Obama, DNC File Motion to Dismiss Berg’s First Amended Complaint

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.”

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Comments

  1. John Galt says:

    Is he flying over on Air Force One?

  2. Anonymous says:

    Scepticism is very tempting.

    Yet, one can entertain
    ideas that appear contradictory
    in extra-ordinary times like these;
    where fact becomes fiction,
    truth, …lies…..and the quest for
    information is forever elusive.

    What’s important perhaps, is not
    to ever surrender one’s
    Humanity, even where it seems under attack.

    See story re ill Granny here:

    http://voices.washingtonpost.com/the-trail/2008/10/20/obama_leaving_trail_thursday_t.html

    Those who pray say it blesses both the prayer & the One prayed for.

    Just saying…

  3. Anonymous says:

    Hi Jeff,

    I have a request to you after a short introduction.

    After getting info that among thousands possible attorneys Berg was chosen by API as an attorney for API I got a strange feeling that the whole API's story is just a huge hoax. And the goal of that API's story is to trap Berg into a mix of API's story together with his lawsuit against Obama & DNC. This way after finding out eventually that API's story is a hoax, the Berg's lawsuit would be buried. Maybe I'm too cautious and wrong, but I have such a feeling.

    Because of that I'd prefer to focus just on spreading a word on VIDEO "October Surprise" (about Berg's lawsuit). So I repeat again a (little updated) comment that was sent twice to your previous articles.

    My request:

    if you find this message (or at least an idea of it) useful, please use it in your future article(s) – it will intensify
    this message in many times more. Edit it as you wish.

    And now I'm repeating that message:
    ———————————————————————
    The clock is ticking. There is a sense to repeat a (little updated)
    comment from http://www.americasright.com/2008/10/my-note-to-editor-at-african-press.html
    made on Oct 17, 2008 at 5:46PM
    ———————————–
    Ladies & Gentlemen,

    CNN knows about Berg's lawsuit and simply "dismissed" it. Judge
    probably will wait until after elections. It leaves only one
    possibility to "win" this case – let know American people about its
    existence (they don't know because MSM don't inform about it), and
    they will decide this case during elections knowing this information
    and according their hearts.

    VIDEO "October Surprise" has at this moment more than 1,900,000 views. It has to be more than 190,000,000 to be effective. Please email a message (like below) to as many addresses as you can. And let's see.

    ===================================
    Subject: "October Surprise"

    Body:
    ———
    Not eligible to be President of the US? Why???

    OCTOBER SURPRISE

    Watch VIDEO:

    http://www.youtube.com/watch?v=gA6_k3NtXZs
    Obama's Citizenship: I Invented The Internet (Ep. 6: October Surprise) 11 min

    The same VIDEO can be seen here:

    http://www.americanthinker.com/2008/10/this_could_be_the_game_changer.html
    October 11, 2008
    "This could be the game changer"

    or here

    http://www.americasright.com/2008/10/philip-berg-interview-hits-youtube.html
    Saturday, October 11, 2008
    "Philip Berg Interview Hits YouTube"

    It seems this matter is of interest for everybody.

    Please e-mail it to everyone you can think about.

    Thanks!
    ===================================

  4. Anonymous says:

    So much for the Michelle Obama tape.

    http://wordpress.com/tag/api-hoax/

  5. Anonymous says:

    Obama is on his way to Hawaii, as reported by Anderson Cooper on CNN at 11pm. Monday 10/20
    He will be visiting his
    SICK Grandmother, Madeline
    Dunham on Thurs.& Fri..
    They said she just got out of the Hospital last week,
    reported by Candy Crowley and Anderson.
    Michelle O is to take Obama's place at scheduled rallies, including Ohio on Fri,. I wonder what he's up to? Dan

  6. Jonathan says:

    I’m sure it’s certainly going to be an undercover job for the sake of a few extra copies of the infamous forged “birth certificate”. Unbelievable that it’s even possible that this guy was even allowed into his Senate seat to begin with.

    JD

  7. Anonymous says:

    Maybe Obama is NOT going back to Hawaii.
    Maybe he’s fixing to Rabbit on us!
    I mean, if he’s caught knowingly lying, it’s prison time.
    He’s probably looking at getting to Kenya or Indonesia.

  8. Anonymous says:

    If we can give our lives and send our children off to war, to fight for our country and defend our CONSTITUTION, it’s beyond my understanding why we aren’t defending the constitution at home “DEMANDING” Obama prove he’s constitutionally eligible to run before Nov.4th?

    They have the nerve to say it lacks standing!?

    You mean to tell me the constitution is being compromised and that many of our loved ones have died in vain!?

  9. Anonymous says:

    A very interesting site and petition. Please forward!
    http://www.rallycongress.com/constitutional-qualification/1244/

  10. Anonymous says:

    SHAME ON OBAMA …SHAME SHAME SHAME!

    all this man had to do was show his real birth certificate…but instead he wishes to dismiss.

    tsk tsk tsk mr barack hussein obama

    even if he has it…he is playing games, what does that say about a possible president of the united states! SKEEERRRYYYYYYYYYYY!

  11. Anonymous says:

    if we as free people and individuals of this great nation let our voices be heard…not only on this isssue but others to! we the people united we stand…

    we have allowed our country to get this way, we hide and allow greedy unjust men and women to run our country. now when freedom and everything we believe in is compromised we need to stand up and fight more than ever!

    this is not a black and white issue this is about our constitutional rights our freedom!

    let yourselves be heard…ring it…sing it…our opinions do matter otherwise they wouldnt fight so hard to get our votes!

    as far as the case goes, im sure they all know about it and are keeping track…msm is hiding the news of it, i have never seen such biased reporting, they will report on palin daily and drill it to death…stupid stuff…but nothing on this case because they are biased!

    this is not about his skin color, although he has made it such…this is about his person…who he is and what he really does believe in, i believe he is out to change this country and the constitution and take everyones money and spread it around as he puts it, i believe that is called SOCIALIST!!!! that is not freedom…maybe he should spread his wealth…lmao!

    WE CAN VOTE…WE CAN BE HEARD…WE THE PEOPLE!!!!!!

  12. easy says:

    This is a travesty…Obama has refused to provide a certified copy of his birth certificate, why, what is he hiding? A group of us have been doing a lot of work on this over the past few weeks trying to get someone to listen. Obama was born in Kenya not the US (Hawaii). There is much more behind this story and it continues to grow. Look at the Democrat’s “Rescue Plan”, ask yourself why American Samoa was mentioned in the bill. Our investigation shows money was funneled to AM for a favor by the representative for America Samoa…the representative was sent to visit Kenya and meet with the school officials to obtain all records of his attendance. Conspiracy? Look at the deaths of those surrounding Obama’s history, the political ties to Kenya and much more. Then there is evidence via a recorded call with Michele Obama with API, which is soon to be released (we hope). There is much more going on here than meets the eye and unfortunately, the parts to the puzzle are coming together far too late stop Obama.
    Eric
    Hawaii

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