Lawyers for the family of Malheur National Wildlife occupation spokesman Robert “LaVoy” Finicum have 15 days to confirm they served dozens of defendants in his wrongful death lawsuit.
Magistrate Judge Patricia Sullivan handed down the directive Wednesday in federal court in Pendleton during a conference with the lawyers representing the Finicum family and a host of defendants. Sullivan said she wanted to meet the lawyers “because I think we may be spending some time together.”
The lawsuit names the United States as a defendant, along with the FBI, federal agents, the state of Oregon, Oregon Gov. Kate Brown, Oregon State Police, Harney County, and more — including 100 law enforcement “John Does.” The suit seeks more than $5 million in damages for Finicum’s estate, his wife Jeanette Finicum and each of their 12 children.
Attorney Morgan Philpot of Utah represents the Finicums and told the court all of the defendants have been served.
But attorney Thomas F. Armosino of Medford said he represents Harney County and its officials and none of his clients received notices of the suit. And Leah Taylor with the U.S. Department of Justice said defendant Greg Bretzing, former head of the FBI in Oregon, also has not received notice.
Philpot stressed his side has met the legal obligation to serve the defendants. Sullivan said he had 15 days starting Wednesday to deliver documentation of that service and she would not grant him one day more.
“Just give me a report,” she told Philpot.
Sullivan also questioned why U.S. Sen. Ron Wyden, D-Oregon, and former U.S. Sen. Harry Reid, D-Nevada, are among the defendants.
“Well, either get them served or get them dismissed,” she said.
Likewise, Sullivan noted she did not know why the suit includes the Center for Biological Diversity in Portland. David Campbell, Portland attorney for the center, said “I agree, your honor.”
Philpot said he would get the judge the report and added next week’s scheduled criminal trial of FBI agent W. Joseph Astarita in Portland could yield more names for the defendant list.
Astarita faces federal charges of making false statements and obstruction of justice. The government alleges Astarita lied about firing at Finicum moments before state police shot him dead on Jan. 26, 2016, when he bolted from a pickup at a roadblock on Highway 395 in Harney County.
The trial might not be such a boon to the Finicum side. James Smith, with the Oregon Department of Justice, represents the state and its interests. He said law enforcement officials testifying during the trial will use pseudonyms out of concern for their safety. That will make them difficult to serve notice to at the trial, he said.
Sullivan said she will handle pretrial matters, motions and expected discovery — the gathering of documents, evidence and facts — to start this year and last into 2019. She told the lawyers she will hold future hearings in Portland to make it easier for them to attend and because the federal courthouse there can better handle security. But nothing gets moving until parties receive notice about the lawsuit. The deadline for that report is Aug. 3.
Sullivan also dealt with a separate lawsuit seeking millions of dollars in damages from Astarita, Gov. Brown and others for the events that led up to Finicum’s death. Shawna Cox of Utah filed the lawsuit pro se — that is, for herself — on Jan. 26, two years to the day of that fatal showdown and just as the window to sue was closing. Cox later added Ryan Payne, Victoria Sharp and Ryan Bundy as pro se plaintiffs.
Sullivan said Cox is not a lawyer and cannot add anyone else to a complaint. And no one, she said, signed the original complaint itself. Instead, they signed other documents and included those with the lawsuit. Sullivan even held up the last page of the complaint to show it was bereft of any signatures.
Attorney Roger Roots of Rhode Island represents the plaintiffs in this case. He said Cox, Bundy, Sharp and Payne agreed to sue, and Cox rushed to file the complaint before the deadline expired. He joined the case later and amended the complaint because “the first had a lot of flaws.”
Since then, Cox and Bundy sought to withdraw from the case. Sullivan grant that and denied a motion to file an amended suit.
“To me this is a pretty straight forward legal rule — a pro se plaintiff can’t sign for other pro se plaintiffs,” she said.
Roots said there are cases addressing the purpose of such rules. Sullivan told him to “dig into it” and file an objection to convince her. Roots has until Aug. 20 to provide that, and the defendants have until Sept. 4 to respond.
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