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GEORGE S. CARDONA Acting United States Attorney LEON W. WEIDMAN Assistant United States Attorney Chief, Civil Division ROGER E. WEST (State Bar No. 58609) Assistant United States Attorney First Assistant Chief, Civil Division DAVID A. DeJUTE (State Bar No. 153527) Assistant United States Attorney Room 7516, Federal Building 300 North Los Angeles Street Los Angeles, California 90012 Telephone: (213) 894-2461/2574 Facsimile: (213) 894-7819 Email: roger.west4@usdoj.gov david.dejute@usdoj.gov Attorneys for Defendants UNITED STATES DISTRICT COURT

12 FOR THE CENTRAL DISTRICT OF CALIFORNIA 13 SOUTHERN DIVISION 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CAPTAIN PAMELA BARNETT, et al., ) ) Plaintiffs, ) ) v. ) ) BARACK H. OBAMA, et al. ) ) Defendants. ) ) ) ) ) ) ________________________________) No. SACV 09-00082 DOC (ANx) EX PARTE APPLICATION FOR LIMITED STAY OF DISCOVERY; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

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EX PARTE APPLICATION Defendants, by and through their undersigned counsel, hereby apply to this Court, on an ex parte basis, for an Order staying all discovery in this matter pending the Court’s ruling upon Defendants’ Motion to Dismiss, currently set for hearing on October 5, 2009, with the exception of discovery which Plaintiffs can demonstrate, to the satisfaction of the Court, that they need in order to counter said Motion. This Ex Parte application will be based upon these moving papers, the Memorandum of Points and authorities filed herewith, and upon such other and further arguments, documents and grounds as may be advanced to the Court in the future. All requirements of

the Local Rules for ex parte applications have been met, including the notice requirements of Local Rule 7-19 as more particularly contained within the accompanying Memorandum of Points and Authorities.

Respectfully submitted, DATED: September 10, 2009 GEORGE S. CARDONA Acting United States Attorney LEON WEIDMAN Assistant United States Attorney Chief, Civil Division /s/ Roger E. West ROGER E. WEST Assistant United States Attorney First Assistant Chief, Civil Division /s/ David A. DeJute DAVID A. DeJUTE Assistant United States Attorney Attorneys for Defendants

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MEMORANDUM OF POINTS AND AUTHORITIES I. STATEMENT OF PERTINENT FACTS On January 20, 2009, Plaintiffs’ filed their Complaint in this matter challenging the fitness for office of President Obama. Over

seven months later, on August 25, 2009, Plaintiffs finally effected service of process. Soon thereafter, on September 4, 2009,

Defendants filed their Motion to Dismiss with a hearing set for October 5, 2009. In their Motion to Dismiss, Defendants maintain that this Court is without subject matter jurisdiction. As more fully

explained in that Motion, and among other reasons, the operative complaint fails to confer subject matter jurisdiction for several reasons: (1) The Plaintiffs lack standing because they cannot show the required injury-in-fact or the required redressability to confer jurisdiction; (2) The case presents non-justiciable political questions which are committed, by the very text of the Constitution, to a different branch of Government; (3) Plaintiffs are not authorized to pursue a Quo Warranto action against the President of the United States; (4) Neither 42 U.S.C. § 1983 nor 42 U.S.C. § 1988 confers jurisdiction; and, (5) Plaintiffs’ Freedom of Information Act claims as a matter of law do confer jurisdiction. Any one of these grounds is sufficient to stay discovery pending a resolution of the Motion. On September 8, 2009, the Court convened a hearing upon issues which are unrelated to the Motion to Dismiss. At that hearing, the

Court granted Defendants leave to file this Ex Parte application. /// 2

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II. ARGUMENT DISCOVERY SHOULD BE STAYED PENDING RESOLUTION OF WHETHER PLAINTIFFS’ CLAIMS CONFER SUBJECT MATTER JURISDICTION A District Court enjoys broad discretion in controlling discovery. Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir.

1988); Blackburn v. United States, 100 F.3d 1426, 1436 (9th Cir. 1996) (and cases cited therein). Where, as here, there is pending a motion attacking the subject matter jurisdiction of the court, a threshold issue in the absence of which the court cannot proceed to hear other issues, “it is a recognized and appropriate procedure for a court to limit discovery proceedings at the outset to a determination of jurisdictional matters.” Blackburn v. United States, supra, 100

F.3d at 1436 (quoting United States Catholic Conference v. Abortion Rights Mobilization, Inc., 47 U.S. 72, 79-80, 108 S.Ct. 2268, 227273, 101 L.Ed.2d 69 (1988). In Blackburn, the Ninth Circuit upheld

the decision of this Court per Judge Stotler, which limited discovery solely to the threshold jurisdictional issues for a time period of 120 days. See Id.

Cases are legion which recognize that, once a dispositive motion has been filed, discovery should be limited to only those issues raised in that dispositive motion. See, e.g. Jarvis v.

Regan, 833 F.2d 149, 155 (9th Cir. 1987); Sprague v. Brook, 149 F.R.D. 575, 577 (and cases cited therein) (N.D. Ill. 1993); Chavous v. District of Columbia Financial Responsibility, etc., et al., 201 F.R.D. 1 (D.D.C. 2001); Cromer v. Braman, __ F.Supp.2d __, 2007 WL 3346675 (W.D. Mich. 2007)(“A trial court has broad discretion and 3

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inherent power to stay discovery until the preliminary questions that may dispose of the case are determined”) (citation omitted) and also (“A stay of discovery pending the determination of a dispositive motion ‘is an eminently logical means to prevent wasting the time and effort of all concerned and to make the most efficient use of judicial resources’”) (citations omitted). Currently pending before this Court for hearing on October 5, 2009, is Defendants’ Motion to Dismiss, a dispositive motion setting forth, among other things, the reasons why Plaintiffs’ First Amended Complaint cannot, as a matter of law, confer subject matter jurisdiction on this Court. As the cases cited above make

clear, because subject matter jurisdiction is a threshold issue challenging the very power of this Court to proceed, discovery should be stayed until such time as this Court determines whether it has jurisdiction over Plaintiffs’ claims. 100 F.3d at 1436 and cases cited therein. See, e.g., Blackburn,

A stay would also not See, e.g.,

waste the resources of this Court or of the parties. Cromer, 2007 WL 3346675 and cases cited therein.

On September 10, 2009, counsel for Defendants notified each of Plaintiffs’ counsel pursuant to Local Rule 7-19 of the substance of this ex parte application. Plaintiffs’ counsel Dr. Orly Taitz

stated that she opposed this application as did Plaintiffs’ counsel Gary Kreep. It should be noted, however, that no apparent

prejudice will result from granting this ex parte application for a stay of discovery until such time as the Court determines whether it has subject matter jurisdiction. A seven month time period of

the Plaintiffs’ own making lapsed between the filing of the Complaint and the date when service of process was effected. 4 Less

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than two weeks then expired before Defendants’ filed their dispositive Motion to Dismiss on September 4, 2009. Granting this

ex parte application until Defendants’ Motion can be heard on October 5, 2009, will therefore stay discovery for approximately one month. This stay is only one quarter of the 120 days approved The only

by the Ninth Circuit for the discovery stay in Blackburn.

parties prejudiced would be the Defendants if this Court were to deny this ex parte application, as discovery would be allowed to proceed on matters extraneous to subject matter jurisdiction. It is respectfully submitted that this Court should enter an Order herein staying all pending and future discovery, motion, and other matters related thereto, pending resolution of the this dispositive motion, with the exception of any discovery which Plaintiffs can demonstrate, to the satisfaction of the Court, that they need in order to counter said Motion.

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