Just a few minutes ago, attorneys for Illinois Sen. Barack Obama and the Democratic National Committee filed a motion to dismiss the first amended complaint, a motion for leave for which was filed by Philip Berg on Monday, October 6.
Generally, an amended complaint cannot simply be filed by an attorney — the attorney must file a motion with the court, called a motion for leave to file an amended complaint, essentially asking that the court permit the amended complaint to be filed. That motion, the October 6 motion, is one of more than ten pending pleadings and still has not been addressed by the Hon. R. Barclay Surrick.
I am just now taking a look at it, but from a quick glance it appears as though Obama and the DNC are moving to dismiss the amended complaint on the same grounds for which they moved to dismiss the original complaint — that Berg lacks standing and fails to assert a claim upon which relief can be granted.
On September 24, 2008, Defendants Democratic National Committee (“DNC”) and Senator Barack Obama filed a motion to dismiss the original Complaint filed in this case, pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), on the grounds that the Court lacks subject matter jurisdiction over the claims asserted and that the Complaint fails to state a claim upon which relief can be granted. On October 6, 2008, plaintiff Philip Berg filed a Motion for Leave to File a First Amended Complaint, together with a First Amended Complaint for Declaratory and Injunctive Relief (“Amended Complaint”). Assuming that no leave to amend is required under Fed. R. Civ. P. 15(a) because defendants have not filed a responsive pleading,1 the First Amended Complaint should nevertheless be dismissed, on the same grounds. No amendment to the Complaint can possibly cure its fundamental defects. Not only are the allegations patently false, but plaintiff lacks standing and there is no federal cause of action for enforcement of Article II of the Constitution. Nor has plaintiff set forth, i n the Amended Complaint, any other viable federal cause of action.
John Lavelle, the filing attorney for the defense, actually calls Berg out on a procedural problem which I initially noticed but was not so sure about when Berg filed the motion for leave to amend at the beginning of this month. As I had suspected could be the case, Lavelle is maintaining that his motion to dismiss was not a responsive pleading and, for that reason, Berg did not have to essentially ask the court for permission to amend his complaint but rather could have done so directly. As it were, it is a minor issue, as Lavelle goes on to say that even with an amendment–filed according to the Federal Rules of Civil Procedure or not–Berg’s claims are “patently false” and he still lacks standing to sue.
“We have standing,” Berg said. “We’ve had standing, and we established that in the amended complaint. The issue here is that we are two weeks away from the election and headed toward a constitutional crisis and Obama continues to duck and dodge behind procedure.”