[Doc. No. 11]
THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF NEW JERSEYCAMDEN VICINAGECHARLES F. KERCHNER, et al., ::Plaintiffs,::v.:Civil No. 09-0253 (JBS)::BARACK HUSSEIN OBAMA II, et al.,::Defendants.::ORDER
This matter is before the Court on the “Motion to Extend Time in which toAnswer, Move or Otherwise Respond to Plaintiffs’ Complaint” [Doc. No. 17] filed byElizabeth A. Pascal, Assistant United States Attorney on behalf of Defendants. Thedocket entries reflect that Ms. Pascal is counsel of record for all Defendants. Albeit, Ms.Pascal’s Declaration [Doc. No. 17-2] indicates that she has only been assigned torepresent President Barack Obama and the United States of America. (See Declaration at ¶6.) Ms. Pascal also notes that former Vice President Richard Cheney has requestedrepresentation from the Department of Justice (“DOJ”), which was granted. (Id. at ¶7.)To date no attorney from the DOJ, besides Ms. Pascal, has entered an appearance. Inaddition, Ms. Pascal notes that other Defendants in the case requested representation fromthe DOJ but these requests are still being processed. (Id. at ¶8.) On behalf of allDefendants, Ms. Pascal seeks an extension of twenty (20) days from the date of this Order to answer, move or otherwise reply to Plaintiffs’ Complaint. Plaintiffs oppose
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2Defendants’ motion. [Doc. No. 21]. The Court has also received and reviewed numerousletters from non-parties opposing Defendants’ motion [Doc. Nos. 18, 19, 20, 22, 23, 24,25].Plaintiffs filed their original complaint on January 20, 2009 [Doc. No. 1] againstthe United States Senate, United States House of Representatives, former Vice PresidentCheney and House of Representatives Speaker Nancy Pelosi (collectively referred to as“Congressional Defendants”), as well as President Obama and the United States of America. Plaintiffs subsequently filed a first amended complaint on January 21, 2009[Doc. No. 2] and a second amended complaint on February 2, 2009 [Doc. No. 3]. In their complaint Plaintiffs assert violations of their constitutional rights alleging that Defendantshave failed to conclusively prove that President Obama is a natural born citizen andtherefore may not be eligible to serve as President of the United States.According to the docket entries, summons were served on the United StatesAttorney for the District of New Jersey on or about February 17, 2009 and on the UnitedStates Attorney General on or about February 23, 2009. (See Doc. Nos. 7-13.) Ms. Pascalentered her appearance on behalf of the United States and President Obama on April 13,2009 and requested a Clerk’s Order to extend the time to answer as to these Defendantsuntil May 5, 2009, which the Clerk of Court entered. (See Doc. Nos. 14-16.)In support of her present motion, Ms. Pascal argues that on April 24, 2009 shelearned that Defendant Cheney requested and was granted representation by the DOJ. Ms.Pascal further argues that on April 9, 2009, she learned that Defendants Pelosi and theHouse of Representatives also requested representation by the DOJ, which has not yet been decided. Ms. Pascal seeks additional time to answer, move or otherwise respond on
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3 behalf of all the Congressional Defendants in order to allow the DOJ time to complete therepresentation determinations. Ms. Pascal argues that the failure to file an answer or otherwise respond before the time required by the applicable Federal Rules of CivilProcedure is not the result of any neglect on Defendants’ part.Ms. Pascal also requests that the extension of time to answer, move or otherwiserespond to the complaint include Defendants President Obama and the United States of America even though the time for them to answer had not yet expired when Defendants’motion was filed. Ms. Pascal argues that granting an extension of time to respond toPlaintiffs’ complaint will not prejudice Plaintiffs.Plaintiffs oppose Defendants’ motion arguing that whether President Obama is“eligible for the office he occupies is of utmost national importance” and that PresidentObama has been given enough time to answer the complaint. (Plaintiffs’ Opposition Brief at ¶8.) Plaintiffs argue that they will be prejudiced if Defendants’ motion is granted. (Id.at ¶11.)Pursuant to Fed. R. Civ. P. 6(b)(1), the court may, for good cause, extend the timeto answer: “(A) with or without motion or notice if the court acts, or if a request is made, before the original time or its extension expires; or (B) on motion made after the time hasexpired if the party failed to act because of excusable neglect.” Excusable neglect is asomewhat “elastic concept” and “the determination is at bottom an equitable one, takingaccount of all relevant circumstances surrounding the party’s omission.” Doug Brady, Inc.v. New Jersey Bldg. Laborers Statewide Funds, 250 F.R.D. 171, 177 (D.N.J. 2008)(quoting Pioneer Inv. Services Co. v. Brunswick Assoc. LP, 507 U.S. 380, 392 (1993)).Such circumstances include “the danger of prejudice . . . , the length of the delay and its
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Kerchner v Obama & Congress DOC 26 - Order Granting Defendants Additional Time to Jun 29 2009
Filed 8 June 2009: Defendants' motion to grant second extension of time to answer, move, or otherwise respond granted. New deadline time to respond is now June 29, 2009.
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