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2012-05-11 MS - MDEC - Response in Opposition to Motion to Remand

2012-05-11 MS - MDEC - Response in Opposition to Motion to Remand

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Published by Jack Ryan

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Published by: Jack Ryan on May 11, 2012
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09/04/2013

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1
IN THE UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTRICT OF MISSISSIPPIJACKSON DIVISIONDR. ORLY TAITZ, ESQ., BRIAN FEDORKA, PLAINTIFFSLAURIE ROTH, LEAH LAX, and TOMMacLERANVS. CIVIL ACTION NO. 3:12-cv-280 HTW-LRADEMOCRAT PARTY OF MISSISSIPPI, DEFENDANTSSECRETARY OF STATE MISSISSIPPI,BARAK HUSSEIN OBAMA, OBAMAFOR AMERICA, NANCI PELOSI,DR. ALVIN ONAKA, LORETTA FUDDY,MICHAEL ASTRUE, JOHN DOES, JOHNDOES 1-100MISSISSIPPI DEMOCRATIC PARTY EXECUTIVE COMMITTEE
’S
RESPONSE IN OPPOSITION TO PLAINTIFF ORLY TAITZ
S MOTION TO REMAND
COMES NOW the Defendant, the Mississippi Democratic Party, through its governing
entity, the Mississippi Democratic Party Executive Committee (“MDEC”), and by and through
its undersigned counsel, and hereby responds in opposition to Plaintiff Orly Tait
z’s motion to
remand as follows:1.
 
Only Plaintiff Orly Taitz has filed the current motion to remand (Docket no. 20). Sincenone of the other Plaintiffs has provided contact information despite a request to do so, theCourt should inquire if Ms. Taitz is seeking to act on behalf of the other Plaintiffs as theirattorney.2.
 
Because Ms. Taitz has not sought pro hac vice status (which MDEC would opposebecause of Ms. Taitz's history of misconduct and sanctions in several other states in
“birther litigation”
), the motion is defective; it is only brought by Ms. Taitz, for her claims. If Ms.
Case 3:12-cv-00280-HTW-LRA Document 21 Filed 05/11/12 Page 1 of 6
 
2Taitz's motion were successful, it would arguably not effect a remand of the case on behalf of the other Plaintiffs to the extent her claims differ from the other Plaintiffs.3.
 
Ms. Taitz has already filed one motion to remand, see Docket no. 11, and defendantshave opposed that motion. See Docket nos. 14 (opposition of Secretary of State) and 19(opposition of MDEC).4.
 
Ms. Taitz contends that all of the named defendants have not joined in the notice of removal,
1
requiring remand. However, neither the applicable statutes nor the relevant caselaw require all named defendants to join in a notice of removal. The statute actually provides
that only “defendants
who have been properly joined and served 
must join in or consent to
the removal of the action.”
28 U.S.C. § 1446(b)(2)(A) (emphasis added).5.
 
Setting aside the deficiency of the lack of consent of the other Plaintiffs, and the fact that
this is Ms. Taitz’s second motion to remand , this
motion is not supported by anyauthenticated, admissible evidence demonstrating (a) who was served, (b) what documentswere served, (c) how service was effected, (d) when service occurred, or (e) any other detailsrelating to service of process. (No return of service appears either in this court's docket or thedocket of the state court, either.) Instead, the present motion consists of some disorganizedargument
2
and the recitation of some facts, as well as a group of unauthenticated exhibits, butno supporting affidavit of any kind.
1
 
In her motion Ms. Taitz asserts that "For remand [sic] to be valid, all defendant [sic] have toconsent to remand [sic]." Motion, Docket no. 20, at p. 2.
 
2
 
Ms. Taitz’s entire argument was lifted
haec verbae
from footnote 15, page 7 of an online guidefrom Deborah Pearce Reggio entitled
 Removal And Remand: A Guide To Navigating BetweenThe State and Federal Courts.
 
Case 3:12-cv-00280-HTW-LRA Document 21 Filed 05/11/12 Page 2 of 6
 
36.
 
Generously construing the present motion, it fails to demonstrate with competentevidence
 — 
or any evidence at all
 — 
that anyone was served with the
Summons
and FirstAmended Complaint, as required by the Mississippi Rules of Civil Procedure (whichgoverned service of process before removal;
see, e.g., Allen v. Ferguson
, 791 F.2d 611, 616n.8 (7th Cir. 1986)(validity of service of process before removal is determined by referenceto state law)).7.
 
The Mississippi Rules of Civil Procedure require that a summons be issued (Rule 4(a)),and that it accompany and be served with the pleadings (Rule 4(d)). The Rules also providethat the summons be included with the complaint when service is by certified mail (Rule4(c)(5)).8.
 
As a review of the state court record filed by Defendant Secretary of State willdemonstrate (see Docket nos. 6 & 7), no summons on the First Amended Complaint was everissued by the Hinds County Circuit Court Clerk.9.
 
Since no summons was ever issued on the First Amended Complaint (which purported toadd the additional defendants who Ms. Taitz argues have not joined the notice of removal),any attempted service was void under Mississippi law; no one has been "served" (althoughthe Secretary of State and the MDEC waived that defect when they removed, answered andmoved for judgment on the pleadings, as permitted by Mississippi Rule 4(e)).
See, e.g., Tuck v. Blackmon
(2001) 798 So.2d 402, 410 (summons required to be issued and served forproper service);
Fletcher v. Limeco Corp.
(2008) 996 So.2d 773 (service is invalid and voidwhen a summons is issued which does not comply with Rule 4);
 Bilbo v. Thigpen
(1994) 647So.2d 678, 691 (original summons must be served with complaint to effect valid service).Unless and until a summons is issued, there can be no valid service.
Case 3:12-cv-00280-HTW-LRA Document 21 Filed 05/11/12 Page 3 of 6

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