Hollister v Soetoro - Hemenway lead attorney now. Berg, Joyce, Bauer request leave of case.

Scribd ^ | 11/21/2009 | rxsid

[Canadian Outrage]

You trolls are all the same you do an end run around the “question” by bringing up George W. Bush ALL THE DAY LONG. It’s the pat excuse to deflect ever answering the question.

The truth is, it is SOETORO’s/OBAMA’s OBLIGATION to prove to America that he is QUALIFIED to hold the office. Why would any soldier, Marine, or other military officer want to be sent to his possible death by a FRAUD? You aren’t interested in Liberty, your ilk clearly supports tyranny, deceit, and outright slavery. This is sickening. All the man has to do is show his vault birth certificate, expose his educational records, let his medical records be reviewed - What’s so difficult? Why is he spending so much money and threatening people to keep all of this secret. You have a wicked BLANK SLATE ruining your country and her wonderful people including many of my relatives. CO

[Seizethecarp]

“What seems most interesting is, in the Statement of the Case, where Hemenway points out that the court below found that Colonel Hollister had “standing.” He did this, as noted, by finding that he had jurisdiction but then dismissed on the grounds of failure to state a claim under Rule 12(b)(6). Soetoreo a/k/a Obama and Biden did not cross appeal the finding of standing by Judge Robertson. Why do you suppose this was since every other case that has been focused upon, over 20, have been dismissed for lack of standing? Why would not Soetoro a/k/a Obama and Biden have cross-appealed that finding of subject matter jurisdiction?”

AmericanVictory:

I don't see where Judge Robertson said that Hollister had “standing”. I see just the opposite.

Yes, the judge said he had jurisdiction under the interpleader statute, but that doesn't translate to automatic standing, in my non-lawyer understanding.

The judge said Hollister lacked standing (the broad definition of standing) under the very same rule you mentioned: rule 12(b)(6) due to failure to state a claim upon which relief could be granted under the interpleader statute.

[Seizethecarp]

I am a huge fan of Bush, but Berg, as a partisan Democrat, was entitled under free speech to believe and advocate that the World Court should try Bush for failing to prevent 9/11.

That was misguided and reprehensible on his part IMHO, but then Berg turned his energy over to unmasking Obama. I am prepared to give him all the support I can in that effort and cheer him on!

It is going to take a “coalition of the willing” to take down Obama and that coalition, I expect, will ultimately include lots of folks you and I don't like, especially o the far left where there are really coming to hate Obama.

[MilspecRob]

I have faith we haven't heard the last of Orly Taitz

Oh me too, of course it could be the proceeding of her divorce.

[Drew68]

Oh me too, of course it could be the proceeding of her divorce.

Don't forget the foreclosure scam she was running.

[AmericanVictory]

Yes, Rule 12(b)(6) addresses, inter alia dismissal for failure to state a claim upon which relief can be granted. By contrast a dimissal for lack of subject matter jurisdiction is under Rule 12 (b)(1). The two different paragraphs of Rule 12(b) operate differently and under different procedures. Subject matter jurisdiction is standing. Thus, Judge Robertson's finding that he had jurisdiction because of the federal interpleader statute is a finding of standing. I don't think you will find any authority to support the idea that a finding of subject matter "jurisdiction" is not a finding of standing.

[AmericanVictory]

You seem to be overlooking the use of interpleader in the Hollister case. The point of interpleader, as specifically stated in the federal interpleader act by the use of the word "may" and similarly in the language of Federal Rule of Procedure 22 is that standing is granted to the interpleader plaintiff to proceed in court in the anticipation of possible future conflicting claims upon, in this case, to use the word of the statute, his "obligation." The whole point of interpleader, tracing back into the common law, is to address what may happen in the future. Thus it is used in Hollister to address an order that may come but has not come yet. That is the difference between the Hollister case and the Rhodes case in Georgia. The interpleader claim gives a member of the Individual Ready Reserve the standing that Judge Robertson conceded in his opinion dismissing the case for a reason other than standing.

[AmericanVictory]

You point to what seems to be a typo as “proof” of lack of cogency. Your seeming inability to actually characterize and discuss the arguments presented seems to point to a lack of comprehension on your part, making your argument strained and not credible. Frankly, given what you’ve demonstrated so far it seems as if you don’t grasp what is said in the brief, not that the brief, taken as a whole, is lacking in cogency. For example, I have just reviewed word by word the first 10 pages and found a mispelling of a word and two clear typos requiring the insertion of a connective word and the deletion of three words. But none of those corrections prevent the overall description from being cogent and a sound foundation for the ensuing argument. It seems likely they will be corrected before the brief is distributed.

[Seizethecarp]

“Subject matter jurisdiction is standing. Thus, Judge Robertson's finding that he had jurisdiction because of the federal interpleader statute is a finding of standing.”

My understanding is that jurisdiction pertains to whether a particular court has jurisdiction over a specific type of dispute. Obama’s team argued that Judge Robertson's court did not have jurisdiction to hear the interpleader brought by Hollister. This judge disagreed, but that did not give Hollister standing, it only gave the Judge's court jurisdiction over the legal dispute of the case. Judge Robertson explicitly rejected standing for the interpleader brought by Hollister.

See Wiki:

“There are three main types of judicial jurisdiction: personal (personam), territorial (locum), and subject matter (subjectam):

“Personal jurisdiction is an authority over a person, regardless of their location.

“Territorial jurisdiction is an authority confined to a bounded space, including all those present therein, and events which occur there.

“Subject Matter jurisdiction is an authority over the subject of the legal questions involved in the case.

“For jurisdiction to be complete, a court must have a concurrence of subject matter jurisdiction with either personal or territorial jurisdiction.

http://en.wikipedia.org/wiki/Jurisdiction

Jurisdiction is distinct from standing and must be met before the judge can even get to standing.

Standing concerns whether a particular plaintif has met the requirements set in the Lujan case.

See Wiki:

“There are three standing requirements:

“Injury: The plaintiff must have suffered or imminently will suffer injury - an invasion of a legally protected interest which is concrete and particularized. The injury must be actual or imminent, distinct and palpable, not abstract. This injury could be economic as well as non-economic.

“Causation: There must be a causal connection between the injury and the conduct complained of, so that the injury is fairly traceable to the challenged action of the defendant and not the result of the independent action of some third party who is not before the court.[5]

“Redressability: It must be likely, as opposed to merely speculative, that a favorable court decision will redress the injury.[6]

[6] Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).

http://en.wikipedia.org/wiki/Legal_standing

[EDINVA]

What, pray tell, are you posting about? On what experience with federal appellate courts and their procedures are you basing your comment? Since you are so knowledgeable about crafting federal appeals briefs, why don’t you refer us to some you have written? We can send them to the author of this brief so he can improve his craft to your satisfaction.

Or, have you never read an appellate brief before? This isn’t Strunk and White or English Comp 101.

[American Constitutionalist]

" OK, assist me in understanding what a “leave of case” is "
He needs to focus on other cases or needs a vacation.

[trumandogz]

I am a huge fan of Bush, but Berg, as a partisan Democrat, was entitled under free speech to believe and advocate that the World Court should try Bush for failing to prevent 9/11.

It is not Berg's belief the Bush simply failed to prevent the Attacks of 9/11 but rather that Bush and Cheney (specifically) should be arrested and prosecuted for the more than 3000 murders that resulted from the 9/11 Attacks.

The following is what Phil Berg wrote is his letter: ...investigate, arrest and prosecute the people responsible for the murders on 9/11/01, specifically including George W. Bush and Richard Cheney. ”

[American Constitutionalist]

What do you mean not being able to craft a cogent sentence ? Their English is better than some I have read, and I can fully understand it... or are you trying to project a view on their report that is not really there, as in, there is no THERE, THERE.

Kind of like the main fringe media criticizing it because he forgot to put a period at the very last sentence at the end of the paragraph.

[trumandogz]

You trolls are all the same you do an end run around the “question” by bringing up George W. Bush ALL THE DAY LONG.

It was no me who brought George W. Bush into the discussion, but rather I brought in Phil Berg who wants George W. Bush to be prosecuted for the "murders" that occurred on 9/11/01.

And for some reason, there are many people here who Elect to Stand with Phil Berg, a man who believes that Bush and Cheney carried out the Attacks of 9/11.

[AmericanVictory]

The content of Wiki is a) authority of zero standing in the courts or anywhere else in the law, b) the least reliable source on the Internet since its content is continually altered by participants, often for political reasons. The law that recognizing subject matter jurisdiction is to grant standing to pursue a claim is so basic and well established in every aspect of the law, including literally thousands of cases, that you, frankly, are doing nothing but displaying ignorance. Try this: go find a case where a court found subject matter jurisidiction, and had, as is acknowledged in this case, personal jurisdiction and was a proper court and yet standing was not granted. Good Luck!

[AmericanVictory]

By the way, Lujan v. Defendars of Wildlife is a classic case where the statute in question, unlike what Judge Robertson held, was found not to confer subject matter jurisdiction because it was not intended to benefit the plaintiffs and the analysis was the classical one of general Article III standing where there is no applicable statute as Judge Robertson held there was under the federal interpleader statute in the Hollister case. You don't sound like you have any actual legal experience.

If you ever do become involved in litigation I suggest that you not file any briefs citing Wiki as an authoritative source of law.

[Seizethecarp]

“Try this: go find a case where a court found subject matter jurisdiction, and had, as is acknowledged in this case, personal jurisdiction and was a proper court and yet standing was not granted.”

Again, that is exactly what Judge Robertson did in this very case. He said his court had subject matter jurisdiction, but said Hollister had failed to state a claim. Failure to state a claim is an element of standing, not jurisdiction. Roberson clearly distinguishes between the two when he accepted jurisdiction but denied standing.

Quoting from the memorandum of dismissal:

“Those counsel have moved to dismiss,asserting both that this Court has no jurisdiction (Rule 12(b)(1) and that the plaintiff has stated a claim for which relief cannot be granted (Rule 12(b)(6).

“Plaintiff having invoked both diversity and the federal interpleader statute, 28 U.S.C. Section 1355, I do have jurisdiction. Because plaintiff’s only claim invokes the interpleader statute, however, the suit must be dismissed for failure to state a claim.”

http://www.scribd.com/doc/13033400/Dismiss-Memorandum

[AmericanVictory]

There is no legal authority to support the notion that failure to state a claim is an element of standing. The two are treated quite differently. With regard to standing limited discovery is allowed because it involves facts quite often that are not pled in the complaint. Failure to state a claim, on the other hand, only looks to the complaint, like the demurrer that preceded it before the modern federal rules.

Look it up in the law dictionaries. Standing is not having the right to make the claim. Failure to state a claim on the other hand is what it says. It means that though you may have jurisdiction to make the claim, which necessarily assumes standing, the claim as a matter of law is not one that can entitle you to any relief.

Let me quote from the foremost treatise on federal procedure, Wright & Miller, in the hopes that actual legal authority might stop this continual display of lack of knowledge of the law.

From Section 1349: ""Rules 12(b)(1) through 12(b)(b) and 12(b)(7) essentially are defenses to the district court's ability to proceed with the action. They are pleas in abatement and do not go to the merits of a claim. [footnotes omitted] Rule 12(b)(6) is the successor of the common law demurrer and the code motion to dismiss and is a method of testing the sufficiency of the statement of the claim for relief." Thus a Rule 12(b)(6) motion is not about standing and Judge Robertson's finding that he had jurisdiction is a finding of standing because it cannot have been made without assuming standing, making the Hollister case the only one in which standing has been found.

Here is what Wright & Miller say in the next section after the one just quoted, Section 1350, which is a section dealing with Rule 12(b)(1) motions that are addressed to jurisdiction, and thus to standing:

"A motion to dismiss an action under Federal Rule 12(b)(1)-- a frequently invoked procedure, as the numerous illustrative citations in the note below indicate-- raises the fundamental question whether the federal district court has subject matter jurisdiction over the action before it. [extensive footnote omitted] It always must be remembered that the federal courts are courts of limited jurisdiction and only can adjudicate those cases which fall within Article III of the Constitution and a congressional authorization enacted thereunder. [long list of cases in the footnote and footnote omitted] Thus, as universally recognized by the federal courts, the objection presented by a motion under Rule 12(b)(1) challenging the court's subject matter jurisdiction is that the district judge has no authority or competence to hear and decide the case before it. [lengthy footnote omitted]"

Further on in that same section of Wright& Miller about Rule 12(b)(1), it is then specifically stated: "...there are a significant number of cases treating the matter as going to the merits of plaintiff's claim for relief, rather than the district court's lack of subject matter jurisdiction,when ...the plaintiff lacks standing to bring the particular suit before the district court."

So Judge Robertson, in finding specifically that there was a "failure to state a claim" placed his findings under Rule 12(b)(6) and not under Rule 12(b)(1). His finding that he did have jurisdiction because of the statute is a recognition that Congress in a specific statute, the federal interpleader act, had exercised its authority under Article III to create jurisdiction. The plaintiff cannot have been held to have properly invoked jurisdiction of the district court unless it was assumed that he had standing to do so. He did not separately rule on standing but he cannot have found jurisdiction of the subject matter without assuming that standing existed. If he had not made that assumption he could not have dismissed for failure to state a claim as he did without placing the case directly, as to his holding, under Rule 12(b)(6).

[OafOfOffice]

If it works, I will applauding! Thanks for the clarification.

[Seizethecarp]

I stand by my prior analysis which I do not believe you have refuted in any way. I agree only to disagree.