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John Thorpe v. Borough of Jim Thorpe

April 19, 2013

JOHN THORPE, RICHARD THORPE,
WILLIAM THORPE, AND THE SAC AND FOX NATION OF OKLAHOMA,
PLAINTIFFS,
v.
BOROUGH OF JIM THORPE,
MICHAEL SOFRANKO,
RONALD CONFER,
JOHN MCGUIRE, JOSEPH MARZEN,
W. TODD MASON,
JEREMY MELBER,
JUSTIN YAICH,
JOSEPH KREBS,
GREG STRUBINGER,
KYLE SHECKLER, AND JOANA KLITSCH, DEFENDANTS.



The opinion of the court was delivered by: A. Richard Caputo United States District Judge

JUDGE CAPUTO

MEMORANDUM

Presently before the Court are the Borough of Jim Thorpe's (the "Borough") Motion and Cross-Motion for Summary Judgment (Docs. 93; 99) and Plaintiffs the Sac and Fox Nation of Oklahoma, Richard Thorpe, and William Thorpe's (collectively, "Plaintiffs") Motion for Summary Judgment. (Doc. 95.) Following his death in 1953, legendary athlete Jim Thorpe, an American Indian of Sauk heritage and an enrolled member of the Sac and Fox Nation, was buried in what became known as the Borough of Jim Thorpe, Pennsylvania. The series of events that resulted with the burial of Jim Thorpe in Pennsylvania included an agreement between Jim Thorpe's wife at the time of his death, Patricia Thorpe, and two neighboring municipalities. The municipalities and Patricia Thorpe agreed, among other terms, that the municipalities would unify and consolidate as the Borough of Jim Thorpe and the remains of Jim Thorpe would be interred in a mausoleum in the Borough. Dissatisfied with this arrangement, Jim Thorpe's two living sons and the Sac and Fox Nation maintained this action against the Borough and its officers under the Native American Graves Protection and Repatriation Act.

Now, following the close of discovery, Plaintiffs seek summary judgment in their favor and a declaration that the Native American Graves Protection and Repatriation Act applies to the Borough and the remains of Jim Thorpe. The Borough opposes Plaintiffs' motion and also requests summary judgment in its favor. The Borough argues that the Court lacks jurisdiction to entertain this action pursuant to the "probate exception" to federal jurisdiction. The Borough further asserts that it is not a "museum" under the Native American Graves Protection and Repatriation Act because it never received "Federal funds", or, alternatively, that Plaintiffs' claims are barred by the doctrine of laches. Because the "probate exception" to federal jurisdiction is inapplicable to the instant matter and the Borough did not suffer any prejudice from Plaintiffs' delay in commencing suit, the Borough's motion for summary judgment will be denied. Moreover, because the Borough qualifies as a "museum" for purposes of the Native American Graves Protection and Repatriation Act, Plaintiffs' motion for summary judgment will be granted and the Borough's cross-motion will be denied.

I. Background

1. Factual Background

Legendary athlete Jim Thorpe died on March 28, 1953. (Doc. 98, Pls.' Statement Material Facts, "Pls.' SMF", ¶ 1; Doc. 100, Def.'s Ans. Pls.' SMF, "Def.'s Answer", ¶ 1.) Jim Thorpe was an American Indian of Sauk heritage and an enrolled member of the Sac and Fox Nation. (Id.) At the time of his death, Jim Thorpe was married to his third wife, Patricia Thorpe. (Doc. 94, Def.'s Statement Material Facts, "Def.'s SMF", ¶ 10; Doc. 104, Pls.' Answer to Def.'s SMF, "Pls.' Answer", ¶ 10.) Jim Thorpe was also survived by four daughters and four sons. (Def.'s SMF, ¶¶ 14-15; Pls.' Answer, ¶¶ 14-15.) When he died, Jim Thorpe's residence was in Lomita, California. (Def.'s SMF, 11; Pls.' Answer, 11.) Today, Plaintiffs Richard and William Thorpe are Jim Thorpe's sole surviving children. (Pls.' SMF, ¶ 2; Def.'s Answer, ¶ 2.)

Following Jim Thorpe's death, traditional Sac and Fox funeral and burial rites were commenced, but were interrupted and never completed. (Pls.' SMF, ¶ 5.) Jim Thorpe died intestate, and his estate was assigned to Patricia Thorpe, his surviving spouse. (Def.'s SMF, Ex. C, 10.)

Subsequently, Patricia Thorpe entered into an agreement dated May 19, 1954 with the Boroughs of Mauch Chunk and East Mauch Chunk that set forth terms and conditions for the renaming of the municipalities and the interment of Jim Thorpe. (Defs. SMF, ¶ 20.) As part of the Agreement, the municipalities were consolidated under the name "Jim Thorpe." (Id. at ¶ 21.) The Agreement provided that Patricia Thorpe, her heirs, administrators and executors would not remove or cause to be removed the body of Jim Thorpe, and such obligations were binding "upon the first party and upon her heirs, administrators and executors only for so long as the boroughs of East Mauch Chunk and Mauch Chunk, parties hereto, are officially known and designated as 'Jim Thorpe.'" (Id. at ¶ 23, Ex. D.) Individual Plaintiffs and the Sac and Fox Nation, however, were not parties to the Agreement. (Pls.' SMF, ¶ 6; Def.'s Answer, ¶ 6.) Pursuant to the Agreement, Jim Thorpe's remains were interred within the Borough, and the remains continue to be interred on Borough-owned land in a mausoleum maintained by the Borough. (Def.'s SMF, ¶¶ 25-26; Pls.' Answer, ¶¶ 25-26; Pls.' SMF, ¶ 7; Def.'s Answer, ¶ 7.) Mauch Chunk and East Mauch Chunk changed their identity to that of a single Borough under the name of Jim Thorpe, and the Borough has maintained the interment site for the last fifty-five years. (Def.'s SMF, ¶¶ 27-31; Pls.' Answer, ¶¶ 27-31.)

Plaintiff William Thorpe has been aware that his father was buried in the Borough since the 1950s. (Def.'s SMF, ¶ 34; Pls.' Answer, ¶ 34.) William and his brothers contemplated filing a lawsuit back in the 1950s or 1960s but did not because of a difference of opinion with their half sisters. (Def.'s SMF, ¶ 35.) William Thorpe also had discussions about commencing an action under the Native American Graves Protection and Repatriation Act in the early 1990s, but no action was brought at that time. (Id. at ¶ 41, (citing William Thorpe Dep. Tr., 34:13-25).)

Plaintiff Richard Thorpe learned that his father was buried in Pennsylvania years ago by reading the newspaper. (Id. at ¶ 42 (citing Richard Thorpe Dep. Tr., 22:20-23:4).) Approximately fifteen or sixteen years ago, Richard Thorpe visited his father's burial site in Pennsylvania. (Id. at ¶ 43.)

B. Procedural History

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 the Native American Graves Protection and Repatriation Act ("NAGPRA"), 25 U.S.C. §§ 3001 to 3013. Further, he 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. The First Amended Complaint re-alleged Plaintiffs' § 1983 claims to preserve them for appeal and also set forth a claim under the Equal Access to Justice Act, 28 U.S.C. § 2412(b). The 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. On November 23, 2011, Defendants' motions to dismiss were granted in part, and Plaintiffs' § 1983 and Equal Access to Justice Act claims were dismissed. However, I further determined that Jim Thorpe's lineal descendants were not necessary parties to this action under Rule 19. Plaintiffs were also granted leave to file an amended pleading

On December 13, 2011, Plaintiffs filed a Second Amended Complaint seeking permanent injunctive relief requiring the Borough to comply with the NAGPRA, declarations that the Borough is a "museum" as defined by the NAGPRA and in violation of the statute's requirements, and a judgment for attorney's fees and costs. The Borough filed its Answer and Affirmative Defenses to the Second Amended Complaint on January 25, 2012.*fn1

The action proceeded to discovery. On December 31, 2012, the Borough and Plaintiffs both filed motions for summary judgment. (Docs. 93; 95.) The Borough, on January 18, 2013, filed its opposition to Plaintiffs' motion for summary judgment and a "cross-motion for summary judgment." (Doc. 99.) On January 24, 2013, Plaintiffs' response to the Borough's motion for summary judgment was filed. (Doc. 105.)*fn2 On February 4, 2013, Plaintiffs filed their reply brief to the Borough's response and cross-motion for summary judgment. (Doc. 107.) Lastly, on February 5, 2013, the Borough filed a reply brief to Plaintiffs' response to its summary judgment motion. (Doc. 108.) The motions for summary judgment are therefore fully briefed and ripe for disposition.

II. Discussion

A. Legal Standard

Summary judgment shall be granted "if the movant 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). "Summary judgment is appropriate when 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Wright v. Corning, 679 F.3d 101, 103 (3d Cir. 2012) (quoting Orsatti v. N.J. State Police, 71 F.3d 480, 482 (3d Cir. 1995)). A fact is material if proof of its existence or nonexistence might affect the outcome of the suit under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

Where there is no material fact in dispute, the moving party need only establish that it is entitled to judgment as a matter of law. See Edelman v. Comm'r of Soc. Sec., 83 F.3d 68, 70 (3d Cir. 1996). Where, however, there is a disputed issue of material fact, summary judgment is appropriate only if the factual dispute is not a genuine one. Anderson, 477 U.S. at 248. An issue of material fact is genuine if "a reasonable jury could return a verdict for the nonmoving party." Id. Where there is a material fact in dispute, the moving party has the initial burden of proving that: (1) there is no genuine issue of material fact; and (2) the moving party is entitled to judgment as a matter of law. See 2D Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2727 (2d ed.1983). The moving party may present its own evidence or, where the non-moving party has the burden of proof, simply point out to the court that "the non-moving party has failed to make a sufficient showing on an essential element of her case." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).

"When considering whether there exist genuine issues of material fact, the court is required to examine the evidence of record in the light most favorable to the party opposing summary judgment, and resolve all reasonable inferences in that party's favor." Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007). Once the moving party has satisfied its initial burden, the burden shifts to the non-moving party to either present affirmative evidence supporting its version of the material facts or to refute the moving party's contention that the facts entitle it to judgment as a matter of law. Anderson, 477 U.S. at 256--57. The Court need not accept mere conclusory allegations, whether they are made in the complaint or a sworn statement. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990). "To prevail on a motion for summary judgment, the non-moving party must show specific facts such that a reasonable jury could find in that party's favor, thereby establishing a genuine issue of fact for trial." Galli v. New Jersey Meadowlands Comm'n, 490 F.3d 265, 270 (3d Cir. 2007) (citing Fed. R. Civ. P. 56(e)). "While the evidence that the non-moving party presents may be either direct or circumstantial, and need not be as great as a preponderance, the evidence must be more than a scintilla." Id. (quoting Hugh v. Butler County Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005)). In deciding a motion for summary judgment, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249.

Where cross-motions for summary judgment are filed, as is the case here, the summary judgment standard remains the same. Lawrence v. City of Phila., 527 F.3d 299, 310 (3d Cir. 2008). Of course, when presented with cross motions for summary judgment, the Court must and does consider the motions separately. See Williams v. Phila. Hous. Auth., 834 F. Supp. 794, 797 (E.D. Pa. 1993), aff'd, 27 F.3d 560 (3d Cir. 1994).

B. Summary Judgment Motions

1. The Borough's Motion and Cross-Motion

As noted, the Borough filed its summary judgment motion on December 31, 2012. The Borough asserts that the Court lacks jurisdiction to resolve Plaintiffs' request for relief pursuant to the "probate exception" to federal jurisdiction. Furthermore, the Borough maintains that Plaintiffs' request for equitable relief under the NAGPRA is barred by the doctrine of laches. Additionally, in its cross-motion for summary judgment, the Borough argues that it only benefitted from "Federal funds" since the enactment of the NAGPRA. As a result, the Borough contends that it is not a "museum" for purposes of the statute.

2. Plaintiffs' Motion

Plaintiffs' motion for summary judgment was also filed on December 31, 2012. Specifically, Plaintiffs seek a declaration that the NAGPRA applies to the Borough and to the remains of Jim Thorpe.*fn3 Plaintiffs further request a declaration that the Borough must comply with the repatriation provisions of the NAGPRA. In support, Plaintiffs contend that the provisions of the NAGPRA apply in this case because: (1) the Borough has control and possession over Jim Thorpe's remains; (2) the Borough is a "museum" under the NAGPRA since it received "Federal funds"; and (3) the Borough has no legal claim under the NAGPRA or otherwise to retain Jim Thorpe's remains. And, according to Plaintiffs, as there are no material facts in dispute regarding their entitlement to invoke the NAGPRA, summary judgment in their favor is appropriate.

C. Analysis

1. The "Probate Exception" Does Not Bar Jurisdiction

The Borough's threshold argument in moving for summary judgment is that the "probate exception" to federal jurisdiction bars the Court from entertaining Plaintiffs' request for relief. According to the Borough, federal courts lack power "to exercise in rem jurisdiction over probate property (including remains by extension) that had previously been validly adjudicated by another court." (Doc. 96, 8.) The Borough further maintains that "Plaintiffs are attempting to overrule, undermine, and challenge the surviving spouse/executrix's and California Court's decision from 60 years ago without returning to that Court for relief." (Doc. 108, 13.)

Plaintiffs dispute the relevance of the "probate exception" to bar jurisdiction over their claims under the NAGRPA. Specifically, Plaintiffs assert that the Borough fails to recognize that human remains are not part of a decedent's probate estate. (Doc. 105, 6.) Furthermore, as this case does not raise any issues with respect "to any will or administration of Jim Thorpe's estate or distribution of any ...


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