AZ - LLF - 2012-08-31 - Appeal - LLF Emergency Motion - ECF 8

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UNITED STATES DISTRICT COURT OF APPEALS FOR THE NINTH CIRCUIT Liberty Legal Foundation; John Dummett; Leonard Volodarsky; Creg Maroney, Appellants Democratic National Committee; Debbie Wasserman-Schultz, Appellees
CASE NO: 12-16729
Emergency Motion Under Circuit Rule 27-3
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Circuit Rule 27-3 Certificate Paul F. Eckstein D. Andrew Gaona PERKINS COIE LLP 2901 North Central Avenue, Suite 2000 Phoenix, Arizona 85012-2788 Telephone: 602.351.8000 Facsimile: 602.648.7000 peckstein@perkinscoie.com agaona@perkinscoie.com Attorneys for Appellees Democratic National Committee and Debbie Wasserman-Schultz Van R. Irion Liberty Legal Foundation 9040 Executive Park Drive, Ste. 200 Attorney for Plaintiff/Appellants (423) 208-9953 van@libertylegalfoundation.com
The instant litigation asserts that immediately after Mr. Barack Obama is
will send certifications containing false information to the Arizona Secretary of
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State. Once this action is taken the Arizona Secretary of State will be compelled to take certain ministerial actions as required by Arizona law. These actions will cause Plaintiff/Appellant Dummett, a Presidential candidate, irreparable harm because it will cause a competing candidates name, Mr. Obamas, to be placed upon Arizona ballots despite the fact that Mr. Obama does not meet the minimum
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nominated as the Democratic Partys candidate for President, Defendant/Appellees
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Circuit Rule 27-3(a)(3)(ii) Facts
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constitutional requirements to hold the office sought. Because the Democratic
Circuit Rule 27-3(a)(3)(iii)
This motion and the accompanying documents are substantively identical to the motion filed by Appellants on August 10. The instant motion is being filed only to ensure that this Court is aware of the time-critical nature of Appellants previously filed motion. Therefore, counsel for the Appellees were notified of the relief sought, grounds, and supporting arguments, in essentially identical form, on August 10. See Dkt. 4-1. Appellees filed their opposition to the previously filed motion on August 24. See Dkt. 6. Appellants filed their reply on August 30. See Dkt. 7.
In addition, the instant motion will be filed electronically, pursuant the this Courts Rule 27-3(a)(2). Therefore, opposing counsel will be electronically served
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with a copy of the instant motion today via this Courts electronic filing system. Finally, counsel for Appellants notified counsel for Appellees via e-mail this
morning (August 31) that Appellants intended to file the instant motion. Said email included the instant motion as an attachment.
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are expected to send the harmful notices sometime next week.
national convention begins next Tuesday, September 4th, the Defendant/Appellees
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Circuit Rule 27-3(a)(3)(iii) A motion requesting identical relief and setting forth identical grounds was
grounds advanced in support of the instant motion were submitted to the district
entry of judgment against the Plaintiffs. (R. 42, Judgment).
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_s/Van R. Irion_________________ Van R. Irion Attorney for Plaintiff/appellants
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court. Said motion was deemed moot, without comment, by the District Courts
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filed with the Arizona District Court on December 4, 2011. See R. 9, Mot. All
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APPELLANTS EMERGENCY MOTION FOR PRELIMINARY INJUNCTION Pursuant to Federal Rules of Appellate Procedure 8(a)(1)(C) and this Courts
Rule 27-3 the Plaintiff/Appellants in the above-named case submit this emergency
motion requesting this Court for a preliminary injunction prohibiting the Defendant/Appellees from issuing any letters, certificates, or other document to any Secretary of State of any state, any agent thereof, or any other official of any state, indicating that Barack Obama is qualified to hold the office of President or that the Democratic Party has selected Mr. Obama as its Presidential candidate, or requesting that any state place the name of Mr. Obama on any ballot for the office of President of the United States for the 2012 general election. Grounds for this motion, as more fully set forth below, are that Plaintiff/Appellant John Dummett is a competing candidate for the office of President of the United States and as such Mr. Dummett would be irreparably harmed by the Defendant/Appellees misrepresentations, which would result in the
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unfair advantage of an ineligible candidate appearing on ballots for the office sought by Mr. Dummett; more specifically, it is undisputed that Mr. Obamas father was never a U.S. citizen and that the Supreme Court of the United States has defined natural born citizen as a person with both parents being citizens at the time of the natural born citizens birth, therefore Mr. Obama does not fulfill the
requirements of the U.S. Constitution to hold the office of President.

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MEMORANDUM IN SUPPORT OF MOTION A. Introduction
The purpose of the instant motion is to prevent irreparable harm that will
occur due to the planned actions of Defendant/Appellees which they will take on September 3, 2012, absent an order from this Court prohibiting said actions. B. Requirements of FRAP 8(a)(2)(A)(i) and (ii)
On December 4, 2011, the Plaintiffs below filed a motion with the Arizona District Court requesting identical relieve as is requested by the instant motion. (R. 9, Mot. Prelim. Inj.). Said motion was deemed moot, without comment, by the
The Arizona District Courts dismissal of the underlying lawsuit was founded upon that Courts finding that the Court lacked personal jurisdiction over
circumstances it is impractical to file the instant motion with the District Court
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because any Court determining that it lacks personal jurisdiction over a defendant has also determined that it lacks authority to issue an injunction against said defendant.
The Appellants will, in this memorandum, show that the District Courts
jurisdictional ruling is clear error.
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the Defendant/Appellees. (See R.41, Or. Dismissing, at 15.) Under such
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District Courts entry of judgment against the Plaintiffs. (R. 42, Judgment).
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C. Background Immediately after the 2008 Democratic National Convention the Democratic
announcing that Barack Obama was the Democratic Partys candidate for the
Court the DNC, Defendant/Appellees in the instant litigation, will again send
Election codes and procedures of the 50 states currently leave State election
regarding the constitutional qualifications of candidates to hold Federal office. Specifically, the 50 secretaries of state depend upon truthful representations by the Democratic Party that the individual selected by the Party as its candidate for the office of President of the United States is constitutionally qualified to hold said
identifying the Partys candidate for President, the secretaries of state are
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compelled to have that candidates name placed on ballots in all counties of their state. It is well established that the function of the secretaries of state in this capacity is ministerial; meaning that the secretaries have no authority to refuse once the Democratic Party has delivered the required documents.
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office. When the secretaries of state receive a document from the Democratic Party
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officials dependent upon accurate and truthful representations from political parties
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similar documents on or about September 3, 2012.
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office of President of the United States. (See Ex. 1). Without intervention from this
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National Committee (hereinafter DNC) sent notices to all 50 secretaries of state
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Because the Secretaries of State have no authority to scrutinize the
and accurate representation from the Democratic Party that their candidate is
The documents that the Defendant/Appellees intend to send to every
constitutional qualifications of candidate Barack Obama. D. Standard for Preliminary Injunction
A plaintiff/appellant seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc.,
E. Plaintiff/Appellants are Likely to Succeed on the Merits
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555 U.S. 7, 20 (2008) (citations omitted).
i. District Courts Jurisdiction
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secretary of state next month will fraudulently or negligently misrepresent the
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1. Standard of Review for Motion to Dismiss for Lack of Personal Jurisdiction
A district court's determination that it does not have personal jurisdiction is de novo. Martin Motor Co.
reviewed
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Regarding
qualified to hold the office of President of the United States.
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Personal
state, as well as any competing candidates, completely dependent upon a truthful
candidates qualifications to hold office, this procedure leaves the secretaries of
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374 F.3d 797 (9th Cir. 2004); Myers v. Bennett Law Offices, 238 F.3d 1068, 1071 (9th Cir.2001). Where the motion is based on written materials rather than an evidentiary hearing, the plaintiff need only make a prima facie showing of
jurisdictional facts. Id. In such cases, we only inquire into whether [the
jurisdiction. Caruth v. International Psychoanalytical Ass'n, 59 F.3d 126, 128
its complaint, Amba Marketing Systems, Inc. v. Jobar International, Inc., 551
taken as true. AT & T v. Compagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir.1996). Also, conflicts between parties over statements contained in affidavits must be resolved in the plaintiff's favor. Id.; see Bancroft & Masters, Inc. v. Augusta Nat'l, Inc., 223 F.3d 1082, 1087 (9th Cir.2000) ( Because the prima facie
must adopt [the plaintiff's] version of events for purposes of this appeal.).
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A plaintiffs allegations, taken as true, must show that a non-resident
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defendant purposefully directed his activities toward the forum state, or consummated some transaction with the forum state, or performed some act by which he purposefully avails himself of the privilege of conducting activity in the
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jurisdictional analysis requires us to accept the plaintiff's allegations as true, we
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2. Standard for Establishing Personal Jurisdiction
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F.2d 784, 787 (9th Cir.1977), uncontroverted allegations in the complaint must be
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(9th Cir.1995). Although the plaintiff cannot simply rest on the bare allegations of
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plaintiff's] pleadings and affidavits make a prima facie showing of personal
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forum state, or invokes the benefits and protections of the forum states laws. See R.41, Or. Dismissing at 6; citing Schwarzenegger v. Fred Martin Motor Co., 374
485 F.3d 450, 460 (9th Cir. 2007).
Obama as their nominee for the office of President of the United States for the 2012 general election. R.10, Second Amended Compl., at 8 & 51. And that the Defendants intend to send documents to the Secretaries of State of all states announcing that Mr. Obama is its Presidential nominee for the 2012 general election and representing that he is qualified to hold the office of President. Id. at 9 & 52. And that Said documents will be signed by Defendant Schultz. Id. at 10. None of these facts have been disputed by the Defendants.
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The District Court ruled that the Defendants act of sending a signed
certification that Barack Obama is constitutionally eligible to hold the office of President to the Arizona Secretary of State and asking that Obama be placed on Arizona ballots pursuant to Arizona law is not sufficient to make the DNC reasonably expect that they might be subject to Arizona law. R.41 at 9.
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Plaintiffs complaint alleges that the Defendants intend to nominate Mr.
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3. Plaintiffs Did Allege Activities Purposefully Directed Toward the Forum State AND Purposefully Availing Defendants of the Privilege and Benefits of the Forum States Laws
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F.3d 797 (9th Cir. 2004); See also Holland Am. Line Inc. v. Wartsila N. Am., Inc.,
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In order to reach this determination the District Court concluded that the act of sending a single certification to the Arizona Secretary of State was more
toward the state of Arizona: Plaintiffs allege that Defendants will make a
judicial notice that Arizona is one of the states. However, an act national in scope,
jurisdiction. R.41 Or. Dismissing, at 9; citing Gordy v. Daily News, L.P., 95 F.3d,
The District Courts conclusion is clear error because the Arizona Secretary of State is a specific person. The DNC is not sending an advertisement multiple people in Arizona. It is sending a legal document to the Secretary of State of Arizona. That document is asking the Secretary of State of Arizona to perform a specific act on behalf of the DNC. That act requires the Secretary of State of
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Arizona, a specific person, to perform specific acts that are set forth under Arizona election law. That single certificate is a formal request by the Defendants to take advantage of specific laws of the forum state. The fact that the DNC is also sending similar certificates to 50 other
individual Secretaries of State does not make this act more analogous to taking out
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829, 833 (9th Cir. 1996).
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not targeting any particular person or place, is insufficient to establish personal
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representation to all fifty Secretaries of State and request that this Court take
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analogous to taking out a national ad in a magazine, than it is to directing activities
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an advertisement in a nationally circulated magazine. Such an ad is not directed to any specific person. Such an ad is not directed to only one person in each state. Such an ad does not create a legal obligation for the person reading it to perform a ministerial duty under state law.
The fact that similar certifications will be sent to the other 49 secretaries of state also fails to make the instant litigation similar to the facts of Gordy because each of the other 49 certifications will be specifically directed to individuals, specifically identified as respective secretaries of state for their respective states. Advertisements do not do this because advertisements are not directed toward specific individuals. The District Court recognized that this distinction was important to its ruling. It stated: an act, national in scope, not targeting any particular person or place, is insufficient to establish personal jurisdiction. R.41 Or. Dismissing, at 9 (emphasis added); citing Gordy, 95 F.3d, at 833. However, the Arizona Secretary of State is a specific person. His office is located at a specific
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location. The Defendants activities are directed toward him, in his official capacity as a high ranking Arizona officer. See R.10, Second Amended Compl., at 9 & 52.
This issue will be more fully briefed in Appellants primary appeal brief.
However, it is clear that the District Courts ruling is flawed. No reasonable person
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would send a signed certification that asserts a specific fact to a top state official, and asks that state official to spend tax payer dollars based upon the assertion of fact, and would still reasonably expect that they couldnt be hailed into court in that state if their assertion of fact turned out to be fraud.
The Plaintiff/Appellants are likely to prevail on their appeal.
It is undisputed that President Obamas father was never a U.S. citizen.1 This fact has been admitted by Mr. Obama in his book Dreams From My Father, has been confirmed in statements by the U.S. State Department, and is reflected on the birth certificate published by the White House and claimed by the President as his birth certificate. Mr. Obama has never contested the fact that his father was never a U.S. Citizen.
The U.S. Supreme Court has defined natural-born citizens as all children born in a country of parents who were its citizens. See Minor v. Happersett, 88
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U.S. 162, 167 (1875)(emphasis added). The Court in Minor did go on to state that
Hereinafter this memorandum will refer to President Obama, also known as Barack Hussein Obama Jr., Barack Obama II, and Barry Soetoro, as Mr. Obama. This reference is not intended to be disrespectful to the office of the President or to the individual Barack Obama. It is used only to identify the individual, separate from the office, to emphasize that Mr. Obama has not yet won his campaign for a second term, and to simplify communication for purposes of this memo.
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ii. Substance of the Case Below
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other sub-categories of people may or may not be within the broader term
established that citizen is a much broader term than natural-born citizens. Its
natural-born citizens. See Id. at 167-168.
Obama can never be a natural-born citizen, as that term was defined by the U.S.
requirements to hold the office of President. See U.S. Const. Art. II Section 1.2 It is also undisputed that the Defendant/Appellees intend to nominate Mr. Obama as the Democratic nominee for the office of President of the United States in the 2012 general election. Said nomination requires the Defendant/Appellees to
is the Presidential nominee for the Democratic Party in the 2012 general election
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and representing that he is qualified to hold the office of President. Because Mr. Obama is not a natural-born citizen, as defined by the Supreme
Court, and because the Defendant/Appellees are aware of all undisputed facts and definitions set forth herein, any representation by the Defendant/Appellees that Mr.
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Mr. Obamas place of birth is completely irrelevant to this conclusion. This motion makes no assertion regarding Mr. Obamas place of birth.
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send documents to the secretaries of state of all states announcing that Mr. Obama
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Supreme Court. Therefore, Mr. Obama cannot meet the Constitutional
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Because it is undisputed that Mr. Obamas father was not a U.S. citizen, Mr.
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discussion of citizen does not negate or alter its earlier definition of the term
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category natural-born citizens. Id. The Minor Court clearly understood and
citizen, however it did so only after specifically identifying the narrower
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Obama is Constitutionally-qualified to hold the office of President would be negligent misrepresentation or fraud.
A simple reading of Minor v. Happersett makes it is clear that the Supreme Court defined natural born citizen, as it appears in article II of the Constitution, as part of its holding. 88 U.S. 162, 167-8 (1875). The Minor Courts definition of
natural-born citizen is binding precedent and has not been abrogated by the dicta from Wong Kim Ark (WKA) or any other subsequent Supreme Court precedent. Any language to the contrary from subsequent Supreme Court opinions is purest dicta. Any rulings from other courts are simply incorrect. Unless and until the U.S. Supreme Court revisits this issue in a case that factually presents the issue, the Minor Courts definition is binding.
In order to reach its holding, the Minor Court first had to establish that Mrs.
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Minor was a citizen. It explicitly did so by determining that she was a natural born citizen: For the purposes of this case it is not necessary to solve these doubts. [Referring to the doubts regarding the broader term citizen.] It is sufficient for everything we have now to consider that all children born of citizen parents within
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2. The Minor Courts Definition of NBC was Part of its Holding and is, Therefore, Binding Precedent
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1. The Minor Courts Definition of Natural Born Citizen is Binding Precedent
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the jurisdiction are themselves citizens. Id. at 167. In other words, all natural born citizens are also part of the broader category, citizens.
born, and she was born in the U.S., she was a natural born citizen. Because all
was a citizen. This is why the Court did not need to resolve doubts about the outer
the narrower category of natural-born citizen.
because she was a natural born citizen followed the well-established doctrine of judicial restraint. Judicial restraint required the Minor Court to avoid interpreting the citizenship clause of the 14th Amendment if the circumstances presented in the case at hand did not require the Court to construe the 14th amendments citizenship
interpretation, so the Court did not reach the 14 th amendments citizenship clause.
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But this restraint did require the Court to conclude that Mrs. Minor was a citizen via its definition of natural-born citizen and its conclusion that all natural-born citizens are within the broader category of citizens. This is why the Minor court made the statement For the purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children
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clause in order to reach its holding. The facts presented did not require such an
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The Minor Courts decision to establish that Mrs. Minor was a citizen
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limits of the term citizen. Mrs. Minor was a citizen because she was clearly within
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natural born citizens are also within the broader category citizen, Mrs. Minor
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Because both of Mrs. Minors parents were U.S. citizens at the time she was
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born of citizen parents within the jurisdiction are themselves citizens. Id. at 168.
The Court then discussed several other types of citizenship as general
to the specific case of Mrs. Minor, concluding: The fourteenth amendment did not
therefore, the rights of Mrs. Minor do not depend upon the amendment. She has
immunities of citizenship. Id. at 170.
Because the Minor Courts definition of natural born citizen was pivotal to reaching its holding, the Courts definition is part of its holding and is, therefore, also precedent. See Blacks Law Dictionary 737 (Bryan A. Garner ed., 7th ed., West
(see also Id. at 1195 defining precedent and quoting James Parker Hall,
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American Law and Procedure xlviii (1952); see also Blacks Law Dictionary at 465, distinguishing dictum gratis: A courts discussion of points or questions
The Minor Court also used this method of establishing that Mrs. Minor was a citizen because the term natural born citizen was well established at the time. This is why the Minor Court said It has never been doubted before giving its definition of natural born citizen. See 88 U.S. 167. This is another example of the Minor Court following the doctrine of judicial restraint by using a well-established term rather than establishing a new definition for the broader term citizen.
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1999) (holding, n. 1. A courts determination of a matter pivotal to its decision);
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always been a citizen from her birth, and entitled to all the privileges and
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affect the citizenship of women any more than it did of men. In this particular,
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examples of its conclusion that women could be citizens. However, it then returned
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pivotal to reaching its holding.3
In other words, the Minor Courts definition of natural born citizen was
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not raised by the record or its suggestion of rules not applicable in the case at
The Minor Court did not leave open the question of the definition of naturalborn citizen as that term is used in Article II. It did, however, leave open the scope of the broader term citizen as that term is used in the 14th Amendment. This is the question that the WKA Court addressed. United States v. Wong Kim Ark, 169 U.S. 649, 653 & 705 (1898). The WKA Courts holding is clearly identified by that Court as its holding. Its holding is very fact specific and limited to determining the scope of the term citizen under the 14th Amendment, not natural born citizen under Article II.
WKA involved a person born in the U.S. to parents that were both noncitizens. The facts of WKA simply did not provide the WKA Court with an opportunity to re-visit Article IIs natural-born citizen. Dicta cannot abrogate
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precedent. See Blacks Law Dictionary 465 (Bryan A. Garner e., 7th ed., West 1999)(defining Dictum Gratis). Therefore, WKA cannot abrogate the definition of Article II natural-born citizen from Minor. A contrary reading of Minor and WKA also violates venerable doctrines of
constitutional construction established in Marbury v. Madison and judicial restraint, as well as language from the Minor Court establishing that the 14th
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3. Dicta from Wong Kim Ark Cannot Alter Precedent from Minor
bar.).
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Amendment did not create any new privileges and immunities. See 5 U.S. 137, 174
would clearly have created a new privilege. Yet the Minor Court explicitly stated
at 171. The Minor Court had to reach this issue because it was determining Mrs.
attempting to run for President, nor did the WKA Courts decision require it to re-
any statement from the WKA Court that could possibly be interpreted to alter Article II, is purest dicta.
This reading of Minor and WKA respect the foundational principals of constitutional construction and legal interpretation. This reading of Minor and
were answering different questions regarding different aspects of the Constitution.
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Several state courts and administrative agencies have erroneously ruled that
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Wong Kim Ark overturned Minors definition of natural born citizen. However, to Appellants knowledge all such decisions rely heavily upon the non-binding Indiana State Appellate Court opinion, Ankeny v. Governor. 916 N.E.2d 678 (Ind.
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WKA leave these two Supreme Court opinions in harmony because these cases
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4. The Ankeny Court Established that it Lacked Jurisdiction to Rule on the Instant Issue
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visit the definition of Article II natural born citizen for any other reason. Therefore,
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Minors privileges under the 14th Amendment. However, Mr. Ark was not
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that the 14th Amendment created no new constitutional privileges. Minor, 88 U.S.
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allows a person with two foreign parents to qualify for the office of President
(1805); Minor, 88 U.S. at 171. Interpreting the 14th Amendment in a way that
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Ct. App. 2009). A cursory reading of the Ankeny opinion should lead any court to immediately recognize the disturbing errors and apparent political motivation of that opinion.
Ankeny was a challenge brought by pro-se litigants in Indiana against that
by itself, negate the value of an opinion, it certainly should raise some concerns.
and briefed arguments in support of their constitutional assertions. Additionally,
at his disposal. Id. This picture explains the very one-sided presentation of the issues and the ultimate result in Ankeny.
Much more striking, however, is the fact that the Ankeny Court admitted that the plaintiff lacked standing. Id. at 684. Since the plaintiff lacked standing, the Ankeny Court lacked jurisdiction to reach any substantive issue presented. Yet after
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reaching this conclusive finding, the Ankeny court took it upon itself to construe Article II of the U.S. Constitution. While a court may use alternative means to reach a holding, it should not construe the U.S. Constitution to do so. Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439, 445-46 (1988) (A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of
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the Defendant in Ankeny was a sitting Governor with all the resources of the state
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Most pro-se litigants cannot be expected to present courts with fully researched
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states Governor. Id. at 679. While litigation by pro-se parties certainly does not,
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deciding them.). Judicial restraint requires all courts to avoid construing any clause of the Constitution if avoiding such construction is at all possible. Id. By pushing forward to give its opinion on the meaning of Article II, after ruling that it lacked jurisdiction in the case, the Ankeny Court ignored judicial restraint, ignored
Court, and ignored the Article III constitutional limits on its own authority.
question demonstrates that Courts failure to understand the most basic doctrines applied by the Supreme Court when construing the Constitution. With this fact in mind, the Ankeny Courts opinion regarding the meaning of Article II and the 14th Amendment should be avoided at all costs by any other court. F. Absent the Requested Relief Plaintiff/Appellants will be Irreparably Harmed
competing with candidate Obama for that office. Candidate Dummett, therefore,
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has standing to challenge the constitutional qualifications of candidate Obama. See Drake v. Obama, 664 F.3d 774, 782-3 (9th Cir. 2011) (This notion of competitive standing has been recognized by several circuits.); citing Hollander v. McCain, 566 F.Supp.2d 63, 68 (D.N.H. 2008); Tex. Democratic Party v. Benkiser, 459 F.3d
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Plaintiff/Appellant John Dummett is a candidate for the office of President,
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In other words, the Ankeny Courts decision to reach the constitutional
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rules of constitutional construction, ignored direct precedent from the Supreme
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582, 586-87 & n.4 (5th Cir.2006); and Schulz v. Williams, 44 F.3d 48, 53 (2nd Cir. 1994).
irreparably harmed by the Defendant/Appellees misrepresentations that Mr.
misrepresentations would cause Mr. Obamas name to appear on ballots for the
to hold said office. Such an appearance on ballots would reduce the number of
question the validity of such an election.
Because the timing of Presidential elections is critical to the outcome, the harm described could not be corrected by any means.
This motion would require the Defendant/Appellees to refrain from asserting
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a fact on behalf of Mr. Obama that is in clear contradiction to Mr. Obamas own assertions. This is not a heavy burden. On the other side of the balance of equities, allowing the
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Defendant/Appellees to make factual misrepresentations to 50 Secretaries of State would result in a flawed or invalid U.S. Presidential election. This result would
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G. The Balance of Equities Weighs Heavily in Favor of the Plaintiff/Appellants
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votes obtained by candidate Dummett for the same office, and would call into
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office of President, despite the fact that Mr. Obama is not constitutionally-qualified
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Obama is constitutionally-qualified to hold the office of President. Said
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Absent this Courts grant of the requested relief, candidate Dummett will be
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cause irreparable harm to Mr. Dummett, to all Americans, and to the validity of the U.S. Constitution.
The secretaries of state for the 50 states perform their duties for the benefit
perpetrated by the Defendant/Appellees upon the 50 States, would cause profound
upon each and every American voter. The public interest is obviously served by
Presidential election to occur.
Further, the issue presented by this motion represents a more profound question: Will the Federal Courts of this nation enforce the most basic requirements of the U.S. Constitution? This motion relies upon uncontested facts
of powers, and in the authority of the Constitution will be greatly enhanced by
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granting the instant motion and greatly harmed by denying this motion. I. Relief Sought Plaintiff/Appellants request an order prohibiting the
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Defendant/Appellees from issuing any letters, certificates, or other document to any Secretary of State of any state, any agent thereof, or any other official of any
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and a Supreme Court-defined term. Public trust in the judicial branch, in separation
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prohibiting such a clear misrepresentation of fact and preventing a flawed
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harm to the public. Such an act amounts to perpetrating a gross misrepresentation
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of the citizens of their respective states. A gross misrepresentation of fact,
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H. Public Interest Supports Granting the Requested Injunction
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state, indicating that Mr. Obama is qualified to hold the office of President or that the Democratic Party has selected Mr. Obama as its Presidential candidate, or requesting that any state place the name of Mr. Obama on any ballot for the office of President of the United States for the 2012 general election.
2012 (a.k.a. August 31, 2012).
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_s/Van R. Irion_________________ Van R. Irion (TNBPR#024519) Liberty Legal Foundation 9040 Executive Park Drive, Ste. 200 Attorney for Plaintiff/appellants (423) 208-9953
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Respectfully submitted on this the 11th Day of Elul, in the year of our Lord
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_s/Van R. Irion_________________ Van R. Irion Liberty Legal Foundation 9040 Executive Park Drive, Ste. 200 Attorney for Plaintiff/appellants (423) 208-9953
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CERTIFICATE OF SERVICE It is hereby certified that on 11th Day of Elul, Year of our Lord 2012 (a.k.a. August 31, 2012), a copy of Appellants Emergency Motion for Preliminary Injunction was filed electronically. Parties may access this filing through the Courts electronic filing system.
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UNITED STATES DISTRICT COURT OF APPEALS FOR THE NINTH CIRCUIT Liberty Legal Foundation; John Dummett; Leonard Volodarsky; Creg Maroney, Appellants Democratic National Committee; Debbie Wasserman-Schultz, Appellees
CASE NO: 12-16729
APPELLANTS CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rules
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Procedure 26.1 the
Plaintiff/Appellants in the above-named case hereby submit this corporate disclosure statement. Plaintiff/Appellant Liberty Legal Foundation is a non-profit corporation organized under the laws of the state of Tennessee. No parent corporation or publically owned corporation exists that owns 10% or more of Liberty Legal Foundation.
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Respectfully submitted on this the 11th Day of Elul, in the year of our Lord
2012 (a.k.a. August 31, 2012). _s/Van R. Irion_________________ Van R. Irion (TNBPR#024519) Liberty Legal Foundation 9040 Executive Park Drive, Ste. 200 Attorney for Plaintiff/appellants (423) 208-9953
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NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA
The Court now considers Defendants Democratic National Committee (DNC) and Congresswoman Debbie Wasserman Schultzs (collectively, Defendants) Motion to Dismiss (MTD) (Doc. 24) and Motion for Sanctions (Mot. for Sanctions) (Doc. 28). I. BACKGROUND On October 25, 2011, Plaintiffs Liberty Legal Foundation (LLF), John Dummett,
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Leonard Volodarsky, and Creg Maroney filed a Class Action Complaint against the National Democratic Party of the USA, Inc. (Democratic Party USA) and Congresswoman Debbie Wasserman Schultz for declaratory and injunctive relief. (See Doc. 1, Class Action Compl. for Declaratory & Injunctive Relief (Compl.) at 1, 15-16.) On January 23, 2012, Plaintiffs amended their Class Action Complaint to include the DNC. (Doc. 10, 2nd Am. Class Action
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) ) ) ) ) Plaintiffs, ) ) vs. ) ) National Democratic Party of the USA, ) ) Inc.; Debbie Wasserman Schultz; and ) Democratic National Committee, ) ) Defendants. ) Liberty Legal Foundation; John Dummett; Leonard Volodarsky; Creg Maroney,
No. CV 11-2089-PHX-SRB ORDER
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Compl. for Declaratory & Injunctive Relief (SAC) at 1.)1 Plaintiffs allege that the
Arizona, and that the DNC is a subdivision of the Democratic Party that is responsible for
SAC alleges that Congresswoman Wasserman Schultz is the chairperson of the DNC. (Id. 38.)
member of LLF; he resides in the state of New York. (Id. 31, 33.) Plaintiffs allege that Plaintiff Leonard Volodarsky is a presidential candidate for the 2012 presidential election and also a member of LLF; he resides in New York. (Id. 26, 28.) The SAC alleges that Plaintiff John Dummett is also a presidential candidate and a member of LLF who resides
whose main purpose is the defense of basic human rights and whose mission is to
liberties. (Id. 16.)
Plaintiffs allege that the Secretaries of State for each state depend on political parties to make truthful assertions regarding presidential candidates credentials and have no authority to refute these assertions. (Id. 1.) According to Plaintiffs, the Democratic Party intends to nominate President Barack Obama as its candidate in the 2012 presidential election and intends to send documents to all fifty Secretaries of State representing that he is qualified
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Defendants contend that Plaintiffs filed the SAC without the consent of the parties or leave of the Court in violation of Federal Rule of Civil Procedure 15(a)(2). (MTD at 2 & n.2.) However, given that Defendants substantively respond to the SAC in their Motion to Dismiss, the Court will consider the SAC as the operative complaint for purposes of ruling on Defendants Motion to Dismiss.
2
Plaintiffs allegations concerning the Democratic Party USA are not entirely clear, as Plaintiffs appear to refer to the Democratic Party USA and the DNC as the Democratic Party. (See id. at 1.) In any case, the Democratic Party USA has been dismissed from this case due to lack of service. (See Doc. 29, Order.) -2-
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[s]trategically challenge flawed court precedent to restore the Constitution and individual
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in California. (Id. 19, 21-23.) According to the SAC, LLF is a charitable organization
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According to the SAC, Plaintiff Creg Maroney is a United States citizen and a
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certifying candidates and that maintains an office in Washington, D.C. (Id. 36-37.)2 The
Democratic Party USA is a national political party that maintains an office in Phoenix,
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to hold the office of President. (Id. 8-9.)
United States be a natural born Citizen. U.S. Const. art. II, 1, cl. 4. Plaintiffs allege that
and therefore that President Obama is not a natural born citizen and is not qualified to be placed on any ballot for the 2012 presidential election. (SAC 10, 13.)
misrepresentation and seek declaratory and injunctive relief, as well as costs, expenses, and attorneys fees. (Id. 50-65, Prayer for Relief.) Defendants the DNC and Congresswoman Wasserman Schultz move to dismiss this case with prejudice pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), and 12(b)(6). (MTD at 1.) They also move for sanctions
counsel should be sanctioned (1) for pursuing a legal theory that has been routinely rejected
with no affiliation with the DNC or the Democratic Party. (Mot. for Sanctions at 1.) II. LEGAL STANDARDS AND ANALYSIS A. Motion to Dismiss
Defendants bring several jurisdictional challenges to Plaintiffs suit, asserting that Plaintiffs lack standing, that the dispute is not ripe, and that the Court does not have personal jurisdiction over the DNC and Congresswoman Wasserman Schultz. (MTD at 5-11.) The validity of an order of a federal court depends upon that courts having jurisdiction over both the subject matter and the parties. Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 701 (1982). Personal jurisdiction is an essential element of the jurisdiction of a district . . . court, without which the court is powerless to proceed to an adjudication. Ruhrgas AG v Marathon Oil Co., 526 U.S. 574, 584 (1999) (quotations omitted). Where personal jurisdiction is more easily resolved than subject matter jurisdiction, the Court may address that first. See Ruhrgas, 526 U.S. at 588; Bauman v. DaimlerChrysler Corp., 644 F.3d 909, 919 (9th Cir. 2011). -3-
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and (2) for naming the Democratic Party USA as a defendant, as it is a sham organization
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pursuant to Federal Rule of Civil Procedure 11 and 28 U.S.C. 1927, arguing that Plaintiffs
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Plaintiffs bring claims for negligent misrepresentation and fraud/intentional
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President Obamas father was not a United States citizen when President Obama was born
Article II 1 of the United States Constitution requires that the President of the
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The plaintiff bears the burden of establishing that a court has personal jurisdiction
2004). The plaintiff is obligated to come forward with facts, by affidavit or otherwise,
787 (9th Cir. 1977). There is no statutory method for resolving this issue; thus, the mode of its determination is left to the trial court. Data Disc, Inc. v. Sys. Tech. Assocs., Inc., 557
personal jurisdiction without an evidentiary hearing, a plaintiff must make only a prima facie showing of jurisdictional facts to survive the motion. Bauman, 644 F.3d at 919. The uncontroverted allegations in [the plaintiffs] complaint must be taken as true, and conflicts between the facts contained in the parties affidavits must be resolved in [the plaintiffs]
Rio Props., Inc. v. Rio Intl Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002).
that the forum states long-arm statute confers jurisdiction over the defendant and that the exercise of jurisdiction comports with constitutional principles of due process. Id.; Omeluk v. Langsten Slip & Batbyggeri A/S, 52 F.3d 267, 269 (9th Cir. 1995). Arizonas long-arm statute allows the exercise of personal jurisdiction to the same extent as the U.S. Constitution. See Ariz. R. Civ. P. 4.2(a); Cybersell v. Cybersell, 130 F.3d 414, 416 (9th Cir. 1997); A. Uberti & C. v. Leonardo, 892 P.2d 1354, 1358 (Ariz. 1995). This reduces the issue of personal jurisdiction to one of federal due process. Cybersell, 130 F.3d at 416; Uberti, 892 P.2d at 1358.
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with the forum state so that maintenance of the suit does not offend traditional notions of fair play and substantial justice. Intl Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)); see also Data Disc, 557 F.2d at 1287.
Courts recognize two bases for personal jurisdiction within the confines of due process: (1) general jurisdiction, which permits the state to exercise jurisdiction over the defendant in all -4-
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Due process requires that a nonresident defendant have sufficient minimum contacts
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To establish personal jurisdiction over a nonresident defendant, a plaintiff must show
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favor for purposes of deciding whether a prima facie case for personal jurisdiction exists.
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F.2d 1280, 1285 (9th Cir. 1977). If a court decides to rule on a motion to dismiss for lack of
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supporting personal jurisdiction. Amba Mktg. Sys., Inc. v. Jobar Intl, Inc., 551 F.2d 784,
over a defendant. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir.
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matters; and (2) specific jurisdiction, which results from the defendants contacts with the
v. Brown, 131 S. Ct. 2846, 2853 (2011); Helicopteros Nacionales de Colombia, S.A. v. Hall,
299, 301-02 (9th Cir. 1986). 1. General Personal Jurisdiction
to the defendants contacts with the forum has been denominated general jurisdiction. Helicopteros, 466 U.S. at 415 n.9. In International Shoe, the Supreme Court established that general personal jurisdiction is present in instances in which the continuous corporate operations within a state [are] so substantial and of such a nature as to justify suit against [the
activities. Goodyear Dunlap, 131 S. Ct. at 2853 (quoting Intl Shoe, 326 U.S. at 318).
physical presence in the state. Schwarzenegger, 374 F.3d at 801. Nothing in the record supports a finding of general jurisdiction. Neither Defendant resides in Arizona, nor do Defendants alleged contacts rise to the requisite level of systematic or continuous contact; in fact no present contacts between Defendants and Arizona are alleged. (See SAC 1-65.)
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specific personal jurisdiction over an out-of-state defendant. [J]urisdiction unquestionably could be asserted where the corporations in-state activity is continuous and systematic and that activity gave rise to the episode-in-suit. Goodyear Dunlap, 131 S. Ct. at 2853 (quoting Intl Shoe, 326 U.S. at 317). Also, the commission of certain single or occasional acts in a [s]tate may be sufficient to render a corporation answerable in that [s]tate with respect to those acts, though not with respect to matters unrelated to the forum connections. Id. (quoting Intl Shoe, 326 U.S. at 318). Plaintiffs allege no continuous and systematic contacts
between Defendants and Arizona; thus, the Court will look to whether Plaintiffs allege a -5-
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2.
The Supreme Court has established two general scenarios in which a forum state has
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Defendants contacts with the forum state must be so pervasive that they amount to a near
Specific Personal Jurisdiction
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corporation or entity] on causes of action arising from dealings entirely distinct from those
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Exercising personal jurisdiction over a defendant in a suit not arising out of or related
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466 U.S. 408, 414 n.8, 415 n.9 (1984); Fields v. Sedgwick Associated Risks, Ltd., 796 F.2d
forum state giving rise to the subject litigation. See Goodyear Dunlap Tires Operations, S.A.
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single or occasional act sufficient to render Defendants subject to personal jurisdiction in
The Ninth Circuit has established a three-part test to determine whether or not specific
Schwarzenegger, 374 F.3d at 802 (quoting Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir. 1987)). The plaintiff bears the burden of satisfying the first two prongs of the test, and [i]f the plaintiff fails to satisfy either of these prongs, personal jurisdiction is not established in
Under the first prong of the specific personal jurisdiction test, the plaintiff must
conducting activities in the forum state or purposefully directed activities toward the forum state. See id. These two inquires are often equated to purposeful availment, . . . but availment and direction are, in fact, two distinct concepts. Id. An analysis of purposeful availment of privileges of the forum state typically centers on the defendants actions in the forum state and is usually analyzed in connection with contract disputes. Id. An analysis of purposeful direction normally centers on actions performed outside the forum state that are directed toward the forum state, and this is typically used in connection with tort suits. Id. at 802-03.
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effects test in examining purposeful direction of a defendants activities toward a forum state. See Dole Food Co., Inc. v. Watts, 303 F.3d 1104, 1111 (9th Cir. 2002) (Under our precedents, the purposeful direction or availment requirement for specific jurisdiction is analyzed in intentional tort cases under the effects test derived from Calder . . . .); see also Calder v. Jones, 465 U.S. 783, 788-90 (1984). It is unclear whether the Calder effects test -6-
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For at least intentional torts, the Ninth Circuit Court of Appeals applies the Calder
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establish that the defendant purposefully availed himself or herself of the privilege of
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the forum state. Id.
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(1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or relates to the defendants forum-related activities; and (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable.
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personal jurisdiction exists:
Arizona.
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applies to all tortious causes of action, including negligence, or only to intentional torts.
negligence. Rather, their intentional, and allegedly tortious, actions were expressly aimed at
Cir. 2007) ([I]t is well established that the Calder test applies only to intentional torts, not to . . . breach of contract and negligence claims . . . .), with Mavrix Photo, Inc. v. Brand
whether a defendant purposefully direct[s] his activities at the forum state, applying an effects test that focuses on the forum in which the defendants actions were felt, whether or not the actions themselves occurred within the forum. (quoting Yahoo! Inc. v. La Ligue Contre Le Racisme Et LAntisemitisme, 433 F.3d 1199, 1206 (9th Cir.2006)); Menken v.
including negligence). Here, the Court will apply the Calder test to Plaintiffs intentional
the purposeful availment standard. See Marlyn Nutraceuticals, Inc. v. Improvita Health Prods., 663 F. Supp. 2d 841, 850 (D. Ariz. 2009) (analyzing fraud claim under the purposeful-direction effects test and negligent misrepresentation claim under the purposeful availment standard). However, the Calder effects analysis is the same for both of Plaintiffs claims, and under either a purposeful availment analysis or a purposeful direction analysis, Plaintiffs have failed to demonstrate that this Court has personal jurisdiction over Defendants regarding either of Plaintiffs claims. a. Purposeful Availment
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deliberate action within the forum state or if he has created continuing obligations to forum residents. Cybersell, 130 F.3d at 417 (quoting Ballard v. Savage, 65 F.3d 1495, 1498 (9th
Cir. 1995)). The purposeful availment standard is meant to determine whether the defendants conduct and connection with the forum [s]tate are such that he should reasonably anticipate being hailed into court there. World-Wide Volkswagen v. Woodson, 444 U.S. 286, -7-
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[T]he purposeful availment requirement is satisfied if the defendant has taken
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misrepresentation claim, but will analyze Plaintiffs negligent misrepresentation claim under
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Emm, 503 F.3d 1050, 1059 (9th Cir. 2007) (applying Calder effects test to tort claims,
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Techs. Inc., 647 F.3d 1218, 1228 (9th Cir. 2011) (In tort cases, we typically inquire
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[the forum state].); Holland Am. Line Inc. v. Wartsila N. Am., Inc., 485 F.3d 450, 460 (9th
Compare, e.g., Calder, 465 U.S. at 789 ([P]etitioners are not charged with mere untargeted
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297 (1980). To have purposefully availed itself of the privilege of doing business in the
promotes the transaction of business within the forum state. Boschetto v. Hansing, 539 F.3d
Even the existence of a contract with a forum resident is not sufficient to support specific jurisdiction; rather, courts look to the prior negotiations and contemplated future
to determine whether a defendant purposefully established minimum contacts within the forum. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 478-79 (1985).
Here, Plaintiffs do not allege that Defendants have acted in any way to purposefully avail themselves of the protections and privileges of Arizona. Nowhere in the SAC do Plaintiffs allege that Defendants made a contract, engaged in business in Arizona, or established ongoing contacts in Arizona. Based on Plaintiffs allegations, Defendants did not
Purposeful direction under the Calder effects test requires that the defendant allegedly have 1) committed an intentional act, 2) expressly aimed at the forum state, 3)
Schwarzenegger, 374 F.3d at 803 (quoting Dole Food, 303 F.3d at 1111). An act for purposes of the Calder test is defined as an external manifestation of the actors will and does not include any of its results, even the most direct, immediate, and intended. Id. at 806 (quoting Restatement (Second) of Torts 2 (1964)). The analysis focuses on intent to perform an act, not intent to accomplish a goal. Id. The plaintiff must also show that the defendant expressly aimed its intentional act at the forum state. Id. This requirement is satisfied when the alleged conduct is targeted at a plaintiff whom the defendant knows to be a resident of the forum state. Bancroft & Masters, Inc. v. Augusta Natl, Inc., 223 F.3d 1082, 1087 (9th Cir. 2000). -8-
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causing harm that the defendant knows is likely to be suffered in the forum state.
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purposefully avail themselves of the benefits and protections of Arizona. Purposeful Direction: Calder Effects Test
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consequences, along with the terms of the contract and the parties actual course of dealing
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1011, 1016 (9th Cir. 2008) (quoting Sher v. Johnson, 911 F.2d 1357, 1362 (9th Cir. 2008)).
forum, a defendant must have performed some type of affirmative conduct which allows or
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Plaintiffs do not allege any action that has been or is being taken in relation to the upcoming 2012 presidential election. According to Plaintiffs, Defendants will, at some point in the future, promote the allegedly false idea that President Obama is eligible to be the
that Defendants have completed any act in connection with this alleged misrepresentation. Even if a future act could be an intentional act for purposes of the Calder test, however, Plaintiffs have not established that Defendants have expressly aimed their act at Arizona in any way. [E]xpress aiming encompasses wrongful conduct individually targeting a known forum resident. Bancroft, 223 F.3d at 1087. Here, Plaintiffs have not alleged that any of them are residents of Arizona or that they have any ties to Arizona whatsoever. (See, e.g., SAC 19, 26, 33.) Plaintiffs have also not alleged anything indicating that Defendants will specifically target them. See Bancroft, 223 F.3d at 1088 (discussing prior cases decided under the Calder test where specific jurisdiction was found
from others in which we have found the effects test unsatisfied). As in other cases finding a lack of individualized targeting and thus a lack of personal jurisdiction, there [is] no showing that [Defendants] even knew of the existence of [Plaintiffs,] let alone targeted them individually. See id. (discussing Cybersell, 130 F.3d at 420).
State and request that this Court take judicial notice that Arizona is one of the [fifty] states. (See SAC 52; Doc. 26, Pl.s Oppn to MTD at 14.) However, an act national in scope, not targeting any particular person or place, is insufficient to establish personal jurisdiction. See, e.g., Gordy v. Daily News, L.P., 95 F.3d 829, 833 (9th Cir. 1996) (discussing prior case in which we held that publication of a commercial libel in a worldwide medical journal did not
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According to Plaintiffs, it is against the Democratic Partys rules to nominate a candidate that is not eligible for the office; therefore, by endorsing President Obama the 2008 election, it implicitly represented that he was eligible to be President. (SAC 1 n. 1.) -9-
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Plaintiffs allege that Defendants will make a representation to all fifty Secretaries of
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and concluding that [t]he presence of individualized targeting is what separates these cases
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President in connection with the 2012 election. (See SAC 1, 8-9.)3 Plaintiffs do not allege
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permit suit against Swedish writers in California); Kransco Mfg., Inc. v. Markwitz, 656 F.2d 1376, 1379-80 (9th Cir. 1981) (discussing prior case in which letters to the plaintiff and advertisement of product in national periodicals were found insufficient to establish personal
WL 2441025, at *7 (C.D. Cal. June 29, 2007) (Defendant has not targeted advertising or promotional materials to residents of California because it advertises in motorcycle
1151, 1158 (9th Cir. 2006) ([W]e . . . require something more than just a foreseeable effect to conclude that personal jurisdiction is proper. (quoting Bancroft, 223 F.3d at 1087)); Bancroft, 223 F.3d at 1087 (We now conclude that something more is what the Supreme Court described as express aiming at the forum state.).
Here, Plaintiffs have not alleged any intentional act, but rather an intent to commit an intentional act, and, more importantly, they have not established that Defendants have aimed
constitutes individualized targeting. Accordingly, the Court concludes that Plaintiffs have failed to establish purposeful availment or purposeful directionthe first requirement for a finding of specific personal jurisdictionand therefore concludes it lacks personal jurisdiction over Defendants. B.
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Federal Rule of Civil Procedure 11 and 28 U.S.C. 1927. (Mot. for Sanctions at 1.) Both Rule 11 and section 1927 allow for sanctions against attorneys. See 28 U.S.C. 1927; Fed. R. Civ. P. 11(c)(1). However, the Ninth Circuit Court of Appeals has warned that sanctions against attorneys under both Rule 11 and section 1927 are extraordinary remed[ies] that require extreme caution when exercised. In re Keegan Mgmt. Co., Sec. Litig., 78 F.3d 431, 437 (9th Cir. 1996) (quoting Operating Engrs Pension Trust v. A-C Co., 859 F.2d 1336, 1345 (9th Cir. 1988)). Defendants allege that attorney Irions conduct is sanctionable - 10 -
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Motion for Sanctions
Defendants move for sanctions against Plaintiffs attorney, Van Irion, pursuant to
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or will expressly aim their alleged intended act at Arizona or at Plaintiffs in a way that
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magazines that are nationally distributed.); see also Pebble Beach Co. v. Caddy, 453 F.3d
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jurisdiction); Alsop v. Carolina Custom Prods., Inc., No. EDCV 07-212-VAP (JCRx), 2007
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under both Rule 11 and section 1927 because (1) the legal theory that colors Plaintiffs claims is unwarranted and has been rejected by each and every court and administrative body to consider it, and (2) Plaintiffs [SAC] names as a defendant a sham organization with no
1.
Sanctions Under 28 U.S.C. 1927
Section 1927 provides:
28 U.S.C. 1927. To be sanctionable under 1927, therefore, counsels conduct must
611 F.3d 1027, 1060-61 (9th Cir. 2010) (quoting B.K.B. v. Miami Police Dept, 276 F.3d 1091, 1107 (9th Cir. 2002)). The Ninth Circuit Court of Appeals has determined that section 1927 does not apply to complaints or initial pleadings. De Dios v. Intl Realty & Invs., 641 F.3d 1071, 1076 (9th Cir. 2011); see also In re Keegan, 78 F.3d at 435. Defendants do not argue that Plaintiffs have unreasonably and vexatiously multiplied proceedings by filing two amended complaints in this case, nor do they argue that Plaintiffs have filed any unwarranted motions. While Defendants state that Plaintiffs instituted parallel proceedings in Tennessee, they do not make any argument that this constitutes vexatious and unreasonable multiplication of proceedings or that section 1927 was intended to sanction conduct occurring in different cases. (See Mot. for Sanctions at 3); see also Jensen v. Phillips Screw Co., 546 F.3d 59, 65 (1st Cir. 2008) (Congresss use of the verb multipl[y] in the text of the statute clearly contemplates that, to be sanctionable thereunder, conduct must have an effect on an already initiated proceeding.). The Court concludes that Defendants have not demonstrated that Plaintiffs vexatiously and unreasonably multiplied proceedings in this case and therefore declines to impose sanctions under section 1927.
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multiply the proceedings in both an unreasonable and vexatious manner. In re Girardi,
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Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys fees reasonably incurred because of such conduct.
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affiliation with the DNC or Democratic Party. (Mot. for Sanctions at 1.)
(40 of 43)
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2.
Rule 11 Sanctions
Fed. R. Civ. P. 11(b). Sanctions may be imposed if an attorney fails to satisfy any part of Rule 11(b). Id. 11(c)(1). A court has authority to issue Rule 11 sanctions despite having dismissed the case due to lack of jurisdiction. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 396 (1990) ([T]he imposition of a Rule 11 sanction is not a judgment on the
attorney has abused the judicial process . . . . Such a determination may be made after the principal suit has been terminated.).
[R]ule [11] provides two independent bases for the imposition of sanctions: one if
Prop. Owners Assn v. City of Thousand Oaks, 915 F.2d 1301, 1305 (9th Cir. 1990); see also Townsend v. Holman Consulting Corp., 929 F.2d 1358, 1362 (9th Cir. 1990). If both frivolousness and improper purpose are claimed with regard to a complaint, it must first be determined that a pleading is frivolous before it can be deemed to have been filed for an improper purpose. Westlake, 915 F.2d at 1305; see also Townsend, 929 F.2d at 1362. An
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objective standard of reasonableness is applied to determinations of frivolousness, and an attorneys subjective intent in filing is thus irrelevant to the [R]ule 11 analysis. Westlake, 915 F.2d at 1305 (quotation omitted).A determination of frivolousness in the context of Rule 11 denote[s] a filing that is both baseless and made without a reasonable and competent - 12 -
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a pleading is frivolous and another if it has been filed for an improper purpose. Westlake N.
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merits of an action. Rather, it requires the determination of a collateral issue: whether the
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an attorney or unrepresented party certifies to the best of the persons knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.
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Rule 11 provides that when filing a pleading, motion, or other paper with the court,
(41 of 43)
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inquiry. Townsend, 929 F.2d at 1362. A reasonable inquiry means an inquiry reasonable under all the circumstances of a case. Id. at 1364 (quoting Cooter & Gell, 496 U.S. at 401). Determining whether to impose Rule 11 sanctions is a fact-intensive inquiry, and courts
sufficient information before filing a claim or naming a party as a defendant. See Cooter & Gell, 496 U.S. at 404; Townsend, 929 F.2d at 1364. a. Frivolous Legal Claims
Defendants argue that Plaintiffs claims are frivolous and an inquiry by a reasonable
of law rejecting Plaintiffs legal theory. (Mot. for Sanctions at 8.) Defendants provide a long list of cases rejecting Plaintiffs theory that President Obama is ineligible to serve as President due to not being a natural born citizen and point out in particular one case in which Mr. Irion allegedly served as counsel for one of the unsuccessful challenges. (Id. at 7-8 &
decided after Plaintiffs filed their Complaint in this case. (See id. (listing cases with dates); Compl. (dated October 25, 2011); SAC (dated January 23, 2012).) In addition, the lack of legal support for a claim needed for a defendant to prevail on a motion to dismiss is distinct
standard for dismissal pursuant to [R]ule 12(b)(6) and the standard for imposing sanctions pursuant to [R]ule 11 are not the same.). Given that Rule 11 allows claims that are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, and that many of the cases rejecting Plaintiffs specific theory had not been decided at the time of Plaintiffs Complaint, the Court declines to impose Rule 11 sanctions in this case, but hereby warns Mr. Irion that knowingly continuing to bring claims that have previously been dismissed may warrant sanctions in the future. See Fed. R. Civ. P. 11(b)(2). b. Naming the Democratic Party USA as a Party - 13 -
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from the level of frivolity warranting sanctions. See Westlake, 915 F.2d at 1306 (The
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n.4.) However, this case and many of the unpublished cases cited by Defendants were
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attorney would have revealed as much, given the long-standing (and ever-expanding) body
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consider inter alia the nature of the attorneys conduct and the difficulty of acquiring
(42 of 43)
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Defendants argue that a reasonable inquiry by Mr. Irion would have revealed that the National Democratic Party of the USA, Inc. is not affiliated with the DNC or the Democratic Party in any way, and that it is a sham organization that may be affiliated with
speculate that Mr. Irions litigation strategy . . . involves naming this sham organization as a defendant and attempting to obtain a default judgment against it either for public relations
searched the Tennessee Secretary of States records for information on any entity with the terms Democratic Party or National Democratic Party and that the Democratic Party USA had several different names associated with it, only one of which was the Shelby County Republican Party. (Doc. 31, Oppn to Defs. Mot. for Sanctions at 3, 5.) To warrant sanctions for improperly naming a party in a suit, joining the party must be baseless or lacking in plausibility. Cmty. Elec. Serv. of L.A., Inc. v. Natl Elec.
Townsend v. Holman Consulting Corp., 914 F.2d 1136, 1141 (9th Cir. 1990), amended and superseded by 929 F.2d 1358 (9th Cir. 1990). Courts are reluctant to impose sanctions for factual errors, especially errors in papers filed before an opportunity for discovery, if the litigant has conducted a reasonable inquiry into the facts. Rachel v. Banana Republic, Inc., 831 F.2d 1503, 1508 (9th Cir. 1987) (quoting Greenberg v. Sala, 822 F.2d 882, 887 (9th Cir. 1987)). Here, while Mr. Irion did not conduct as thorough an inquiry as he might have, the Court declines to impose sanctions where Defendants have not shown that the naming of the Democratic Party USA was completely baseless or done in bad faith, and where the Defendants seeking sanctions are unrelated to the party they claim was improperly named (and which was dismissed for lack of service). Indeed, Defendants the DNC and Congresswoman Wasserman Schultz have not been harmed by Plaintiffs naming the Democratic Party USA as a party, even if bringing suit against it was improper. III. CONCLUSION
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Contractors Assn, 869 F.2d 1235, 1245 (9th Cir. 1989), abrogated on other grounds by
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purposes or as leverage against the remaining defendants. (Id.) Mr. Irion asserts that he
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the Shelby County (Tennessee) Republican Party. (Mot. for Sanctions at 8.) Defendants also
(43 of 43)
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The Court concludes that Plaintiffs have not met their burden of establishing this Court has personal jurisdiction over Defendants the DNC and Congresswoman Wasserman Schultz and therefore dismisses this case. The Court also finds that Defendants have not
therefore denies Defendants Motion for Sanctions. The Court therefore denies as moot Plaintiffs Motion to File Supplemental Response (Doc. 35).
IT IS ORDERED granting Defendants the DNC and Congresswoman Wasserman Schultzs Motion to Dismiss (Doc. 24).
Wasserman Schultzs Motion for Sanctions (Doc. 28).
IT IS FURTHER ORDERED denying as moot Plaintiffs Motion to File Supplemental Response (Doc. 35).
IT IS FURTHER ORDERED directing the Clerk to enter judgment accordingly.
DATED this 11th day of July, 2012.
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IT IS FURTHER ORDERED denying Defendants the DNC and Congresswoman
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demonstrated that sanctions against Plaintiffs attorney are warranted in this case and

AZ - LLF - 2012-08-31 - Appeal - LLF Emergency Motion - ECF 8

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AZ - LLF - 2012-08-31 - Appeal - LLF Emergency Motion - ECF 8

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Case: 12-16729

CASE NO: 12-16729

Emergency Motion Under Circuit Rule 27-3

will send certifications containing false information to the Arizona Secretary of

nominated as the Democratic Partys candidate for President, Defendant/Appellees

Circuit Rule 27-3(a)(3)(ii) Facts

constitutional requirements to hold the office sought. Because the Democratic

Circuit Rule 27-3(a)(3)(iii)

are expected to send the harmful notices sometime next week.

national convention begins next Tuesday, September 4th, the Defendant/Appellees

entry of judgment against the Plaintiffs. (R. 42, Judgment).

_s/Van R. Irion_________________ Van R. Irion Attorney for Plaintiff/appellants

requirements of the U.S. Constitution to hold the office of President.

MEMORANDUM IN SUPPORT OF MOTION A. Introduction

jurisdictional ruling is clear error.

the Defendant/Appellees. (See R.41, Or. Dismissing, at 15.) Under such

similar documents on or about September 3, 2012.

National Committee (hereinafter DNC) sent notices to all 50 secretaries of state

Because the Secretaries of State have no authority to scrutinize the

The documents that the Defendant/Appellees intend to send to every

constitutional qualifications of candidate Barack Obama. D. Standard for Preliminary Injunction

E. Plaintiff/Appellants are Likely to Succeed on the Merits

555 U.S. 7, 20 (2008) (citations omitted).

i. District Courts Jurisdiction

secretary of state next month will fraudulently or negligently misrepresent the

1. Standard of Review for Motion to Dismiss for Lack of Personal Jurisdiction

qualified to hold the office of President of the United States.

state, as well as any competing candidates, completely dependent upon a truthful

candidates qualifications to hold office, this procedure leaves the secretaries of

jurisdiction. Caruth v. International Psychoanalytical Ass'n, 59 F.3d 126, 128

A plaintiffs allegations, taken as true, must show that a non-resident

jurisdictional analysis requires us to accept the plaintiff's allegations as true, we

2. Standard for Establishing Personal Jurisdiction

plaintiff's] pleadings and affidavits make a prima facie showing of personal

485 F.3d 450, 460 (9th Cir. 2007).

Plaintiffs complaint alleges that the Defendants intend to nominate Mr.

829, 833 (9th Cir. 1996).

not targeting any particular person or place, is insufficient to establish personal

analogous to taking out a national ad in a magazine, than it is to directing activities

The Plaintiff/Appellants are likely to prevail on their appeal.

ii. Substance of the Case Below

natural-born citizens. See Id. at 167-168.

Supreme Court. Therefore, Mr. Obama cannot meet the Constitutional

citizen, however it did so only after specifically identifying the narrower

1. The Minor Courts Definition of Natural Born Citizen is Binding Precedent

the narrower category of natural-born citizen.

The Court then discussed several other types of citizenship as general

immunities of citizenship. Id. at 170.

1999) (holding, n. 1. A courts determination of a matter pivotal to its decision);

pivotal to reaching its holding.3

were answering different questions regarding different aspects of the Constitution.

Ankeny was a challenge brought by pro-se litigants in Indiana against that

and briefed arguments in support of their constitutional assertions. Additionally,

Plaintiff/Appellant John Dummett is a candidate for the office of President,

In other words, the Ankeny Courts decision to reach the constitutional

rules of constitutional construction, ignored direct precedent from the Supreme

irreparably harmed by the Defendant/Appellees misrepresentations that Mr.

question the validity of such an election.

This motion would require the Defendant/Appellees to refrain from asserting

G. The Balance of Equities Weighs Heavily in Favor of the Plaintiff/Appellants

Obama is constitutionally-qualified to hold the office of President. Said

perpetrated by the Defendant/Appellees upon the 50 States, would cause profound

Presidential election to occur.

of powers, and in the authority of the Constitution will be greatly enhanced by