Major Birther Case Could Be Dismissed On Merit Within Hours

[WeDidIt]

We're on the verge of one of the eligibility cases being thrown out of court on merit, just hours to go.

It's Hollister v. Soetoro. Here's the skinny:

A retired Air Force Colonel brought the suit on eligibility due to potentially having to follow the orders of a commander in chief who, according to him, may not be qualified to be president. Phil Berg took the case and brought it to the SCOTUS around the normal federal court routes in an effort to quash first the certification of the electoral college votes and then the inauguration. The SCOTUS refused to hear either request and it got sent back to US District court where Obama's lawyers filed a motion to dismiss based upon three arguments.

1) President Obama produced a certified copy of his birth certificate.
2) There are other lawsuits regarding this.
3) The suit makes a claim for which there is no relief.

The first point in this Motion to Dismiss is the critical point.

Berg filed an amended complaint as his response to the motion to dismiss

Two days ago, the judge gave this order:

Plaintiff’s amended complaint <#11> adds nothing to the original complaint except rhetoric and legal theory and creates no obligation upon the defendants to respond to it. Nor is the amended complaint responsive to defendants’ motion to dismiss <#9>, opposition to which was due on 2/9/09. Unless points and authorities in opposition to the motion to dismiss are filed by 2/13/09, the motion will be treated as conceded and granted. It is SO ORDERED.

So, if Berg doesn't come up with something before close of business today, the motion to dismiss will be granted and, in effect, a judge will have declared that Obama already presented his birth certificate so he shouldn't have to again.

[bluestateguy]

1. I want them all dismissed and banned from ever setting foot in a courtroom again

The two combined words "Obama" and "birth certificate" should never be allowed on a lawsuit again, anywhere.

[WeDidIt]

2. Berg will take this case all the way to the SCOTUS

When they refuse to hear it, it wills tand as precedent.

Every other case will be dismissed citing this case as precedent.

[jberryhill]

10. Incorrect - see my note lower in the thread

The motion to dismiss is based on (a) standing, and (b) the hilariousness of basing an interpleader action on re-ifying the duty of someone in the military.

A dismissal would not be substantive, and there would not be non-mutual collateral estoppel.

If non-mutual collateral estoppel applied, then you could kill anyone's case by proceeding with an intentional fail in a collusive suit.

The legal system is not that stupid.

Berg, however, is much, much, dumber.

[Flying Dream Blues]

3. Isn';t that the truth!!

It's shameful.

[WeDidIt]

4. Anybody can file a lawsuit

You have to allow the brain dead nutters the same rights as everybody else.

The fact that they can bring trivial and moot cases before the courts insures everybody else's ability to bring legitimate cases before the courts

[jberryhill]

11. And that last sentence is the redeeming quality in this circus /nt

[PatGund]

7. I want to start seeing court costs and sanctions.

Carol Greenberg, the plaintiff pro se in Ohio's "Greenberg v Brunner" birther case, flipped when court costs were awarded against her. Gary Kreep, (main counsel in the Keyes v Bowen birther case), ended up paying it.

In most of these cases, it's the state taxpayers paying the time and money for the state officials to defend themselves against this tripe. I'd like to see more and more cases not only get dismissed, but court costs and sanctions awarded. Enough is enough.

[jberryhill]

12. Waitaminnit

Sometimes the court will require that the identified party itself pay the sanctions and not be compensated by another for it. Someone else paid the costs in that case?

It looks like Judge Robertson has the ball teed up for sanctions, in the order holding Berg's pro hac motion in abeyance, and the immediate response to the amended complaint seems, shall we say, a mite peeved.

[Hokie]

5. Any link to the site where the dismissal will be posted?

I want to be the first to announce the good news on one of the Birther sites.

[Milspec]

6. Oh, Oh me too me too!

[jberryhill]

13. Obamaconspiracy.org /nt

[SoCalDem]

8. Shame on ME.. I clicked this, and thought

awww shit ..another story about OctoMom:rofl:

[jberryhill]

9. Not exactly on one point

Yes, the judge has told Berg to respond to the dismissal motion, but you don't understand the motion.

The motion to dismiss is taken from the standpoint of assuming that all of the allegations in the complaint are true for the sake of argument.

You are reading too much into that footnote - just like the freepers do. In an aside in the first paragraph, the motion to dismiss says "Of course the complaint is bullshit <footnote>, but let's assume it was all true." and then proceeds from that point.

The footnote merely says that the court may take what is called "judicial notice" of things that are publicly available, if the court chooses to. Judicial notice is a doctrine of evidence that says that a court may, if it wants, rely on facts known to the court from sources other than what is presented in the court.

For example, let's say that my case depended on the proposition that "the sky is blue". In order to demonstrate that the sky is blue, I might bring in an atmospheric scientist as an expert witness. The court can instead say "That's okay, I already know that, because I've seen the sky."

Now, what's going on in that footnote is an invitation for the court to take judicial notice of stuff that is already out there. The freepers have interpreted this as the attorney for the motion having relied on various public information as "evidence" or having somehow committed to making some sort of representation as to this "evidence".

That's not what happened, and that's not what a dismissal will mean.

The judge has simply said:

1. The amended complaint doesn't moot the motion to dismiss the case,

2. The deadline for responding to the motion was Feb. 9, and

3. If you don't file by Feb. 13, then I'm dismissing this case.

Now, excuse me while I check the docket...

(on edit: either the clerk checks out at 5, or Berg didn't file. We'll see what washes up on Tuesday)

[smoochpooch]

14. Ooh, the court cites Twombly. Somewhere my Civ Pro professor has a boner!

The court also notes that the plaintiff has suffered no injury. He would first have to actually be called back to duty, and until he does he doesn't have standing.

[Milspec]

15. Any update on this?

[jberryhill]

16. Yesterday was a holiday - No Docket Update Yet

Berg's blog claims they filed something last Friday.

We shall see.

[jberryhill]

17. Nope - he filed

02/13/2009 13

Memorandum in opposition to re 9 MOTION to Dismiss MOTION to Dismiss for Lack of Jurisdiction by President Barack Obama and Vice President Joseph Biden filed by GREGORY S. HOLLISTER. (Attachments: # 1 Declaration)(nmw, )

(Entered: 02/17/2009)