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MS ECF 79 - 2012-11-30 - TvDPM - HI Defendants Supp Brief in Support of MtD

MS ECF 79 - 2012-11-30 - TvDPM - HI Defendants Supp Brief in Support of MtD

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Published by Jack Ryan

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Published by: Jack Ryan on Nov 30, 2012
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IN THE UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTRICT OF MISSISSIPPIJACKSON DIVISIONDR. ORLY TAITZ, ESQ., ET AL. PLAINTIFFSV. CIVIL ACTION NO. 3:12cv280-HTW-LRADEMOCRAT PARTY OF MISSISSIPPI, ET AL. DEFENDANTSDEFENDANT ALVIN ONAKA AND LORETTA’S SUPPLEMENTAL BRIEF INSUPPORT OF THEIR MOTION TO DISMISS
COME NOW the Defendants, Dr. Alvin Onaka (hereinafter “Onaka”) and Loretta Fuddy(hereinafter “Fuddy”) (collectively “Defendants”), by and through undersigned counsel, and filethis Supplemental Brief, and without waiving the right to plead and be heard on any other defenseswould further show unto this Honorable Court the following:
I
NTRODUCTION
 .
Until the hearing on November 16, 2012, everyone involved in thislitigation, including the Court assumed Plaintiffs had sued Defendants in their official capacities.Only after Defendants presented their immunity arguments did Plaintiff Taitz allege, for the firsttime, that Defendants are being sued in their individual capacities. This new claim is whollyinconsistent with the actual factual allegations in the Plaintiffs’ First Amended Complaint(“FAC”) [ECF 1-1] and Plaintiffs’ RICO Statement (“PRS”) [ECF 49]. As such, during theNovember 16, 2012 hearing, the Honorable Judge Wingate requested that the Defendants file abrief addressing the arguments in the Motion to Dismiss as if the allegations in the FAC weredirected to Defendants in their individual capacities, rather than their official capacities.
T
HE
D
EFENDANTS ARE BEING SUED IN THEIR OFFICIAL CAPACITIES
 .
 
The Fifth Circuit hasexplained that “[a] person’s capacity need not be pled except to the extent required to show the jurisdiction of the court.”
Parker v. Graves
, 479 F.2d 335, 336 (5th Cir. 1973) (citing Fed. R. Civ.
Case 3:12-cv-00280-HTW-LRA Document 79 Filed 11/30/12 Page 1 of 6
 
2
P. 9(a)). Specifically, F.R.C.P. 9 (a) provides that a pleading need not allege a person’s capacity“[e]xcept when required to show that the court has jurisdiction[.]” This is precisely the case here:Plaintiffs are seeking to use the broad jurisdictional provisions of RICO to establish personal jurisdiction over Defendants—an issue that hinges on whether Defendants were sued in theirofficial or individual capacities. Where the capacity in which a person is sued is ambiguous, theFifth Circuit requires that “[t]he allegations in the complaint must be examined in order todetermine the nature of the plaintiff’s cause of action.”
Parker 
, 479 F.2d at 336. The MississippiSupreme Court has elaborated on this test by including an analysis of the following factors: (1)allegations in the Complaint; (2) the nature of relief sought; and (3) the nature of defenses pled.
See E. Miss. State Hosp. v. Callens
, 892 So. 2d 800, 811 (Miss. 2004).
 Plaintiffs’ FAC and PRS clearly identify Defendants only in their official capacities
.
 While the FAC’s caption states only names of all defendants, the “Parties” section clearlyidentifies Defendants according to their official capacities as employees of the State of Hawaii.
1
 
See
FAC at 1, 4. Similarly, in their request for declaratory relief, Plaintiffs refer to Fuddy as the“Director of Health[.]”
See id.
at 23. Again, in the FAC’s RICO section, Plaintiffs refer to Fuddyas “[D]irector of Health of the [S]tate of Hawaii[,]” and Onaka as “Registrar of the [S]tate of Hawaii[.]”
 Id.
at 32. Additionally, in the PRS, Plaintiffs refer to Fuddy as the “[D]irector of [H]ealth of HI” (PRS at 1), and Onaka as “[R]egistrar of the Health Department of Hawaii” (
id.
at6) and “Registrar of the state of Hawaii” (
id.
at 8).
The Nature of Plaintiffs’ allegations clearly show that Defendants were sued in their official capacities
.
The FAC alleges that Fuddy “personally issued a fraudulent letter, claimingthat she observed copying of Obama’s birth certificate, or was silent when she had a duty to speak 
1
Specifically, the FAC describes Fuddy as “Director of the Department of Health of the [S]tate of Hawaii[,]” andOnaka as “Registrar of the Department of Health of the [S]tate of Hawaii[.]” FAC at 4.
Case 3:12-cv-00280-HTW-LRA Document 79 Filed 11/30/12 Page 2 of 6
 
3
up” when Obama published his long form birth certificate (“LFBC”) in April 2011 “with anauthenticating letter from Fuddy.” FAC at 32. Similarly, the Plaintiffs allege that Onaka had aduty to “speak up” when the LFBC was issued.”
 Id; see also
PRS at 1. These allegations aloneshow that the Defendants were sued in their official capacities, because issuing the LFBC ordetermining the authenticity of a birth certificate is an action that could only have done in anofficial capacity. Indeed, Defendants acted pursuant to statutory obligation in certifying theauthenticity and copying of the birth certificate—an official state document. Additionally, Fuddyissued her letter on official letterhead, and Onaka’s official seal was used on the certified LFBC.This pattern is sustained throughout all of Plaintiffs’ pre-November 16, 2012 pleadings: in everyone, Plaintiffs either name Defendants in their official capacities or take issue with actions thatcould only have been taken while acting in an official capacity.
See
Exhibit A, attached hereto.
 2
 
The method of Plaintiffs’ attempted 
s
ervice process provides still more evidence that Defendants were sued in their official capacities
.
Plaintiffs attempted (however unsuccessfully)to serve Defendants as government officials by submitting papers to both the Hawaii Departmentof Health and the Hawaii Attorney General.
See
Opp. at 28-29;
see also
Plaintiffs’ “Additional
2
Notably, Plaintiffs also failed to raise this argument in their Opposition to the Motion to Dismiss (“Opp.”) [ECF 65],despite the clear language of Defendants’ Motion to Dismiss (“Motion”) [ECF 57] and Memorandum in Support(“Memo”) [ECF 58] reflecting the then-uncontroverted understanding that they had been sued in their officialcapacity.
 
While Plaintiffs attempted to distinguish cases involving individual government employees as opposed togovernmental entities, it is obvious that Plaintiffs were merely trying to distinguish this case from others where theactual governmental entity was named, rather than a government official. It is worth noting that Plaintiffs’ Opp. (at 2-3) contains still more misrepresentations of non-binding law to support the proposition that governmental officials canbe civilly liable under RICO in their official capacities, with parentheticals explaining their irrelevance to this case.
See LaFlamboy v. Landek 
, 587 F. Supp. 2d 914 (N.D. Ill. 2008) (addressing potential liability only because defendantswere sued in
both
official and individual capacities, after expressly recognizing that they could not be liable in theirofficial capacity);
United States v. Warner 
, 498 F.3d 666, 696 (7th Cir. 2007) (criminal case that did not address civilRICO liability);
United States v. Emond 
, 935 F.2d 1511, 1512 (7th Cir. 1991) (same);
United States v. Garner 
, 837F.2d 1404, 1419 (7th Cir. 1987) (same);
United States v. Genova
, 333 F.3d 750, 758 (7th Cir. 2003) (same);
United States v. Angelilli
, 660 F.2d 23, 32-33 (2d Cir. 1981) (same);
 Envtl. Tectonics v. W.S. Kirkpatrick, Inc.
, 847 F.2d1052, 1067 (3d Cir. 1988) (commercial bribery case involving non-governmental companies and a Nigerian national“public official”);
 Bieter Co. v. Blomquist 
, 987 F.2d 1319 (8th Cir. 1993) (addressing lower court’s “excessivelynarrow views of causation and injury” but
 not
addressing civil RICO liability of government officials);
Gutenkauf v.City of Tempe
, No. CV-10-02129-PHX-FJM, 2011 WL 1672065, at *5 (D. Ariz. May 4, 2011) (addressing potentialliability only because defendants were sued in
both
official and individual capacities but
 not
 
analyzing capacityliability of government
officials sua sponte
as Plaintiffs claim).
Case 3:12-cv-00280-HTW-LRA Document 79 Filed 11/30/12 Page 3 of 6

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