Update on Berg vs. Obama, the Kenyan

America's Right ^ | 9/24/08 | Jeff Schreiber

[solfour]

Answer to Berg's Complaint Due Today from Obama, DNC

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.

[solfour]

Motion to Dismiss is here as filed by Obama, the Kenyan.

[Jet Jaguar]

ping

[goldstategop]

I would have expected Obambi to file a birth certificate with the court. Does that mean he admits to all the allegations named in the suit? You would think he could clear this all up instead of trying to get it dismissed on technical grounds!

"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus

[noob4palin]

Instead of filing a motion to dismiss, why didn’t he just bring his birth certificate?

[GreaterSwiss]

So is he a citizen?

If not, will he get away with it

[JerseyDvl]

Thanks for posting this.
Lucy...evening and PING! comin’ atcha ;)

[goldstategop]

Like I said, what has Obambi got to hide? Either he is a natural born citizen or if not, he is constitutionally ineligible to be President.

"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus

[JerseyDvl]

hey solfour, sorry I thanked the wrong person before.
Funny title...no offense noob..great to have you here at FR!
This is some garbage isn’t it..lol. Not that I expected any different.
I relly wish he would just put the COLB story to bed and present it. But then, what the hell do I know!
I’m honest.

[goldstategop]

Here is Phillip Berg's response. It is worth reproducing in full:

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.

DNC Chairperson Howard Dean should resign as he has not and is not fulfilling his responsibility of seeing that a “qualified” candidate is on the ballot as the Democratic candidate for President of the United States.

Berg stated that a response will be made in the next few days to their Motion to Dismiss.

[Tax Government]

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.

That allegation would be patently wrong. Obama is a private individual running for office. He cannot in his official capacity as an elected official run for office. If Obama fails to respond, the judge should summarily find against Obama.

[JerseyDvl]

Whoah...nice update.
So apparently, the judge didn’t dismiss it right away.
I need the law explained to me, sorry.
Just the fact it is still alive makes me want to laugh and sigh at the same time.
Happy that Obambi really doesn’t have the COLB.
A little anxious over the fact that we might have a Kenyan President.

[JerseyDvl]

Whoah...nice update.
So apparently, the judge didn’t dismiss it right away.
I need the law explained to me, sorry.
Just the fact it is still alive makes me want to laugh and sigh at the same time.
Happy that Obambi really doesn’t have the COLB.
A little anxious over the fact that we might have a Kenyan President.

[jmc813]

Is it really necessary to spam the sidebars with this nonsense when truly important stories are breaking around the clock?

[goldstategop]

Yep. If the judge rules against him, he would have to be removed from every ballot in the country. The Constitution is clear about the qualifications to be President. He must be (and this is the same for Vice President) a natural born citizen. A naturalized citizen is eligible for every federal office save the Presidency and Vice Presidency.

"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus

[goldstategop]

Its NOT nonsense! I think Obama could have put the issue to bed by presenting a COLB to the court. Why not?

"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus

[skr]

How can a citizen of the United States not have standing to question a presidential candidate’s qualifications as per the Constitution?

[JerseyDvl]

C’mon jmc, this guy had a chance to end the BS and clear his name as an American.

Barry Soetoro chose not to take that route because he has done nothing but lie about his entire life and a willing accomplice in the media is helping usher in socialism.

If you don’t like this subject you can go and hit the other Breaking News. Why do you have to bust balls?

[jmc813]

Its NOT nonsense! I think Obama could have put the issue to bed by presenting a COLB to the court. Why not?

Because any politician out there realizes that legitimizing crap like this by acknowledging it can only hurt them. This is freaking stupid.

[JerseyDvl]

Great minds ;)

[jmc813]

If you don’t like this subject you can go and hit the other Breaking News. Why do you have to bust balls?

Because this makes us as freepers look like the irrational jackasses who have invented all sorts of ridiculous conspiracy theories about Palin. You people are not going to be the next Buckhead. Get over it.