Thorpe v. Thorpe

Decision Date19 April 2013
Docket NumberCIVIL ACTION NO. 3:CV-10-1317
PartiesJOHN THORPE, RICHARD THORPE, WILLIAM THORPE, and the SAC and FOX NATION OF OKLAHOMA, Plaintiffs, v. BOROUGH OF JIM THORPE, MICHAEL SOFRANKO, RONALD CONFER, JOHN MCGUIRE, JOSEPH MARZEN, W. TODD MASON, JEREMY MELBER, JUSTIN YAICH, JOSEPH KREBS, GREG STRUBINGER, KYLE SHECKLER, and JOANA KLITSCH, Defendants.
CourtU.S. District Court — Middle District of Pennsylvania

(JUDGE CAPUTO)

MEMORANDUM

Presently before the Court are the Borough of Jim Thorpe's (the "Borough") Motion and Cross-Motion for Summary Judgment (Docs. 93; 99) and Plaintiffs the Sac and Fox Nation of Oklahoma, Richard Thorpe, and William Thorpe's (collectively, "Plaintiffs") Motion for Summary Judgment. (Doc. 95.) Following his death in 1953, legendary athlete Jim Thorpe, an American Indian of Sauk heritage and an enrolled member of the Sac and Fox Nation, was buried in what became known as the Borough of Jim Thorpe, Pennsylvania. The series of events that resulted with the burial of Jim Thorpe in Pennsylvania included an agreement between Jim Thorpe's wife at the time of his death, Patricia Thorpe, and two neighboring municipalities. The municipalities and Patricia Thorpe agreed, among other terms, that the municipalities would unify and consolidate as the Borough of Jim Thorpe and the remains of Jim Thorpe would be interred in a mausoleum in the Borough. Dissatisfied with this arrangement, Jim Thorpe's two living sons and the Sac and Fox Nation maintained this action against the Borough and its officers under the Native American Graves Protection and Repatriation Act.

Now, following the close of discovery, Plaintiffs seek summary judgment in their favorand a declaration that the Native American Graves Protection and Repatriation Act applies to the Borough and the remains of Jim Thorpe. The Borough opposes Plaintiffs' motion and also requests summary judgment in its favor. The Borough argues that the Court lacks jurisdiction to entertain this action pursuant to the "probate exception" to federal jurisdiction. The Borough further asserts that it is not a "museum" under the Native American Graves Protection and Repatriation Act because it never received "Federal funds", or, alternatively, that Plaintiffs' claims are barred by the doctrine of laches. Because the "probate exception" to federal jurisdiction is inapplicable to the instant matter and the Borough did not suffer any prejudice from Plaintiffs' delay in commencing suit, the Borough's motion for summary judgment will be denied. Moreover, because the Borough qualifies as a "museum" for purposes of the Native American Graves Protection and Repatriation Act, Plaintiffs' motion for summary judgment will be granted and the Borough's cross-motion will be denied.

I. Background

1. Factual Background

Legendary athlete Jim Thorpe died on March 28, 1953. (Doc. 98, Pls.' Statement Material Facts, "Pls.' SMF", ¶ 1; Doc. 100, Def.'s Ans. Pls.' SMF, "Def.'s Answer", ¶ 1.) Jim Thorpe was an American Indian of Sauk heritage and an enrolled member of the Sac and Fox Nation. (Id.) At the time of his death, Jim Thorpe was married to his third wife, Patricia Thorpe. (Doc. 94, Def.'s Statement Material Facts, "Def.'s SMF", ¶ 10; Doc. 104, Pls.' Answer to Def.'s SMF, "Pls.' Answer", ¶ 10.) Jim Thorpe was also survived by four daughters and four sons. (Def.'s SMF, ¶¶ 14-15; Pls.' Answer, ¶¶ 14-15.) When he died, Jim Thorpe's residence was in Lomita, California. (Def.'s SMF, 11; Pls.' Answer, 11.) Today, Plaintiffs Richard and William Thorpe are Jim Thorpe's sole surviving children. (Pls.' SMF, ¶ 2; Def.'s Answer, ¶ 2.)

Following Jim Thorpe's death, traditional Sac and Fox funeral and burial rites werecommenced, but were interrupted and never completed. (Pls.' SMF, ¶ 5.) Jim Thorpe died intestate, and his estate was assigned to Patricia Thorpe, his surviving spouse. (Def.'s SMF, Ex. C, 10.)

Subsequently, Patricia Thorpe entered into an agreement dated May 19, 1954 with the Boroughs of Mauch Chunk and East Mauch Chunk that set forth terms and conditions for the renaming of the municipalities and the interment of Jim Thorpe. (Defs. SMF, ¶ 20.) As part of the Agreement, the municipalities were consolidated under the name "Jim Thorpe." (Id. at ¶ 21.) The Agreement provided that Patricia Thorpe, her heirs, administrators and executors would not remove or cause to be removed the body of Jim Thorpe, and such obligations were binding "upon the first party and upon her heirs, administrators and executors only for so long as the boroughs of East Mauch Chunk and Mauch Chunk, parties hereto, are officially known and designated as 'Jim Thorpe.'" (Id. at ¶ 23, Ex. D.) Individual Plaintiffs and the Sac and Fox Nation, however, were not parties to the Agreement. (Pls.' SMF, ¶ 6; Def.'s Answer, ¶ 6.) Pursuant to the Agreement, Jim Thorpe's remains were interred within the Borough, and the remains continue to be interred on Borough-owned land in a mausoleum maintained by the Borough. (Def.'s SMF, ¶¶ 25-26; Pls.' Answer, ¶¶ 25-26; Pls.' SMF, ¶ 7; Def.'s Answer, ¶ 7.) Mauch Chunk and East Mauch Chunk changed their identity to that of a single Borough under the name of Jim Thorpe, and the Borough has maintained the interment site for the last fifty-five years. (Def.'s SMF, ¶¶ 27-31; Pls.' Answer, ¶¶ 27-31.)

Plaintiff William Thorpe has been aware that his father was buried in the Borough since the 1950s. (Def.'s SMF, ¶ 34; Pls.' Answer, ¶ 34.) William and his brothers contemplated filing a lawsuit back in the 1950s or 1960s but did not because of a difference of opinion with their half sisters. (Def.'s SMF, ¶ 35.) William Thorpe also had discussions about commencing an action under the Native American Graves Protection andRepatriation Act in the early 1990s, but no action was brought at that time. (Id. at ¶ 41, (citing William Thorpe Dep. Tr., 34:13-25).)

Plaintiff Richard Thorpe learned that his father was buried in Pennsylvania years ago by reading the newspaper. (Id. at ¶ 42 (citing Richard Thorpe Dep. Tr., 22:20-23:4).) Approximately fifteen or sixteen years ago, Richard Thorpe visited his father's burial site in Pennsylvania. (Id. at ¶ 43.)

B. Procedural History

John Thorpe filed a complaint against the Defendants on June 24, 2010. Defendants moved to dismiss the complaint on August 23, 2010; the motion was granted in part and denied in part in an order issued February 4, 2011. John Thorpe's claim under § 1983 was dismissed, but he was allowed to proceed with his claim under the Native American Graves Protection and Repatriation Act ("NAGPRA"), 25 U.S.C. §§ 3001 to 3013. Further, he was ordered to join all necessary parties in an amended complaint or to submit evidence and briefing showing that joinder of any or all of the necessary parties was not feasible and that the action could proceed in "equity and good conscience" under Rule 19(b).

On February 22, 2011, John Thorpe died, and the proceedings were stayed for sixty-seven days. Counsel for John Thorpe filed an amended complaint on May 2, 2011, adding as Plaintiffs Richard and William Thorpe, the sole surviving sons of Jim Thorpe, and the Sac and Fox Nation. The First Amended Complaint re-alleged Plaintiffs' § 1983 claims to preserve them for appeal and also set forth a claim under the Equal Access to Justice Act, 28 U.S.C. § 2412(b). The Borough filed a motion to dismiss the amended complaint on May 20, 2011, and then another motion to dismiss on other grounds on June 16, 2011. The individual Defendants filed a motion to dismiss the amended complaint on May 20, 2011, and then another motion to dismiss on other grounds on June 22, 2011. On November 23, 2011, Defendants' motions to dismiss were granted in part, and Plaintiffs' §1983 and Equal Access to Justice Act claims were dismissed. However, I further determined that Jim Thorpe's lineal descendants were not necessary parties to this action under Rule 19. Plaintiffs were also granted leave to file an amended pleading

On December 13, 2011, Plaintiffs filed a Second Amended Complaint seeking permanent injunctive relief requiring the Borough to comply with the NAGPRA, declarations that the Borough is a "museum" as defined by the NAGPRA and in violation of the statute's requirements, and a judgment for attorney's fees and costs. The Borough filed its Answer and Affirmative Defenses to the Second Amended Complaint on January 25, 2012.1

The action proceeded to discovery. On December 31, 2012, the Borough and Plaintiffs both filed motions for summary judgment. (Docs. 93; 95.) The Borough, on January 18, 2013, filed its opposition to Plaintiffs' motion for summary judgment and a "cross-motion for summary judgment." (Doc. 99.) On January 24, 2013, Plaintiffs' response to the Borough's motion for summary judgment was filed. (Doc. 105.)2 On February 4,2013, Plaintiffs filed their reply brief to the Borough's response and cross-motion for summary judgment. (Doc. 107.) Lastly, on February 5, 2013, the Borough filed a reply brief to Plaintiffs' response to its summary judgment motion. (Doc. 108.) The motions for summary judgment are therefore fully briefed and ripe for disposition.

II. Discussion
A. Legal Standard

Summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "Summary judgment is appropriate when 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Wright v. Corning, 679 F.3d 101, 103 (3d Cir. 2012) (quoting Orsatti v. N.J. State Police, 71 F.3d 480, 482 (3d Cir. 1995)). A fact is material if proof of its existence or nonexistence might affect the outcome of the suit under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S....

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