MOTION TO DISMISS AND MEMORANDUM IN SUPPORT Page 2 of 18
Gordon Warren Epperly vs. Barack Hussein Obama II et al.
Case No. 1:12-cv-00011- TMB
A T T O R N E Y G E N E R A L , S T A T E O F A L A S K A
D i m o n d C o u r t h o u s e P O B o x 1 1 0 3 0 0 , J U N E A U , A L A S K A 9 9 8 1 1 P H O N E ( 9 0 7 ) 4 6 5 - 3 6 0 0
matter for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted.
MEMORANDUM OF POINTS AND AUTHORITIESIN SUPPORT OF MOTION TO DISMISSINTRODUCTION
Plaintiff Gordon Epperly has sued President Barack Obama,Congresswoman Nancy Pelosi, and the division in an apparent attempt to keep PresidentObama’s name off Alaska’s 2012 general election ballot unless and until the divisionperforms its purported “ministerial duty” to “verify” that the President is constitutionallyqualified for office. Plaintiff claims the President’s eligibility is in doubt because of hisalleged status as “a child of mixed marriage … identified in law as a
Rule 81(c)(2)(C) provides that “[a]fter removal, re-pleading is
unlessthe court orders it. A defendant who did not answer before removal must answer orpresent other defenses or objections under these rules within the longest of these periods… 7 days after the notice of removal was filed.” (Emphasis added). The division did notanswer the complaint in state court, but rather timely moved to dismiss it on July 20 forlack of subject matter jurisdiction and failure to state a claim. Motions to dismiss forfailure to state a claim may be considered among the “other defenses” contemplated byRule 81(c).
See, e.g., Burton v. The TJX Companies, Inc
., 2008 WL 1944033 at *1(May 1, 2008) (not reported). It is not clear that the same is true of motions to dismiss forlack of subject matter jurisdiction. The President removed this action on July 27, makingthe division’s response, if required, due on August 3. Based on the pleadings filed so farin state court, it is not clear that re-pleading by the division is truly “necessary,” but thedivision notes that the standards for dismissal of actions in state and federal court areslightly different, and, more importantly, that the standards for subject matter jurisdictionare different. The division also notes that while re-pleading may be unnecessary withoutfurther order of the Court, it is not apparently prohibited absent such an order.Accordingly, and out of an abundance of caution, the division now files this motion.
Case 1:12-cv-00011-TMB Document 8 Filed 08/03/12 Page 2 of 18