Answer to Berg’s Complaint Due Today from Obama, DNC; Motion Filed
Obama and the DNC have until midnight tonight to serve an answer to Philip Berg’s complaint, so keep checking here for updates throughout the day. The first one was really a conglomeration of ideas tossed around my head throughout the morning, hence the “9:00am to 1:00pm” label. Still, as things develop–or perhaps do not–there should be more to see.
I just got off the phone with Phil Berg, and put in a few questions to the attorney who filed the motion. I’d really like to give the latter a chance to respond, so for a more salient synopsis sometime this evening. Until then, you’ve got the details below.
The PDF of the motion can be found by clicking HERE (thank you to one of our readers, a self-proclaimed “advocate for constitutional rights”).
MOTION TO DISMISS FILED.
A few stream-of-consciousness notes until I’ve had time to put everything together…
The grounds cited:
(1) Court lacks subject matter jurisdiction.
(2) Berg failed to present a claim upon which relief can be granted.
“Plaintiff’s allegations regarding Sen. Obama are patently false, but even taking them as true for purposes of this Motion, plaintiff’s suit must be dismissed immediately. This Court lacks subject matter jurisdiction because the plaintiff has no standing (emphasis added by me) to challenge the qualifications of a candidate for President of the United States. Plaintiff fails to state a claim in any event because there is no federal cause of action asserted in the Complaint.”
NOTE: Don’t get all hung up on the “taking [the allegations] as true for purposes of this Motion” stuff. That’s completely normal, and nothing to read into.
My gut tells me that Judge Surrick has an order just waiting for this motion to be filed…
I was on the telephone with Berg when the motion appeared on the docket. He declined to comment until he had a chance to look at it himself.
“In order to establish the “‘irreducible constitutional minimum of standing’ under Article III of the Constitution” plaintiff must show, first, an “‘injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, . . . and (b) actual or imminent, not conjectural or hypothetical.’
In this case, Mr. Berg fails to allege an y concrete, specific injur y in fact to[apparent typographical error] In this case, Mr. Berg fails to allege any concrete, specific injury in fact to be ineligible, “plaintiff as well as other Democratic Americans will suffer Irreparable Harm including but not limited to: (1) Functional or Actual, Disenfranchisement of large numbers of Citizens, being members of the Democratic Party, who would have been deprived of the ability y to choose a Nominee of their liking . . . .” It is well-established, however, that a voter’s loss of the ability to vote for a candidate “of their liking” does not confer standing because the actual injury is not to the voter but to the candidate. “[A] voter fails to present an injury-in-fact when the alleged harm is abstract and widely shared or is only derivative of a harm experienced by a candidate.” (emphasis added by me)
This is exactly what I figured it would be. They cited the Jones v. Bush case, where voters sued to challenge the Bush-Cheney ticket because both were inhabitants of the same state (Texas), and that court’s finding of a lack of a “distinct and palpable injury.”
And, as I thought, they cited the recent Hollander v. McCain decision from New Hampshire.
On the subject matter jurisdiction angle, the defense attorneys cited authority suggesting that the Declaratory Judgment Act cited by Berg “has only a procedural effect” and “does not create subject matter jurisdiction.”
Now, we just need to see if my gut–ample as it may be–is correct on the pending order from the Hon. R. Barclay Surrick…
Keep checking here for details, and expect a more finessed approach, hopefully complete with a reaction from Berg–and Obama’s folks, if they’ll talk to me–at some point tonight.
9:00am to 1:00pm
Today is “Answer Day” with regard to Berg v. Obama, so keep checking back here from time to time should I hear anything from my contacts in the federal courthouse.
I expect something will be filed–motion to dismiss or for motion for extension of time–and probably, for insulation purposes, by the DNC and not by Obama’s camp, and will keep everyone here abreast of any changes. On the off-chance that nothing is filed today, I’ll do my best to obtain comment from Phil Berg and will attempt to present details, options and analysis later this evening. Still, we might not know anything for sure until tomorrow morning.
Under Rule 12(a)(1)(A) of the Federal Rules of Civil Procedure, a defendant must serve an answer within 20 days of being served with the summons and complaint.
Barack Obama and the DNC were served on September 4. Therefore, pursuant to the FRCP, they have until midnight tonight to file their answer to the complaint filed by Philip Berg on August 21. To quote my very own Pre-Trial Advocacy textbook, “[s]ince a complaint must be answered, failing to answer will constitute an admission of all facts alleged in the complaint.”
This is why, when everyone asks me via e-mail whether I think Barack Obama or the DNC will file an answer by the end of today, I say “yes.” However, he could technically avoid making any sort of answer for another 40 days. Obama could very well allege, after the fact, that he is an officer of the United States and, according to Rule 12(a)(3), should be given 60 days–rather than the 20 days mandated by Rule 12(a)(1)(A)–on the grounds that he was sued in his official capacity for actions or omissions which occurred in connection with the work he performs on behalf of the nation. It would be up to the judge, I guess, to determine whether campaigning for president is considered a duty “performed on the United States’ behalf” as required by the rule.
There are a myriad of defenses with which Obama and/or the DNC could respond. However, I’m inclined to think, due to the nature of this case and of the previous cases against John McCain, that any one of the defendants will fire the first shot with a motion to dismiss on grounds that Berg lacks standing.
For both sides, there are numerous options in terms of strategy. I’ll flesh some of those out as things progress today and as it is appropriate to do so.