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2012-05-15 - MS - SOS Opposition to Motion to Remand

2012-05-15 - MS - SOS Opposition to Motion to Remand

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Published by Jack Ryan

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Published by: Jack Ryan on May 15, 2012
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12/13/2013

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IN THE UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTRICT OF MISSISSIPPIJACKSON DIVISIONDR. ORLY TAITZ, ESQ., ET AL. PLAINTIFFSV. CIVIL ACTION NO. 3:12cv280-HTW-LRADEMOCRAT PARTY OF MISSISSIPPI, ET AL. DEFENDANTS ______________________________________________________________________________ MISSISSIPPI SECRETARY OF STATE’S RESPONSEIN OPPOSITION TO PLAINTIFFS’ MOTION TO REMAND ______________________________________________________________________________ 
Defendant Mississippi Secretary of State Delbert Hosemann files this Response inOpposition to Plaintiffs’ Motion to Remand [Docket No. 20] and states:1.Plaintiffs’ lawsuit claims that President Obama is not qualified to hold the Officeof President of the United States. In mid-April 2012, they filed a First Amended Complaintseeking declaratory and injunctive relief to that effect, and also accusing President Obama anddefendants of violating federal RICO laws. As a consequence, the Secretary of State and theMississippi Democratic Party timely removed the case to this Court before any other defendantswere properly served.2.On April 30, 2012, plaintiffs filed a motion styled as a “Demand for ImmediateTermination of Unlawful Proceedings in Federal Court and for Sanctions Against the Secretaryof State and Defendants Attorney” complaining that their case was improperly removed. [Docket No. 11]. The Secretary of State has responded and explained why plaintiffs are not entitled toremand. [Docket No. 13]. Now, plaintiffs have filed another motion [Docket No. 20] attackingthe defendants’ timely and proper removal of this case. For the reasons explained below, plaintiffs’ new argument for remand should be rejected and their motion denied.
Case 3:12-cv-00280-HTW-LRA Document 22 Filed 05/15/12 Page 1 of 9
 
2
Relevant Procedural Facts
3. Lead plaintiff Orly Taitz filed this action in the Circuit Court of Hinds County,First Judicial District, on February 17, 2012. Taitz’s original complaint was filed against theSecretary of State and the Mississippi Democratic Party and sought to have President Obamaremoved from the ballot for the 2012 Mississippi Democratic presidential preference primary.[Original Complaint, State Court Record Vol. 1, Docket No. 6].4.On February 28, 2012, the Hinds County Circuit Clerk issued a summons to plaintiff Taitz along with copies of the original complaint. [
See
Certified Copy of State CourtDocket, affixed hereto as Exhibit “1.”]. On March 20, 2012, plaintiff Taitz’s summons andoriginal complaint was delivered to the Mississippi Secretary of State’s Office. [
See
March 20,2012 E.mail Correspondence and attached Summons, affixed hereto as Exhibit “2.”].5.On or about April 14, 2012, Taitz served counsel for the Secretary of State and theMississippi Democratic Party with a First Amended Complaint by mail. The First AmendedComplaint was received by the Secretary of State’s counsel on April 19, 2012. On that samedate, the First Amended Complaint was filed with the Hinds County Circuit Clerk. [
See
CertifiedCopy of State Court Docket, Ex. “1.”]. The First Amended Complaint added new plaintiffs,defendants and claims, including a federal RICO cause of action against President Obama andothers. [
See
First Amended Complaint, Ex. “A” to Docket No. 1].6.As explained above, plaintiff Taitz had obtained a summons from the HindsCounty Clerk for the original complaint on February 28, 2012 and delivered it to the Secretary of State’s Office on March 20, 2012. However, the official docket of the Hinds County CircuitClerk shows that plaintiffs have
never 
sought or received any summonses for the new defendants
Case 3:12-cv-00280-HTW-LRA Document 22 Filed 05/15/12 Page 2 of 9
 
3included in their First Amended Complaint. [
See
Certified Copy of Hinds County Clerk Docket,Ex. “1.”]. Furthermore, not one document in the 20 volumes of the state court record, or thefilings in this Court following removal, shows plaintiffs have ever obtained any summons(es)connected with the First Amended Complaint. [
See
State Court Record, Docket No. 6].7.On April 24, 2012, the Secretary of State timely removed the case to this Court onaccount of the First Amended Complaint which pled claims within the federal question jurisdiction of this Court. [
See
Notice of Removal, Docket No. 1]. The Mississippi DemocraticParty, the only other defendant who had been served with the First Amended Complaint at thetime of removal, adopted and joined in the Notice of Removal. [
See
Joinder in Notice of Removal, Docket No. 4].8. On May 11, 2012, plaintiffs filed their instant motion to remand. [Docket No. 20].“Certified mail receipts” are attached to the motion as an exhibit. [Docket No. 20-1]. However,no other supporting documentation is attached. Plaintiffs’ motion is completely devoid of any proof of any documents purportedly mailed using their “certified mail receipts,” or any other  proof that any newly added defendants to this suit have ever been properly served with process pursuant to Mississippi or federal law.
Remand Should be Denied
9.Plaintiffs’ sole argument for remand is that the defendants added to this suit in theFirst Amended Complaint were “served” prior to removal of this case on April 24, 2012.Plaintiffs’ motion should be denied for a very simple reason: their claim of having properlyserved the newly added defendants prior to removal
is impossible.
10.28 U.S.C. § 1446(b)(2)(A) provides that
Case 3:12-cv-00280-HTW-LRA Document 22 Filed 05/15/12 Page 3 of 9

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