Kerchner V Obama & Congress Doc 37 - Defense Reply To Plaintiffs Opposition Brief To Defendants Mtd
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Case 1:09-cv-00253-JBS-JS
Document 37
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) 757-5412 Attorneys for Defendants
Filed 07/27/2009
Page 1 of 10
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, : HONORABLE JEROME B. SIMANDLE : v. : : Barack Hussein Obama II, : President Elect of the : United States of America, : CIVIL ACTION NO.: 09-253 President of the United States : of America, and Individually, : a/k/a Barry Soetoro, : United States of America, et al., : : Defendants. : ___________________________________:
DEFENDANTS’ MEMORANDUM OF LAW IN REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS AND IN OPPOSITION TO PLAINTIFFS’ CROSS-MOTION FOR LEAVE TO FILE THEIR SECOND AMENDED VERIFIED COMPLAINT NUNC PRO TUNC
INTRODUCTION On January 20, 2009, Plaintiffs Charles F. Kerchner, Jr., Lowell T. Patterson, Darrell James LeNormand, and Donald H. Nelsen, Jr.
(collectively
“Plaintiffs”)
filed
the
present
action
Case 1:09-cv-00253-JBS-JS
Document 37
Filed 07/27/2009
Page 2 of 10
challenging President Barack Obama’s eligibility to hold the Office of President of the United States.
Dkt. Entry 1.
On June 26,
2009, Defendants filed a Motion to Dismiss this action. Dkt. Entry 27.
On July 20, 2009, Plaintiffs filed their opposition to
Defendants’ Motion to Dismiss the Complaint.
Dkt. Entry 34.
On
July 22, 2009, Plaintiffs filed a Cross-Motion for Leave to File a Second Amended Verified Complaint nunc pro tunc.
Dkt. Entry 36.
Defendants now reply to Plaintiffs’ opposition to their Motion to Dismiss and oppose Plaintiffs’ Cross-Motion to Amend.
For the
reasons stated in Defendants’ moving brief to dismiss the complaint and herein, Defendants’ Motion to Dismiss the Complaint should be granted and Plaintiffs’ Cross-Motion to Amend should be denied. ARGUMENT I.
Plaintiffs Lack Standing to Maintain this Action. In their opposition brief, Plaintiffs offer the following
points in response to Defendants’ arguments that Plaintiffs lack standing: (1) none of the cases cited by the Defendants in its moving brief address the specific factual and/or legal issues presented in this case, Pl.s’ Br. at 7; (2) the cases cited by Defendants disposing of challenges to President Obama’s citizenship are factually distinguishable because President Obama was only a candidate
when
those
lawsuits
were
decided
or
only
involved
secretaries of state, id.; (3) even though Plaintiffs’ alleged injuries are shared in common with the public (“the whole”), the
-2-
Case 1:09-cv-00253-JBS-JS
Document 37
Filed 07/27/2009
Page 3 of 10
Plaintiffs as “parts” of that “whole” have also suffered an injury (i.e., a violation of their constitutionally protected liberty interests),
Pl.s’ Br. at 8-9; (4) the Plaintiffs, as parties to a
contract (the Constitution), have standing to enforce it in court, Pl.s’ Br. at 10; and (5) Plaintiff Kerchner, as a retired member of the military subject to recall to active duty, has alleged a particularized injury-in-fact, Pl.s’ Br. at 13-16.1
Points 1, 2,
and 4 above do not merit discussion because they do not rebut Defendants’ arguments in its moving brief. Defendants will briefly address points 3 and 5 below. A.
Plaintiffs’ Injuries Are Widely-Shared with Others.
Plaintiffs allege that even though their claims of injury may be widely-shared with others, that does not mean that they lack standing.
Pl.s’ Br. at 8-9.
Plaintiffs proffer that just because
the general public shares their injuries does not mean that they do not have injuries particular to them.
Id.
However, to accept
Plaintiffs’ interpretation of the injury-in-fact component of Article III standing would render it meaningless.
Moreover, the
United States Supreme Court has rejected that very argument. In Ex Parte Levitt, plaintiff, a citizen and a member of the
1
Plaintiffs also assert that Plaintiff Kerchner should be able to assert the rights of other members of the military. Pl.s’ Br. at 16. However, prudential standing requirements dictate that a party cannot assert the legal rights of third parties. See Valley Forge Christian Coll. v. American United for Separation of Church & State, Inc., 454 U.S. 464, 474 (1982). -3-
Case 1:09-cv-00253-JBS-JS
Document 37
Filed 07/27/2009
Page 4 of 10
bar, sought an order to show cause to challenge the appointment of a Supreme Court Justice on the basis that his appointment violated the Ineligibility Clause of the United States Constitution. U.S. 633, 633 (1937) (per curiam).
302
The Court rejected plaintiff’s
petition stating, It is an established principle that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained, or is immediately in danger of sustaining, a direct injury as the result of that action and it is not sufficient that he has merely a general interest common to all members of the public. Id. at 634 (emphasis added). In United States v. Richardson, a federal taxpayer filed suit seeking a declaration that the Central Intelligence Agency Act violated the Accounts Clause of the United States Constitution. 418 U.S. 166, 168-69 (1974).
The Court held that the taxpayer
lacked standing because his harm was a generalized grievance that was “plainly undifferentiated and ‘common to all members of the public.’”
Id. at 176-77 (quoting Levitt, 302 U.S. at 634).
The
Court discussed Levitt and noted that the Richardson plaintiff’s claim that the Act violated the Accounts Clause was similar to the plaintiff’s allegations in Levitt.
The Court further noted that
if Levitt’s allegations were true, they made out an arguable violation of an explicit prohibition of the Constitution. Yet even this was held insufficient to support standing because, whatever Levitt’s injury, it was one he shared with “all members of the public.” -4-
Case 1:09-cv-00253-JBS-JS
Document 37
Filed 07/27/2009
Page 5 of 10
418 U.S. at 178 (emphasis added) (quotation omitted). In Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208,
211-12
membership
of
(1974), members
the
plaintiffs
of
Congress
challenged as
a
the
violation
reserve of
Incompatibility Clause of the United States Constitution.
the The
Court held that the plaintiffs lacked standing and in so doing, expressly reaffirmed the principles of Levitt and Richardson: “[S]tanding to sue may not be predicated upon an interest . . . which is held in common by all members of the public, because of the necessarily abstract nature of the injury all citizens share.” Schlesinger, 418 U.S. at 220.
The Court further explained why a
concrete injury is necessary to satisfy the case or controversy requirement of the Constitution: [W]hen a court is asked to undertake constitutional adjudication, the most important and delicate of its responsibilities, the requirement of concrete injury further serves the function of insuring that such adjudication does not take place unnecessarily. This principle is particularly applicable here, where respondents seek an interpretation of a constitutional provision which has never before been construed by the federal courts. First, concrete injury removes from the realm of speculation whether there is a real need to exercise the power of judicial review in order to protect the interests of the complaining party. . . . . Second, the discrete factual context within which the concrete injury occurred or is threatened insures the framing of relief no broader than required by the precise facts to -5-
Case 1:09-cv-00253-JBS-JS
Document 37
Filed 07/27/2009
Page 6 of 10
which the court’s ruling would be applied. This is especially important when the relief sought produces a confrontation with one of the coordinate branches of the Government; . . . . To permit a complainant who has no concrete injury to require a court to rule on important constitutional issues in the abstract would create the potential for abuse of the judicial process, distort the role of the Judiciary in its relationship to the Executive and the Legislature and open the Judiciary to an arguable charge of providing “government by injunction.” Id. at 221-22. Plaintiffs
here
are
asking
this
Court
to
undertake
the
constitutional adjudication of a matter that it should not.
For
the reasons articulated in Levitt, Richardson, and Schlesinger, Plaintiffs lack standing to maintain this suit:
They have not
identified any particularized, concrete harm that President Obama has personally caused them.
It is irrelevant that as a “part” of
the public (“the whole”), they share a generalized grievance. And, those
generalized
grievances
regarding
President
Obama’s
citizenship are simply not the concrete injuries required to invoke the jurisdiction of the federal courts. B.
Plaintiff Kerchner’s Military Status Does Not Confer Standing.
Plaintiff
Kerchner
further
because of his military status.2
2
asserts
that
he
has
standing
Kerchner alleges that he has
This argument has been offered before in a different procedural context. See, e.g., Hollister v. Soetoro, --- F.R.D. --6-
Case 1:09-cv-00253-JBS-JS
Document 37
Filed 07/27/2009
Page 7 of 10
suffered an injury because if he is ever recalled to active duty, he is entitled to know whether he should obey possible orders from President
Obama
as
Commander-in-Chief.
Pl.s’
Br.
at
13-14.
Kerchner offers that his lack of knowledge about President Obama’s citizenship “has caused, is causing, and will cause him personal injury emanating from the thought that he may be recalled to duty (even
if
it
illegitimate
never
happens)
President
and
and
be
Commander
compelled in
to
Chief.”
serve Id.
at
an 14
(emphasis added). Kerchner’s alleged injury, however, requires one to engage in pure speculation because he does not allege a basis for his belief that he may be recalled to active duty, or that such an eventuality is likely.
Instead, he alleges that just the
thought that he “may be recalled to duty” is causing him harm. That is not the type of concrete harm that Article III standing requires. Accordingly, Kerchner’s retired military status does not provide the particularized injury-in-fact necessary to confer standing. II.
Plaintiffs’ Complaint Violates Rule 8(a)’s Requirement of a Short and Plain Statement. Plaintiffs
allege
that
their
voluminous
second
amended
verified complaint complies with Federal Rule of Civil Procedure
-, No. 08-2254, 2009 WL 1706726 (D.D.C. Mar. 27, 2009); Hollister v. Soetoro, 601 F. Supp. 2d 179 (D.D.C. Mar. 5, 2009) (rejecting retired military officer’s suit in interpleader because his possible recall to active duty not “property” to which interpleader statute applies). -7-
Case 1:09-cv-00253-JBS-JS
Document 37
Filed 07/27/2009
Page 8 of 10
8(a)(2) because “it is much more than just [a] complaint.” Br. at 36.
Pl.s’
The Federal Rules of Civil Procedure provide that a
civil action is commenced with the filing of a complaint with the court, nothing more.
See Fed. R. Civ. P. 3.
Moreover, the only
pleadings allowed in a civil action are outlined in Rule 7(a), which includes a complaint. A verified complaint is necessary when a party moves for emergency relief.
See L.Civ.R. 65.1.
While it
is true that a verified complaint may need greater detail to explain the necessity of emergent relief, no where in the Federal Rules of Civil Procedure is a verified complaint exempt from the “short and plain statement” requirement of Fed. R. Civ. P. 8(a). Plaintiffs also raise the specious argument that because they raise factual issues of “fraud” and “mistake” in their second amended verified complaint regarding President Obama’s citizenship, they are required to plead those facts with specificity. Pl.s’ Br. at 37; see Fed. R. Civ. P. 9(b). claims of fraud or mistake.
However, Plaintiffs do not assert
Thus, Rule 9(b) is inapplicable here.
Plaintiffs’ second amended verified complaint plainly does not comport with Rule 8(a).
The complaint contains 387 paragraphs of
allegations, a 30-paragraph prayer for relief, and 43 single-spaced endnotes.
As such, the Defendants cannot respond to it in its
present form, and it should be dismissed. III. Plaintiffs’ Cross-Motion to Amend the Complaint Should Be Denied. Plaintiffs oppose Defendants’ argument to strike Plaintiffs’ -8-
Case 1:09-cv-00253-JBS-JS
Document 37
Filed 07/27/2009
Page 9 of 10
second amended verified complaint because Plaintiffs failed to file it in conformance with Federal Rule of Civil Procedure 15.
Pl.s’
Br. at 38-39. In their opposition brief, Plaintiffs do not dispute that they filed their second amended verified complaint without Defendants’ written consent or leave of Court as required by Rule 15(a).
Id.
Instead, Plaintiffs explain that “[i]t would be a
great inconvenience and a waste of time and resources” to strike their pleading.
Pl.s’ Br. at 39.
Plaintiffs then state in one
sentence that they are now cross-moving for leave of court to file their second amended verified complaint nunc pro tunc. days later, they filed a notice of cross-motion.
Id.
Two
Dkt. Entry 36.
Plaintiffs’ Cross-Motion to Amend is wholly improper. It does not set forth the legal standard to amend a complaint, see, e.g., In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997), nor does it provide any factual basis supporting why the proposed amendment is necessary.
It does not include a
proposed pleading as required by L.Civ.R. 7.1(f).
Nevertheless,
any amendments Plaintiffs seek should be denied because they are futile as Plaintiffs lack standing.
Accordingly, the second
amended verified complaint should be stricken.
-9-
Case 1:09-cv-00253-JBS-JS
Document 37
Filed 07/27/2009
Page 10 of 10
CONCLUSION For the reasons stated in Defendants’ moving brief to dismiss the complaint and herein, Defendants respectfully urge this Court to grant their Motion to Dismiss and to deny Plaintiffs’ CrossMotion to Amend. Respectfully submitted, RALPH J. MARRA, JR. Acting United States Attorney s/Elizabeth A. Pascal By: ELIZABETH A. PASCAL Assistant U.S. Attorney Dated:
July 27, 2009
-10-
Case 1:09-cv-00253-JBS-JS
Document 37-2
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) 757-5412 Attorneys for Defendants
Filed 07/27/2009
Page 1 of 2
Document Electronically Filed
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY : Charles F. Kerchner, et al., : : Plaintiffs, : HONORABLE JEROME B. SIMANDLE : v. : : Barack Hussein Obama II, : President Elect of the : United States of America, : CIVIL ACTION NO.: 09-253 President of the United States : of America, and Individually, : a/k/a Barry Soetoro, : United States of America, et al., : : CERTIFICATE OF SERVICE Defendants. : ___________________________________:
I hereby certify that on July 27, 2009, I filed Defendants’ Memorandum of Law in Reply to Plaintiffs’ Opposition to Defendants’ Motion to Dismiss and in Opposition to Plaintiffs’ Cross-Motion for Leave to File Their Second Amended Verified Complaint Nunc Pro Tunc and this Certificate of Service electronically with the Clerk of the United States District Court and that copies of these documents have been sent in conformance with the electronic filing rules to the following:
Case 1:09-cv-00253-JBS-JS
Document 37-2
Filed 07/27/2009
Page 2 of 2
Mario Apuzzo, Esquire Law Offices of Mario Apuzzo 185 Gatzmer Avenue Jamesburg, NJ 08831 Counsel for Plaintiffs RALPH J. MARRA, JR. Acting United States Attorney
s/Elizabeth A. Pascal By: ELIZABETH A. PASCAL Assistant U.S. Attorney
Document 37
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) 757-5412 Attorneys for Defendants
Filed 07/27/2009
Page 1 of 10
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, : HONORABLE JEROME B. SIMANDLE : v. : : Barack Hussein Obama II, : President Elect of the : United States of America, : CIVIL ACTION NO.: 09-253 President of the United States : of America, and Individually, : a/k/a Barry Soetoro, : United States of America, et al., : : Defendants. : ___________________________________:
DEFENDANTS’ MEMORANDUM OF LAW IN REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS AND IN OPPOSITION TO PLAINTIFFS’ CROSS-MOTION FOR LEAVE TO FILE THEIR SECOND AMENDED VERIFIED COMPLAINT NUNC PRO TUNC
INTRODUCTION On January 20, 2009, Plaintiffs Charles F. Kerchner, Jr., Lowell T. Patterson, Darrell James LeNormand, and Donald H. Nelsen, Jr.
(collectively
“Plaintiffs”)
filed
the
present
action
Case 1:09-cv-00253-JBS-JS
Document 37
Filed 07/27/2009
Page 2 of 10
challenging President Barack Obama’s eligibility to hold the Office of President of the United States.
Dkt. Entry 1.
On June 26,
2009, Defendants filed a Motion to Dismiss this action. Dkt. Entry 27.
On July 20, 2009, Plaintiffs filed their opposition to
Defendants’ Motion to Dismiss the Complaint.
Dkt. Entry 34.
On
July 22, 2009, Plaintiffs filed a Cross-Motion for Leave to File a Second Amended Verified Complaint nunc pro tunc.
Dkt. Entry 36.
Defendants now reply to Plaintiffs’ opposition to their Motion to Dismiss and oppose Plaintiffs’ Cross-Motion to Amend.
For the
reasons stated in Defendants’ moving brief to dismiss the complaint and herein, Defendants’ Motion to Dismiss the Complaint should be granted and Plaintiffs’ Cross-Motion to Amend should be denied. ARGUMENT I.
Plaintiffs Lack Standing to Maintain this Action. In their opposition brief, Plaintiffs offer the following
points in response to Defendants’ arguments that Plaintiffs lack standing: (1) none of the cases cited by the Defendants in its moving brief address the specific factual and/or legal issues presented in this case, Pl.s’ Br. at 7; (2) the cases cited by Defendants disposing of challenges to President Obama’s citizenship are factually distinguishable because President Obama was only a candidate
when
those
lawsuits
were
decided
or
only
involved
secretaries of state, id.; (3) even though Plaintiffs’ alleged injuries are shared in common with the public (“the whole”), the
-2-
Case 1:09-cv-00253-JBS-JS
Document 37
Filed 07/27/2009
Page 3 of 10
Plaintiffs as “parts” of that “whole” have also suffered an injury (i.e., a violation of their constitutionally protected liberty interests),
Pl.s’ Br. at 8-9; (4) the Plaintiffs, as parties to a
contract (the Constitution), have standing to enforce it in court, Pl.s’ Br. at 10; and (5) Plaintiff Kerchner, as a retired member of the military subject to recall to active duty, has alleged a particularized injury-in-fact, Pl.s’ Br. at 13-16.1
Points 1, 2,
and 4 above do not merit discussion because they do not rebut Defendants’ arguments in its moving brief. Defendants will briefly address points 3 and 5 below. A.
Plaintiffs’ Injuries Are Widely-Shared with Others.
Plaintiffs allege that even though their claims of injury may be widely-shared with others, that does not mean that they lack standing.
Pl.s’ Br. at 8-9.
Plaintiffs proffer that just because
the general public shares their injuries does not mean that they do not have injuries particular to them.
Id.
However, to accept
Plaintiffs’ interpretation of the injury-in-fact component of Article III standing would render it meaningless.
Moreover, the
United States Supreme Court has rejected that very argument. In Ex Parte Levitt, plaintiff, a citizen and a member of the
1
Plaintiffs also assert that Plaintiff Kerchner should be able to assert the rights of other members of the military. Pl.s’ Br. at 16. However, prudential standing requirements dictate that a party cannot assert the legal rights of third parties. See Valley Forge Christian Coll. v. American United for Separation of Church & State, Inc., 454 U.S. 464, 474 (1982). -3-
Case 1:09-cv-00253-JBS-JS
Document 37
Filed 07/27/2009
Page 4 of 10
bar, sought an order to show cause to challenge the appointment of a Supreme Court Justice on the basis that his appointment violated the Ineligibility Clause of the United States Constitution. U.S. 633, 633 (1937) (per curiam).
302
The Court rejected plaintiff’s
petition stating, It is an established principle that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained, or is immediately in danger of sustaining, a direct injury as the result of that action and it is not sufficient that he has merely a general interest common to all members of the public. Id. at 634 (emphasis added). In United States v. Richardson, a federal taxpayer filed suit seeking a declaration that the Central Intelligence Agency Act violated the Accounts Clause of the United States Constitution. 418 U.S. 166, 168-69 (1974).
The Court held that the taxpayer
lacked standing because his harm was a generalized grievance that was “plainly undifferentiated and ‘common to all members of the public.’”
Id. at 176-77 (quoting Levitt, 302 U.S. at 634).
The
Court discussed Levitt and noted that the Richardson plaintiff’s claim that the Act violated the Accounts Clause was similar to the plaintiff’s allegations in Levitt.
The Court further noted that
if Levitt’s allegations were true, they made out an arguable violation of an explicit prohibition of the Constitution. Yet even this was held insufficient to support standing because, whatever Levitt’s injury, it was one he shared with “all members of the public.” -4-
Case 1:09-cv-00253-JBS-JS
Document 37
Filed 07/27/2009
Page 5 of 10
418 U.S. at 178 (emphasis added) (quotation omitted). In Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208,
211-12
membership
of
(1974), members
the
plaintiffs
of
Congress
challenged as
a
the
violation
reserve of
Incompatibility Clause of the United States Constitution.
the The
Court held that the plaintiffs lacked standing and in so doing, expressly reaffirmed the principles of Levitt and Richardson: “[S]tanding to sue may not be predicated upon an interest . . . which is held in common by all members of the public, because of the necessarily abstract nature of the injury all citizens share.” Schlesinger, 418 U.S. at 220.
The Court further explained why a
concrete injury is necessary to satisfy the case or controversy requirement of the Constitution: [W]hen a court is asked to undertake constitutional adjudication, the most important and delicate of its responsibilities, the requirement of concrete injury further serves the function of insuring that such adjudication does not take place unnecessarily. This principle is particularly applicable here, where respondents seek an interpretation of a constitutional provision which has never before been construed by the federal courts. First, concrete injury removes from the realm of speculation whether there is a real need to exercise the power of judicial review in order to protect the interests of the complaining party. . . . . Second, the discrete factual context within which the concrete injury occurred or is threatened insures the framing of relief no broader than required by the precise facts to -5-
Case 1:09-cv-00253-JBS-JS
Document 37
Filed 07/27/2009
Page 6 of 10
which the court’s ruling would be applied. This is especially important when the relief sought produces a confrontation with one of the coordinate branches of the Government; . . . . To permit a complainant who has no concrete injury to require a court to rule on important constitutional issues in the abstract would create the potential for abuse of the judicial process, distort the role of the Judiciary in its relationship to the Executive and the Legislature and open the Judiciary to an arguable charge of providing “government by injunction.” Id. at 221-22. Plaintiffs
here
are
asking
this
Court
to
undertake
the
constitutional adjudication of a matter that it should not.
For
the reasons articulated in Levitt, Richardson, and Schlesinger, Plaintiffs lack standing to maintain this suit:
They have not
identified any particularized, concrete harm that President Obama has personally caused them.
It is irrelevant that as a “part” of
the public (“the whole”), they share a generalized grievance. And, those
generalized
grievances
regarding
President
Obama’s
citizenship are simply not the concrete injuries required to invoke the jurisdiction of the federal courts. B.
Plaintiff Kerchner’s Military Status Does Not Confer Standing.
Plaintiff
Kerchner
further
because of his military status.2
2
asserts
that
he
has
standing
Kerchner alleges that he has
This argument has been offered before in a different procedural context. See, e.g., Hollister v. Soetoro, --- F.R.D. --6-
Case 1:09-cv-00253-JBS-JS
Document 37
Filed 07/27/2009
Page 7 of 10
suffered an injury because if he is ever recalled to active duty, he is entitled to know whether he should obey possible orders from President
Obama
as
Commander-in-Chief.
Pl.s’
Br.
at
13-14.
Kerchner offers that his lack of knowledge about President Obama’s citizenship “has caused, is causing, and will cause him personal injury emanating from the thought that he may be recalled to duty (even
if
it
illegitimate
never
happens)
President
and
and
be
Commander
compelled in
to
Chief.”
serve Id.
at
an 14
(emphasis added). Kerchner’s alleged injury, however, requires one to engage in pure speculation because he does not allege a basis for his belief that he may be recalled to active duty, or that such an eventuality is likely.
Instead, he alleges that just the
thought that he “may be recalled to duty” is causing him harm. That is not the type of concrete harm that Article III standing requires. Accordingly, Kerchner’s retired military status does not provide the particularized injury-in-fact necessary to confer standing. II.
Plaintiffs’ Complaint Violates Rule 8(a)’s Requirement of a Short and Plain Statement. Plaintiffs
allege
that
their
voluminous
second
amended
verified complaint complies with Federal Rule of Civil Procedure
-, No. 08-2254, 2009 WL 1706726 (D.D.C. Mar. 27, 2009); Hollister v. Soetoro, 601 F. Supp. 2d 179 (D.D.C. Mar. 5, 2009) (rejecting retired military officer’s suit in interpleader because his possible recall to active duty not “property” to which interpleader statute applies). -7-
Case 1:09-cv-00253-JBS-JS
Document 37
Filed 07/27/2009
Page 8 of 10
8(a)(2) because “it is much more than just [a] complaint.” Br. at 36.
Pl.s’
The Federal Rules of Civil Procedure provide that a
civil action is commenced with the filing of a complaint with the court, nothing more.
See Fed. R. Civ. P. 3.
Moreover, the only
pleadings allowed in a civil action are outlined in Rule 7(a), which includes a complaint. A verified complaint is necessary when a party moves for emergency relief.
See L.Civ.R. 65.1.
While it
is true that a verified complaint may need greater detail to explain the necessity of emergent relief, no where in the Federal Rules of Civil Procedure is a verified complaint exempt from the “short and plain statement” requirement of Fed. R. Civ. P. 8(a). Plaintiffs also raise the specious argument that because they raise factual issues of “fraud” and “mistake” in their second amended verified complaint regarding President Obama’s citizenship, they are required to plead those facts with specificity. Pl.s’ Br. at 37; see Fed. R. Civ. P. 9(b). claims of fraud or mistake.
However, Plaintiffs do not assert
Thus, Rule 9(b) is inapplicable here.
Plaintiffs’ second amended verified complaint plainly does not comport with Rule 8(a).
The complaint contains 387 paragraphs of
allegations, a 30-paragraph prayer for relief, and 43 single-spaced endnotes.
As such, the Defendants cannot respond to it in its
present form, and it should be dismissed. III. Plaintiffs’ Cross-Motion to Amend the Complaint Should Be Denied. Plaintiffs oppose Defendants’ argument to strike Plaintiffs’ -8-
Case 1:09-cv-00253-JBS-JS
Document 37
Filed 07/27/2009
Page 9 of 10
second amended verified complaint because Plaintiffs failed to file it in conformance with Federal Rule of Civil Procedure 15.
Pl.s’
Br. at 38-39. In their opposition brief, Plaintiffs do not dispute that they filed their second amended verified complaint without Defendants’ written consent or leave of Court as required by Rule 15(a).
Id.
Instead, Plaintiffs explain that “[i]t would be a
great inconvenience and a waste of time and resources” to strike their pleading.
Pl.s’ Br. at 39.
Plaintiffs then state in one
sentence that they are now cross-moving for leave of court to file their second amended verified complaint nunc pro tunc. days later, they filed a notice of cross-motion.
Id.
Two
Dkt. Entry 36.
Plaintiffs’ Cross-Motion to Amend is wholly improper. It does not set forth the legal standard to amend a complaint, see, e.g., In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997), nor does it provide any factual basis supporting why the proposed amendment is necessary.
It does not include a
proposed pleading as required by L.Civ.R. 7.1(f).
Nevertheless,
any amendments Plaintiffs seek should be denied because they are futile as Plaintiffs lack standing.
Accordingly, the second
amended verified complaint should be stricken.
-9-
Case 1:09-cv-00253-JBS-JS
Document 37
Filed 07/27/2009
Page 10 of 10
CONCLUSION For the reasons stated in Defendants’ moving brief to dismiss the complaint and herein, Defendants respectfully urge this Court to grant their Motion to Dismiss and to deny Plaintiffs’ CrossMotion to Amend. Respectfully submitted, RALPH J. MARRA, JR. Acting United States Attorney s/Elizabeth A. Pascal By: ELIZABETH A. PASCAL Assistant U.S. Attorney Dated:
July 27, 2009
-10-
Case 1:09-cv-00253-JBS-JS
Document 37-2
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) 757-5412 Attorneys for Defendants
Filed 07/27/2009
Page 1 of 2
Document Electronically Filed
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY : Charles F. Kerchner, et al., : : Plaintiffs, : HONORABLE JEROME B. SIMANDLE : v. : : Barack Hussein Obama II, : President Elect of the : United States of America, : CIVIL ACTION NO.: 09-253 President of the United States : of America, and Individually, : a/k/a Barry Soetoro, : United States of America, et al., : : CERTIFICATE OF SERVICE Defendants. : ___________________________________:
I hereby certify that on July 27, 2009, I filed Defendants’ Memorandum of Law in Reply to Plaintiffs’ Opposition to Defendants’ Motion to Dismiss and in Opposition to Plaintiffs’ Cross-Motion for Leave to File Their Second Amended Verified Complaint Nunc Pro Tunc and this Certificate of Service electronically with the Clerk of the United States District Court and that copies of these documents have been sent in conformance with the electronic filing rules to the following:
Case 1:09-cv-00253-JBS-JS
Document 37-2
Filed 07/27/2009
Page 2 of 2
Mario Apuzzo, Esquire Law Offices of Mario Apuzzo 185 Gatzmer Avenue Jamesburg, NJ 08831 Counsel for Plaintiffs RALPH J. MARRA, JR. Acting United States Attorney
s/Elizabeth A. Pascal By: ELIZABETH A. PASCAL Assistant U.S. Attorney
