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04 Berg Aff Motion to Dismiss

04 Berg Aff Motion to Dismiss

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Published by Lash L
William Rodriguez v. USA and 155 others
Berg Affidavit on USA Motion to Dismiss - 4
William Rodriguez v. USA and 155 others
Berg Affidavit on USA Motion to Dismiss - 4

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Categories:Business/Law, Finance
Published by: Lash L on Oct 15, 2009
Copyright:Attribution Non-commercial

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10/20/2011

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UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF PENNSYLVANIA
Law Offices Of:PHILIP J. BERG, ESQ.Attorney for Plaintiff706 Ridge PikeLafayette Hill, Pennsylvania 19444-1711Telephone (610) 825-3134***************************************WILLIAM RODRIGUEZ, ::Plaintiff, : Civil Case No. 04-4952:v. ::GEORGE HERBERT WALKER BUSH, :et al., ::Defendants. :***************************************
AFFIDAVIT OF PHILIP J. BERG IN OPPOSITION TO MOTIONTO DISMISS THE COMPLAINT OR TO TRANSFER THE CASETO THE SOUTHERN DISTRICT OF NEW YORK
COMMONWEALTH OF PENNSYLVANIA }} SS.:COUNTY OF MONTGOMERY }
PHILIP J. BERG,
of full age, being first duly sworn according to law, says:1. I am a member in good standing of the Bar of the Commonwealthof Pennsylvania and of this Court, and counsel of record for the Plaintiff, WilliamRodriguez (“Rodriguez”). I make this affidavit in opposition to the motion by
Case 2:04-cv-04952-ER Document 9 Filed 03/15/2005 Page 1 of 76
 
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certain of the defendants, U.S. government officials in their official capacitiesonly, to dismiss the action, or to transfer the same to the U.S. District Court forthe Southern District of New York (“SDNY”) pursuant to the Air TransportationSafety and System Stabilization Act of 2001, Pub. L. No. 107-42, 114 Stat. 230, asamended by the Aviation and Transportation Security Act, Pub. L. No. 107-71,115 Stat.597 (the “Stabilization Acts.”).2. The cornerstone of the moving defendants’ motion is that, as thisaction is related to the September 11, 2001 terror attacks, under the StabilizationActs, this Court lacks jurisdiction, wherefore dismissal (or transfer to SDNY) ismandatory.3. As argued in Rodriguez’s brief, as a preliminary matter the movingdefendants do not have standing to object to the venue of so much of thecomplaint as is pleaded under RICO, or that is based on the 9-11 attacks, insofaras the same are pleaded against the moving defendants in their personal,individual capacities only, and not in the official capacities.4. Moreover, the only case decision squarely on point (
i.e.,
in which §408(b)(3) of ATSSSA was the basis of a motion to dismiss, as against defendantssued not for negligence, but for participation in acts of terrorism) is directlycontrary to the moving defendants’ main argument. In Burnett v. Al BarakaInvestment and Development Corporation, 274 F.Supp. 2d 86, 94-95 (D.D.C.2004) the Court stated:
Case 2:04-cv-04952-ER Document 9 Filed 03/15/2005 Page 2 of 76
 
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Construing the ATSSSA’s exclusive language toencompass claims against the September 11 terrorists andtheir conspirators would bring the ATSSSA irreconcilablyinto conflict with the ATA. Congress did not “clearlyexpress” an intention that Section 408(b)(3) was to render theATA’s jurisdictional provision [18 U.S.C. § 2334(a)]ineffective . . .There is no conflict between the ATSSSA and the ATA ifboth statutes are given effect. That is accomplished here bygiving a narrow construction to the “exclusive jurisdiction”language of Section 408(b)(3).5. Thus, the government’s motion is revealed as made with completedisregard for what appears to be the only decision to date in which an actionagainst persons alleged to have been criminally complicit in the terror attacks, asdistinct against “airlines, airport security companies, airport operators, airplanemanufacturers, and owners and operators of the World Trade Center . . .” whowere sued for negligence.6. Frankly, too, the Government is attempting not only to “forumshop,” but hopefully to deny Rodriguez a forum in which his claims may beheard, as affiant is not admitted to practice in New York, and no doubt theGovernment is hoping that Rodriguez will be unable to secure local counsel inNew York to represent him in such a controversial matter.7. While acknowledging that the allegations of his complaint are nodoubt shocking and even scandalous, at least to those who have not studiedclosely the events of 9-11 and the discrepancies in the “Official Story” promul-gated by the Government, and that they present this Honorable Court with what
Case 2:04-cv-04952-ER Document 9 Filed 03/15/2005 Page 3 of 76

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