DE LOS CRÉDITOS DE PERSONAL
Artículo 24. Requisitos para la determinación o modificación de retribuciones y demás condiciones de
Your first litigation assignment is to draft a Complaint to recover a sculpture that has been “missing” for sixty years. The cause of action is the ancient writ of replevin. You are an Assistant U.S. Attorney in Portland, Maine, and your client is the United States of America and its agency, the U.S. Department of Labor. Your assignment arrives in the form of the following memo from the Chief of the Civil Division.
MEMORANDUM
To: Assistant U.S. Attorney, Civil Division Fr: Bill Browder, Civil Chief
Re: United States v. Melody Richardson
I recently received a phone call from the U.S. Department of Labor that we need to stop the sale of a sculpture that is about to be auctioned in Port- land. The sculpture is “Boothbay Falcon” by William Summers. Its estimated value is $50,000.
The Chief of the Labor Department’s Fine Arts Program, Alicia Diebenkorn, says that the sculpture belongs to the federal government and that the seller is not the rightful owner. It’s your job to recover the sculpture on behalf of the federal government. I want you to draft a Complaint right away. Alicia discovered the sculpture when she saw it listed in an auction cat- alog. The catalog represents that the sculpture includes a label that refers to the “Labor Department Art Project.” According to Alicia, that label means the sculpture was originally commissioned by the federal government back in the Franklin Roosevelt administration. Alicia did some research at the National Archives in Washington and found documents from the 1930s that indicate that this particular sculpture was indeed commissioned by the federal gov- ernment as part of something called the “Labor Department Art Project.” Attached is Alicia’s declaration1together with all of the documents we have.
1If you wonder why the attached declarations are not notarized, consider 28 U.S.C. §
1746, which allows for the use of unsworn declarations under penalty of perjury, as follows:
Wherever, under any law of the United States or under any rule, regulation, order, or require- ment made pursuant to law, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form.. . .
. . . If executed within the United States, its territories, possessions, or commonwealths: “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date).
After reviewing the documents, I called the gallery and explained the problem. The gallery gave me the phone number for Melody Richardson, the woman who claims to own the sculpture. Attached is my declaration confirming what was said in those phone conversations.
In terms of the applicable law, the federal government has a stronger claim to property than would a private person in the same situation. Gen- erally speaking, the federal government retains title to property virtually forever, unless there is a legislatively authorized transfer of title. The U.S. Constitution (Article 4, Section 3, Clause 2) provides Congress with the exclu- sive authority to acquire and dispose of federal property. See also, Allegheny
County v. United States, 322 U.S. 174 (1944). “It is well settled that title to
property of the United States cannot be divested by negligence, delay, laches, mistake, or unauthorized actions by subordinate officials.” United States v.
Steinmetz, 763 F. Supp. 1293, 1298 (D.N.J. 1991), aff ’d. 973 F.2d 212 (3d Cir.
1992). Furthermore, inactivity, neglect, or unauthorized intentional conduct on the part of government officials will not divest the United States of own- ership interest in property. Kern Copters, Inc. v. Allied Helicopter Serv., Inc., 277 F.2d 308 (9thCir. 1960); United States v. City of Columbus, 180 F. Supp.
775 (S.D. Ohio 1959). In general, the federal government cannot abandon property. Steinmetz, 763 F. Supp. at 1298.
I want you to draft a Complaint to recover the sculpture on behalf of the federal government. The cause of action is replevin. Here are the elements I would like you to include:
1. Use the same caption that appears in the attached Browder and Diebenkorn declarations.
2. Off to the right of the caption, a couple of lines under the Civil Number, put the phrase “JURY DEMANDED.”
3. Center the following heading: “COMPLAINT.”
4. Under that heading, begin with a sentence like this: “NOW COMES the United States of America, by undersigned counsel, and hereby asserts the following as its Complaint.”2
5. The next heading should be: “INTRODUCTION.”
2I realize the phrase “NOW COMES” is rather archaic, but it accomplishes the goal of
immediately identifying the party filing the document. As long as you accomplish that goal, I don’t mind if you use another formulation. For example: “The United States, by undersigned counsel, asserts the following as its Complaint.”
6. Under that heading, summarize the Complaint in three to four sen- tences. The introduction should quickly summarize what this case is about and emphasize the strength of the government’s position. 7. Do not number the introductory paragraph. However, after that para-
graph, every sentence should be separately numbered sequentially. For reference purposes, it makes things much simpler. It also allows the Defendant to admit or deny each numbered sentence without having to specify a particular sentence within a paragraph.
8. The next heading should be: “PARTIES AND JURISDICTION.” 9. Identify the Plaintiff in one sentence.
10. Identify the Defendant in another sentence.
11. State in one sentence that there is federal subject matter jurisdiction under 28 U.S.C. § 1345 and why.
12. State in one sentence that there is personal jurisdiction over the Defen- dant and why. (Here’s a hint: Think about the “minimum contacts” test that you learned during the first year of law school.)
13. The next heading should be: “BACKGROUND.”
14. Under that heading, tell the “story” of this case from our client’s perspec- tive. Use subheadings to organize the story. For each sentence, you need to select the most appropriate facts from the Diebenkorn and Browder declarations. Also, include selected facts from the documents that are attached to the Diebenkorn declaration. You may assume there are no objections to authenticity.
15. When selecting facts for the Complaint, think about what you are trying to prove: that the sculpture belongs to the federal government even after all these years. What evidence proves that point? Also, be careful not to overstate any facts.
16. You should also assume that the case may receive some press attention, so you need to explain the story in a way that makes sense and gets our point across, including why the government is trying to take away a sculpture that has been in the Richardson family for so long.
17. Also make sure to include all relevant facts necessary to establish the elements of a replevin action as found in 14 M.R.S.A. § 7301 (“When goods, unlawfully taken or detained from the owner or person entitled to the possession thereof, or attached on mesne process, or taken on execution, are claimed by any person other than the defendant in the
action in which they are so attached or taken, such owner or person may cause them to be replevied.”).
18. Cites to the declarations should look like this: (Diebenkorn Decl.¶6) or (Browder Decl.¶2). Cites to the attachments should look like this: (Diebenkorn attachments at page 3). You can quote from the attach- ments verbatim, or you can paraphrase – it’s your choice. However, avoid long quotes and paraphrases. Make sure you get to the point.
19. The next heading should be: “COUNT I: REPLEVIN.”
20. Under that heading, the first sentence should say something like this: “The allegations in the foregoing paragraphs are incorporated by refer- ence.”
21. Next, you should assert the elements of replevin and that the Plaintiff is entitled to recover under that theory. Again, for the elements of replevin, look at the statute and try to figure it out. 14 M.R.S.A. § 7301.
22. When you assert legal points, do not quote or cite case authority. Instead, you should simply use declarative sentences that state the appropriate legal principles. Generally speaking, it is not appropriate to cite cases in a Complaint. In contrast, it is acceptable to cite statutes.
23. You also need to include a prayer for relief (i.e., a request for what you want the Court to do if you win) and the date.
24. Finally, include your signature block. For help with this or any other aspect of the assignment, feel free to consult the sample Complaint at the end of this chapter.
Thanks for your help. I expect your Complaint will be about five pages long, double-spaced.
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE