The opinion of the court was delivered by: Judge Caputo
Presently before the Court are Defendants' Motions to Dismiss the Amended Complaint, Motions to Dismiss Pursuant to Rule 25, and Plaintiffs' Motion for Leave to File Second Amended Complaint. Plaintiffs state a claim under the Native American Graves Protection and Repatriation Act and no further parties are necessary to the action, so Defendants' motion to dismiss will be denied in part. But because Plaintiffs fail to state a claim under 42 U.S.C. § 1983 or the Equal Access to Justice Act, Defendants' motions to dismiss will be granted in part. Further, since no statement noting death has been served, a motion for substitution is not yet required, so Defendants' motions to dismiss pursuant to Rule 25 will be denied. Finally, because leave to amend should be granted freely, Plaintiffs' motion to amend will be granted.
The facts as alleged in the Plaintiffs' Amended Complaint are as follows: Jim Thorpe was a famous athlete, an enrolled member of the Sac and Fox Indian tribe, and an advocate for the rights of Indian people. Upon Jim Thorpe's death in 1953, his remains were taken to Shawnee, Oklahoma, for burial near his birthplace. Before the completion of the traditional Sac and Fox memorial service, Jim Thorpe's third wife ordered that his casket be removed. She proceeded to "shop around" his remains until a deal was made to bury them in the Boroughs of East Mauch Chunk and Mauch Chunk, Pennsylvania. The boroughs then consolidated under one new name, "Borough of Jim Thorpe." The agreement between the Borough and Jim Thorpe's widow stated that she would not "remove or cause to be removed the body of her said husband, Jim Thorpe, from the confines" of the Borough, "so long as the boroughs of East Mauch Chunk and Mauch Chunk . . . are officially known and designated as 'Jim Thorpe.'" Although Jim Thorpe is never known to have visited the town, the Borough hoped that the erection of a monument in Jim Thorpe's honor would attract tourists.
Plaintiffs John Thorpe, Richard Thorpe, and William Thorpe are the sons of Jim Thorpe. The Defendants are the Borough of Jim Thorpe as well as the former and current mayor of the Borough and former and current Borough Council members. The Thorpe brothers have repeatedly asked the Borough to repatriate their father's remains so that they can bury him within his tribal homeland in Oklahoma, but the Borough has refused. Now the brothers, along with the Plaintiff Sac and Fox Indian Nation, allege that the Defendants have violated the Native American Graves Protection and Repatriation Act ("NAGPRA"), 25 U.S.C. §§ 3001 to 3013. In particular, they claim that the Defendants have failed to consult with the direct lineal descendants of Jim Thorpe and/or with the Sac and Fox Nation in the compilation of an inventory of American Indian human remains. They also claim that the Defendants have failed to repatriate Jim Thorpe's remains to either the direct lineal descendants of Thorpe or to the Sac and Fox Nation.
Plaintiff 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 NAGPRA. Further, the Plaintiff 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. Defendant 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. The motions have been fully briefed and are ripe for disposition.
A. Substitution Under Rule 25
As a threshold matter, Defendants argue that the action must be dismissed for a failure to substitute a party under Federal Rule of Civil Procedure 25(a)(1). That rule states:
If a party dies and the claim is not extinguished, the court may order substitution of the proper party. A motion for substitution may be made by any party or by the decedent's successor or representative. If the motion is not made within 90 days after service of a statement noting the death, the action by or against the decedent must be dismissed.
Here, John Thorpe died on February 22, 2011. No party--including the Defendants--has filed a motion for substitution. Thus, because ninety days have passed, ...