Kerchner V Obama & Congress Doc 17-1 & 17-2 - Motion To Extend Time & Declaration Of Counsel
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Case 1:09-cv-00253-JBS-JS
Document 17
RALPH J. MARRA, JR. Acting United States Attorney ELIZABETH A. PASCAL Assistant U.S. Attorney Camden Federal Building and U.S. Courthouse 401 Market Street P.O. Box 2098 Camden, NJ 08101 (856) 757-5105 Attorneys for Defendants
Filed 04/27/2009
Page 1 of 2
Document Electronically Filed
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY : Charles F. Kerchner, Jr., : Lowell T. Patterson, : Darrell James LeNormand, and : Donald H. Nelsen, Jr., : : Plaintiffs, : : v. : : Barack Hussein Obama II, : President Elect of the : United States of America, : President of the United States : of America, and Individually, : a/k/a Barry Soetoro; : United States of America; : United States Congress; : United States Senate; : United States House of : Representatives; : Richard B. Cheney, President of : the Senate, Presiding Officer : of Joint Session of Congress, : Vice President of the : United States and Individually; : and Nancy Pelosi, Speaker of : the House and Individually, : : Defendants. : __________________________________ :
HONORABLE JEROME B. SIMANDLE HONORABLE JOEL SCHNEIDER
CIVIL ACTION NO.: 09-253
NOTICE OF MOTION TO EXTEND TIME TO ANSWER, MOVE, OR OTHERWISE RESPOND TO PLAINTIFFS’ COMPLAINT
Case 1:09-cv-00253-JBS-JS
TO:
Document 17
Filed 04/27/2009
Page 2 of 2
CLERK OF THE COURT Mario Apuzzo, Esquire Law Offices of Mario Apuzzo 185 Gatzmer Avenue Jamesburg, NJ 08831 Counsel for Plaintiffs PLEASE TAKE NOTICE that on June 1, 2009, Defendants shall move
before the Honorable Joel Schneider, United States Magistrate Judge, sitting at the Mitchell H. Cohen U.S. Courthouse, One John F. Gerry Plaza, Fourth and Cooper Streets, Camden, New Jersey, pursuant to Fed. R. Civ. P. 6(b)(2), for an Order extending time to answer, move, or otherwise reply to the Complaint within twenty (20) days of the date of the Order. PLEASE TAKE NOTICE that the undersigned will rely on the attached Declaration of Counsel in support of the motion. It is respectfully requested that the Court rule upon the moving papers submitted, without requiring appearance of counsel, pursuant to Fed. R. Civ. P. 78. A proposed form of Order is attached hereto. RALPH J. MARRA, JR. Acting United States Attorney
Dated: April 27, 2009
s/Elizabeth A. Pascal By: ELIZABETH A. PASCAL Assistant U.S. Attorney
Case 1:09-cv-00253-JBS-JS
Document 17-2
RALPH J. MARRA, JR. Acting United States Attorney ELIZABETH A. PASCAL Assistant U.S. Attorney Camden Federal Building and U.S. Courthouse 401 Market Street P.O. Box 2098 Camden, NJ 08101 (856) 757-5105 Attorneys for Defendants
Filed 04/27/2009
Page 1 of 5
Document Electronically Filed
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY : : : : : : Plaintiffs, : : v. : : Barack Hussein Obama II, : President Elect of the : United States of America, : President of the United States : of America, and Individually, : a/k/a Barry Soetoro; : United States of America; : United States Congress; : United States Senate; : United States House of : Representatives; : Richard B. Cheney, President of : the Senate, Presiding Officer : of Joint Session of Congress, : Vice President of the : United States and Individually; : and Nancy Pelosi, Speaker of : the House and Individually, : : Defendants. : __________________________________ : Charles F. Kerchner, Jr., Lowell T. Patterson, Darrell James LeNormand, and Donald H. Nelsen, Jr.,
HONORABLE JEROME B. SIMANDLE HONORABLE JOEL SCHNEIDER
CIVIL ACTION NO.: 09-253
DECLARATION OF COUNSEL
Case 1:09-cv-00253-JBS-JS
Document 17-2
Filed 04/27/2009
Page 2 of 5
I, Elizabeth A. Pascal, an Attorney at Law of the State of New Jersey, pursuant to 28 U.S.C. § 1746, hereby declare as follows: 1.
I am the Assistant United States Attorney assigned to
represent Defendants in the above-captioned matter.
I make this
Declaration in support of Defendants’ Motion for an Extension of Time
to
Answer,
Move,
or
Otherwise
Respond
to
Plaintiffs’
Complaint, pursuant to Fed. R. Civ. P. 6(b)(2). 2.
Plaintiffs
have
filed
the
present
action
against
Defendants President Barack Obama and the United States of America, alleging various causes of action under the First, Fifth, Ninth, Tenth, and Twentieth Amendments to the United States Constitution. The gravamen of Plaintiffs’ complaint is that President Obama is not a natural born citizen as required by Article II, Section 1, Clause 4 (“Natural Born Citizen Clause”) of the United States Constitution.
The
Plaintiffs’
constitutional
President Obama emanate from that argument. 3.
claims
against
See Dkt. Entry 3.
Plaintiffs have also filed the present action against the
United States Congress; the United States Senate; the United States House of Representatives; Richard B. Cheney (former President of the Senate and Vice-President of the United States), officially and individually; and Nancy Pelosi (Speaker of the House), officially and individually (collectively “Congressional Defendants”).
Id.
Plaintiffs allege that the Congressional Defendants have abridged a variety of their constitutional rights.
The factual basis for
these claims is that the Congressional Defendants failed to vet,
Case 1:09-cv-00253-JBS-JS
Document 17-2
Filed 04/27/2009
Page 3 of 5
investigate, and/or convene hearings to determine President Obama’s citizenship status, and that they failed to act on the Plaintiffs’ requests that they take such action. 4. 2009.
See id.
Plaintiffs filed their original Complaint on January 20,
Dkt. Entry 1.
Amended Complaint.
On January 21, 2009, Plaintiffs filed a First Dkt. Entry 2.
filed a Second Amended Complaint. 5.
On February 9, 2009, Plaintiffs Dkt. Entry 3.
The Second Amended Complaint was served on the United
States Attorney for the District of New Jersey on February 17, 2009, and on the United States Attorney General on February 24, 2009. See Dkt. Entries 7-13.
Service was made on the individual
defendants on February 23, 2009, via personal service on an agent authorized or appointed by law to accept service of process.
See
Dkt. Entries 7, 12, 13. 6. I
was
On or about March 3, 2009, I was assigned this matter. informed
that
only
the
representation
decision
as
to
Defendants President Barack Obama and the United States of America had been made.
On April 13, 2009, I filed an Application for a
Clerk’s Extension as to those Defendants.
Dkt. Entry 15.
That
Application was granted, and the time to answer on behalf of Defendants President Obama and the United States of America is May 5, 2009. 7. Senate
Dkt. Entry 16. On April 24, 2009, I learned that former President of the and
Vice-President
Richard
B.
Chaney
had
requested
representation from the Department of Justice, which was granted.
Case 1:09-cv-00253-JBS-JS
Document 17-2
Filed 04/27/2009
Page 4 of 5
Accordingly, I seek an extension of time to answer, move, or otherwise respond to Plaintiffs’ Second Amended Complaint on his behalf. 8.
On April 9, 2009, I learned that Defendants United States
House of Representatives and Speaker of the House Nancy Pelosi requested representation from the Department of Justice.
I was
unaware that I could move for an extension of time to answer, move, or otherwise respond to the complaint pending the representation decision for those Defendants.
The Department is still processing
that request and determining which Congressional Defendants it will represent.
Accordingly, I seek the additional time to answer,
move, or otherwise respond on behalf of all of the Congressional Defendants until the representation issues are resolved. 9.
The failure to file an answer, move, or to otherwise
respond before the expiration of the time specified is not the result of any neglect on any of the Defendants’ part. 10.
Representation decisions are made by a specialized group
of individuals in the Department of Justice in Washington, D.C. In order to provide a fair opportunity for the Department to review this matter and to complete the representation determinations, Defendants respectfully request an extension of twenty (20) days from the date of this Order in which to answer, move, or otherwise respond
to
the
Complaint.
I
respectfully
request
that
the
extension of time to answer, move, or otherwise respond to the complaint include Defendants President Obama and the United States
Case 1:09-cv-00253-JBS-JS
Document 17-2
Filed 04/27/2009
Page 5 of 5
of America, even though the time for them to answer has not yet expired (i.e., May 5, 2009). 11.
The delay in filing a response in this case would in no
way prejudice the Plaintiffs, but would provide a fair opportunity for the Department to respond appropriately to the allegations in the
Complaint1
and
would
also
allow
adequate
time
for
the
Defendants to answer, move, or otherwise respond. 12.
I declare under penalty of perjury that the foregoing is
true and correct. Respectfully submitted, RALPH J. MARRA, JR. Acting United States Attorney
s/Elizabeth A. Pascal By: ELIZABETH A. PASCAL Assistant U.S. Attorney Date: April 27, 2009
1
The Second Amended Complaint is extensive, as it is comprised of 12 counts, with 347 paragraphs and 43 single-spaced endnotes of allegations, and a 30-paragraph prayer for relief.
Document 17
RALPH J. MARRA, JR. Acting United States Attorney ELIZABETH A. PASCAL Assistant U.S. Attorney Camden Federal Building and U.S. Courthouse 401 Market Street P.O. Box 2098 Camden, NJ 08101 (856) 757-5105 Attorneys for Defendants
Filed 04/27/2009
Page 1 of 2
Document Electronically Filed
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY : Charles F. Kerchner, Jr., : Lowell T. Patterson, : Darrell James LeNormand, and : Donald H. Nelsen, Jr., : : Plaintiffs, : : v. : : Barack Hussein Obama II, : President Elect of the : United States of America, : President of the United States : of America, and Individually, : a/k/a Barry Soetoro; : United States of America; : United States Congress; : United States Senate; : United States House of : Representatives; : Richard B. Cheney, President of : the Senate, Presiding Officer : of Joint Session of Congress, : Vice President of the : United States and Individually; : and Nancy Pelosi, Speaker of : the House and Individually, : : Defendants. : __________________________________ :
HONORABLE JEROME B. SIMANDLE HONORABLE JOEL SCHNEIDER
CIVIL ACTION NO.: 09-253
NOTICE OF MOTION TO EXTEND TIME TO ANSWER, MOVE, OR OTHERWISE RESPOND TO PLAINTIFFS’ COMPLAINT
Case 1:09-cv-00253-JBS-JS
TO:
Document 17
Filed 04/27/2009
Page 2 of 2
CLERK OF THE COURT Mario Apuzzo, Esquire Law Offices of Mario Apuzzo 185 Gatzmer Avenue Jamesburg, NJ 08831 Counsel for Plaintiffs PLEASE TAKE NOTICE that on June 1, 2009, Defendants shall move
before the Honorable Joel Schneider, United States Magistrate Judge, sitting at the Mitchell H. Cohen U.S. Courthouse, One John F. Gerry Plaza, Fourth and Cooper Streets, Camden, New Jersey, pursuant to Fed. R. Civ. P. 6(b)(2), for an Order extending time to answer, move, or otherwise reply to the Complaint within twenty (20) days of the date of the Order. PLEASE TAKE NOTICE that the undersigned will rely on the attached Declaration of Counsel in support of the motion. It is respectfully requested that the Court rule upon the moving papers submitted, without requiring appearance of counsel, pursuant to Fed. R. Civ. P. 78. A proposed form of Order is attached hereto. RALPH J. MARRA, JR. Acting United States Attorney
Dated: April 27, 2009
s/Elizabeth A. Pascal By: ELIZABETH A. PASCAL Assistant U.S. Attorney
Case 1:09-cv-00253-JBS-JS
Document 17-2
RALPH J. MARRA, JR. Acting United States Attorney ELIZABETH A. PASCAL Assistant U.S. Attorney Camden Federal Building and U.S. Courthouse 401 Market Street P.O. Box 2098 Camden, NJ 08101 (856) 757-5105 Attorneys for Defendants
Filed 04/27/2009
Page 1 of 5
Document Electronically Filed
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY : : : : : : Plaintiffs, : : v. : : Barack Hussein Obama II, : President Elect of the : United States of America, : President of the United States : of America, and Individually, : a/k/a Barry Soetoro; : United States of America; : United States Congress; : United States Senate; : United States House of : Representatives; : Richard B. Cheney, President of : the Senate, Presiding Officer : of Joint Session of Congress, : Vice President of the : United States and Individually; : and Nancy Pelosi, Speaker of : the House and Individually, : : Defendants. : __________________________________ : Charles F. Kerchner, Jr., Lowell T. Patterson, Darrell James LeNormand, and Donald H. Nelsen, Jr.,
HONORABLE JEROME B. SIMANDLE HONORABLE JOEL SCHNEIDER
CIVIL ACTION NO.: 09-253
DECLARATION OF COUNSEL
Case 1:09-cv-00253-JBS-JS
Document 17-2
Filed 04/27/2009
Page 2 of 5
I, Elizabeth A. Pascal, an Attorney at Law of the State of New Jersey, pursuant to 28 U.S.C. § 1746, hereby declare as follows: 1.
I am the Assistant United States Attorney assigned to
represent Defendants in the above-captioned matter.
I make this
Declaration in support of Defendants’ Motion for an Extension of Time
to
Answer,
Move,
or
Otherwise
Respond
to
Plaintiffs’
Complaint, pursuant to Fed. R. Civ. P. 6(b)(2). 2.
Plaintiffs
have
filed
the
present
action
against
Defendants President Barack Obama and the United States of America, alleging various causes of action under the First, Fifth, Ninth, Tenth, and Twentieth Amendments to the United States Constitution. The gravamen of Plaintiffs’ complaint is that President Obama is not a natural born citizen as required by Article II, Section 1, Clause 4 (“Natural Born Citizen Clause”) of the United States Constitution.
The
Plaintiffs’
constitutional
President Obama emanate from that argument. 3.
claims
against
See Dkt. Entry 3.
Plaintiffs have also filed the present action against the
United States Congress; the United States Senate; the United States House of Representatives; Richard B. Cheney (former President of the Senate and Vice-President of the United States), officially and individually; and Nancy Pelosi (Speaker of the House), officially and individually (collectively “Congressional Defendants”).
Id.
Plaintiffs allege that the Congressional Defendants have abridged a variety of their constitutional rights.
The factual basis for
these claims is that the Congressional Defendants failed to vet,
Case 1:09-cv-00253-JBS-JS
Document 17-2
Filed 04/27/2009
Page 3 of 5
investigate, and/or convene hearings to determine President Obama’s citizenship status, and that they failed to act on the Plaintiffs’ requests that they take such action. 4. 2009.
See id.
Plaintiffs filed their original Complaint on January 20,
Dkt. Entry 1.
Amended Complaint.
On January 21, 2009, Plaintiffs filed a First Dkt. Entry 2.
filed a Second Amended Complaint. 5.
On February 9, 2009, Plaintiffs Dkt. Entry 3.
The Second Amended Complaint was served on the United
States Attorney for the District of New Jersey on February 17, 2009, and on the United States Attorney General on February 24, 2009. See Dkt. Entries 7-13.
Service was made on the individual
defendants on February 23, 2009, via personal service on an agent authorized or appointed by law to accept service of process.
See
Dkt. Entries 7, 12, 13. 6. I
was
On or about March 3, 2009, I was assigned this matter. informed
that
only
the
representation
decision
as
to
Defendants President Barack Obama and the United States of America had been made.
On April 13, 2009, I filed an Application for a
Clerk’s Extension as to those Defendants.
Dkt. Entry 15.
That
Application was granted, and the time to answer on behalf of Defendants President Obama and the United States of America is May 5, 2009. 7. Senate
Dkt. Entry 16. On April 24, 2009, I learned that former President of the and
Vice-President
Richard
B.
Chaney
had
requested
representation from the Department of Justice, which was granted.
Case 1:09-cv-00253-JBS-JS
Document 17-2
Filed 04/27/2009
Page 4 of 5
Accordingly, I seek an extension of time to answer, move, or otherwise respond to Plaintiffs’ Second Amended Complaint on his behalf. 8.
On April 9, 2009, I learned that Defendants United States
House of Representatives and Speaker of the House Nancy Pelosi requested representation from the Department of Justice.
I was
unaware that I could move for an extension of time to answer, move, or otherwise respond to the complaint pending the representation decision for those Defendants.
The Department is still processing
that request and determining which Congressional Defendants it will represent.
Accordingly, I seek the additional time to answer,
move, or otherwise respond on behalf of all of the Congressional Defendants until the representation issues are resolved. 9.
The failure to file an answer, move, or to otherwise
respond before the expiration of the time specified is not the result of any neglect on any of the Defendants’ part. 10.
Representation decisions are made by a specialized group
of individuals in the Department of Justice in Washington, D.C. In order to provide a fair opportunity for the Department to review this matter and to complete the representation determinations, Defendants respectfully request an extension of twenty (20) days from the date of this Order in which to answer, move, or otherwise respond
to
the
Complaint.
I
respectfully
request
that
the
extension of time to answer, move, or otherwise respond to the complaint include Defendants President Obama and the United States
Case 1:09-cv-00253-JBS-JS
Document 17-2
Filed 04/27/2009
Page 5 of 5
of America, even though the time for them to answer has not yet expired (i.e., May 5, 2009). 11.
The delay in filing a response in this case would in no
way prejudice the Plaintiffs, but would provide a fair opportunity for the Department to respond appropriately to the allegations in the
Complaint1
and
would
also
allow
adequate
time
for
the
Defendants to answer, move, or otherwise respond. 12.
I declare under penalty of perjury that the foregoing is
true and correct. Respectfully submitted, RALPH J. MARRA, JR. Acting United States Attorney
s/Elizabeth A. Pascal By: ELIZABETH A. PASCAL Assistant U.S. Attorney Date: April 27, 2009
1
The Second Amended Complaint is extensive, as it is comprised of 12 counts, with 347 paragraphs and 43 single-spaced endnotes of allegations, and a 30-paragraph prayer for relief.
