Case 3:12-cv-00280-HTW-LRA Document 21

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

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

MISSISSIPPI DEMOCRATIC PARTY EXECUTIVE COMMITTEES RESPONSE IN OPPOSITION TO PLAINTIFF ORLY TAITZS MOTION TO REMAND COMES NOW the Defendant, the Mississippi Democratic Party, through its governing

its undersigned counsel, and hereby responds in opposition to Plaintiff Orly Taitzs motion to remand as follows: 1.

Only Plaintiff Orly Taitz has filed the current motion to remand (Docket no. 20). Since none of the other Plaintiffs has provided contact information despite a request to do so, the Court should inquire if Ms. Taitz is seeking to act on behalf of the other Plaintiffs as their attorney.

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Because Ms. Taitz has not sought pro hac vice status (which MDEC would oppose

because of Ms. Taitz's history of misconduct and sanctions in several other states in birther

litigation), the motion is defective; it is only brought by Ms. Taitz, for her claims. If Ms.

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entity, the Mississippi Democratic Party Executive Committee (MDEC), and by and through

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PLAINTIFFS

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

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Taitz's motion were successful, it would arguably not effect a remand of the case on behalf of the other Plaintiffs to the extent her claims differ from the other Plaintiffs. 3.

Ms. Taitz has already filed one motion to remand, see Docket no. 11, and defendants have opposed that motion. See Docket nos. 14 (opposition of Secretary of State) and 19 (opposition of MDEC).

4.

Ms. Taitz contends that all of the named defendants have not joined in the notice of

removal, 1 requiring remand. However, neither the applicable statutes nor the relevant case law require all named defendants to join in a notice of removal. The statute actually provides that only defendants who have been properly joined and served must join in or consent to the removal of the action. 28 U.S.C. 1446(b)(2)(A) (emphasis added). 5.

Setting aside the deficiency of the lack of consent of the other Plaintiffs, and the fact that this is Ms. Taitzs second motion to remand , this motion is not supported by any authenticated, admissible evidence demonstrating (a) who was served, (b) what documents were served, (c) how service was effected, (d) when service occurred, or (e) any other details relating to service of process. (No return of service appears either in this court's docket or the docket of the state court, either.) Instead, the present motion consists of some disorganized argument2 and the recitation of some facts, as well as a group of unauthenticated exhibits, but

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In her motion Ms. Taitz asserts that "For remand [sic] to be valid, all defendant [sic] have to consent to remand [sic]." Motion, Docket no. 20, at p. 2. 2 Ms. Taitzs entire argument was lifted haec verbae from footnote 15, page 7 of an online guide from Deborah Pearce Reggio entitled Removal And Remand: A Guide To Navigating Between The State and Federal Courts. This guide can be found at http://www.federalappeals.com/docs/REMARTFI.pdf. 2

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no supporting affidavit of any kind.

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6.

Generously construing the present motion, it fails to demonstrate with competent

evidenceor any evidence at allthat anyone was served with the Summons and First Amended Complaint, as required by the Mississippi Rules of Civil Procedure (which

governed service of process before removal; see, e.g., Allen v. Ferguson, 791 F.2d 611, 616 n.8 (7th Cir. 1986)(validity of service of process before removal is determined by reference to state law)). 7.

The Mississippi Rules of Civil Procedure require that a summons be issued (Rule 4(a)), and that it accompany and be served with the pleadings (Rule 4(d)). The Rules also provide that the summons be included with the complaint when service is by certified mail (Rule 4(c)(5)).

8.

As a review of the state court record filed by Defendant Secretary of State will demonstrate (see Docket nos. 6 & 7), no summons on the First Amended Complaint was ever issued by the Hinds County Circuit Court Clerk.

9.

Since no summons was ever issued on the First Amended Complaint (which purported to add the additional defendants who Ms. Taitz argues have not joined the notice of removal), any attempted service was void under Mississippi law; no one has been "served" (although the Secretary of State and the MDEC waived that defect when they removed, answered and

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moved for judgment on the pleadings, as permitted by Mississippi Rule 4(e)). See, e.g., Tuck v. Blackmon (2001) 798 So.2d 402, 410 (summons required to be issued and served for proper service); Fletcher v. Limeco Corp. (2008) 996 So.2d 773 (service is invalid and void when a summons is issued which does not comply with Rule 4); Bilbo v. Thigpen (1994) 647

So.2d 678, 691 (original summons must be served with complaint to effect valid service). Unless and until a summons is issued, there can be no valid service.

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10.

Because of the failure to have a summons issued, and to have it served along with the

First Amended Complaint, if Ms. Taitz's motion is construed to argue that proper service has been effected on any of the defendants of the First Amended Complaint, such argument is

demonstrably false and contrary to the requirements of Rule 11, F.R.Civ.P. Likewise, any argument that all defendants must join in a notice of removal without regard to whether or not they have been properly served is also contrary to Rule 11. 11.

Since the sole basis of Ms. Taitzs motion appears to be that other served defendants did not join in the removal, and there is no showing that any of the other defendants had been properly served before removal or that they could lawfully have been served Ms.

Taitzs motion must be denied. No defendants were properly served. (The two removing defendants waived defective service on them under Mississippi Rule 4(e) and then timely removed to this court because the removal clock was running on them.) 12. The motion is also make work for another reason. The complaint purports to join as defendants at least two Federal officials whose right to remove are not dependent on the

consent of any other defendants. While Ms. Taitz may quibble that the President has not been sued in his official Federal capacity, the Commissioner of Social Security has been. A Federal official has the absolute right to remove without the consent of other defendants

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able to remove.

being required. See 28 U.S.C. 1442(a)(1). Defense consent is only a requirement of 28

U.S.C. 1441, removal for a Federal question or diversity. So, assuming Ms. Taitz ever were ever able to properly serve any of the defendants, any Federal defendant would still be

Both of Ms. Taitzs motions to remand should be denied. The Court may also wish to

inquire if Ms. Taitz represents the other named Plaintiffs as an attorney-at-law, and take

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appropriate action if that is the case. Given the wreckless state of her pleadings, the Court

may also wish to inquire if Ms. Taitz understands her professional obligations under Rule 11. WHEREFORE, PREMISES CONSIDERED, the Mississippi Democratic Party Executive Committee hereby moves the Court to deny Plaintiff Taitzs motion to remand. THIS the 11th day of May, 2012.

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

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OF COUNSEL: 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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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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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

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

And to the following persons by email: Brian Fedorka Bfedorka82@gmail.com Laurie Roth drljroth@aol.com

Leah Lax Leahlax1234@aol.com Tom MacLeran mac@macleran.com

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THIS the 11th day of May, 2012. /s/ Samuel L. Begley_________ SAMUEL L. BEGLEY

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Orly Taitz, Esq. 29839 Santa Margarita Parkway, Suite 100 Rancho Santa Margarita, CA 92688

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