Case 3:12-cv-00280-HTW-LRA Document 57

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V.

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

DEMOCRAT PARTY OF MISSISSIPPI, ET AL.

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 Rules 12(b)(2), 12(b)(4), 12(b)(5), 12(b)(6), and 9(b) of the Federal Rules of Civil Procedure, file this, their Motion to Dismiss for Lack of In Personam Jurisdiction or in the Alternative for Failure to State a Claim for Relief and Insufficient Process and Service of Process, and without waiving the right to plead and be heard on any other defenses would further show unto this Honorable Court the following: 1. This action was commenced by the filing of a Petition for Injunctive and Declaratory Judgment on or about February 14, 2012, in the Circuit Court of Hinds County,

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Mississippi as civil action number 251-12-107CIV, captioned DR. ORLY TAITZ, ESQ V. DEMOCRAT PARTY OF MISSISSIPPI, SECRETARY OF STATE OF

MISSISSIPPI[.] On or about April 19, 2012, Dr. Orly Taitz, Esq. filed a First Amended Complaint asserting a statutory general election challenge under Miss. Code Ann. 23-15-963,

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DEFENDANTS DR. ALVIN ONAKA AND LORETTA FUDDYS MOTION TO DISMISS FOR LACK OF IN PERSONAM JURISDICTION PURSUANT TO FRCP 12(B)(2) OR IN THE ALTERNATIVE FOR FAILURE TO STATE A CLAIM FOR RELIEF PURSUANT TO FRCP 12(B)(6) AND 9(B) AND INSUFFICIENT PROCESS AND SERVICE OF PROCESS PURSUANT TO FRCP 12(B)(4) AND 12(B)(5)

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DR. ORLY TAITZ, ESQ., ET AL.

PLAINTIFFS

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

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adding several new plaintiffs (hereinafter collectively Plaintiffs), several new

the Racketeer Influenced and Corrupt Organization Act (hereinafter RICO). 3.

This matter was lawfully removed to the United States District Court of the Southern District of Mississippi, Jackson Division, on April 24, 2012, as this Court has federal

4.

Plaintiffs never effectuated service of the Summons and First Amended Complaint upon Onaka and Fuddy despite their allegation that personal service was performed on or about October 8, 2012. 1 [PACER Doc. 44].

5.

Although this case involves at least one federal question based on the RICO claim, the Plaintiffs cannot establish through prima facie evidence that this Court has personal jurisdiction over the defendants. See Caldwell v. Palmetto State Sav. Bank, 811 F.2d 916, 918 (5th Cir. 1987) (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985); Duplantier v. United States, 606 F.2d 654, 663 (5th Cir. 1979), cert. denied, 449 U.S. 1076 (1981); Club Assistance Program, Inc. v. Zukerman, 594 F. Supp. 341, 344 (N.D.

6.

Under the jurisdictional provision of RICO, a civil action brought against an individual may only be instituted in the district court of the United States for any district in which such person resides, is found, has an agent, or transacts his affairs. 18 U.S.C. 1965(a).

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7.

As it relates to Plaintiffs claims neither involving a federal statute nor involving a federal statute that provides for service of process, this Court may exercise personal jurisdiction over a non-resident defendant (1) as allowed under [Mississippis] long-arm statute; and

See 17, 18, supra.

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Ill. 1984) (personal jurisdiction must be established in RICO case)).

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question jurisdiction pursuant to 28 U.S.C. 1331. [PACER Doc. 1].

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defendants (including Onaka and Fuddy), and asserting a claim against Defendants under

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(2) to the extent permitted by the Due Process Clause of the Fourteenth Amendment.

also Internet Doorway, Inc. v. Parks, 138 F. Supp. 2d 773, 775 (S.D. Miss. 2001) ([I]n federal question cases where the federal statute in question does not provide for service of

process, a federal court, even in a federal question case, can use a state long-arm statute

Burstein v. State Bar of Cal., 693 F.2d 511, 514 (5th Cir. 1982)). 8.

Plaintiffs have not carried their burden of presenting prima facie evidence in the First Amended Complaint to establish personal jurisdiction over the Defendant. Morris v. Medley, No. 1:10cv389-LG-RHW, 2011 U.S. Dist. LEXIS 18452, at *5 (S.D. Miss. Feb. 24, 2011).

9.

Defendants do not reside in Mississippi, neither was found in Mississippi, neither has agents in Mississippi, nor have either transacted any of their affairs in Mississippi as is required for personal jurisdiction based on the relevant provisions of RICO. See 18 U.S.C. 1965(a).

Court to exercise personal jurisdiction over them. See Charia v. Cigarette Racing Team,

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Inc., 583 F.2d 184, 186 (5th Cir. 1978); Benjamin v. W. Boat Bldg. Corp., 472 F.2d 723, 729 (5th Cir. 1973); R. Clinton Constr. Co. v. Bryant & Reaves, Inc., 442 F. Supp. 838,

849-50 (N.D. Miss. 1977). Because the facts do not establish that the Defendants have sufficient minimum contacts with the forum state, the exercise of personal jurisdiction over the Defendants would offend traditional notions of fair play and substantial justice. Asahi Metal Indus. Co. v. 3

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10.

Defendants do not maintain minimal contacts with the State of Mississippi to allow this

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only to reach those parties whom a court of the state could also reach under it.) (quoting

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Mullins v. TestAmerica, Inc., 564 F.3d 386, 398 (5th Cir. 2009) (emphasis added); see

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Superior Court of Cal., 480 U.S. 102, 114 (1987) (quoting Intl Shoe Co. v. Washington,

12.

Defendants do not conduct business in Mississippi and therefore, they do not fall within

the reach of the doing business prong of the Mississippi long-arm statute. Miss. Code Ann. 13-3-57. 13.

with a Mississippi resident; (2) committed a tort in whole or in part in Mississippi; or (3) do any business or perform any character of work in Mississippi, this Court does not have personal jurisdiction over the Defendants based on the doing business prong, tort prong, or contract prong of the Mississippi long-arm statute. See Miss. Code Ann. 13-3-57; Exs. A and B. 14.

Because the First Amended Complaint does not plead specific facts and contains merely conclusory allegations, the requirements of Twombly and Rule 8(a) of the Federal Rules of Civil Procedure are not satisfied. As such, the Plaintiffs claims do not provide the requisite, minimum short and plain statement showing that they are entitled to relief.

15.

The Plaintiffs civil RICO claims should be dismissed because governmental entities and their employees acting in the course and scope of their employment are immune from civil RICO liability, because they are incapable of forming the mens rea necessary to commit a predicate act. Because the Plaintiffs failed to make any allegations as to their detrimental reliance on the Defendants allegedly fraudulent misrepresentations, they have failed to plead fraud

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Fed. R. Civ. P. 8(a)(1).

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Because there is no admissible evidence proving that the Defendants: (1) made a contract

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326 U.S. 310, 316 (1945)).

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with particularity as required by Rule 9(b) of the Federal Rules of Civil Procedure and, as

17.

The Plaintiffs attempt to effectuate service of process on the Defendants was insufficient

because Audrey Gibo was neither an agent authorized by appointment or by law to accept process on behalf of the State of Hawaiis Department of Health, Dr. Alvin T. Onaka, or

18.

Because the Plaintiffs filed the First Amended Complaint on April 19, 2012, in the circuit Court of Hinds County, Mississippi, and the Defendants did not receive a copy of the Summons and First Amended Complaint until October 8, 2012172 days after the filing of the First Amended Complaintthe Plaintiffs claims should be dismissed based on Rule 4(m) of the Federal Rules of Civil Procedure requiring such service within 120 days of the filing of the First Amended Complaint.

19.

In support of their Motion, Defendants rely upon the Declarations of Dr. Alvin Onaka and Loretta Fuddy, and the Affidavit of Audrey Gibo, true and correct copies of which are attached hereto as Exhibits A, B, and C respectively.

Fuddy, respectfully request that this Honorable Court enter a dismissal of this action, with

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prejudice, due to a lack of personal jurisdiction; the failure to state a claim for relief; failure to plead fraud with particularity; or alternatively, without prejudice due to insufficient process and insufficient service of process. Defendants, Dr. Alvin Onaka and Loretta Fuddy further pray for such other relief to which they may be entitled and, if necessary, hereby request an extension of time within which to file an Answer to the First Amended Complaint in the event that these Motions are denied. 5

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WHEREFORE, PREMISES CONSIDERED, Defendants, Dr. Alvin Onaka and Loretta

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Loretta Fuddy, whether named personally or in their official capacities.

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such, their claims should be dismissed.

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RESPECTFULLY SUBMITTED, this the 26th day of October, 2012.

BY:

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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BY:

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

DR. ALVIN ONAKA AND LORETTA FUDDY, DEFENDANTS

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CERTIFICATE OF SERVICE

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 bfedorka82@gmail.com Laurie Roth drljroth@aol.com

Tom MacLeran tom@macleran.com

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SO CERTIFIED, this the 26th day of October, 2012.

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Leah Lax lealax1234@aol.com

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s/ Walter W. Dukes_________________________ WALTER W. DUKES 7

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

Harold E. Pizzetta, III Justin L. Matheny Office of the Attorney General 550 High Street, Suite 220 P.O. Box 220 Jackson, Mississippi 39205

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

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I hereby certify that a true and correct copy of the foregoing document has been