Posted on 10/31/2009 7:37:34 PM PDT by cycle of discernment
http://giveusliberty1776.blogspot.com/2009/10/orlys-case-still-alivedid-judge-screw.html
SATURDAY, OCTOBER 31, 2009 ORLY'S CASE STILL ALIVE?...DID JUDGE SCREW UP OR DID HE LEAVE DOOR OPEN ON PURPOSE?... Carter’s not yet given a final Judgement
October 30, 2009 by John Charlton HAS FAILED TO IMPLEMENT RULES 54 AND 58
Legal analysis by John Charlton
(Oct. 30, 2009) — Despite all his rancor and loony constitutional theories, Judge David O. Carter has failed to give final judgment in the case Barnett vs. Obama, leaving the door open to further filings and proceedings.
His ruling has not dismissed the case, but rather merely dismissed arguments presented so far. This is the interpretation had if you read the Federal Rules of Civil Procedure 54 and 58.
Rule 54(b) reads as follows:
(b) Judgment on Multiple Claims or Involving Multiple Parties.
When an action presents more than one claim for relief — whether as a claim, counterclaim, crossclaim, or third-party claim — or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.
Rule 58 (a & b) reads as follows:
(a) Separate Document.
Every judgment and amended judgment must be set out in a separate document, but a separate document is not required for an order disposing of a motion:
(1) for judgment under Rule 50(b);
(2) to amend or make additional findings under Rule 52(b);
(3) for attorney’s fees under Rule 54;
(4) for a new trial, or to alter or amend the judgment, under Rule 59; or
(5) for relief under Rule 60. (b) Entering Judgment.
(1) Without the Court’s Direction.
Subject to Rule 54(b) and unless the court orders otherwise, the clerk must, without awaiting the court’s direction, promptly prepare, sign, and enter the judgment when:
(A) the jury returns a general verdict;
(B) the court awards only costs or a sum certain; or
(C) the court denies all relief.
From this it can be seen that since the clerk has not yet added a Judgment record to the Docket, that Carter is indicating, despite his heavy handedness to the Plaintiffs, that he might allow a second amended complaint, which includes a request for relief for the political candidates, whom he acknowledged had standing, so long as their request for relief was redressable: such as a monetary reward howsoever small.
Judge Carter has from 10 to 30 days after his ruling on the Motion to Dismiss to add such a judgment dismissing the case with prejudice to the docket, otherwise he is formally indicating that he expects Dr. Orly Taitz, lead counsel for the plaintiffs, and Attorney Gary Kreep, for his plaintiffs, to submit a request to file a second amended complaint. Indeed, without such ruling added to the docket, the Plaintiffs can initiate such a request action.
Posted in Law Cases | Tagged Captain Pamela Barnett vs Obama, Dr. Orly Taitz, Gary Kreep, Judge David O. Carter, Rule 54(b), Rule 58 a & b | 2 Comments
1. on October 31, 2009 at 5:19 AM Jack
Looks like Judge Carter HAS enabled checkmate against Team Obama after all:
Well done, Orly Taitz case moves forward solely for Plaintiff Keyes for redressable relief of monetary damages, thereby avoiding political question (leave that to Congress once Keyes recovers even nominal damages for pre-Presidential fraud against Candidate Obama) and Team Obama has nothing to appeal to delay the trial.
2. on October 30, 2009 at 10:43 PM Jack
CARTER DECISION FATAL FLAW: When all is said and done, ONE CLAIM MOST DEFINITELY SURVIVES, and that is Keyes’ claim for fraud committed by Candidate Obama before becoming President, which Judge Carter pretends away on the sole basis of Orly having filed same on 1/20/09 at an hour after Obama took the Oath. That’s a “red herring” because Obama took the valid Oath on 1/21/09, no Presidential immunity exists for tort fraud by Candidate Obama before becoming President, and “before-or-after” Oath filing by Orly is irrelevant for such case which does NOT seek Presidential removal, albeit Judge Carter pretends that IS the sole relief sought by Keyes.
-------------------------------- IT WOULD APPEAR THAT ORLY, COULD IN FACT, FILE A SECOND AMENDED COMPLAINT AND SIMPLY FILE A CLAIM FOR ELECTION FRAUD AGAINST OBAMA...SHE GETS A JUDGMENT...THE WHOLE WORLD IS THEN OFFICIALLY ON NOTICE THAT OBAMA IS A CRIMINAL...AND THEN THE PUBLIC CAN PUT PRESSURE ON CONGRESS TO HAVE HIM REMOVED, SINCE CARTER HAS BEGGED OFF ON THAT ISSUE! Posted by giveusliberty1776 at 7:16 AM
Carter sandbagged his ruling?
Is it true that Orly filed her case before 0bama took his second oath on Jan. 21st?
According to this the door is still open pansy.
His ruling has not dismissed the case, but rather merely dismissed arguments presented so far. This is the interpretation had if you read the Federal Rules of Civil Procedure 54 and 58.
Carter sandbags Obama...will see though.
Of course, who can imagine that such a scenario would ever happen?
Oh dear gosh, this is like the "you only get three wishes game" and you cannot wish for more wishes. think.. think.. think.. OK, I will ask for money. Go to court, Judge agrees on redressibility, Obama team says OK, you got us, here is your money and still they do not have to show the birth certificate. Darn. I should ask for a Jimmy Neutron redo. OK, think.. think.. think..
Can’t we get just ONE of these cases as far as discovery? Because that’s all that matters. Once a judge, any judge, orders discovery Obama HAS to produce his documents.
Hopefully Taitz will take her wigs and head back to Tel Aviv or Moscow and let an actual litigator like Kreep take it from here, as her (former) clients want.
I think the Motion to Dismiss was filed pursuant to Rule 12 FRCP. This takes the case outside the normal loop. Here is Rule 12:
Rule 12. Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing
(a) Time to Serve a Responsive Pleading.
(1) In General.
Unless another time is specified by this rule or a federal statute, the time for serving a responsive pleading is as follows:
(A) A defendant must serve an answer:
(i) within 20 days after being served with the summons and complaint; or
(ii) if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the defendant outside any judicial district of the United States.
(B) A party must serve an answer to a counterclaim or crossclaim within 20 days after being served with the pleading that states the counterclaim or crossclaim.
(C) A party must serve a reply to an answer within 20 days after being served with an order to reply, unless the order specifies a different time.
(2) United States and Its Agencies, Officers, or Employees Sued in an Official Capacity.
The United States, a United States agency, or a United States officer or employee sued only in an official capacity must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on the United States attorney.
(3) United States Officers or Employees Sued in an Individual Capacity.
A United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States’ behalf must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on the officer or employee or service on the United States attorney, whichever is later.
(4) Effect of a Motion.
Unless the court sets a different time, serving a motion under this rule alters these periods as follows:
(A) if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 10 days after notice of the court’s action; or
(B) if the court grants a motion for a more definite statement, the responsive pleading must be served within 10 days after the more definite statement is served.
(b) How to Present Defenses.
Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:
(1) lack of subject-matter jurisdiction;
(2) lack of personal jurisdiction;
(3) improper venue;
(4) insufficient process;
(5) insufficient service of process;
(6) failure to state a claim upon which relief can be granted; and
(7) failure to join a party under Rule 19.
A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. If a pleading sets out a claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim. No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion.
(c) Motion for Judgment on the Pleadings.
After the pleadings are closed — but early enough not to delay trial — a party may move for judgment on the pleadings.
(d) Result of Presenting Matters Outside the Pleadings.
If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.
(e) Motion For a More Definite Statement.
A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 10 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order.
(f) Motion To Strike.
The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act:
(1) on its own; or
(2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 20 days after being served with the pleading.
(g) Joining Motions.
(1) Right to Join.
A motion under this rule may be joined with any other motion allowed by this rule.
(2) Limitation on Further Motions.
Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion.
(h) Waiving and Preserving Certain Defenses.
(1) When Some Are Waived.
A party waives any defense listed in Rule 12(b)(2)-(5) by:
(A) omitting it from a motion in the circumstances described in Rule 12(g)(2); or
(B) failing to either:
(i) make it by motion under this rule; or
(ii) include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course.
(2) When to Raise Others.
Failure to state a claim upon which relief can be granted, to join a person required by Rule 19(b), or to state a legal defense to a claim may be raised:
(A) in any pleading allowed or ordered under Rule 7(a);
(B) by a motion under Rule 12(c); or
(C) at trial.
(3) Lack of Subject-Matter Jurisdiction.
If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.
(i) Hearing Before Trial.
If a party so moves, any defense listed in Rule 12(b)(1)-(7) — whether made in a pleading or by motion — and a motion under Rule 12(c) must be heard and decided before trial unless the court orders a deferral until trial.
Most Motions to dismiss are 12(b)6 but I think this one was and/or included 12(b)1. The Motion was granted. I do not think the defendants even filed an Answer to the Complaint, but I could be wrong.
If I am correct, this is why there need not be a “judgment” because technically, this case never got “born”.
It is possible to do 12(b)6’s AFTER the answer and usually some discovery, so the rules get a little blurry sometimes on whether you have a dismissal or a summary judgment and permit some crossover, particularly with regard to “final judgments” and appeals time periods. But here, since it was 12(b)1 (I think), it is just a straight dismissal pure and simple.
parsy, who says “turn out the lights, the party’s over”
Actually, he doesn’t. If he does not have a copy of his long form, he does not have to produce it. He may be forced to sign off on a form request for the State of Hawaii to produce the long form, but even there, the COLB will probably be acceptable.
parsy, who says you don’t necessarily have to produce every document you are asked to produce. (Heck Wal Mart withholds discovery all the time)
Then we might as well declare American democracy a failed experiment.
Or we may well undergo extreme socio-political turmoil like our Latin American brothers which means blood will run in the streets and patriots will die by the thousands.
And it will all be because cowards failed to pursue the truth lest their own standing and reputations be tarnished.
Interesting. How much money would one be able to ask for?
Just thinking. Clearly Obama was significantly motivated by Saul Alinsky, but I wonder if Alinsky has influenced his little birth certificate shenanigans.
Speaking of Alinsky—did he ever discuss the concept of accountability? It seems he didn’t. I wonder how it would have sounded if he had simply advocated “doing the right thing.”
Imagine Alinsky saying something like “Whatever you do, make sure you do the right thing, and always act responsibly. Above all, be accountable for your actions.”
Somehow it doesn’t sound right along with “Now, go on out there and do your best to advance our communist agenda.”
parsy, who deep inside wishes he could be more honest about his worldview
parsy, who will miss Orly
******
2012 presidential primaries: I may be mistaken, but I don't see how Obama can apply to be put his name on the the 2012 Democratic Party presidential primaries without first providing his long form birth certificate to state election officials when he signs his application form.
1. That is, I don't think that voters will give former state senator and community organizer Obama a free pass this second time around during the 2012 Democratic presidential primaries.
2. At the very least, I see voters all over the country in 2011-2012 challenging Obama's eligibility over and over as soon as Obama signs his primary application form in each state.
3. In addition, I see a lot of angry voters demanding during the 2012 primaries that Obama attach his long form birth certificate to his primary application form or else they are not going to vote for him.
4. We must always remember this: A person has 1 to 5 days---depending on the state---to challenge the eligibility of a person who applies to be placed on the presidential primaries in 2012.
5. So we all must be on high alert and be ready to challenge Obama's eligibility immediately when Obama presents his primary application form to state officials.
6. Just wondering: Does anyone know what state holds the first 2012 Democratic Party presidential primary, and does anyone know what is the deadline for a person, such as Obama, to present his application to run in the Democratic primary in that state?
Thanks.
Yes, it's 12(b)(1). (Under "Legal Standard," Page 5).
“what is the deadline for a person, such as Obama, to present his application to run in the Democratic primary in that state?”
There won’t be a primary. No one will challenge “The Kenyan”.
monetary loss to keyes - presidential salary?
provided his claim is still alive in this court...
Two points. In civil court you generally do get to use suspicions, as long as they are reasonable and supported by some evidence. Discover is about getting further evidence to confirm or refute those suspicions. Somewhat like the police having suspicions that a crime has been committed, and seeking a search warrant. Those suspicions need only be reasonable and be backed only by affidavit showing probable cause, in order for a magistrate to issue a search warrant. All that generally before charges are even filed.
You are assuming the sitting resident will have a primary challenger.
Yes. She filed on the 20th, it was a big issue.
I'm beginning to wonder. He referred to many items that were not put into evidence. Other cases, accusations of subornation of perjury. Even the "Daiy Kos/Factcheck" CoLB, which was never entered into evidence.
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