Paul F. Eckstein, Bar No. 001822
PEckstein@perkinscoie.com
D. Andrew Gaona, Bar No. 028414AGaona@perkinscoie.com
PERKNS COlE LLP
2901 N. Central Avenue, Suite 2000
Phoenix, AZ 85012-2788
Telephone: 602.351.8000
Facsimile: 602.648.7000
docketPHX@perkinscoie.com
Attorneys for Defendants Democratic NationalCommittee and Debbie Wasserman Schultz
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11 LIBERTY LEGAL FOUNATION; JOHN
DUMTT; LEONAR VOLODARSKY;
12 CREG MAONEY,
UNITED STATES DISTRICT COURTDISTRICT OF ARIZONANO.2:11-cv-02089
MOTION TO DISMISS
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Plaintiffs,
(Oral Argument Requested)(Assigned to the Hon. Susan Bolton)
14 v.
15 NATIONAL DEMOCRATIC PARTY OF
THE USA, INC.; DEMOCRATIC
16 NATIONAL COMMITTEE; AND DEBBIE
WASSERMN SCHULTZ,
1718
19 Pursuant to Rules 12(b)(1), 12(b)(2), and 12(b)(6) of the Federal Rules of Civil
Defendants.
20 Procedure, Defendants Democratic National Committee ("DNC") and Debbie Wasserman
21 Schultz ("Congresswoman Wasserman Schultz") move that this case be dismissed in its
22 entirety with prejudice. This Motion is supported by the accompanying Memorandum of
23 Points and Authorities, which is incorporated herein by reference.
24 MEMORADUM OF POINTS AND AUTHORITIES
25 Statement of the Case
26 On October 25, 2011, Plaintiffs Libert Legal F oundatîon, John Dummett, Leonard
27 Volodarsky, and Creg Maroney fied a Class Action Complflint for Declaratory and
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Case 2:11-cv-02089-SRB Document 24 Filed 04/16/12 Page 1 of 32
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Injunctive Relief, naming only the National Democratic Party of the USA, Inc.1 and
Congresswoman Wasserman Schultz as defendants. (Doc. No.1) Plaintiffs purported toserve only the National Democratic Party of the USA, Inc. by certified maiL. (Doc. No.
12) On December 4, 2011, prior to any part filing an answer or otherwise appearing in
the action, Plaintiffs fied a First Amended Class Action Complaint against the same
parties, along with a request for a preliminary injunction. (Doc. Nos. 8-9) On January 23,
2012, without the consent of the parties or leave of court as required by Federal Rule of
Civil Procedure 15(a)(2), Plaintiffs fied a Second Amended Class Action Complaint
("SAC") which added the DNC as an additional defendant. (Doc. No. 10)2 That same
day, Plaintiffs also fied a Motion and Memorandum seeking the entry of a default
judgment against Defendant National Democratic Part of
the USA, Inc. (Doc. No. 12)
On February 29, 2012, the Court ordered that Plaintiffs' counsel show cause as to
why service on the National Democratic Part of the USA, Inc. by certified mail wasproper under the Federal Rules of Civil Procedure. (Doc. No. 14) Plaintiffs' counsel
responded citing Rule 4(e)(1) ofthe Federal Rules ofCivil Procedure and Rule 4.2 of
the
Arizona Rules of
Civil Procedure. (Doc. No. 15) On March 23,2012, the Court held that
service on the National Democratic Part of the USA, Inc. was improper, and ordered that
the case be dismissed unless proper service was carried out within thirt days. (Doc.
No.17)
1 The "National Democratic Party of the USA, Inc." is named as a defendant in this
case, but is not an organization affiliated with or sanctioned by the DNC or the
Democratic Part. It is a Tennessee corporation (No. 000640511) that was established in
2010, and is apparently a sham organization that may be affiliated with the Shelby County
(Tennessee) Republican Part. See Tennessee Secretary of State, Business Entity Detail,
http://tnbear.tn.govÆCommercelFilngDetail.aspx?CN=091244127202157024172089179
042105022040227133146 (last visited Apr. 10, 2012) (stating that the "Shelby County
Republican Party, Inc." is an assumed named of the National Democratic Part of the
USA, Inc.). Plaintiffs' litigation strategy apparently involves naming this sham
organization as a defendant and attempting to obtain a default judgment against it for
public relations purposes.
2 The fiing of the SAC without the consent of the parties or leave of court is an
independent ground on which the Court could dismiss this case. However, the DNC and
Congresswoman Wasserman Schultz fie this Motion to Dismiss on other grounds in order
to effectuate the prompt dismissal of this frivolous and harassing lawsuit with prejudice.
-2-
NO.2:11-CV-02089
Case 2:11-cv-02089-SRB Document 24 Filed 04/16/12 Page 2 of 32
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Additionally, on March 22, 2012, the Court entered an order finding that
Congresswoman Wasserman Schultz had not yet been served, and ordered Plaintiffs to
show cause for its failure to do so. (Doc. No. 16) On March 26, 2012, Plaintiffs fied a
Motion and Memorandum seeking the entry of a default judgment against
Congresswoman Wasserman Schultz (Doc. No. 19), along with a response to the Court's
March 22 Order to Show Cause and alleged proof of service (Doc. No. 20). On March 28,
2012, the Court entered an additional order denying Plaintiffs' request for entry of a
default judgment against Congresswoman Wasserman Schultz because the proof of
service provided by Plaintiffs "fail(ed) to include a signed receipt." (Doc. No. 21)
The DNC was personally served with the Class Action Complaint, the First
Amended Class Action Complaint, and the SAC on March 28, 2012, and Congresswoman
Wasserman Schultz was purportedly served at the DNC's Washington, D.C. office on
April
4, 2012.
While taking all of these steps in the District of Arizona, the same Plaintiffs
instituted parallel proceedings in Tennessee.3 Indeed, just one day after fiing the initial
Class Action Complaint in the instant case, Plaintiffs filed a nearly identical complaint in
Shelby County Chancery Court. Liberty Legal Found. v. Natl Democratic Party of the
USA, Inc., No. CH-II-1757 (Tenn. Ch. Ct. Shelby Cnty). Three days prior to the filing of
the First Amended Class Action Complaint with this Court, Plaintiffs apparently fied a
nearly identical document in Shelby County Chancery Court. The Tennessee case was
removed to the Western District of Tennessee on February 23, 2012. Liberty Legal
Found. v. Natl Democratic Party of
the USA, Inc., No. 2:12-cv-02143-STA-cgc (W.D.
Tenn.). Currently before the Tennessee district court are three separate motions to dismiss
3 The Tennessee complaint relies on the. same legal theories and seeks the same
relief as that sought by Plaintiffs in the instant case. The only substantive difference
between the two cases is that the Tennessee case also names the Tennessee Democratic
Part and its Chairman as defendants. Although the existence of duplicative federal
proceedings normally allows a court to stay or dismiss a case, it is an abuse of discretion
to prevent "a part from proceeding in (a) suit that is not truly duplicative." Smith v. SEC,
129 F.3d 356, 361 (6th Cir. 1997). Because the Tennessee complaint names additional
parties, the two cases are likely not "duplicative," and thus the DNC and Congresswoman
Wasserman Schultz do not seek dismissal on that ground.
-3-
NO. 2:1 l-CV-02089',
Case 2:11-cv-02089-SRB Document 24 Filed 04/16/12 Page 3 of 32
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