I.

The initial grounds for dismissal urged by defendants is that this Court lacks personal jurisdiction over all defendants, except for defendant Ablard, who was personally served in the District of Columbia and about whom there is apparently no dispute. Defendants' contention is two-fold, relating as it does to claims that the service of process on certain defendants of the original complaint was insufficient under Rule 4, as well as claims that service purporting to be based on the District of Columbia long-arm statute was invalid. The Court finds considerable merit to these claims, and must rule that, except for Ablard, plaintiffs have failed to make proper service on defendants.

Service Under the District of Columbia Long-Arm Statute.

Plaintiffs rely on the provisions of the District of Columbia Code §§ 13-422, 13-423(a)(1), as the basis for their authority to serve the original complaint on defendants Warner, Trimbach, Erickson and Wood. (Plaintiffs also contend that their failure to serve defendants Kleindienst and Sneed with the original complaint was cured by service of the amended complaint on these defendants under these Code sections). Plaintiffs further rely on these statutes for their service on all defendants, except Ablard, of the amended complaint.

Under Rule 4(f), service beyond the state in which the District Court is located can be made only when "authorized by a statute of the United States or by these rules. "Rule 4(e) allows for out-of-state service whenever a statute or rule of court of the state in which the district court is held so provides." The particular sections of the District of Columbia jurisdictional statutes upon which plaintiffs rely are:

§ 13-422. A District of Columbia court may exercise personal jurisdiction over a person domiciled in, organized under the laws of, or maintaining his or its principal place of business in, the District of Columbia as to any claim for relief.

§ 13-423. (a) A District of Columbia court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a claim for relief arising from the person's —

(1) transacting any business in the District of Columbia;

As to § 13-422, plaintiffs argue that the "critical time" for the purposes of the statute is the time when the acts giving rise to the claim took place, not when the process is actually served. In other words, plaintiffs claim, because ten of the defendants were either domiciled in or maintained their principal place of business in the District of Columbia in 1973, they were still subject to the jurisdiction of the courts there in 1975 when the complaint was filed, even though they had left the District of Columbia by that time. Plaintiffs cite no cases in support of this interpretation, and the statute itself is phrased only in the present tense: the court "may exercise personal jurisdiction over a person domiciled in the District" (emphasis supplied). This would appear to mean nothing more than the simple assertion that the District can exercise jurisdiction over its citizens even when they are temporarily out of the District, and indicates that the exercise, i.e., service of process, is to take place over persons then domiciled in the District. Securities & Exchange Commission v. Gilbert, 82 F.R.D. 723, 726 (S.D.N.Y.1979) ("jurisdiction attached only when a defendant is properly served with the summons and complaint in an action.") If the drafters of § 13-422 had meant that the District of Columbia courts could exercise jurisdiction over all persons who were now and had been in the past domiciled in the District, an extraordinarily broad assertion of jurisdiction of questionable validity under due process, the language providing for such an assertion would have been inserted into the statute. As these statutes are now worded, the Court interprets them to mean that the only means of gaining jurisdiction over persons not now domiciled in the District must be by way of § 13-423.

Plaintiffs' reliance on § 13-423(a)(1) is also misplaced. It may be true that the activities of many of defendants in the District of Columbia amounted to the "transacting of business" with respect to the acts alleged in the complaint, and that a claim of personal jurisdiction could otherwise be made under this section, but this statute has been so construed by the District of Columbia courts as to render it inapplicable to this fact situation. Though cited by neither plaintiffs nor defendants, the case of Mandelkorn v. Patrick, 359 F.Supp. 692 (D.D.C.1973), considered a claim of personal jurisdiction under § 13-423(a)(1) and another sub-section of that statute. The court expressly held that "under the District of Columbia `long-arm' provisions above quoted, both the act and the effect, or injury, must take place in the District." 359 F.Supp. at 695 (emphasis supplied). This Court might not have reached the same construction of the statute had it been free to consider the section without the holding in Mandelkorn, but it must be assumed that the District of Columbia courts possess greater expertise in the interpretation of their statutes, and this Court will accordingly follow Mandelkorn. Since it is obvious that the injuries plaintiffs are alleged to have suffered as a result of defendants' acts took place in Wounded Knee, South Dakota, any assertion of personal jurisdiction under § 13-423(a)(1) must be rejected.

Service on Military Defendants under 32 C.F.R. § 516.1(e)(2).

Plaintiffs were unable to obtain direct personal service upon defendants Gleszer, Edwards, Hay and Haig, who were all either active or retired military personnel at the time the original complaint was filed in 1975. Plaintiffs instead served certain individuals in the military in Washington, D. C., contending that these were persons "authorized ... by law to receive service of process", Rule 4(d)(1), for defendants Gleszer, Edwards, Hay and Haig. The provisions of law on which plaintiffs rely for this appointment is 32 C.F.R. § 516.1(e)(2), the pertinent parts of which are set forth in the margin.²

A close reading of these regulations does not support plaintiff's argument that these authorize service on a member of the military other than on defendants themselves. First, sub-section (e)(2)(iii)(a), which explicitly relates to the process of federal courts, appears to provide only for allowing persons to enter a military installation to make service under Federal court rules. Nothing in this subsection establishes a procedure in which one officer of the military could accept service for another officer. Second, even accepting plaintiff's argument that subsections (3)(2)(iii)(b) & (c) are applicable here, relating as they do to service of state courts, all that either of the...