Berg v. Obama Update — Wednesday, September 24

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.

– Jeff

5:30pm

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”).

3:30pm

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.

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Comments

  1. Me says:

    Since today is the due date for Obama and the DNC to answer the lawsuit filed by Philip Berg questioning Obama’s eligibility to run for President, we as Americans should do what we can to insure that the Constitution is upheld and that only someone truly eligible runs for the office of President of the United States.

    With that thought, please get information out by e-mailing all of your friends, family and associates the links to Jeff’s and Philip Berg’s sites TODAY:

    http://www.americasright.com/ and http://www.obamacrimes.com/

    Even if this suit is eventually dismissed as having no merit, these questions MUST be answered and they must be answered before the election. The suit MUST be brought to the attention of the general public and not remain known to only a relative few in the population. Our Constitution MUST be upheld. It should not matter which political party you support, the Constitution MUST be upheld by all Americans.

    Jeff, thanks to you for all your work in getting this information out to the public.

  2. Ian Thorpe says:

    Not much left of it over here Jeff but I’ll be loking in before bedtime to see if any more news has come in.

    This stry has fascinated me and a small group of news and politics junkies who follow my satirical blog.

  3. Anonymous says:

    Jeff,

    Do you think the Judge will be fair in this case? Until what time today does Obama have to respond to the lawsuit?

    -Josh

  4. Anonymous says:

    What will Berg do if the suit is progressing AND Hilly is picked up for VP? Will Berg pull the suit? Will he keep the suit and use it surreptitiously to void the scene of Oboombox at some later point in orde to assumpt Hilly to the presidency?

    A few weeks ago Billy-boy said: “I don’t begrudge any ‘natural born citizen’ for running for President.” I then thought that the Clintons were behind the suit directly. But he certainly could have found out about the suit like the rest of us… but then… though Berg said he has had no contact with the Clintons, he could have had contact with someone who has had contact, eighty-three people removed.

    Whether yes or no, one thing is sure in my mind, Hillary wants on the ticket… IF… there is much chance of becoming VP or even P. Her campaign is in the tank for fifteen million dollars. Getting on the ticket will allow her to retire the debt (I assume). Plus, she probably knows she’s finnished nationally if McCain/Palin win. There is then the strong possibility of Republicans being in the White House for from 12 to 16 years. Hillary would also be out for Supreme Court nomination. She might just have to shoot the works and go for the slot with Obama now, no matter what the outcome seems to be. And that debt does loom heavily overhead.

    Something I suspect; Hillary gets on after the Palin/Biden debate, but chickens out on a debate with Palin, cheating us of the theater of the moose hunter skinning the weasel. “Gee, there just isn’t time to have a debate.”

  5. Jenna says:

    Was the filing done electronically? Can you send a link? If not can you post the document your reading?

  6. Anonymous says:

    TICK TICK TICK TICK TICK TICK TICK TICK TICK TICK TICK TICK
    TICK TICK TICK
    TICK TICK
    TICK……..WHEN “OBAMA” WHEN ?

  7. Jeff Schreiber says:

    Jenna –

    The filing was indeed electronic, and I’m working on getting the document hosted. In the meantime, I’ll do my best to capture a page or two…

    Jeff

  8. citizenwells says:

    Hi Jeff.
    Obviously Obama has no proof of US citizenship. We already knew that. Obama has just confirmed it.
    McCain produced a vault copy of COLB. Obama, if he had one, could have done the same.
    Thanks.

  9. Anonymous says:

    As his future employer, as required by employment laws, I am required to verify his legal ability to be employed by me. Can’t hire a McDonalds worker without the proper documentation (ie green card or citizenship proof) so why if the Constitution says that the President must be a citizen can’t I request proper documentation to prove he is eligible.

    Don’t understand. help me?

  10. Anonymous says:

    Lack of standing seems to be a weak argument. That no American citizen can challenge this is, to say the least, counterintuitive.

    Obama just wants to stall the case.

    I think that Obama’s lawyers are confusing this case with Larry Sinclair’s claim, which was seriously deficient insofar as facts were concerned, to say nothing of the law.

    Any reasonable person would have filed his or her birth certificate, in a sealed envelope if there are some legitimate privacy concerns.

    BA

  11. Anonymous says:

    Just to clarify… Obama/DNC has to file their ‘Answer’ by midnight tonight, even though they filed this motion to dismiss, correct? And do you think they are holding off in the hope that the judge grants the motion before then? Would it not be easier to just provide the certified vault copy of the BC, than to have an attorney file an 11 page motion? Shows me that they don’t have the documentation.

  12. alalper says:

    You can download the file here:

    http://www.q-audio.com/images/mtd.pdf

  13. Craig and Susie says:

    Thank you for keeping up on these events and posting. It’s appreciated!

  14. Anonymous says:

    Thanks Jeff for your hard work and prompt attention to get the news to us. What a day in politics….

  15. Jet says:

    Here's Berg's response in his website:

    OBAMA & DNC HIDE BEHIND LEGAL ISSUES WHILE BETRAYING PUBLIC IN NOT PRODUCING A CERTIFIED COPY OF OBAMA’S “VAULT” BIRTH CERTIFICATE AND OATH OF ALLEGIANCE

    Country is Headed to a Constitutional Crisis

    (Lafayette Hill, Pennsylvania – 09/24/08) – Philip J. Berg, Esquire, the Attorney who filed suit against Barack H. Obama challenging Senator Obama’s lack of “qualifications” to serve as President of the United States, announced today that Obama and Democratic National Committee [DNC] filed a Joint Motion to Dismiss on the last day to file a response, for the obvious purpose of delaying Court action in the case of Berg v. Obama, No. 08-cv-04083.

    Their joint motion indicates a concerted effort to avoid the truth by delaying the judicial process, although legal, by not resolving the issue presented: that is, whether Barack Obama was “natural born.”

    It is obvious that Obama was born in Kenya and does not meet the “qualifications” to be President of the United States pursuant to our United States Constitution. Obama cannot produce a certified copy of his “Vault” [original long version] Birth Certificate from Hawaii because it does not exist.

  16. Anonymous says:

    I’ve copied from Count Three of Berg’s suit, the part about fraud. You can read it in the paragraph following. Berg is suing in this count based on Obama’s having committed fraud by putting forth a forged birth certificate. If demonstrated false, his posting of it is wire fraud (?), committed across state lines… a federal offense. But the hurdle for Berg is his claim to ‘standing’. SO… doesn’t Berg have standing if he contributed any money to the DNC during this election cycle, and Obama got any of it?

    Berg’s Count Three:

    “Obama attempted to defraud Plaintiff and the American people by allowing an altered and forged Hawaii Certificate of Live Birth (COLB) to be placed on his campaign website. Obama was well aware the Government issued COLB was altered and forged as the original document was in the name of Maya Kasandra Soetoro born in 1970. Maya Kassandra Soetoro Obama’s half sister who was born in Indonesia and her birth was later registered in Hawaii. The altered and forged COLB is still on Obama’s campaign website located at http://my.barackobama.com/page/invite/birthcert

  17. Anonymous says:

    YES….PHILIP BERG AND THE ALERT FOLKS WILL WIN IN THE END…SO KEEP UP THE HARD WORK AND PASS THE STORY TO EVERY ONE WHO CAN “READ”
    I BELIEVE OBAMA DREAMS WE WILL JUST GO AWAY AND BE FLICKED OFF LIKE HE DID TO HILLARY….”NOT”
    HE GETTING HIS POINTS UP AND WE ARE HERE…SO IT LOOKS LIKE HIS DREAM IS WORKING…DREAM ON!!!!!YOU HAVE TO SHOW US THE PAPERS NOW….NOW NOW NOW!!! TODAY!!!!!

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