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2012-08-20 - CA - Barnett|KEYES v Obama - Defendants' Opposition to Rule 60B Motion

2012-08-20 - CA - Barnett|KEYES v Obama - Defendants' Opposition to Rule 60B Motion

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Published by Jack Ryan
2012-08-20 132, Docket Text: OPPOSITION re: MOTION for Order for reconsideration under rule 60 new information MOTION for Leave to file second amended complaint in RICO MOTION for Reconsideration of the order to dismiss[130] filed by Defendants Joseph R Biden, Hillary Rodham Clinton, Robert M Gates, Barack Hussein Obama, Michelle LR Obama. (DeJute, David)
2012-08-20 132, Docket Text: OPPOSITION re: MOTION for Order for reconsideration under rule 60 new information MOTION for Leave to file second amended complaint in RICO MOTION for Reconsideration of the order to dismiss[130] filed by Defendants Joseph R Biden, Hillary Rodham Clinton, Robert M Gates, Barack Hussein Obama, Michelle LR Obama. (DeJute, David)

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Published by: Jack Ryan on Aug 20, 2012
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10/31/2012

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ANDRÉ BIROTTE JR.United States AttorneyLEON W. WEIDMANAssistant United States AttorneyChief, Civil DivisionROGER E. WEST (State Bar No. 58609)Assistant United States AttorneyFirst Assistant Chief, Civil DivisionDAVID A. DeJUTE (State Bar No. 153527)Assistant United States AttorneyRoom 7516, Federal Building300 North Los Angeles StreetLos Angeles, California 90012Telephone: (213) 894-2461/2574Facsimile: (213) 894-7819Email: roger.west4@usdoj.govdavid.dejute@usdoj.govAttorneys for DefendantsUNITED STATES DISTRICT COURTFOR THE CENTRAL DISTRICT OF CALIFORNIASOUTHERN DIVISIONPAMELA BARNETT, ALAN KEYES, )
et al.
,))Plaintiffs,))v.))BARACK OBAMA,
et al.
))Defendants. ) ________________________________)No. SACV 09-00082 DOC (ANx)DATE: January 25, 2009TIME: 8:30 a.m.CTRM: 9DHon. David O. Carter
OPPOSITION TO PLAINTIFF’S RULE 60(b) MOTION
 
Case 8:09-cv-00082-DOC-AN Document 132 Filed 08/20/12 Page 1 of 5 Page ID #:2531
 
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OPPOSITION TO PLAINTIFF’S RULE 60(b) MOTION
 
IINTRODUCTION
Plaintiff’s motion is the last iteration in a long list ofattempts to have this Court’s Final Order dismissing the complaintreversed. Like all previous attempts, this too must fail.Under the Federal Rules, Plaintiff’s Rule 60(b) motion isuntimely. Further, the claim is barred by res judicata.This Court properly dismissed the complaint and the NinthCircuit unanimously affirmed. Nothing contained in Plaintiff’smotion raises any serious challenge to the dismissal of thecomplaint, and the motion should be summarily denied.
IIPROCEDURAL AND FACTUAL HISTORY
On January 20, 2009, Plaintiff Alan Keyes filed a complaint inthis Court against President Barack Obama. See Docket No. 1. OnJuly 15, 2009, Plaintiff filed a first amended complaint alleging aviolation under the Racketeer Influenced and Corrupt OrganizationsAct, 18 U.S.C. § 1961,
et seq.
(“RICO”). See Docket No. 22, ¶¶123-125.On October 29, 2009, this Court dismissed the first amendedcomplaint, including the RICO claim, with prejudice. See DocketNo. 89, 27-28. On December 16, 2009, this Court clarified that itsOrder dismissing the first amended complaint was without leave toamend and with prejudice. See Docket No. 104. The Orderdismissing the first amended complaint was affirmed by the NinthCircuit. See Docket No. 129.///
1
 
Case 8:09-cv-00082-DOC-AN Document 132 Filed 08/20/12 Page 2 of 5 Page ID #:2532
 
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Approximately two and one-half years later, on August 13,2012, Plaintiff filed this motion seeking reconsideration of theCourt’s Order on the ground of newly discovered evidence andrequesting leave to file a second amended complaint asserting asingle RICO claim against President Obama. See Docket No. 130, 2(“Motion”).
IIIPLAINTIFF’S MOTION SHOULD BE DENIED A.The Motion Is Untimely
Plaintiff brings this motion pursuant to Federal Rule of CivilProcedure 60(b)(2), attaching as exhibits the purportedly newlydiscovered evidence.
1
The Federal rules provide that an order maybe set aside on the ground of “newly discovered evidence that, withreasonable diligence, could not have been discovered in time tomove for a new trial under Rule 59(b).” Fed.R.Civ.P. 60(b)(2).The same Rule, however, places a time limit of one year on bringingsuch a motion. See Fed.R.Civ.P. 60(c)(1) (A motion under Rule60(b)(2) must be made “no more than a year after the entry of thejudgment or order or the date of the proceeding”).
1
Plaintiff’s motion should be construed as a motion exclusivelyunder Rule 60(b)(2), as that is the repeatedly stated ground, themotion solely addresses newly discovered evidence, and only thepurportedly newly discovered evidence is attached. Plaintiff makesa single passing reference to Rule 60(b)(6), which provides for relieffrom an order for “any other reason that justifies relief.” SeeMotion, 5. Other than that passing reference, however, the motion isdevoid of any ground other than that asserted under Rule 60(b)(2) and,as such, cannot avoid the one year time bar for bringing such amotion. American Ironworks & Erectors Inc. v. North AmericanConstruction Corp., 248 F.3d 892, 899 (9
th
Cir. 2001) (Rule 60(b)(6)will not obviate the one year bar for bringing a motion under Rule60(b)(1), (2) or (3) where there exists “no justification for failingto file a timely motion for reconsideration”).
2
 
Case 8:09-cv-00082-DOC-AN Document 132 Filed 08/20/12 Page 3 of 5 Page ID #:2533

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