59 SIATE OF Gil INTHE SUPREME COURT OF THE STATE OF OKLAHOMA Ae ai AUS —4 2003 LESSIE BENNINGFIELD RANDLE, VIOLA. ) ‘ FLETCHER, HUGHES VAN ELLIS, SR, OHN D. Hat CLERK #121592 Supreme Court No. Plaintifts/Appellants, CITY OF TULSA, a municipal corporation; TULSA REGIONAL CHAMBER, a domestic ) ) ) ) } ) District Court No. CV-2020-1179 ) not-for-profit corporation; BOARD OF ) ) ) ) ) ) ) } (Tulsa County, Oklahoma) COUNTY COMMISSIONERS FOR TULSA COUNTY, OKLAHOMA; VIC REGALADO, in his official capacity as sheriff of Tulsa County; and OKLAHOMA MILITARY DEPARTMENT, Defendants/ Appellees. MOTION TO RETAIN APPEAL ‘The historical importance of this case cannot be overstated, Plaintifis/Appellants, Lessie Benningfield Randle, Viola Fletcher, and Hughes Van Ellis, St. (“Survivors”), are the last three known survivors of the Tulsa Race Massacre of 1921. This Court, not the Court of Civil Appeals, should decide whether the District Court erred in determining that Survivors did not sufliciently plead specific remedy under Oklahoma law—any decision will have widespread impact on state coust notice pleading standards as this State’s notice pleading regime long ago abolished any requirement that a litigant correctly identify a theory of recovery or describe “the remedy affordable for an asserted right’s vindication.” Finnell x. Seismic, 2003 OK 35, | 12, 67 P.3d 339, 343; see also Okla. Sup, GR.1.24(C) (factor to consider in determining whether to retain an appeal includes any decision that is “likely to have widespread impact”). ‘The District Court in this case erroneously and unlawfully imposed a heightened pleading standard, finding that the Survivors had failed to allege a legally cognizable abatement remedy for their public nuisance claim. But a claim cannot be dismissed at the pleading stage because of arequested remedy ot lack of request for a remedy. The “crafting” of the remedy is left to the court only aferit has had the opportunity to evaluate the facts put before it and has made a determination on liability. Pinel, 2003 OK 35, 912, 67 P.3d at 343, In addition, shis Court, not the Court of Civil Appeals, should interpret and apply State of Oblaboma v. Johnson & Johnson, ef al, 2021 OK 54, 499 P.3d 719—this Court's seminal, and very secent, public nuisance decision, In this case, Survivors alleged—and adequately plead—a public uisance claim pursuant to the definition set forth in Johnson & Jobnion. Survivor's Second Amended Petition methodically plead sufficient facts to defeat the motions to dismiss and adequately set forth how Defendants/ Appellees “commit{ed] crimes constituting a nuisance.” Id. 18, 499 P.3d at 724. As is well known, during the Massacre municipal and county officials “deputized and armed ‘many whites who were part of a mob that killed, looted, and burned down the Greenwood area.” 74 ‘OS. § 8000.1. Along with causing the death of more than 300 Tulsans, the mob murdered nationally renowned surgeon and prominent Greenwood resident, Dr. A.C. Jackson, who was brutally shot on June 1, 1921, while coming out of his home with his hands raised. R. on Accelerated. Appeal, Tab 37; Second Am, Pet. at 33, Defendants/ Appellees committed arsan on almost 1,500 homes and businesses in the Greenwood neighborhood with one Massacre survivor, Alice Andrevis, stating that “jt looked like the world was on fire.” Id. at 18. Defendant/Appellees looted valuable personal property of Greenwood residents, carefully stripping homes and businesses of all valuables before setting fire to the structures. Id, at 21. Survivor’s Second Amended Petition also sufficiently alleges how Defendants/ Appellees “caus[ed] physical injury to property or patticipat{ed] in an offensive activity that rendered the property uninhabitable.” Jobnson & Jobason, 2021 OK 54, § 18, 499 P.3d at 724. Defendants/ Appellees destroyed “1,256 homes, virtually every school, church and business, and a library and hospital in the Greenwood aren” 74 OS. § 8000.1, After participating in the burning and looting of Greenwood,Defendants/Appellees either refused to enforce existing housing codes or amended the housing codes in ways that made costs of rebuilding “prohibitively expensive,” making houses in Greenwood prone to rapid deterioration and leading to substandard and blighted properties. R. on Acceletated. Appeal, ‘Tab 37; Second Am, Pet. at 31. In addition, Defendanis/ Appellees have yet to rebuild the only hospital in the Greenwood area that was destroyed in the Massacte, Id. at 32, and Defendants/ Appellees? interference with investment in the Greenwood and North Tulsa neighborhoods, which began after the ‘Massacre, continues to this day—there is still no viable public infrastructure in these communities. Id at 31, Any decision in this case will have widespread impact not just on state court pleading standards, but also on public nuisance claims, again making this case appropriate for retention. But the Court should also retain this case because Survivors, who are 109, 108, and 102, respectively, have waited collectively mote than 300 years for their day in court. To put it bluntly, the Survivors are asking for the opportunity —before they die and there are no other survivors of the Massacre— to take the stand, take an oath, and tell an Oklahoma court what happened to them, their families, and their community. The District Court’s erroneous application of well-settled pleading standards has (potentially) robbed them of that chance. A quick and swift reversal by this Court is watranted so that Survivors may have the opportunity to prove at trial the continuing, ongoing public nuisance caused by the Defendants/Appellees’ conduct during the Massacre, which has only been exacerbated by their continued unlawful and offensive conduct since then.' * Survivors also sufficiently plead an unjust enrichment claim, which the District Court's dismissal order makes ‘no mention of, At the hearing on May 2, 2022, the parties agreed that if Survivors filed a Second Amended Petition, removing references to money damages related to the unjust ensichment claim, that Defendants/ Appellees would rest on their briefs and forgo another round of motions to dismiss. May 2, 2022 Tr. 8t53:23-59:1 1 Sept. 28, 2021 Tr. at 185:20-189:7. In accordance with the partis" stipulation, the Distsict Court's August 3, 2022 order directed Survivors to file the Second Amended Petition. Survivors complied with the District Coure’s request, but the District Court nevertheless, and without explanation, dismissed Survivors’ unjust ‘ntichment claim despite the parties’ stipulation,IN THE SUPREME COURT OF THE STATE OF OKLAHOMA. LESSIE BENNINGFIELD RANDLE, VIOLA) FLETCHER, HUGHES VAN ELLIS, SR, Phaintifis Appellants, CITY OF TULSA, a municipal coxporation; ‘TULSA REGIONAL CHAMBER, a domestic not-for-profit corporation, BOARD OF COUNTY COMMISSIONERS FOR TULSA COUNTY, OKLAHOMA; VIC REGALADO, in his official capacity as sheriff of Tulsa County; and OKLAHOMA MILITARY DEPARTMENT, District Court No. CV-2020-1179 (Tulsa County, Oklahoma) Defendants/ Appellees. MOTION FOR ORAL ARGUMENT Phintiffs/Appellants, Lessie Benningfield Randle, Viola Fletcher, and Hughes Van Rls, Sr. (“Survivors”), respectfully submit to the Court that oral argument would help clatify what this case is and is not about. Contrary to the District Court's conclusion, this case is got about eradicating racism or repairing race relations through the “management of public policy matters.” R, on Accelerated. Appeal, Tab 47, July 12, 2023 Order at 2. Rather, the public nuisance alleged by Survivors is a discrete, localized problem that occurred in a single neighborhood in a single city in Oklahoma and fits squarely within the common law “property-based limitations” that have “shaped Oklahoma’s public nuisance statute” for more than a century. State of Oklahoma v. Johnson e Johnson, etal, 2021 OK 54,937, 499 P.3d 719, 730. As Survivors sufficiently alleged, Defendants/ Appellees committed multiple discrete acts of property damage and wrongdoing that are ongoing and that require abatement. However, the District Court unnecessatily and unlawfully complicated this case by imposing on Survivors a heightened pleading standard never before adopted by this Court. The District Court’s rulingin this case apparently requires a party alleging a public nuisance claim to plead the exact abatement semedy that the party thinks culd cure the problem—before discovery, before trial, and before any determination of liability. Ie’s an impossible pleading standard, having no basis in Oklahoma’s notice pleading code ot decisional law. Jn addition, Survivors sufficiently plead their claim for unjust enrichment, again methodically alleging facts relating to Defendants/ Appellees’ complicity in the Massacre; promotion and profit of the Massacre to secure tax advantages and monies; and use of the history of the Massacre and the names and likeness of Survivors and descendants of other Massacre victims to promote tourism and economic development—benefitting only the Defendants/ Appellees while not compensating Survivors. Despite such allegations, the District Court’s order is silent on the unjust enrichment claim, incorporating by reference the coutt’s prior otder of August 3, 2022, as its only justification for dismiscal. Even a cursory review of Survivors’ Second Amended Petition, however, reveals that taking the pleading’s allegations as true, together with all reasonable inferences which may be drawn from them, Survivors stated a legally cognizable claim for unjust enrichment. Yet nothing in the District Court's August 3, 202 onder, the July 7, 2023 order, ot the court's “supplemental” July 12, 2023 order explains how Defendants/Appellees overcame the heavy burden of demonstrating Survivors could prove 10 sit of facts entitling them to relief on this claim. ‘The legal issue in this case af shit juncture is straightforward—did Survivors sufficiently plead claims for public nuisance and unjust entichment under Oklahoma’s notice pleading standards? For the reasons set forth herein, Survivors respectfully request the Court set the case for oral argument, Dated: August 4, 2023