Watterson v. Fritcher
| Decision Date | 15 August 2018 |
| Docket Number | No. 1:17-cv-01020-DAD-JLT,1:17-cv-01020-DAD-JLT |
| Court | U.S. District Court — Eastern District of California |
| Parties | LEONARD WATTERSON, Plaintiff, v. JULIE FRITCHER, Defendant. |
ORDER DENYING MOTION FOR SUMMARY JUDGMENT AND ORDERING PLAINTIFF TO SHOW CAUSE WHY THIS CASE SHOULD NOT BE DISMISSED
On May 29, 2018, counsel filed a motion for summary judgment on plaintiff's behalf. (Doc. No. 20.) Defendant, who is proceeding pro se in this action, has not responded to this motion. On July 3, 2018, the court held a hearing on the motion, at which attorney Jack Duran Jr. appeared on behalf of plaintiff. No appearance was made by defendant. For the following reasons, plaintiff's motion for summary judgment will be denied. Additionally, plaintiff will be ordered to show cause why this action should not be dismissed.
At its core, this action is a dispute concerning who is appropriately the holder of the assignment to Lot #28 on the Lone Pine Indian Reservation. Plaintiff alleges in his complaint that he is the rightful holder of the assignment to Lot #28. (Doc. No. 1 at ¶ 7.) This lot is not further identified or described in the operative pleading.
The complaint alleges as follows: Lot #28 was originally purchased by the Bureau of Indian Affairs ("BIA") pursuant to the Trust Agreement and Rehabilitation Grant to Unorganized Bands (the "Agreement"), which was approved on April 17, 1939 by the Secretary of the Department of the Interior. (Id. at ¶ 10.) Pursuant to the Agreement, the unorganized bands of Indians in the Owens Valley organized into the Bishop, Big Pine, and Lone Pine Reservations, and enacted the Owens Valley Ordinance (the "Land Ordinance") on February 1, 1962. (Id. at ¶ 11.) The Land Ordinance governs the lands acquired on behalf of the members of the three reservations, and sets the terms and conditions of acquiring land allotments on those reservations. (Id.) The Land Ordinance is effectuated by a Board of Directors whose duties are to ensure tribal member compliance with the Land Ordinance. (Id. at ¶ 11.) Land assignments are not inheritable under the Land Ordinance. (Id. at ¶ 13.) However, the holder of a land assignment may designate a beneficiary to receive the assignment upon the holder's death. (Id.) That beneficiary is then to be given "preference in granting the assignment." (Id.)
The Land Ordinance validated land assignments in existence at the time of its enactment. (Id. at ¶ 12.) Plaintiff's grandfather Pete Thomas was living on Lot #28 at the time the Land Ordinance was enacted, and therefore received an assignment to Lot #28. (Id.) Upon Pete Thomas' death, the Lone Pine General Council allegedly voted to assign Lot #28 to plaintiff on June 3, 1987. (Id. at ¶ 14.) On the same date, the Board of Directors allegedly ratified the assignment. (Id. at ¶ 15.) The complaint asserts that defendant Fritcher1 has therefore beentrespassing on the property since at least that date, i.e., for approximately the last thirty years. (Id. at ¶ 16.) The complaint alleges the following claims: (1) federal statutory trespass in violation of 25 C.F.R. §§ 162.106(a) and 163.291; (2) common law trespass; (3) violation of California Civil Code § 3481, nuisance; (4) a state law claim for conversion; and (5) declaratory relief pursuant to 28 U.S.C. § 2201 that Lot #28 is assigned to plaintiff. (Id. at ¶¶ 19-35.)2
Summary judgment is appropriate when the moving party "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).
In summary judgment practice, the moving party "initially bears the burden of proving the absence of a genuine issue of material fact." In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party may accomplish this by "citing to particular parts of materials in the record, includingdepositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials" or by showing that such materials "do not establish the absence or presence of a genuine dispute, or that the adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1)(A), (B). "A trial court can only consider admissible evidence in ruling on a motion for summary judgment." Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002).
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). However, "[a] district court may not grant an unopposed motion for summary judgment solely because the opposing party has failed to file an opposition." Canal Ins. Co. v. YMV Transp., Inc., 867 F. Supp. 2d 1099, 1103-04 (W.D. Wash. 2011); see also Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993) (); White by White v. Pierce County, 797 F.2d 812, 815 (9th Cir. 1986) ().
Before turning to the evidence submitted on summary judgment, the court must address plaintiff's requests for judicial notice of various documents. Plaintiff has failed to provide any of the documents of which he requests judicial notice be taken. (See, e.g., Doc. No. 20-3 at 2) (requesting judicial notice of a 1947 land assignment to Pete Thomas, and noting simply the document "can be easily obtained upon request from the Owens Valley Board of Trustees or Lone Pine Indian Tribe"). A court must take judicial notice if requested by a party "and the court is supplied with the necessary information." Fed. R. Evid. 201(c)(2). Courts regularly refuse to take judicial notice of documents that are not supplied by the party seeking judicial notice. See, e.g., Linehan v. Allianceone Receivables Mgmt., Inc., No. C15-1012-JCC, 2016 WL 5944564, at*1-2 (W.D. Wash. Oct. 13, 2016) (); In re Hilliard Dev. Corp., 238 B.R. 857, 864 (Bankr. S.D. Fla. 1999) ( ) (quoting In re Tyrone F. Conner Corp., 140 B.R. 771, 782 (Bankr. E.D. Cal. 1992)); see also Howerton v. Earthgrains Baking Cos. Inc., No. 1:13-CV-01397 AWI SMS, 2015 WL 3657748, at *2 (E.D. Cal. June 11, 2015) (). Since the documents plaintiff requests the court take notice of were not provided to the court, plaintiff's requests for judicial notice are denied.
Second, plaintiff filed an index of exhibits in support of the statement of undisputed material facts. The index lists the following nine exhibits:
(Doc. No. 20-2.) However, none of these exhibits were actually filed on the court's docket in support of plaintiff's summary judgment motion. Following the hearing on the motion, plaintiff filed additional exhibits on the court's docket—presumably the omitted exhibits that plaintiff 'scounsel wishes the court to consider in reviewing the motion. (Doc. No. 26.) Plaintiff did not seek or receive leave to file these exhibits belatedly, and does not appear to have served them on the defendant. Nevertheless, in the interest of expediting resolution of the pending motion, the court has considered these belatedly-filed exhibits. However, evidence does not demonstrate plaintiff is entitled to judgment as a matter of law.
Plaintiff's central claim to his right to possess Lot #28 is that it was granted to him by the Lone Pine General Council on June 3, 1987. (Doc. No. 1 at ¶ 14.) Plaintiff avers in a declaration that his grandfather held the original assignment to Lot #28, and that on July 6, 1974 he was designated to receive Lot #28 upon his grandfather's death. (Doc. No. 26 at ¶ 7.) Plaintiff declares that his grandfather died on December 11, 1975, at which time, "as his sole beneficiary, I received [Lot] #28." (Id. at ¶ 8.) According to plaintiff's declaration, the effect of the June 3, 1987 board meeting was to enlarge his assignment to Lot #28 from one to three acres. (Id. at ¶ 10.)
One of the newly-submitted exhibits is a copy of the 1962 Land Ordinance, which governs the assignment of lots on the Lone Pine Reservation. (See Doc. No. 26 at 18-24) (hereafter referred to as "1962 Land Ordinance"). The 1962 Land Ordinance states that an application for an assignment of land shall be filed with...
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