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MS ECF 72 - 2012-11-21 - TvDPM - DEFENDANTS ONAKA AND FUDDY’S Motion to Strike Exhibits 5 and 6.

MS ECF 72 - 2012-11-21 - TvDPM - DEFENDANTS ONAKA AND FUDDY’S Motion to Strike Exhibits 5 and 6.

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Case 3:12-cv-00280-HTW-LRA Document 72

Filed 11/21/12 Page 1 of 6

DR. ORLY TAITZ, ESQ., ET AL. V.

CIVIL ACTION NO. 3:12cv280-HTW-LRA DEFENDANTS

DEMOCRAT PARTY OF MISSISSIPPI, ET AL.

DEFENDANTS DR. ALVIN ONAKA AND LORETTA FUDDY’S MOTION TO STRIKE EXHIBITS FIVE AND SIX OF PLAINTIFFS’ ADDITIONAL PROOF OF SERVICE PER COURT REQUEST

COME NOW the Defendants, Dr. Alvin Onaka (hereinafter “Onaka”) and Loretta Fuddy (hereinafter “Fuddy”) (hereinafter collectively “Defendants”), by and through their counsel of record, Dukes, Dukes, Keating & Faneca, P.A., and pursuant to Rule 12(f) of the Federal Rules of Civil Procedure, file their Motion to Strike Exhibits Five and Six of Plaintiffs’ Additional Proof of Service Per Court Request, and without waiving the right to plead and be heard on any other defenses would further show unto this Honorable Court the following: I. RELEVANT FACTUAL AND PROCEDURAL HISTORY

At the hearing on Defendants’ Motion to Dismiss, on November 16, 2012, this Court

General in light of Plaintiff Taitz’s statement that she had copies of return receipts indicating such. On November 20, 2012, a document entitled “Additional proof of service per court request” was filed with this Court. [ECF Doc. 71]. Attached to this document are six (6)

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exhibits purportedly relied upon by Plaintiffs in support of their position that the Hawaii Attorney General was properly served, when clearly he was not.

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instructed the Plaintiffs to provide proof of attempted service of process on the Hawaii Attorney

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI JACKSON DIVISION

PLAINTIFFS

Case 3:12-cv-00280-HTW-LRA Document 72

Filed 11/21/12 Page 2 of 6

II.

EXHIBITS FIVE AND SIX SHOULD BE STRICKEN FROM THE RECORD 1

Affidavit of Michael Zullo and is entirely irrelevant and non-responsive to whether the Plaintiffs attempted to serve the Hawaii Attorney General. [ECF Doc. 71-5]. Similarly, Exhibit Six attached to the “Additional proof of service per court request” consists of the Affidavit of Paul Edward Irey is entirely irrelevant and non-responsive to whether the Plaintiffs attempted to serve the Hawaii Attorney General [ECF Doc. 71-6]. Because the Court simply requested that the Plaintiffs provide proof of service on the Hawaii Attorney General by filing the “Additional proof of service per court request[,]” and the Plaintiffs do not even allege that Exhibits Five and

Attorney General, it is uncontroverted that these Exhibits have absolutely nothing to do with the issue before the Court. For this reason, the Exhibits should be stricken from the record. These affidavits fail to comply with the affidavit requirements, are immaterial, impertinent, contain scandalous material, contain hearsay, and, as such, are wholly inadmissible.

from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” In interpreting this provision, the Fifth Circuit has stated that a “motion to strike should be granted only when the pleading to be stricken has no possible relation to the controversy.” Brown & Williamson Tobacco Corp. v. United States, 201 F.2d 819, 822 (5th Cir. 1953) (citing Samuel Goldwyn, Inc. v. United Artists Corp., 35 F. Supp. 633 (S.D.N.Y. 1940)). This is

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While the Defendants realize that Exhibit Four to the “Additional proof of service per court request” is technically non-responsive because some of the information contained therein does not relate to service on the Hawaii Attorney General; the Defendants do not object to the inclusion of Exhibit Four in the record because it arguably addresses the issue of attempted, albeit unsuccessful, service of process on the Defendants.

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Rule 12(f) of the Federal Rules of Civil Procedure provides that “[t]he court may strike

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Six have any relevance to the question of whether the Plaintiffs attempted to serve the Hawaii

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Exhibit Five attached to the “Additional proof of service per court request” consists of the

Case 3:12-cv-00280-HTW-LRA Document 72

Filed 11/21/12 Page 3 of 6

precisely the situation here. The controversy that is before the Court is whether the Plaintiffs

possible relation” to this controversy, they should be stricken from the record. See id.

In addition, where an affidavit does not measure up to the standards of Rule 56(c)(4) of the Federal Rules of Civil Procedure, it is subject to a timely motion to strike. See Auto DriveAway Co. v. Interstate Commerce Comm’n, 360 F.2d 446, 448-49 (5th Cir. 1966) (citing former Rule 56(e) of the Federal Rules of Civil Procedure). Specifically, an affidavit must: (1) be made on personal knowledge; (2) set out facts that would be admissible in evidence; and (3) show that the affiant is competent to testify on the matters stated. See Fed. R. Civ. P. 56(c)(4). Aside from

matters asserted are based on personal knowledge, the content of the affidavits is wholly inadmissible at trial. Indeed, the statements made in the affidavits constitute hearsay, and there are no exceptions to the hearsay rule that would allow the introduction into evidence of these irrelevant and self-serving affidavits in the absence of the individuals who prepared them being

R. Evid. 801(c), 802. Further, there is no reliable and competent evidence upon which the Court could determine that the affiants are qualified as experts under Daubert. Finally, the statements would not assist the trier of fact as to the matters contained therein. These affidavits amount to nothing more than an attempt by the Plaintiffs to inject inadmissible evidence into this case. This Court simply requested that the Plaintiffs provide proof of service on the Hawaii Attorney General by filing the “Additional proof of service per

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court request[.]” As such, the matters asserted in Exhibits Five and Six are irrelevant and impertinent to the subject of the Court’s request and should be stricken from the record. In fact, 3

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subjected to cross-examination regarding their accuracy, reliability, and admissibility. See Fed.

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the generic and self-serving statements by the affiants that they are competent to testify and the

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have proof of service of process on the Hawaii Attorney General. Because the Exhibits have “no

Case 3:12-cv-00280-HTW-LRA Document 72

Filed 11/21/12 Page 4 of 6

it appears as though the Plaintiffs are attempting to abuse the judicial process by putting in the

these proceedings, although these affidavits clearly demonstrate that Defendants are being sued in their official capacities. [ECF Doc. 71-5 at 3, ¶ 9]. Furthermore, the Plaintiffs inject through the affidavits a duplicitous reiteration of the same baseless and scandalous allegations of fraud, misrepresentation, and forgery against these Defendants in their official capacities [ECF Doc. 71-5 at 3, ¶ 9], as well as to Scott Tepper and Sam Begley [ECF Doc. 71-6 at 1, ¶ 2], despite containing little more than the repeatedly debunked conspiracy theories that have been rejected by every court in which they have been presented. III.

The Court should strike Exhibits Five and Six of the Plaintiffs “Additional proof of service per court request” because they are irrelevant and impertinent to the information requested by the as Court, they consists of inadmissible hearsay, and were submitted in bad faith for an ulterior purpose. As such, and in addition to striking the Exhibits, the Defendants further

to the affidavits, and would further request that this Court order sanctions against the Plaintiffs pursuant to Rules 56(h) and 11(c) of the Federal Rules of Civil Procedure; the Mississippi Litigation Accountability Act of 1988, Miss. Code Ann. §§ 11-55-5, -7; and 28 U.S.C. § 1927. WHEREFORE, PREMISES CONSIDERED, Defendants, Dr. Alvin Onaka and Loretta Fuddy, respectfully request that this Honorable Court enter an order striking Exhibits Five and Six of the “Additional proof of service per court request” filed by the Plaintiffs. Defendants, Dr.

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Alvin Onaka and Loretta Fuddy further pray for such other relief to which they may be entitled.

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request reasonable expenses, including attorney’s fees, incurred as a result of having to respond

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CONCLUSION

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record matter that otherwise would not under any circumstances be admissible or relevant to

Case 3:12-cv-00280-HTW-LRA Document 72

Filed 11/21/12 Page 5 of 6

RESPECTFULLY SUBMITTED, this the 21st day of November, 2012.

BY: BY:

DUKES, DUKES, KEATING & FANECA, P.A.

s/ Walter W. Dukes_________________________ WALTER W. DUKES

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Walter W. Dukes (MSB No. 6214) Dukes, Dukes, Keating & Faneca, P.A. 2909 13th Street, Sixth Floor Post Office Drawer W Gulfport, Mississippi 39501 Telephone: (228) 868-1111 Facsimile: (228) 863-2886

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DR. ALVIN ONAKA AND LORETTA FUDDY, DEFENDANTS

Case 3:12-cv-00280-HTW-LRA Document 72

Filed 11/21/12 Page 6 of 6

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document has been electronically filed with the Clerk of Court and thereby served on the following persons, and also separately served by electronic mail as indicated below: Orly Taitz 29839 Santa Margarita Parkway, Suite 100 Rancho Santa Margarita, California 92688 orly.taitz@gmail.com

And to the following persons by electronic mail: Brian Fedorka 812 Shiloh Drive Columbus, MS 39702 bfedorka82@gmail.com Leah Lax 350 Market Street Highspire, PA 17034 lealax1234@aol.com

SO CERTIFIED, this the 21st day of November, 2012.

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Samuel L. Begley Begley Law Firm, PLLC P.O. Box 827 Jackson, Mississippi 39205 sbegley1@bellsouth.net

s/ Walter W. Dukes_________________________ WALTER W. DUKES

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Harold E. Pizzetta, III Justin L. Matheny Office of the Attorney General 550 High Street, Suite 220 P.O. Box 220 Jackson, Mississippi 39205 Laurie Roth 15510 E. Laurel Road Elk, WA 99009 drljroth@aol.com Tom MacLeran 1026 Deer Ridge Road Kingston Springs, TN 37082 tom@macleran.com

Scott J. Tepper Garfield & Tepper 1801 Century Park East, Suite 2400 Los Angeles, California 90067-2326 scottjtepper@msn.com

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