Motion to dismiss - Osceola, June 1996

Respectfully submitted,

FRANK W. HUNGER
Assistant Attorney General

CHARLES R. WILSON
United States Attorney

REGINALD LUST
Assistant U.S. Attorney
Florida Bar No. 0750069
200 West Forsyth Street Room 700
Jacksonville, FL 32201

THOMAS W. MILLET
ANJALI A. ASHLEY
U.S. Department of Justice Civil Division
901 E Street, N.W., Room 101
(202) 514-3368

Attorneys for Plaintiff

OF COUNSEL:

Leslie Lagomarcino
Office of the General Counsel
U.S. Department of Agriculture
14th & Independence Ave., S.W. Room 2047
Washington, D.C. 20250-1400

CERTIFICATE OF SERVICE

Memorandum In Support Of
Plaintiff's Motion To Dismiss And For Default Judgment

1. Plaintiff brought this lawsuit in order to enforce, in the least confrontational manner possible, the recently enacted United States Department of Agriculture ("USDA") regulations concerning noncommercial group uses of the national forests, 36 C.F.R. Part 251, Subpart B ("group use regulations"), and to obtain a nation-wide injunction against violation of the group use regulations by the defendants, the Rainbow Family of Living Light, et al. ("Rainbow Family"). Plaintiff specifically chose to seek a civil injunction in lieu of other, more intrusive sanctions, such as criminal charges or preliminary civil relief, to avoid unnecessary confrontation or a multiplicity of cases.
2. The Rainbow Family has a long history of challenging the validity of the group use regulations under the First Amendment to the United States Constitution, and knowingly violated the group use regulations at issue during the January-February 1996 Rainbow Family gathering in the Osceola National Forest ("Osceola gathering") by refusing to obtain a permit for the gathering when it exceeded 74 participants. Since the Osceola gathering, Rainbow Family members have continued to gather in violation of the group use regulations in several different national forests around the country. It was plaintiff's intent to seek a resolution of this long-standing dispute in a manner which minimized the burdens on the Court and the parties while simultaneously presenting the possibility of a nation-wide ruling.
3. Despite plaintiff's attempt, through this lawsuit, to resolve this long-standing dispute with the defendants over the constitutionality of USDA's group use regulations in a cooperative manner, the defendants have chosen to ignore or not take seriously the litigation at bar. Plaintiff succeeded in serving only eighteen of the thirty-three named defendants due to significant practical difficulties in serving the named defendants in this case. Fifteen of the defendants who were served chose to disregard the complaint and did not submit a response within the prescribed time period. Of the three defendants who submitted responses to the complaint, all proceeded pro se and submitted responses which are inadequate, as a legal matter, to provide a basis to pursue the goals of this litigation.
4. The refusal of those defendants who have been served to obey this Court's summons should not be tolerated under any circumstances. As to them, a default judgment is warranted.
5. As to the three defendants who have submitted responses to the Complaint, it is apparent from their filings and pro se status that they will not provide the means to resolve plaintiff's long-standing dispute with the Rainbow Family. At a minimum, because the three defendants who have submitted responses to the complaint are not represented by counsel, it is doubtful that these parties would fairly and adequately protect the interests of the class as required under Fed. R. Civ. P. 23(a)(4) in order to certify the defendant class.

WHEREFORE, plaintiff respectfully requests the Court:
(A) to enter a default judgment pursuant to Fed. R. Civ. P. Rule 55(a) against all named defendants who have been served but have failed to file a responsive pleadings to the complaint; specifically, to enjoin each of these individuals from attending, conducting or participating in any way in a gathering within the national forests in the State of Florida and elsewhere in the United States in violation of the group use regulations;2
(B) to dismiss the above-captioned matter without Frejudice pursuant to Fed. R. Civ. P. Rule 41(a)(2) as to the named defendants who have submitted responsive pleadings to the complaint.3
(C) to dismiss this matter without prejudice as to all remaining named defendants.

II. Specifically, plaintiff seeks a default judgment under Fed. R. Civ. P. Rule 55(a) with respect to the following named defendants: James Pirtle, William D. Adams, Eric Eastridge, James Cappiello, Cari D. James, Robert J. Fuller, Rachel L. Vaughn, Sheila L. Gilmer, David Bessel, "Jose," "8ob Jones," and "nJo Bears."

III. Specifically, plaintiff moves to dismiss this action pursuant to Fed. R. Civ. P. Rule 41(a) (2) with respect to the following defendants: "Wakeem" (a/k/a William L. Barrie), Curtis Tiedt, and "Bullwinkle" (a/k/a Stephen Williams). In the event that the Court denies this motion, plaintiff requests an extension of time of ten (10) days from the date of the Court's order to respond to the pleadings filed by defendant "Wakeem," a/k/a William L. Barrie, on May 13, 1996.