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51-2012-CA-2041-WS CIVIL DMSION
JERRY COLLETTE, Plaintiff,
BARACK OBAMA, STATE EXECUTIVE COMMITTEE OF THE FLORIDA DEMOCRATIC PARTY, and DOES 1 THROUGH 1000, INCLUSIVE, Defendants.
DEFENDANT BARACK OBAl\lA'S MOTION TO DISMISS FIRST AMENDED COMPL\INT PURSUANT TO RULE 1.140(B)
Defendant Barack Obama ("President Obama") , through undersigned counsel, moves pursuant to Rule 1.140(b) to dismiss the First Amended Complaint and, in support thereof, states:
The amended complaint challenges the eligibility of President Obama
be listed on
Florida ballots as a candidate for the office of President of the United States. The thrust of the amended complaint is that President Obama is "foreign hom" and that "[n]o matter where he was boru, he is not a ustuml born citizens because he was born of foreign paternity," each of which, it as alleged, renders him ineligible for the office of President of the United States under Article II, Section 5 of the Constitution of the United States. This assertion, having been rejected by every federal and state court to consider this issue, is utterly baseless.
The question of President Obama's citizenship has long been settled. He is a natural bam citizen, having been bam in 1961 ill Honolulu, Hawaii to his mother, the late Ann Dunham, who was indisputably a citizen of the United States. Therefore, he satisfies the requirement" of Article II, Section 1 of the Constitution of the United States; he is eligible to serve as President of the United States; and he is eligible to stand for re-election to that office. Plaintiffs allegations have 110 basis in fact or in law.
Motion to Dismiss for Failure to State a Cause of Action
President Obama is indisputably a natural bam citizen by virtue of his birth in the
United States. See Umted Sla.tes l'. WOllg Kim Ark~ 169 U.S. 649, 705 (1898) (holding that a person bam to non-citizens for Chi.na was a citizen of the United States because "[elvery person bam in the United States, and subject to the jurisdiction thereof, becomes at once a citizens of the United States"); see also Ankeny v. Governor oi the Statc of Indisas, 916 N.E. 2d 678, 688 (Ind. Ct. App. 2010) (citing W011g Kim Ark, and holding that both President Obama and Senator 101m McCain were "natural bam citizens" because "persons bam within the borders of the United States are 'natural bam citizens' for the Article II, Section 1 purposes, regardless of the citizenship of their parents"). Because President Obama satisfies all eligibility requirements for the office of
President of the United States, the amended complaint should be dismissed for failure to state a cause of action. 2. Despite the Plaintiffs baseless assertions regarding the President's eligibility, the
amended complaint fails to state a cause of action because the Democratic Party has a constitutional right to nominate whomever it desires as its candidate for President of the United States. See CaJifhmia. Democratic Party v. .TOlles, 530 U.S. 567, 575 (2000) ("Unsurprisingly, our cases vigorously affirm the special place the First Amendment reserves for, and the special protection it accords, the process by which a political party selectls] a standard bearer who best
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represents the party's ideologies and preferences.")
(internal citation and quotation marks omitted);
d .New York Board of Elections v. Lopez-Torres, 552 U.S. 196 (2008.)("A political party has a
First Amendment nominee right ... to choose a candidate selection process that will in its view produce the its political platform"). Florida law does not authorize interference
who best represents
with this constitutionally protected candidate selection process, and Defendants cannot be enjoined from advancing President Obama's candidacy, 3. President Obarna moves to dismiss the amended complaint for failure to state a
cause of action inasmuch there is no bona fide justiciable controversy between the parties and that the judgment of the court is merely sought to answer questions propounded political purposes. 4. President Obarna moves to dismiss the amended complaint for lack of jurisdiction, in the out of curiosity or for
in that the complaint
fails to allege all amount
of damages necessary to vest jurisdiction
circuit court. Assuming, but not conceding, that Plaintiff could state a cause of action, in no event could monetary damages be warranted for the type of injury alleged by Plaintiff Thus, Plaintiff's claim for damages must be dismissed. 5. Plaintiffs claim for damages must also he dismissed for failure
state a causee of
action inasmuch as there exists no cause of action for damages for violation of the alleged rights, duties or obligations claimed by the Plaintiff. Motion to Dismiss for Failure to Join Indispensible 6. indispensible President Obama moves to dismiss the amended Parties for failure to join
parties on the ground that the Govemor
of the State of Florida and the Department
of State are each indispensible 7.
parties to this action who have not been joined as party defendants. be enjoined from doing any action as a candidate for United States
The amended complaint seeks that "Defendants having tile name of defendant
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which would support
President; a) Printed
ballots in Florida; or b) listed or counted as write in candidate in Florida."
See Amended Complaint, "Prayer for Relief, " p. 7.
8. Under Florida law, "[e [ach political party of the state shall be represented by a state
executive committee." Defendant
See Section 103.091(1), Florida Statutes.
Plaintiff has alleged that the
Party, under Florida law, plays a key role in determining who is
listed as the Democratic
Party candidate for President of the United States on the Florida ballot.
See Amended Complaint, 114.
9. However, Section 103.021(1), Florida Statutes, provides as follows: for presidential
103.021 Nomination for presidential electors=-Candidates electors shall be nominated in the following manner:
(l) TIle Govemor shall nominate the presidential electors of each political party. TIle state executive committee of each political party shall by resolution recommend candidates for presidential electors and deliver a certified copy thereof to the Govemor before September 1 of each presidential election year. TIle Covernor shall nominate only the electors recommended by the state executive committee of the respective political party. Each such elector shall be a qualified elector of the party he or she represents who has taken an oath that he or she will vote for the candidates of the party that he or she is nominated to represent. TIle Govemor shall certify to the Department of State on or before September 1, in each presidential election year, the names of a number of electors for each political party equal to the number of senators and representatives which this state has in Congress. (2) The names of the presidential electors shall not be printed on the general election ballot, but the names of the actual candidates for President and Vice President for whom the presidential electors will vote if elected shall be printed on the ballot in the order in which the party of which the candidate is a nominee polled the highest number of votes for Govemor in the last general election. 10. Pursuant to Florida law, it is the duty of the Coveruor to nominate the presidential by the state executive committee of each political
electors of each political party as recommended party.
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Once certified by the Govemor,
it is the dUly of the Department
of State to include
iJie names of the actual candidates for President and Vice-President
on the general election ballot.
See Section 103.021(2), Florida Statutes,
12. indispensible Thus, the Covernor of the State of Florida and the Department of State are
parties to this action. Motion to Dismiss for Improper Venue or. in the .Alternative. to Transfer Venue to Leon County, Florida
FDP moves to dismiss the amended
complaint for improper
that none of the named defendants are residents of Pasco County, Florida, 14. The amended complaint states:
3. Defendant State Executive Committee of the Florida Democratic Party is tIle governing body of the Florida Democratic Party, and is sued that capacity. 4. Under the Florida election code, defendant State Executive Committee of the Florida Democratic Party plays a key role in determining who is listed as a Democratic Party candidate for President of the United States on Florida Ballots and, accordingly, is an indispensable party to the remedies sought, even if the court should find that it has no liability with respect to causes of action alleged below. 5. Plaintiff does not know the true names and capacities of the defendants sued as DOES 1 through 1000, inclusive, and will amend this complaint to allege their true names and capacities when ascertained. (emphasis in Amended 15. Complaint)
The filing of a "John Doe" complaint, without more, does not commence an action
against a real party. GillaIll v. Smsrt; 809 So. 2d 905, 908 (Fla. 1st DC\. 2002), citing to Gfll11tbam
Blount, Iuc; 683 So. 2d 538 (Fla. 2d DCA 1996). Inasmuch as naming john Doe defendants
does not initiate an action, likewise, it does not establish venue. 16. There is no allegation that any of the defendants reside ill Pasco County or that
there is any property which is the subject of the litigation located ill Pasco County.
Plaintiff alleges that "[tlhis is an action for declaratory judgment [and] injunctive
relief ",," Amended Complaint, ~~55, 63. "A suit for declaratory relief does not itself constitute a cause of action for venue purposes, it is the underlying relief which determines venue." Royal
J011es & Assoc ... Inc. v. Ksplsu Ind, Inc ... 575 So. 2d 309, 310 (Fla. 2d DCA 1991); Oliver v. Seversnce .. 542 So. 2£1408, 4.10 (Fla. 1st DCA 1989). In the amended complaint, the Plaintiff
prays for the following underlying relief that "Defendants be enjoined from having the name of defendant Obama, as a candidate for United States President: a) Printed on ballots in Florida.; or b) listed or counted as write in candidate in Florida." Amended Complaint, "Prayer for Relief," p.7. Pursuant to Section 103.021, Florida Statutes, these actions will take place in Tallahassee, Leon County, Florida, in conjunction with the Govemor of the State of Florida and the Department of State. Thus, venue is only proper in Lean County, Florida. 18. Plaintiff alleges that "[tlhis is an action for ". money damages." Amended Plaintiff seeks "[mjoney damages in an amount to be determined." Assuming, but not conceding, that a cause of
Complaint, ~~55, 63.
Amended Complaint, "Prayer for Relief," p.7.
action for damages exists, "[llor venue purposes in a tort action, a cause of action is deemed to accrue where the act creating the right to bring the action occurred." Soowsl v. Mardell, ,t52 So. 2d 625, 626 (Fla. 3d DCA 1984). Pursuant to Section 103.021, Florida Statutes, the actions required to list Barack Obama on Florida ballots for President of the United States will take place in Tallahassee, Leon County, Florida, and a cause of action, if any, will accrue in that venue. 19. Thus, the Amended Complaint should be dismissed for improper venue or, in the
alternative, be transferred to Tallahassee, Leon County, Florida.
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Conclusion "'HEREFO RE, for the reasons stated herein, the amended complaint should be
dismissed as to the Defendant Barack Obama, Respectfully submitted
this 20 dar ofM
Joseph Brennan Donnelly Florida Bar. No. 268895 Robert]. Telfer, III Florida Bar. No. 128694 Messer, Caparello & Self, P.A. Post Office Box 15579 Tallahassee, FL 32317 Telephone (850) 222-0720 Facsimile: (850) 558-0659 Stephen F. Rosenthal. Florida Bar No. 131458 Podhurst Orseck, P.A. 25 West Flagler Street, Suite 800 Miami, FL 33130-1720 Telephone (305) 358-2500 Facsimile: (305) 358-2382 Richard B. Rosenthal Florida Bar No. 184853 The Law Offices of Richard B. Rosenthal, P.A. 169 East Flagler Street, Suite U22 l\1iami, FL 33131 Telephone (305) 779-6097 Facsimile: (305) 779-6095
Attorneys for Defendant Barack Obsms
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CERTIF1CATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. mail 011 this 20 day of May, 2012, to:
Jerry Collette Post Office Box 3664 Holiday, FL 34692
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