OFFICE OF STATE ADMINISTRATIVE HEARINGS STATE OF GEORGIA CARL SWENSSON, * Plaintiff * v, * DOCKET NO.: OSAH-SECSTATE-CE- 1216218-60-MALIHI BARACK OBAMA, * Defendant * OFFICE OF STATE ADMINISTRATIVE HEARINGS STATE OF GEORGIA KEVIN RICHARD POWELL, . Plaintiff * v * DOCKET NO.: OSAH-SECSTATE-CE- 1216823-60-MALIHI BARACK OBAMA, * Defendant * MOTION FOR LEAVE TO TAKE DEPOSITIONS Now come Plaintiffs Carl Swensson and Kevin Richard Powell, by and through undersigned counsel, and respectfully move the Court, pursuant to 0.C.G.A. §§ 50-13-41(a) (2) and 50-13-13(a) (6); OSAH Rules 616-1-2-.15 and 616-1-2-.20; and other applicable law, for leave to take depositions in each of the above-styled cases, and Plaintiffs show to the Court the following: Page -I-a The above-captioned cases are actions in which Plaintiffs are challenging the qualifications of Defendant Barack Obama to appear on the voting ballot in Georgia as a candidate for the Presidency of the United States. 2. On December 15, 2011, counsel for Defendant filed in each of the above-referenced cases a pleading styled as a “Motion to Dismiss,” with an “Affidavit of Michael R. Berlon” and a “statement of Material Facts Not in Dispute” included therewith. 3. Based upon the inclusion with each “Motion to Dismiss” of a supporting affidavit and “a short and concise statement of each of the material facts as to which the moving party contends there is no genuine issue for determination,” see OSAH Rule 616-1-2- -15(1) (“Summary Determination”), it appears to undersigned counsel for Plaintiffs that the aforesaid “Motion[s] to Dismiss” are in actuality motions for summary determination, or in more traditional terms, motions for summary judgment. 4. OSAH Rule 616-1-2-.15(3) provides that When a motion for summary determination is supported as provided in this Rule, a party opposing the motion may not rest upon mere allegations or denials, but must show, by Page -2-affidavit or other probative evidence, that there is a genuine issue of material fact for determination (emphasis supplied) 5. Under traditional summary judgment rules in Georgia, Until the moving party produces evidence or materials which prima facie pierce the pleadings of the opposing party, no duty rests upon the opposing party to produce any counter evidence or materials in affirmative support of its side of the issue as made by the pleadings. See, ¢.g., Guthrie v Monumental Properties, Inc., 141 Ga. App. 21, 22, 232 S.E. 2d 369 (1977). Although Plaintiffs expect to argue and demonstrate, upon filing their response to Defendant’s “Motion[s] to Dismiss,” that Defendant has failed to make even a prima facie showing that there is an absence of any genuine issue of material fact for determination herein, nevertheless Plaintiffs recognize that Defendant will contend to the contrary. And in the event that this Court should ultimately find that Defendant has, in fact, made a prima facie showing that Defendant is entitled to summary judgment, [T]he burden shifts to the non-movant(s], who must then come forward with rebuttal evidence sufficient to show the existence of a genuine issue of material fact. See Weldon v. Del Taco Corp., 194 Ga. App. 174, 390 S.E. 2d 87 (1990). The potential application in the instant cases of the above rule cited in Weldon would thus trigger the aforesaid OSAH Rule 616-1- 2-.15(3) and require Plaintiffs herein to show, by affidavit or Page -3-