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Paul F. Eckstein, Bar No. 001822
P Eckstein@perkinscoie. com
D. Andrew Gaona, Bar No. 028414
A Gaona(jperkinscoie. com
PERKNS COlE LLP
2901 N. Central Avenue, Suite 2000
Phoenix, AZ 85012-2788
Telel'hone: 602.3 51.8000
Facsimile: 602.648.7000
docketPHX@perkinscoie.com
Attorneys for Defendants Democratic NationalCommittee and Debbie Wasserman SchultzUNITED STATES DISTRICT COURTDISTRICT OF ARIZONA
11 Liberty Legal Foundation; John Dummett;
Leonard Volodarsky; Greg Maroney,
NO.2: 11-cv-02089
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19 Pursuant to Rule 11 of
the Federal Rules of Civil Procedure and 28 U.S.C. § 1927,
Plaintiffs,
MOTION FOR SANCTIONS
v.
(Oral Argument Requested)
National Democratic Part of
the USA,
Inc.; Democratic National Committee; and
Debbie Wasserman Schultz,
(Assigned to the Hon. Susan Bolton)
Defendants.
20 Defendants Democratic National Committee and Debbie Wasserman Schultz (the "DNC
21 Defendants") move that the Court impose sanctions against Van Irion, counsel for
22 Plaintiffs in this matter, because (1) the legal theory that colors Plaintiffs' claims is
23 unwarranted and has been rejected by each and every court and administrative body to
24 consider it, and (2) Plaintiffs' Second Amended Complaint names as a defendant a sham
25 organization with no affiiation with the DNC or Democratic Part. Specifically, the
26 DNC Defendants request an order directing Mr. Irion to pay all of their reasonable
27 attorneys' fees and expenses incurred in seeking the dismissal of this frivolous and
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Case 2:11-cv-02089-SRB Document 28 Filed 05/09/12 Page 1 of 11
1 harassing lawsuit. This Motion is supported by the accompanying Memorandum of
2 Points and Authorities, which is incorporated herein by reference.
3 MEMORANDUM OF POINTS AND AUTHORITIES
4 Background i
5 On October 25,2011, Plaintiffs Liberty Legal Foundation, John Dummett, Leonard
6 Volodarsky, and Creg Maroney fied a Class Action Complaint for Declaratory and
7 Injunctive Relief, naming only the National Democratic Part of the USA, Inc. and
8 Congresswoman Wasserman Schultz as defendants. (Doc. No.1) Plaintiffs purported to
9 serve only the National Democratic Part of the USA, Inc. by certified maiL. (Doc. No.
10 12) On December 4, 2011, prior to any part filing an answer or otherwise appearing in
11 the action, Plaintiffs fied a First Amended Class Action Complaint against the same
12 parties, along with a request for a preliminary injunction. (Doc. Nos. 8-9) On January 23,
13 2012, without the consent of the parties or leave of court as required by Federal Rule of
14 Civil Procedure 15(a)(2), Plaintiffs fied a Second Amended Class Action Complaint
15 ("SAC") which added the DNC as an additional defendant. (Doc. No. 10) That same day,
16 Plaintiffs also fied a Motion and Memorandum seeking the entry of a default judgment
17 against Defendant National Democratic Party of
the USA, Inc. (Doc. No. 12)
18 On February 29, 2012, the Court ordered that Plaintiffs' counsel show cause as to
19 why service on the National Democratic Part of the USA, Inc. by certified mail was
20 proper under the Federal Rules of Civil Procedure. (Doc. No. 14) Plaintiffs' counsel
21 responded citing Rule 4(e)(1) ofthe Federal Rules ofCivil Procedure and Rule 4.2 of
the
22 Arizona Rules of
Civil Procedure. (Doc. No. 15) On March 23,2012, the Court held that
23 service on the National Democratic Party of
the USA, Inc. was improper, and ordered that
24 the case be dismissed unless proper service was carried out within thirt days. (Doc.
25 No.
17)
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i The Background section of this Motion is nearly identical to the Statement of the
Case presented in the DNC Defendants' Motion to Dismiss (Doc. No. 24)
-2-
NO.2:II-CV-02089
Case 2:11-cv-02089-SRB Document 28 Filed 05/09/12 Page 2 of 11
1 Additionally, on March 22, 2012, the Court entered an order finding that
2 Congresswoman Wasserman Schultz had not yet been served, and ordered Plaintiffs to
3 show cause for its failure to do so. (Doc. No. 16) On March 26, 2012, Plaintiffs fied a
4 Motion and Memorandum seeking the entry of a default judgment against
5 Congresswoman Wasserman Schultz (Doc. No. 19), along with a response to the Court's
6 March 22 Order to Show Cause and alleged proof of service (Doc. No. 20). On March 28,
7 2012, the Court entered an additional order denying Plaintiffs' request for entry of a
8 default judgment against Congresswoman Wasserman Schultz because the proof of
9 service provided by Plaintiffs "fail(ed) to include a sigried receipt." (Doc. No. 21)
10 While taking all of these steps in the District of Arizona, the same Plaintiffs
11 instituted parallel proceedings in Tennessee. Indeed, just one day after filing the initial
12 Class Action Complaint, in the instant case, Plaintiffs fied a nearly identical complaint in
13 Shelby County Chancery Court. Liberty Legal Found. v. Natl Democratic Party of the
14 USA, Inc., No. CH-11-1757 (Tenn. Ch. Ct. Shelby Cnty). Three days prior to the fiing of
15 the First Amended Class Action Complaint with this Court, Plaintiffs apparently fied a
16 nearly identical document in Shelby County Chancery Court. The Tennessee case was
17 removed to the Western District of Tennessee on February 23, 2012. Liberty Legal
18 Found. v. Natl Democratic Party of
the USA, Inc., No. 2:12-cv-02143-STA-cgc (W.D.
19 Tenn.). Currently before the Tennessee district court are three fully-briefed motions to
20 dismiss fied by the defendants. See id. at Doc. Nos. 4-9.
21 On April 16, 2012, the DNC Defendants served a draft copy of this Motion for
22 Sanctions on Mr. Irion as required by Rule 11(c)(2). (See Letter to Van Irion, attached
23 hereto as Exhibit A) On May 7, 2012, Mr. Irion responded, and did not address the
24 contention that the SAC had no factual or legal basis. (See Email from Van Irion,
25 attached hereto as Exhibit B) Instead, his response focused only on the steps he allegedly
26 took prior to naming the "National Democratic Part of the USA, Inc." as a defendant in
27 this case, but, among other things, did not explain how this sham Tennessee organization
28 relates to the present case in Arizona. (Id.) Mr. Irion's subsequent failure to respond to a
-3-
NO.2:II-CV-02089
Case 2:11-cv-02089-SRB Document 28 Filed 05/09/12 Page 3 of 11
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