Case 3:12-cv-00280-HTW-LRA Document 80

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VS. DEMOCRAT PARTY OF MISSISSIPPI, SECRETARY OF STATE MISSISSIPPI, BARAK HUSSEIN OBAMA, OBAMA FOR AMERICA, NANCI PELOSI, DR. ALVIN ONAKA, LORETTA FUDDY, MICHAEL ASTRUE, JOHN DOES, JOHN DOES 1-100

CIVIL ACTION NO. 3:12-cv-280 HTW-LRA

MISSISSIPPI DEMOCRATIC PARTY EXECUTIVE COMMITTEES RESPONSIVE BRIEF SUPPORTING MOTION FOR JUDGMENT ON THE PLEADINGS COMES NOW the Mississippi Democratic Party, through its governing entity, the Mississippi Democratic Party Executive Committee (MDEC), by and through undersigned counsel, and respectfully submits this response to the Amended Supplemental Brief filed by Plaintiffs Taitz and Fedorka (collectively, Plaintiffs) on November 26, 2012 (Supp. Br.) [ECF 74] in response to the

I.

TAITZS NEW EXCUSES FOR MISSING THE STATUTORY DEADLINES ARE UNTENABLE. 1. Taitzs new claim that the statutes do not specify calendar days or business days and whether mail

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box rule apply2 is untenable. First, both MISS. CODE ANN. 23-15-961(4) and 23-15-963(4)

expressly provide that an election challenge petition must be filed (not mailed) within the deadline.

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See November 19, 2012 Minute Entry on the Courts docket.

See Supp. Br. at 1. Fedorka and other plaintiffs failed to follow the required procedure of filing a petition with the MDEC. Therefore, their claims must fail even if the complaint(s) were deemed to have been timely filed. See the MDECs Amended Memo in Support of Judgment on the Pleadings (JOP Memo) [ECF 18] at 7 and authority cited therein.

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Courts order during the November 16, 2012 hearing.1

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DEFENDANTS

DR. ORLY TAITZ, ESQ., BRIAN FEDORKA, LAURIE ROTH, LEAH LAX, and TOM MacLERAN

PLAINTIFFS

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

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Second, both MISS. R. CIV. PROC. 6 and MISS. CODE ANN. 1-3-67 state that Mississippi statutory deadlines

2. Taitzs new explanation for her timing discrepancy (Supp. Br. at 1), is equally untenable; the claim that someone called some court and was told by someone there that the deadlines were based on business days not only expressly contradicts Taitzs prior representations to this court, but it is also

calculated the deadlines using calendar days and that she attempted to meet those deadlines.4 Second, even assuming someone did call a court on February 13, such call made four days after Taitz allegedly Fed-Exed the petition cannot explain why she allegedly sent it on February 9.5 Third, the timing rules are established by statute, not by alleged statements made by unnamed court personnel and, as such, any such alleged statements are utterly irrelevant. II.

3. Although this is Plaintiffs third bite at the apple in this case alone,6 following the First Amended Complaint (FAC, ECF 1-1) and RICO Statement (TRS, ECF 49), Plaintiffs have failed to identify a

Moreover, there is no mailbox rule under Mississippi law that might even conceivably apply in this case, given that Mississippi has recognized such a rule only in the context of pro se prisoners. See, e.g., Sykes v. State, 757 So. 2d 997, 1000-01 (Miss. 2000) (adopting pro se prisoner mailbox rule). Taitz forwarded the initial complaint via Federal Express courier service rather than via mail, so even if any such rule did exist, it would not apply here.
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See, e.g., Taitzs Opposition to Motion for Judgment on the Pleadings (JOP Opp. I) [ECF 48] at 6 (Taitz counted 15 days from the day of receipt, not counting the day of receipt [January 24], which fell on the February 9th); id at 7 (stating that the First Amended Complaint was mailed before the deadline of 15th).

See JOP Opp. I at 6 and Ex. 3 thereto [ECF 50 at 12]. See also MDEC Reply in Support of Motion for Judgment on the Pleadings (JOP Reply) [ECF 53] at 3 n.4, and Ex. B thereto [ECF 53-2] (recognizing discrepancy between Taitzs claimed February 9 filing and the tracking information for the airbill referenced in ECF 50 at 12).
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Taitz has repeatedly sought to file a RICO claim against President Obama and others since 2010. To date, her multiplicitous RICO actions have all been rejected for various reasons by the courts. See Taitz v. Obama, 707 F. Supp. 2d 1, 6 (D.D.C. 2010) (Ms. Taitz's fraud claims fail to even meet the standards of Rule 8, much less the heightened requirements of Rule 9(b). As such, she has failed to state a claim upon which relief may be granted and her RICO claims will be dismissed.) (internal citations omitted); Judd et al v. Obama et al, No. 8:12-cv-01507-DOC-AN (C.D. Cal. Oct. 17, 2012) (dismissing lawsuit alleging RICO conspiracy purportedly

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PLAINTIFFS DO NOT PLAUSIBLY ALLEGE THE COMMISSION OF EVEN ONE RICO PREDICATE ACT WITH RESPECT TO THE MDEC.

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illogical, irrelevant, and inadmissible in any case. First, Taitz has already told this Court that she

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are measured by calendar days (not business days) unless the prescribed time to act is less than 7 days.3

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single RICO predicate act statute allegedly violated by the MDEC; they have failed to allege factual

implicate a single RICO predicate act statute; and they have failed to provide authority showing that these acts qualify as predicate acts under the RICO statutes as requested by the Court.

4. Reading Plaintiffs FAC, TRS, and Suppl. Br. together, the MDECs alleged actions (as opposed

The MDEC failed to respond to Taitzs various communications (FAC at 14);

It ma[de] unreasonable and outlandish demands on Taitz in this case in order to harass and intimidate Plaintiff Taitz, intimidate her supporters and donors. See FAC at 40-41.

wrongdoing; one who proceeds over Taitzs objections has aided and abetted wrongdoers and/or

against a witness, victim, or informant, because such defense intimidates Taitz, her supporters, and her donors. See FAC at 14, 33, 38, 40-41, TRS at 1, 12-13, Suppl. Br. at 4. Not surprisingly, Plaintiffs have failed to cite a single predicate act statute, or explain how such conduct constitutes a predicate act. Plaintiffs have also failed to cite any authority indicating that such alleged conduct could qualify as a predicate act under the RICO statutes, and undersigned counsel has been unable to find any authority

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supporting Plaintiffs position. The conduct Plaintiffs complain about does not constitute a RICO

predicate act. In short, not only have Plaintiffs failed to allege sufficient facts to meet the required

removed by plaintiffs from state court to federal court); Judd et al v. Obama et al, No. 8:12-cv-01888-DOC-AN (C.D. Cal. Nov. 7, 2012) (dismissing lawsuit stating RICO claims for failure to comply with applicable rules). Most recently, the Federal Court in the Northern District of Texas has dismissed the only other remaining Taitz RICO complaint, holding that Taitz failed to identify any particularized harm which she has experienced or will imminently experience, requiring dismissal of the RICO (and other) claims. See Taitz v. Sebelius, No. 3:12-cv-03251-P, Order Dismissing Case at 5, n.2 (N.D. Tex. Nov. 20, 2012), and Judgment (Nov. 26, 2012) (judgment dismissing claims with prejudice and assessing costs against Taitz), attached as Exhibit 1 hereto.

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become complicit in wrongdoing; and one who defends itself in litigation brought by Taitz is retaliating

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Plaintiffs conclude that one who fails to respond to Taitz becomes de facto criminally complicit in

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It kept President Obama on the ballot after receiving Taitzs objections and allegations against the President (FAC at 33, id. at 38, TRS at 1, id. at 12-13, Suppl. Br. at 4); and

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to Plaintiffs conclusory and unsupported speculation about the reasons for such actions) are as follows:

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allegations against the MDEC (or any other defendant, or anyone else for that matter) sufficient to

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elements of any specific RICO predicate act statute, but they have failed even to allege which predicate act

III.

5. Although Plaintiffs cite baldly to a plethora of predicate act statutes with respect to other

defendants (and multiple parties who are not defendants in this case), they have failed to allege facts

showing how the required elements of any RICO predicate act statute apply with respect to any other defendant, or how any defendant was complicit in any alleged predicate acts undertaken by any non-defendants. As just one representative example, Plaintiffs take issue with a painting created by satirical pancake artist Dan Lacey.8 According to Plaintiffs, such art violates several obscenity-related

18 U.S.C. 1512. However, Plaintiffs do not claim that Lacey has been charged with any obscenity

painting as pornographic demonstrating that the required elements of any one of the obscenity-related predicate act statutes has been met. See, e.g., Hamling v. United States, 418 U.S. 87, rehg denied, 419 U.S. 885 (1974) (finding that generic terms such as obscene in obscenity-related predicate act statutes are to be construed as limited to that sort of patently offensive representation or descriptions of that specific hard core sexual conduct.) Moreover, although Plaintiffs speculate (without factual support)

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that the purpose of the painting was to intimidate Taitz as a whistleblower, they fail to provide any authority to support their contention that 18 U.S.C. 1512 covers the type of whistleblower that Taitz

Reading Plaintiffs pleadings in the most liberal manner possible, their retaliation and intimidation claim could be read to implicate 18 U.S.C. 1512-13. However, with respect to that claim, they have failed to allege facts to show that all of the required elements of those predicate act statutes have been met.
7

Dan Lacey is a satirical artist who has created pancake paintings and other satirical works of a variety of public figures, incorporating the pancakes in clever ways relating to the public figures fame or notoriety. See, e.g., www.faithmouse.com/dan-lacey-gallery/index.html.
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violations, nor do they set forth factual allegations beyond the conclusory characterization of the

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predicate act statutes (Supp. Br. at 5) and was created to intimidate her as a whistleblower in violation of

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PLAINTIFFS DO NOT PLAUSIBLY ALLEGE THE COMMISSION OF EVEN ONE RICO PREDICATE ACT WITH RESPECT TO ANY DEFENDANT OR ANY OTHER INDIVIDUAL.

statute was allegedly violated.7 As such, their RICO claim against the MDEC must fail.

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claims to be, much less to demonstrate the other elements required to find a violation of Section 1512.

a nexus between alleged violative act and a particular official proceeding).9 In short, Plaintiffs have

not alleged that Lacey or any other named or unnamed individual has committed a single predicate act. As such, Plaintiffs have failed to state a RICO claim, and the MDECs motion for judgment on the

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FOR THESE REASONS, as well as those asserted at the November 16, 2012 hearing and in the prior briefing submitted by the MDEC [ECF 15, ECF 18, ECF 53], the MDEC respectfully requests that the Court enter an order granting judgment on the pleadings and dismissing this case in its entirety, with prejudice. The MDEC respectfully requests, however, that the Court retain jurisdiction in order to consider a motion for monetary sanctions against Plaintiffs pursuant to applicable law.

THIS the 30th day of November, 2012.

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OF COUNSEL:
9

It is worth noting that the claim stated in Plaintiffs Supp. Br. that the purpose of the painting was to intimidate Taitz as a whistleblower is directly contradicted by Exhibit 1 attached thereto [ECT 73-1], in which Taitz claimed, in 2010, that the painting was created to attempt to scare her into dropping her insurgent campaign to be the GOP's candidate for California's secretary of state. See ECF 73-1 at 3.

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Respectfully submitted, THE MISSISSIPPI DEMOCRATIC PARTY EXECUTIVE COMMITTEE

By: /s/ Samuel L. Begley Samuel L. Begley (MSB No. 2315) By: /s/ Scott J. Tepper Scott J. Tepper (Admitted pro hac vice)

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pleadings should be granted.

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See, e.g., Arthur Andersen LLP v. United States, 544 U.S. 696, 707-08 (2005) (holding that there must be

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GARFIELD & TEPPER 1801 Century Park East, Suite 2400 Los Angeles, CA 90067-2326 (310) 277-1981 (310) 277-1980 Email: scottjtepper@msn.com

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BEGLEY LAW FIRM, PLLC P. O. Box 287 Jackson, MS 39205 (601)969-5545 (Telephone) (601)969-5547 (Facsimile) Email: sbegley1@bellsouth.net

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CERTIFICATE OF SERVICE The undersigned hereby certifies that on the date set forth hereinafter, a true and correct copy of the above and foregoing document was electronically filed with the Clerk of the Court using the ECF system, which sent notification of such filing to the following: Harold E. Pizzetta, Esq. Justin L. Matheny, Esq. Office of the Attorney General 550 High Street, Suite 1200 P.O. Box 220 Jackson, MS 39205 hpizz@ago.state.ms.us jmath@ago.state.ms.us Walter W. Dukes, Esq. Dukes, Dukes, Keating & Faneca P.O. Drawer W (39502) 2909 13th Street, 6th Floor Gulfport, MS 39501 walter@ddkf.com And to the following persons by email: Brian Fedorka 812 Shiloh Dr. Columbus, MS 39702 Bfedorka82@gmail.com Leah Lax 350 Market St Highspire, PA 17034 Leahlax1234@aol.com Orly Taitz, Esq. 29839 Santa Margarita Parkway Suite 100 Rancho Santa Margarita, CA 92688 orly.taitz@gmail.com

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THIS the 30th day of November, 2012.

/s/ Samuel L. Begley_________ SAMUEL L. BEGLEY

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Thomas MacLeran 1026 Deer Ridge RD, Kingston Springs, TN 3 7082 Mac@MacLeran.com Laura Roth 15510 E. Laurel Rd, Elk, WA 99009 drljroth@aol.com

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Case 3:12-cv-00280-HTW-LRA Document 80-1

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Exhibit 1

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Case 3:12-cv-03251-P DocumentDocument 11/20/12 Page 1 of 5 Page 2 of649 Case 3:12-cv-00280-HTW-LRA 25 Filed 80-1 Filed 11/30/12 PageID 7

DR. ORL Y TAITZ, Plaintiff,

v.

KATHLEEN SEBELIUS et. al., Defendants.

ORDER

Now before the Court is Defendants' Motion to Dismiss pursuant to Rule 12(b)(1), filed on September 20,2012. 1 (Doc. 15.) Plaintiff filed a Response on October 11,2012. (Doc. 21.) Defendants filed a Reply on October 29, 2012. (Doc. 23.) After reviewing the parties' briefing, the evidence, and the applicable law, the Court GRANTS Defendants' Motion to Dismiss.

I.

Background

Plaintiff Orly Taitz ("Taitz") filed the instant suit, naming several defendants including President Barack Obama, Secretary of Health and Human Resources Kathleen Sebelius,

Director of the Selective Service William Chatfield ("Defendants"). The Complaint alleges that

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the Patient Protection and Affordable Care Act ("ACA") is unconstitutional.

Defendants also moved to dismiss pursuant to Rules 12(b)(3) and 12(b)(6). See (Doc 15 at 18, 20.) Because the Court finds that dismissal is appropriate with respect to the 12(b )(1) motion, the Court finds any further analysis unnecessary.

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Commissioner of Social Security Michael Astrue, Attorney General Eric Holder, and former

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3:12-CV-3251-P

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

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II.

Legal Standard & Analysis

A motion to dismiss under Rule 12(b)(1) challenges a federal court's subject-matter jurisdiction.

If a plaintiff lacks standing to raise a claim, the Court has no subject-matter

jurisdiction over the claim. See Whitmore v. Arkansas, 495 U.S. 149, 154-55 (1990); see also

because standing presents a jurisdictional question, standing is analyzed under standards applicable to court's subject-matter jurisdiction). The Court must presume that a suit lies outside its limited jurisdiction, and the burden of establishing federal jurisdiction rests on the party seeking to invoke it. See Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). A Court may dismiss for lack of subject-matter jurisdiction based on (1) the complaint alone, (2) the complaint supplemented by undisputed facts in the record, or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. See St. Tammany

Parish ex rel. Davis v. Fed. Emergency Mgmt. Agency, 556 F.3d 307, 315 (5th Cir. 2009).
Motions under Rule 12(b)(1) are categorized as either a facial attack or a factual attack upon

Tex. 201 0). Only uncontroverted factual allegations are accepted as true, and the plaintiff must

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establish subject-matter jurisdiction by a preponderance of the evidence. See Irwin v. Veterans

Admin., 874 F.2d 1092, 1096 (5th Cir. 1989), affd sub nom. Irwin v. Dep't of Veterans Affairs,
498 U.S. 89 (1991).

B. Analysis

Article III, Section 2 of the United States Constitution grants judicial power over

justiciable cases and controversies. U.S. Const. art. III, 2; Lujan v. Defenders of Wildlife, 504
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subject-matter jurisdiction. See Naranjo v. Universal Sur. of Am., 679 F.Supp.2d 787, 792 (S.D.

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Barrett Computer Servs., Inc. v. PDA, Inc., 884 F.2d 214, 220 (5th Cir. 1989) (recognizing

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A. 12(b)(1) Standard

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U.S. 555, 559-60 (1992). The doctrine of standing is the 'irreducible constitutional minimum'

process." Whitmore, 495 U.S. at 155. Constitutional standing has three elements: (1) an "injury in fact"-an invasion of a legally protected interest which is (a) concrete and particularized and

(b) actual or imminent and not merely conjectural or hypothetical; (2) a causal connection

speculation, that a favorable decision will redress the claimed injury. Lujan, 504 U.S. at 560-61. "The party invoking federal jurisdiction bears the burden of establishing these elements." Id. at 561.

An injury in fact is "an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical." !d. at 560 (internal quotations and citations omitted); see also Cornerstone Christian Sch. v. Univ. Interscholastic

League, 563 F.3d 127, 134 (5th Cir. 2009) (holding, in context of motion to dismiss, that plaintiff
must allege facts that give rise to plausible claim of standing). "Particularized" means "the injury must affect the plaintiff in a personal and individual way." Lujan, 504 U.S. at 560 n. 1.

party seeking review be himself among the injured." Id. at 563 (internal quotations omitted).

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The Supreme Court has "'consistently held that a plaintiff raising only a generally available grievance about government--claiming only harm to his and every citizen's interest in proper

application of the Constitution and laws, and seeking relief that no more directly and tangibly

benefits him than it does the public at large-does not state an Article III case or controversy.'"

Lance v. Coffman, 549 U.S. 437, 439, (2007) (quoting Lujan, 504 U.S., 573-74); see also Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 217 (1974); United States v.
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"[T]he injury in fact test requires more than an injury to a cognizable interest. It requires that the

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between the injury and the conduct complained of; and (3) a likelihood, as opposed to

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that "serves to identify those disputes which are appropriately resolved through the judicial

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Richardson, 418 U.S. 166, 173-78 (1974) (taxpayer's generalized grievance insufficient for

According to Defendants, Taitz has not demonstrated that she has sustained an injury-infact. (Doc. 15 at 17.) The Court agrees.

Although Taitz has filed this lawsuit seeking

miscellaneous and sundry relief from the Court, Taitz has not demonstrated how she has already

other courts have held in similar suits brought by Plaintiff, "this Court is not willing to go tilting at windmills with [Taitz]." Sibley v. Obama, --F.Supp.2d--, 2012 WL 2016809 at *1 (D. D.C. June 6, 2012.) (quoting Taitz v. Obama, 707 F.Supp.2d 1, 3 (D. D.C. 2010)). The Complaint does not allege that Taitz either does or does not currently have health insurance. Nor does Taitz allege that she will be unable to comply with minimum coverage provisions of the ACA upon its effective date. The Complaint fails to otherwise indicate how Taitz will personally incur any adverse effect or change any behavior once the ACA takes effect in 2014.

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Complaint lists several various and disconnected theories of recovery, none of them are personal to any named plaintiff in this lawsuit. As they appear in the Complaint, the theories raised by

government-claiming only harm to his and every citizen's interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it

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does the public at large." See Lance, 549 U.S. at 439. The Court therefore finds that Taitz has failed to allege that any injury is sufficiently personal and individual to survive Defendants'

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Taitz are a prime example of a plaintiff "raising only a generally available grievance about

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or will imminently suffer any individualized harm as a result of any Defendant's conduct. As

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Although the

standing).

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Motion to Dismiss. See Lujan, 504 U.S. at 560 & 561 n. 1 (citations and internal quotation

III.

Conclusion

For the foregoing reasons, the Court GRANTS Defendants' Motion to Dismiss.
IT IS SO ORDERED.

Signed this~ day ofNovember, 2012.

JO GE A. SOLIS UNITED STATES DISTRICT JUDGE

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The Complaint also appears to bring causes of action (1) challenging President Obama's eligibility to serve as president and sign legislation, and (2) contending an unlawful conspiracy in violation of RICO. (Doc. 3 at 16, 19.) Because Taitz has failed to identify any particularized harm which she has experienced or will imminently experience, these claims are also dismissed. Order 3:12-CV-3252-P Page 5 of5

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marks omitted)?

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