Kerchner V Obama & Congress Doc 26 - Order Granting Defendants Additional Time To Jun 29 2009
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Case 1:09-cv-00253-JBS-JS
Document 26
Filed 06/08/2009
Page 1 of 5
[Doc. No. 11] THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CAMDEN VICINAGE CHARLES F. KERCHNER, et al., Plaintiffs, v.
BARACK HUSSEIN OBAMA II, et al., Defendants.
: : : : : : : : : : :
Civil No. 09-0253 (JBS)
ORDER This matter is before the Court on the “Motion to Extend Time in which to Answer, Move or Otherwise Respond to Plaintiffs’ Complaint” [Doc. No. 17] filed by Elizabeth A. Pascal, Assistant United States Attorney on behalf of Defendants. The docket entries reflect that Ms. Pascal is counsel of record for all Defendants. Albeit, Ms. Pascal’s Declaration [Doc. No. 17-2] indicates that she has only been assigned to represent President Barack Obama and the United States of America. (See Declaration at ¶6.) Ms. Pascal also notes that former Vice President Richard Cheney has requested representation from the Department of Justice (“DOJ”), which was granted. (Id. at ¶7.) To date no attorney from the DOJ, besides Ms. Pascal, has entered an appearance. In addition, Ms. Pascal notes that other Defendants in the case requested representation from the DOJ but these requests are still being processed. (Id. at ¶8.) On behalf of all Defendants, Ms. Pascal seeks an extension of twenty (20) days from the date of this Order to answer, move or otherwise reply to Plaintiffs’ Complaint. Plaintiffs oppose
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Defendants’ motion. [Doc. No. 21]. The Court has also received and reviewed numerous letters from non-parties opposing Defendants’ motion [Doc. Nos. 18, 19, 20, 22, 23, 24, 25]. Plaintiffs filed their original complaint on January 20, 2009 [Doc. No. 1] against the United States Senate, United States House of Representatives, former Vice President Cheney and House of Representatives Speaker Nancy Pelosi (collectively referred to as “Congressional Defendants”), as well as President Obama and the United States of America. Plaintiffs subsequently filed a first amended complaint on January 21, 2009 [Doc. No. 2] and a second amended complaint on February 2, 2009 [Doc. No. 3]. In their complaint Plaintiffs assert violations of their constitutional rights alleging that Defendants have failed to conclusively prove that President Obama is a natural born citizen and therefore may not be eligible to serve as President of the United States. According to the docket entries, summons were served on the United States Attorney for the District of New Jersey on or about February 17, 2009 and on the United States Attorney General on or about February 23, 2009. (See Doc. Nos. 7-13.) Ms. Pascal entered her appearance on behalf of the United States and President Obama on April 13, 2009 and requested a Clerk’s Order to extend the time to answer as to these Defendants until May 5, 2009, which the Clerk of Court entered. (See Doc. Nos. 14-16.) In support of her present motion, Ms. Pascal argues that on April 24, 2009 she learned that Defendant Cheney requested and was granted representation by the DOJ. Ms. Pascal further argues that on April 9, 2009, she learned that Defendants Pelosi and the House of Representatives also requested representation by the DOJ, which has not yet been decided. Ms. Pascal seeks additional time to answer, move or otherwise respond on 2
Case 1:09-cv-00253-JBS-JS
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behalf of all the Congressional Defendants in order to allow the DOJ time to complete the representation determinations. Ms. Pascal argues that the failure to file an answer or otherwise respond before the time required by the applicable Federal Rules of Civil Procedure is not the result of any neglect on Defendants’ part. Ms. Pascal also requests that the extension of time to answer, move or otherwise respond to the complaint include Defendants President Obama and the United States of America even though the time for them to answer had not yet expired when Defendants’ motion was filed. Ms. Pascal argues that granting an extension of time to respond to Plaintiffs’ complaint will not prejudice Plaintiffs. Plaintiffs oppose Defendants’ motion arguing that whether President Obama is “eligible for the office he occupies is of utmost national importance” and that President Obama has been given enough time to answer the complaint. (Plaintiffs’ Opposition Brief at ¶8.) Plaintiffs argue that they will be prejudiced if Defendants’ motion is granted. (Id. at ¶11.) Pursuant to Fed. R. Civ. P. 6(b)(1), the court may, for good cause, extend the time to answer: “(A) with or without motion or notice if the court acts, or if a request is made, before the original time or its extension expires; or (B) on motion made after the time has expired if the party failed to act because of excusable neglect.” Excusable neglect is a somewhat “elastic concept” and “the determination is at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission.” Doug Brady, Inc. v. New Jersey Bldg. Laborers Statewide Funds, 250 F.R.D. 171, 177 (D.N.J. 2008) (quoting Pioneer Inv. Services Co. v. Brunswick Assoc. LP, 507 U.S. 380, 392 (1993)). Such circumstances include “the danger of prejudice . . . , the length of the delay and its 3
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potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.” Id. The Court finds good cause to grant Defendants an extension of time and will therefore grant Defendants’ motion. The Court finds that Defendants’ failure to respond to Plaintiffs’ Complaint in a timely manner was not caused by any neglect. Plaintiffs’ Complaint raises significant issues necessitating that the named Defendants engage competent counsel to represent their interests. Given the high ranking positions of the Defendants, the decision as to who will represent them in the case is not simple and straightforward. Thus, since Defendants need more time to identify and engage counsel, their request for more time to respond to Plaintiff’s Complaint is reasonable and appropriate under the circumstances. There is no evidence that Defendants have acted in bad faith in failing to respond to Plaintiffs’ Complaint or in requesting an extension of time to respond. The Court further finds that granting Defendants an extension of time will not prejudice Plaintiffs or materially delay the resolution of the case. The Court is confident that after all the attorneys enter their appearances on behalf of all Defendants, that the case will proceed expeditiously. Accordingly, for good cause shown IT IS on this 8th day of June, 2009 hereby ORDERED that Defendants’ Motion Extending Time in which to Answer, Move or Otherwise Respond to Plaintiffs’ Second Amended Complaint is GRANTED; and it is further
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ORDERED that Defendants shall file and serve their response to Plaintiffs’ Complaint in accordance with the Federal Rules of Civil Procedure no later than June 29, 2009; and it is further ORDERED that this ORDER is entered without prejudice to Defendants’ right to request additional time to respond to Plaintiffs’ Second Amended Complaint provided good cause is shown. /s/ Joel Schneider JOEL SCHNEIDER United States Magistrate Judge
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Document 26
Filed 06/08/2009
Page 1 of 5
[Doc. No. 11] THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CAMDEN VICINAGE CHARLES F. KERCHNER, et al., Plaintiffs, v.
BARACK HUSSEIN OBAMA II, et al., Defendants.
: : : : : : : : : : :
Civil No. 09-0253 (JBS)
ORDER This matter is before the Court on the “Motion to Extend Time in which to Answer, Move or Otherwise Respond to Plaintiffs’ Complaint” [Doc. No. 17] filed by Elizabeth A. Pascal, Assistant United States Attorney on behalf of Defendants. The docket entries reflect that Ms. Pascal is counsel of record for all Defendants. Albeit, Ms. Pascal’s Declaration [Doc. No. 17-2] indicates that she has only been assigned to represent President Barack Obama and the United States of America. (See Declaration at ¶6.) Ms. Pascal also notes that former Vice President Richard Cheney has requested representation from the Department of Justice (“DOJ”), which was granted. (Id. at ¶7.) To date no attorney from the DOJ, besides Ms. Pascal, has entered an appearance. In addition, Ms. Pascal notes that other Defendants in the case requested representation from the DOJ but these requests are still being processed. (Id. at ¶8.) On behalf of all Defendants, Ms. Pascal seeks an extension of twenty (20) days from the date of this Order to answer, move or otherwise reply to Plaintiffs’ Complaint. Plaintiffs oppose
Case 1:09-cv-00253-JBS-JS
Document 26
Filed 06/08/2009
Page 2 of 5
Defendants’ motion. [Doc. No. 21]. The Court has also received and reviewed numerous letters from non-parties opposing Defendants’ motion [Doc. Nos. 18, 19, 20, 22, 23, 24, 25]. Plaintiffs filed their original complaint on January 20, 2009 [Doc. No. 1] against the United States Senate, United States House of Representatives, former Vice President Cheney and House of Representatives Speaker Nancy Pelosi (collectively referred to as “Congressional Defendants”), as well as President Obama and the United States of America. Plaintiffs subsequently filed a first amended complaint on January 21, 2009 [Doc. No. 2] and a second amended complaint on February 2, 2009 [Doc. No. 3]. In their complaint Plaintiffs assert violations of their constitutional rights alleging that Defendants have failed to conclusively prove that President Obama is a natural born citizen and therefore may not be eligible to serve as President of the United States. According to the docket entries, summons were served on the United States Attorney for the District of New Jersey on or about February 17, 2009 and on the United States Attorney General on or about February 23, 2009. (See Doc. Nos. 7-13.) Ms. Pascal entered her appearance on behalf of the United States and President Obama on April 13, 2009 and requested a Clerk’s Order to extend the time to answer as to these Defendants until May 5, 2009, which the Clerk of Court entered. (See Doc. Nos. 14-16.) In support of her present motion, Ms. Pascal argues that on April 24, 2009 she learned that Defendant Cheney requested and was granted representation by the DOJ. Ms. Pascal further argues that on April 9, 2009, she learned that Defendants Pelosi and the House of Representatives also requested representation by the DOJ, which has not yet been decided. Ms. Pascal seeks additional time to answer, move or otherwise respond on 2
Case 1:09-cv-00253-JBS-JS
Document 26
Filed 06/08/2009
Page 3 of 5
behalf of all the Congressional Defendants in order to allow the DOJ time to complete the representation determinations. Ms. Pascal argues that the failure to file an answer or otherwise respond before the time required by the applicable Federal Rules of Civil Procedure is not the result of any neglect on Defendants’ part. Ms. Pascal also requests that the extension of time to answer, move or otherwise respond to the complaint include Defendants President Obama and the United States of America even though the time for them to answer had not yet expired when Defendants’ motion was filed. Ms. Pascal argues that granting an extension of time to respond to Plaintiffs’ complaint will not prejudice Plaintiffs. Plaintiffs oppose Defendants’ motion arguing that whether President Obama is “eligible for the office he occupies is of utmost national importance” and that President Obama has been given enough time to answer the complaint. (Plaintiffs’ Opposition Brief at ¶8.) Plaintiffs argue that they will be prejudiced if Defendants’ motion is granted. (Id. at ¶11.) Pursuant to Fed. R. Civ. P. 6(b)(1), the court may, for good cause, extend the time to answer: “(A) with or without motion or notice if the court acts, or if a request is made, before the original time or its extension expires; or (B) on motion made after the time has expired if the party failed to act because of excusable neglect.” Excusable neglect is a somewhat “elastic concept” and “the determination is at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission.” Doug Brady, Inc. v. New Jersey Bldg. Laborers Statewide Funds, 250 F.R.D. 171, 177 (D.N.J. 2008) (quoting Pioneer Inv. Services Co. v. Brunswick Assoc. LP, 507 U.S. 380, 392 (1993)). Such circumstances include “the danger of prejudice . . . , the length of the delay and its 3
Case 1:09-cv-00253-JBS-JS
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Filed 06/08/2009
Page 4 of 5
potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.” Id. The Court finds good cause to grant Defendants an extension of time and will therefore grant Defendants’ motion. The Court finds that Defendants’ failure to respond to Plaintiffs’ Complaint in a timely manner was not caused by any neglect. Plaintiffs’ Complaint raises significant issues necessitating that the named Defendants engage competent counsel to represent their interests. Given the high ranking positions of the Defendants, the decision as to who will represent them in the case is not simple and straightforward. Thus, since Defendants need more time to identify and engage counsel, their request for more time to respond to Plaintiff’s Complaint is reasonable and appropriate under the circumstances. There is no evidence that Defendants have acted in bad faith in failing to respond to Plaintiffs’ Complaint or in requesting an extension of time to respond. The Court further finds that granting Defendants an extension of time will not prejudice Plaintiffs or materially delay the resolution of the case. The Court is confident that after all the attorneys enter their appearances on behalf of all Defendants, that the case will proceed expeditiously. Accordingly, for good cause shown IT IS on this 8th day of June, 2009 hereby ORDERED that Defendants’ Motion Extending Time in which to Answer, Move or Otherwise Respond to Plaintiffs’ Second Amended Complaint is GRANTED; and it is further
4
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ORDERED that Defendants shall file and serve their response to Plaintiffs’ Complaint in accordance with the Federal Rules of Civil Procedure no later than June 29, 2009; and it is further ORDERED that this ORDER is entered without prejudice to Defendants’ right to request additional time to respond to Plaintiffs’ Second Amended Complaint provided good cause is shown. /s/ Joel Schneider JOEL SCHNEIDER United States Magistrate Judge
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