Gonzales v. The United States Department of the Interior

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA [3] 4 DAVIS GONZALES, et al., Case No.: 2:24-cv-01629-GMN-DJA [5] Plaintiffs, 6 vs. ORDER 7 THE UNITED STATES DEPARTMENT OF THE INTERIOR, BUREAU OF INDIAN 8 AFFAIRS, et al., Defendants. [9] 10 Pending before the Court are several motions filed by Third-Party Intervenor Defendant 11 Steven McDade. First, McDade filed a Motion for Cross Claim, (ECF No. 36), which the 12 Court construes as a Crossclaim. Plaintiffs Joseph Holley, individually and on behalf of the Te13 Moak Tribe of Western Shoshone Indians of Nevada (the “Tribe”), the Housing Authority of 14 the Te-Moak Tribe of Western Shoshone Indians (the “Housing Authority”), and Defendants 15 Bryan Newland, The United States Department of the Interior, and The United States 16 Department of the Interior Bureau of Indian Affairs (“Federal Defendants”) filed Responses 17 (ECF Nos. 41, 60, 61).1 McDade filed a Reply, (ECF No. 67). Second, McDade filed a Motion 18 for Rule 65 Injunction, (ECF No. 44). Plaintiffs and Federal Defendants filed Responses, (ECF 19 Nos. 49, 60). McDade filed Replies, (ECF Nos. 65, 67). Next, McDade filed two identical 20 Motions for Sanctions against Plaintiffs, (ECF Nos. 54, 55). Plaintiffs and Federal Defendants 21 filed Responses, (ECF Nos. 60, 63, 64). McDade filed Replies, (ECF Nos. 66, 67). Then [23] 24 1 The Court issued an “Order Lifting Stay and Setting Briefing Deadlines.” The Order provided Plaintiffs with 30 days from the date of an amended complaint being filed to file a response to McDade’s “Motion for Cross 25 Claim.” On January 6, 2025, Plaintiffs filed their First Amended Complaint for Judicial Review. While Plaintiffs previously submitted a Response to McDade’s Motion for Cross Claim on November 8, 2024, (ECF No. 41), Plaintiffs submitted a Renewed Opposition, (ECF No. 61), in compliance with the Court’s Order. 1 McDade filed a Motion for Default Judgment against Plaintiffs, (ECF No. 71). Plaintiffs filed a 2 Response, (ECF No. 73), to which McDade replied, (ECF No. 75). Lastly, McDade filed 3 another Motion for Sanctions against Plaintiffs, (ECF No. 72). Plaintiffs filed a Response, 4 (ECF No. 74), to which McDade replied, (ECF No. 75). 5 For the reasons discussed below, the Court DISMISSES McDade’s Crossclaim and 6 DENIES the Motion for Rule 65 Injunction, Motions for Sanctions, and Motion for Default 7 Judgment. 8 I. BACKGROUND 9 This case arises out of Plaintiffs’ request for judicial review of an agency decision. On 10 September 4, 2024, Joseph Holley, individually and purportedly on behalf of the Tribe, filed a 11 Complaint seeking this Court’s review and reversal of a tribal leadership recognition decision 12 issued by the Director of the Bureau of Indian Affairs (“BIA”) on June 26, 2024. (See generally 13 Compl., ECF No. 1). On October 7, 2024, the Court denied Holley’s motion for a preliminary 14 injunction, granted motions to intervene filed separately by Steven McDade and the Housing 15 Authority, and stayed the case pending the resolution of related consolidated appeals that were 16 pending before the Assistant Secretary – Indian Affairs (“AS-IA”). (See generally Order 17 Denying Prelim. Inj., ECF No. 34). On October 25, 2024, McDade filed a Motion for Cross 18 Claim against Plaintiffs and Federal Defendants. (Crossclaim, ECF No. 36). Shortly after, 19 McDade filed a Motion for Injunction pursuant to Federal Rule of Civil Procedure (“FRCP”) 20 65. (Mot. Inj., ECF No. 44). McDade later filed two Motions for Sanctions pursuant to Rule 11 21 against Plaintiffs’ attorneys. (Mots. Sanctions, ECF Nos. 54, 55). 22 On November 27, 2024, AS-IA issued a final decision resolving the pending 23 consolidated appeals. (See Final Decision, Ex. 1 to Correction Joint Status Report, ECF No. 5724 1). The Court subsequently lifted the stay, ordered Plaintiffs to file an amended complaint 25 within 30 days, and ordered the parties to file responses to McDade’s pending motions within 1 30 days of any amended complaint being filed. (See Order Lifting Stay and Setting Briefing 2 Deadlines, ECF No. 58). 3 On January 6, 2025, Plaintiffs Davis Gonzales (Holley’s replacement), individually and 4 purportedly on behalf of the Tribe, and the Housing Authority filed an Amended Complaint 5 naming Federal Defendants and McDade as Defendants. (See First Am. Compl. (“FAC”), ECF 6 No. 59). The parties then responded to McDade’s pending motions and answered the FAC. 7 II. DISCUSSION 8 The Court addresses each pending motion in turn beginning with McDade’s Crossclaim. 9 A. Motion for Cross Claim 10 McDade filed his Crossclaim styled as a “Motion for Cross Claim.” Crossclaims should 11 be set forth via a pleading, not a motion. See Fed. R. Civ. Pro. 13. Because the Court must 12 construe a pro se litigant’s filings liberally, it construes the Motion for Cross Claim as a 13 pleading. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). But because McDade filed his 14 Crossclaim as a motion, a response and reply deadline was automatically triggered. Plaintiffs 15 and Federal Defendants filed Responses moving for the Crossclaim to be dismissed. Because 16 Plaintiffs and Federal Defendants move for dismissal, the Court construes their responses as 17 Motions to Dismiss. Having addressed the Crossclaims procedural deficiencies, the Court 18 moves on to the arguments for its dismissal. 19 1. Legal Standard 20 Crossclaims are affirmative claims for relief filed by one party against a coparty. 21 Moore’s Fed. Practice § 13.60 (3d. 2014). Pursuant to Federal Rule of Civil Procedure Rule 22 13(g), “a pleading may state as a crossclaim any claim by one party against a coparty if the 23 claim arises out of the transaction or occurrence that is the subject matter of the original action 24 or of a counterclaim. . . .” “The crossclaim may include a claim that the coparty is or may be 25 liable to the cross-claimant for all or part of a claim asserted in the action against the cross1 claimant.” Fed. R. Civ. P. 13(g). Courts in the Ninth Circuit apply the same standard for 2 motions to dismiss crossclaims and counterclaims as motions to dismiss a complaint. See, e.g., 3 Threshold Enters. Ltd. v. Lifeforce Digital Inc., 730 F. Supp. 3d 940 , 943–44 (N.D. Cal. 2024) 4 (counterclaim); Wada v. Aloha King, LLC, 154 F. Supp. 3d 981, 1000 (D. Haw. 2015) 5 (crossclaim). 6 Dismissal is appropriate under Rule 12(b)(6) where a pleader fails to state a claim upon 7 which relief can be granted. Fed. R. Civ. P. 12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544 , 8 555 (2007). A pleading must give fair notice of a legally cognizable claim and the grounds on 9 which it rests, and although a court must take all factual allegations as true, legal conclusions 10 couched as factual allegations are insufficient. Twombly, 550 U.S. at 555 . Accordingly, Rule 11 12(b)(6) requires “more than labels and conclusions, and a formulaic recitation of the elements 12 of a cause of action will not do.” Id. “To survive a motion to dismiss, a [crossclaim] must 13 contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on 14 its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570 ). “A 15 claim has facial plausibility when the cross-claimant pleads factual content that allows the court 16 to draw the reasonable inference that the [opposing party] is liable for the misconduct alleged.” [17] Id. This standard “asks for more than a sheer possibility that [an opposing party] has acted 18 unlawfully.” Id. 19 If the court grants a motion to dismiss for failure to state a claim, leave to amend should 20 be granted unless it is clear that the deficiencies of the crossclaim cannot be cured by 21 amendment. DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992). Pursuant 22 to Rule 15(a), the court should “freely” give leave to amend “when justice so requires,” and in 23 the absence of a reason such as “undue delay, bad faith or dilatory motive on the part of the 24 movant, repeated failure to cure deficiencies by amendments previously allowed undue [25] 1 prejudice to the opposing party by virtue of allowance of the amendment, futility of the 2 amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962). 3 2. Analysis 4 Federal Defendants argue that the crossclaims pled against them should be dismissed 5 because McDade lacks the authority to bring crossclaims under the Criminal Code. (Federal 6 Defs.’ Omnibus Resp 3:1–2, ECF No. 60). Plaintiffs join this argument. (Pls.’ Renewed Opp., 7 ECF No. 61). McDade fails to address this argument in his Reply. See LR 7-2(d) (“The failure 8 of an opposing party to file points and authorities in response to any motion . . . constitutes a 9 consent to the granting of the motion.”). Despite this deficiency, the Court will consider the 10 merits of Federal Defendants’ argument. 11 McDade brings claims under 18 U.S.C. § 371 and § 242 against Federal Defendants and 12 Plaintiffs. (See Crossclaim at 1, ECF No. 36). These statutes fall under Title 18 of the United 13 States Code, the main criminal code of the federal government of the United States. Title 18 14 U.S.C. § 371 is a federal conspiracy statute that makes it a crime to conspire to commit an 15 offense against or to defraud the United States, and a violation of this criminal statute is 16 punishable by fine, imprisonment or both. See Dennis v. United States, 384 U.S. 855 , 861 17 (1966) (explaining the plain language of 18 U.S.C. § 371 has long been established to provide a 18 criminal penalty for conspiracy against the United States). Title 18 U.S.C. § 242 makes it a 19 crime for someone acting under the color of law to deprive a person of a right or privilege 20 protected by the Constitution or laws of the United States, and a violation of this criminal 21 statute is punishable by fine, imprisonment, or both, or, in some circumstances, the death 22 penalty. 23 Private citizens have no authority to initiate criminal prosecutions and cannot enforce 24 criminal statutes through civil actions. United States v. Batchelder, 442 U.S. 114 , 124 (1979); 25 Linda R.S. v. Richard D., 410 U.S. 614 , 619 (1973) (“[A] private citizen lacks a judicially 1 cognizable interest in the prosecution or nonprosecution of another.”); Tia v. Crim. 2 Investigation Demanded as Set Forth, 441 Fed. App’x 457, 458 (9th Cir. 2011) (stating a 3 private party plaintiff “lacks standing to compel an investigation or prosecution of another 4 person”). As such, McDade does not have authority to enforce either of these provisions of the 5 criminal code against Federal Defendants (or any party for that matter). See Henry v. Universal 6 Technical Inst., 559 F. App’x 648, 650 (9th Cir. 2014) (affirming dismissal of 18 U.S.C. § 371 7 claim alleged in a civil action because statute does not provide a right of action); Aldabe v. 8 Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) (per curiam) (affirming dismissal of 18 U.S.C. 9 § 242 claim alleged in civil action because the criminal statute “provide[d] no basis for civil 10 liability”). 11 Even assuming that McDade could enforce these criminal statutes via a civil action by 12 virtue of some federal waiver of sovereign immunity, which he cannot, he has not identified a 13 waiver or right of action that would allow him to otherwise pursue the pleaded claims against 14 Federal Defendants. See Fed. Deposit Ins. Co. v. Meyer, 510 U.S. 471, 475 (1994) (“Absent a 15 waiver, sovereign immunity shields the Federal Government and its agencies from suit.”); 16 Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985). Thus, the claims under 18 U.S.C. 17 § 371 and § 242 alleged against Federal Defendants and Plaintiffs are dismissed with prejudice 18 because there are no facts that McDade could allege to overcome the deficiencies stated above. 19 See DeSoto, 957 F.2d at 658 . However, it is unclear whether McDade could assert different 20 counterclaims against Plaintiffs or crossclaims against Federal Defendants. Thus, McDade’s 21 Crossclaim is DISMISSED, but he shall have leave to amend his Crossclaim to assert proper 22 civil claims as appropriate. 23 B. Motion for Injunction 24 McDade also moves for an injunction under FRCP 65. (See generally Mot. Inj., ECF No. 25 44). FRCP 65 governs preliminary injunctions. A preliminary injunction may be issued if a 1 movant establishes: (1) likelihood of success on the merits; (2) likelihood of irreparable harm in 2 the absence of preliminary relief; (3) that the balance of equities tips in his favor; and (4) that 3 an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 , 20 4 (2008). “Injunctive relief [is] an extraordinary remedy that may only be awarded upon a clear 5 showing that the [movant] is entitled to such relief.” Id. at 22 . The Ninth Circuit has held that 6 “serious questions going to the merits and a hardship balance that tips sharply toward the 7 plaintiff can support issuance of an injunction, assuming the other two elements of the Winter 8 test are also met.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1132 (9th Cir. 9 2011). 10 For the reasons discussed above, McDade fails to meet his burden of establishing a 11 likelihood of success on the merits because he has no authority to initiate criminal prosecutions 12 and cannot enforce criminal statutes through civil actions. Moreover, because the Court 13 dismissed McDade’s Crossclaim, there is no case or controversy pending before the Court, and 14 the Court cannot issue injunctive relief. Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr., [15] 810 F.3d 631, 633 (9th Cir. 2015) (“A court’s equitable power lies only over the merits of the 16 case or controversy before it.”). Therefore, the Court DENIES McDade’s Motion for 17 Injunction. 18 C. Motions for Sanctions 19 McDade moves for sanctions under FRCP 11 in three separate motions.2 (See First Mot. 20 Sanctions, ECF No. 54); (Second Mot. Sanctions, ECF No. 55); (Third Mot. Sanctions, ECF 21 No. 72). In the first two motions, McDade argues that sanctions are warranted because 22 Plaintiffs’ counsel violated this Court’s Order, Nevada Rules of Professional Conduct, and are 23 harassing him. (See generally First Mot. Sanctions). In the third motion, he argues that [24] 25 2 McDade’s first and second Motion for Sanctions are duplicate filings. The Court cites only the first motion throughout this discussion, but its conclusions regarding the first Motion for Sanctions apply to the second motion. 1 Plaintiffs’ counsel should be sanctioned because Plaintiffs’ counsel assaulted him, causing 2 injury to his left shoulder.3 (See generally Third. Mot. Sanctions). McDade states that a matter 3 is pending before another court regarding the assault. (Id.). Plaintiffs argue that sanctions 4 should be denied because McDade failed to provide notice of his intent to file any of his 5 Motion for Sanctions. (See Resp. to Third Mot. Sanctions 2:18–19, ECF No. 74). 6 The Court declines to reach the merits of McDade’s Motions for Sanctions because they 7 are procedurally flawed. Pursuant to FRCP 11(c)(2), “[a] motion for sanctions . . . must not be 8 filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is 9 withdrawn or appropriately corrected within 21 days after service or within another time the 10 court sets.” In a Reply, McDade states that the Court has discretion to decide whether to apply 11 FRCP 11’s safe harbor requirement but does not support this statement with caselaw. McDade 12 also states that “he will give notice of his motion under the safe harbor rule.” (Mot. Sanctions 13 Reply at 3, ECF No. 75) (emphasis added). The Court therefore finds that McDade failed to 14 comply with FRCP 11’s safe harbor requirement because he did not provide any notice of his 15 intention to file a request for sanctions to Plaintiffs’ undersigned counsel for any of his Motions 16 for Sanctions. Accordingly, McDade’s Motions for Sanctions are DENIED without prejudice. 17 McDade may refile a Motion for Sanctions following the correct procedure so that the parties 18 may fully brief the merits of such a motion. If the assault allegations are true, it is likely that 19 the Court would consider such action sanctionable conduct. 20 D. Motion for Default 21 McDade also moves for default judgment under FRCP 55. (See generally Mot. Default, 22 ECF No. 71). Obtaining default judgment is a two-step process governed by FRCP 55. See 23 Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986). First, the moving party must seek an [25] 3 Plaintiffs’ counsel refutes these allegations, stating that they have never assaulted, or even threatened to assault, McDade with any physical violence or harm. (Resp. to Third Mot. Sanctions 3:1–7). 1 entry of default from the clerk of court. Fed. R. Civ. Pro. 55(a). Entry of default is only 2 appropriate when a party “has failed to plead or otherwise defend.” Id. After the clerk enters 3 the default, a party must then separately seek entry of default judgment from the court in 4 accordance with Rule 55(b). A cross-claimant, like McDade, may move for default judgment 5 under FRCP 55. See generally Massa v. Jiffy Prods. Co., 240 F.2d 702 (9th Cir. 1957). 6 Here, McDade titles the pending motion as a Motion for Default but requests default 7 judgment by the Court. He argues that default judgment is appropriate because Plaintiffs failed 8 to respond to his filing by the Court’s February 25, 2025, deadline. (Mot. Default at 2). 9 McDade fails to identify what the filing is, but after reviewing the docket, the Court believes he 10 is referring to Plaintiffs’ failure to respond to his Motion for Extension of Time, (ECF No. 68). 11 The Court finds that default judgment is not warranted for three reasons. First, because the 12 Court dismissed McDade’s Crossclaim, there is currently no judgment for affirmative relief 13 requested by McDade, so he cannot move for default judgment under Rule 55. Fed. R. Civ. 14 P. 55 advisory committee’s note to 2007 amendment (“Rule 55(a) applies Rule 55 to any party 15 against whom a judgment for affirmative relief is requested.”). Second, even if there was an 16 operative Crossclaim, default judgment would be inappropriate because Plaintiffs have not 17 failed to plead or otherwise defend against the Crossclaim McDade filed. It is true that 18 Plaintiffs did not file a Response to the Motion for Extension of Time, but the Court does not 19 construe that as a failure to defend, rather its construed as a non-opposition to McDade’s 20 motion. See LR 7-2(d) (“The failure of an opposing party to file points and authorities in 21 response to any motion. . . constitutes a consent to the granting of the motion.”). Lastly, 22 McDade failed to follow the two-step procedural process outlined in FRCP 55 because he 23 failed to request that the Clerk of Court enter default before moving the Court for default 24 judgment. Because McDade’s Motion for Default is procedurally flawed and fails on the 25 merits, the Court DENIES the motion. 1 CONCLUSION 2 IT IS HEREBY ORDERED that McDade’s Motion for Cross Claim, (ECF No. 36), 3 || which the Court construes as a Crossclaim, is DISMISSED. McDade shall not re-plead his 4 claims arising under the criminal code because they are dismissed with prejudice. But the 5 || Court grants McDade leave to amend his Crossclaim if he can allege civil claims against 6 || coparties/counterparties. McDade shall have 21 days from the date of this Order to file an 7 || Amended Crossclaim/Counterclaim. Petitioner is advised to consult the Federal Rules of Civil 8 || Procedure, including but not limited to FRCP 13, to amend his Crossclaim/Counterclaim. 9 || Failure to file an Amended Crossclaim/Counterclaim shall result in McDade proceeding only as 10 Defendant in this action. 11 IT IS FURTHER ORDERED that McDade’s Motion for Injunction, (ECF No. 44), is 12 ||} DENIED. 13 IT IS FURTHER ORDERED that McDade’s Motion for Sanctions, (ECF No. 54), is 14 || DENIED without prejudice. 15 IT IS FURTHER ORDERED that McDade’s Motion for Sanctions, (ECF No. 55), is 16 || DENIED without prejudice. 17 IT IS FURTHER ORDERED that McDade’s Motion for Default Judgment, (ECF No. 18 is DENIED. 19 IT IS FURTHER ORDERED that McDade’s Motion for Sanctions, (ECF No. 72), is 20 || DENIED without prejudice. 21 DATED this 16 day of July, 2025. Yj, 22 (Ap vy}, 23 Gloria M. 4) arro, District Judge UNITED STATES DISTRICT COURT [25] Page 10 of 10