Dr. Orly, Keyes et al v. Obama et al - Reality Check
by nolu chan
June 25, 2009
It can be seen at Dr. Orly's blog that she filed the complaint as:
http://www.orlytaitzesq.com/blog1/?p=2197
Alan Keyes, PhD., Wiley S. Drake, and Markham Robinson,
Plaintiffs
v.
Barack H. Obama, a/k/a Barack H. Obama, II a/k/a Barry Obama, a/k/a Barry Soetoro; Condoleeza Rice, in her capacity as Secretary of State; Robert Mueller, in his capacity as Director of the Federal Bureau of Investigation; and Michael W. Hager, in his capacity as Acting Director, Office of Personnel Management; and DOES 1-100
Defendants
The COMPLAINT was filed on 1/20/2009. Obama became President at noon on 1/20/2009, per the 20th Amendment.
On 5/12/2009 the Court issued an Order to Show Cause re Dismissal for Lack of Prosecution, checking a form line that read, "this Court has not received a responsive pleading from, or a proof of service for, various defendants."
The summonses were required to be served within 120 days of the complaint being filed, or May 20th. No attempt was ever made to serve anyone other than Obama in any capacity. In a filing of 6/14/2009, Dr. Orly moved to drop all defendants other than Barack H. Obama. That is more than three weeks after she exceeded the time to serve three named defendants, and more than a month after the Court ordered her to show cause regarding its non-receipt of proof of service for "various defendants."
On 5/18/2009 Dr. Orly filed the first "Proof of Service" by Mary Ann McKiernan dated 5/17/2009. Mary Ann McKiernan filled in the blanks to read, "I served the summons on [Mail Clerk], who is designated by law to accept service of process on behalf of [Department of Justice, Mail Room Clerk] on [February 10, 2009]".
Note that she documented she was serving on some unidentified individual whom she thought to be designated by law to accept service of process on behalf of the Department of Justice. The Department of Justice mail clerk is not designated by law to accept service for citizen Obama.
On 5/27/2009 the Court issued an Order to Show Cause re Dismissal for Lack of Prosecution.
On 5/27/2009 Dr. Orly submitted another Motion for Default, with something styled a "General Affidavit" of Mary Ann McKiernan dated 5/20/2009. This no longer states she was trying to serve someone authorized to accept for the Department of Justice. Dr. Orly did not address the named defendants other than Obama.
On 6/2/2009 Dr. Orly filed an Amended Motion for Default.
On 6/2/2009 Dr. Orly filed a Second Amended Motion for Default. This contained something styled a "General Affidavit" of Mary Ann McKiernan dated 6/2/2009. It appears identical in content to the previous "General Affidavit" but bears a new date, new signature, and different notary public.
On 6/10/2009 the Court issued a Notice of Deficiency stating the "Clerk cannot enter the requested Default of Barack H. Obama" because "Proof of Service is lacking required information."
On 6/11/2009 Dr. Orly filed a Motion for Clarification.
On 6/12/2009 the Court filed an Order to Show Cause, and Finding as Moot Plaintiffs' Motion for Clarification. It stated in part, "The Court is also in receipt of a Motion for Clarification... filed by plaintiffs on June 11, 2009, in which they argue that service had been effected by and through Rule 4(e) of the Federal Rules of Civil Procedure. Plaintiffs are directed to Rule 4(i), which addresses service upon the United States and its agencies, corporation, officers or employees."
On 6/14/2009 Dr. Orly filed a Motion for Reconsideration... and Voluntary Dismissal Pursuant to Rule 41(A)(1) of Counts Two and Three (and All Other Defendants Besides Barack H. Obama in Default). Dr. Orly finally remembers her additional named defendants whom she never served and states, "Defendant Barack H. Obama, [] is the only Defendant actually served within the first 120 days of filing this complaint...." Actually, he was not served either.
On 6/22/2009 the Court issued an Order Setting Hearing on Motion for 7/13/2009 at 8:30 a.m. Per Court Order, the "Plaintiffs are directed to make every effort possible to ensure that all remaining defendants are aware of the hearing and provide documentation that the individual receiving service is authorized to accept on defendants' behalf."
Perhaps Judge Carter has a sense of humor. Will Dr. Orly effect the ordered notification of the July 13th hearing by dropping off a memo with a mail clerk at DOJ? How will Dr. Orly provide the requested documentation of who is authorized to receive service for Barack Obama, in his private capacity, without providing the Court with documentation that a mail clerk at DOJ is not among those so authorized?
In her June 14, 2009 Motion for Reconsideration, Dr. Orly visited the following pleasantries and endearments upon the Court: [excerpts]
Ironically enough, Plaintiffs do precisely contend that by serving the Mail Clerk of Department of Justice on February 10, 2009, as indisputably proved in the affidavit of Mary Ann McKiernan already on file with this court, Plaintiffs have satisfied both the requirements of Rule 4(e)(2)(c) [sic (C)] 4(i)(3). [at 3]
Plaintiffs are suing the Defendant Barack H. Obama for a declaratory judgment concerning his qualifications to assume the title and assume the office of President of the United States, and in particular regarding his duty to disclose issues concerning his pre-Inauguration life which either qualified or disqualified him from being Inaugurated. So there is no justification for requiring service of the United States under Rule (4)(i)(3). [at 3]
Plaintiffs respectfully submit that this Court's order finding or at least strongly suggesting that 4(e) service is insufficient, and requiring 4(i) service, regarding the subject matter of this lawsuit as against the sole served Defendant Barack H. Obama, is manifestly erroneous and Plaintiffs accordingly request that the Court reconsider its motion. [sic - Order] [at 4]
Why have a rule of default, at all, why make a distinction between private and U.S. Governmental parties as between 4(e) and 4(i) at all within the Federal Rules, if the face of a complaint, and the status of the parties at the time of filing, cannot be used to judge compliance with such a rule which might apply in this case to guarantee victory to the Plaintiff? [at 6]
It seems to the Plaintiffs unfair and unjust that a Judge could merely set aside a party's default on a whim, for no good legal or equitable reason, based on a change in a party's status, but not the cause of action against him, between filing and service of suit? In fact of coursethe Court has NOT FORMALLY ACTED to set aside Barack H. Obama's default, because the Clerk has not yet even recorded the default, but by its order of June 12, 2009, the Court has "merely" ordered the Plaintiff to start litigation all over again, as if the past six months had never happened or were no more important than six grains of tidal sand in the surfs at Malibu. [at 6]
Mary Ann McKiernan effected service of process on De Facto President Barack H. Obama through the Department of Justice. [at 7]
Plaintiffs believe and submit that the need for clarification is not at all moot. [at 9]
It appears Dr. Orly may have a Hemenway moment, but perhaps more so. Telling the judge his order is manifestly erroneous, that he acted unfairly and unjustly on a whim, for no good legal reason, is one way to get the judge's attention. On July 13th, I expect the judge will get Dr. Orly's attention.
- - -
WHEN ALL ELSE FAILS, READ THE INSTRUCTIONS
~ Allen's Axiom
Federal Rules of Civil Procedure apply. Rule 4, covers a summons and states that "The plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m) and must furnish the necessary copies to the person who makes service." Rule 4(m) states "If a defendant is not served within 120 days after the complaint is filed, the court — on motion or on its own after notice to the plaintiff — must dismiss the action without prejudice against that defendant or order that service be made within a specified time."
A person served as an private individual has 20 days to respond. [Rule 12(a)(1)(A)(i)] A government officer sued individually has 60 days to respond. [Rule 12(a)(3)] On the summons obtained by Dr. Orly the blank is filled in as 60 days, not 20. On the summons form itself is printed, "[Use 60 days if the defendant is the United States or a United States agency, or is an officer or employee of the United States. Allowed 60 days by Rule 12(a)(3).]"
Per Dr. Orly, "Plaintiff's do precisely contend that by serving the Mail Clerk of Department of Justice on February 10, 2009, as indisputably proved in the affidavit of Mary Ann McKiernan already on file with this court, Plaintiffs have satisfied both the requirements of Rule 4(e)(2)(c) [and] 4(i)(3)."
Reality contends otherwise.
Rule 4(i)(3) required that Dr. Orly "deliver a copy of the summons and of the complaint to the United States attorney for the district where the action is brought — or to an assistant United States attorney or clerical employee whom the United States attorney designates in a writing filed with the court clerk.
The case was brought in Orange County, California. The DOJ is not in California. The mail clerk at the DOJ has not been designated in a writing with the court clerk of the U.S. District Court for the Central District of California to accept service for the U.S. Attorney for said district. There is no evidence that the unidentified mail clerk has been designated in writing by anyone to anyone to accept service for anyone.
Ms. McKiernan's unsupported statement that she effected delivery to an unidentified person, not known to her as a mail clerk, indisputably proves there is no legal proof of valid service, and not even proof of service on a mail clerk not authorized to accept service.
Rule 4(e)(2)(C) for individuals requires, "delivering a copy of each [summons and complaint] to an agent authorized by appointment or by law to receive service of process." Dr. Orly asserts delivery to an agent authorized by law to receive service of process. She cites no law which authorizes the unidentified mail clerk to accept service of process on behalf on Barack Obama as an individual private citizen.
Rule 4(e) states
(e) Serving an Individual Within a Judicial District of the United States.
Unless federal law provides otherwise, an individual — other than a minor, an incompetent person, or a person whose waiver has been filed — may be served in a judicial district of the United States by:
(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the individual personally;
(B) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.
Rule 4(i) states:
(i) Serving the United States and Its Agencies, Corporations, Officers, or Employees.
(1) United States.
To serve the United States, a party must:
(A)
(i) deliver a copy of the summons and of the complaint to the United States attorney for the district where the action is brought — or to an assistant United States attorney or clerical employee whom the United States attorney designates in a writing filed with the court clerk — or
(ii) send a copy of each by registered or certified mail to the civil-process clerk at the United States attorney’s office;
(B) send a copy of each by registered or certified mail to the Attorney General of the United States at Washington, D.C.; and
(C) if the action challenges an order of a nonparty agency or officer of the United States, send a copy of each by registered or certified mail to the agency or officer.
[...]
(3) Officer or Employee Sued Individually.
To serve a United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States’ behalf (whether or not the officer or employee is also sued in an official capacity), a party must serve the United States and also serve the officer or employee under Rule 4(e), (f), or (g).
