I guess, we can’t blame Orly for asking the Court for help interpreting the rules. Not yet on the docket
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
Captain Pamela Barnett, et al.,
Plaintiffs,
v.
Barack Hussein Obama,
Michelle L.R. Obama,
Hillary Rodham Clinton, Secretary of State,
Robert M. Gates, Secretary of Defense,
Joseph R. Biden, Vice-President and President of the Senate,
Defendants.
Motion For Clarification
On 10.29.09. this court has issued an order granting the defendant’s motion to dismiss.
The order did not state that it was a final order and it did not state that it was a dismissal with prejudice. The order stated that this court does not have jurisdiction to remove the president under Quo Warranto and noted that other causes of action were not fully plead. Wherefore the undersigned counsel understands that the order was not a final order on the case, that since the case was never argued on the merits, there was no adjudication with prejudice and therefore the undersigned counsel can exercise her right to file a second amended complaint on the remaining causes of action within 30 days from the denial of the Motion for reconsideration.
PRAYER FOR RELIEF
WHEREFORE, the undersigned counsel requests clarification and confirmation that the 10.29.09. order was not a final order, that it was not an order with prejudice and that she can exercise her right to file a second amended complaint on all causes of action aside from Quo Warranto.
Respectfully submitted,
/s/ DR ORLY TAITZ ESQ
Note:
Remember that the Court already denied a Second Amended motion.
09/23/2009 70 MINUTES OF IN CHAMBERS ORDER by Judge David O. Carter: DENYING REQUEST TO FILE SECOND AMENDED COMPLAINT WITHOUT LEAVE OF COURT 69 : The Clerk shall serve this minute order on all parties to the action. (rla) (Entered: 09/23/2009)
The Court is in receipt of Plaintiffs’ counsel Dr. Orly Taitz’s (“Taitz”) Preliminary Response to Defendants’ 9-4-09 Motion to Dismiss (“Opposition”). The caption of the Opposition indicates that the Opposition is being filed “with reservation of rights to Respond further by filing Plaintiffs’ Second Amended Complaint on or before Friday October 2, 2009.”
Pursuant to Federal Rule of Civil Procedure 15(a), a party may only amend its pleading once as a matter of course. FED. R. CIV. P. 15(a)(1). After that party has amended its pleading once, the party may only further amend its pleading with the opposing party’s written consent or the court’s leave. FED. R. CIV. P. 15(a)(2). Plaintiffs have already filed a First Amended Complaint in this action, so unless they have obtained written consent from Defendants, Plaintiffs must file a regularly noticed motion asking for leave of court to file a Second Amended Complaint. As the hearing on Defendants’ Motion to Dismiss is set for October 5, 2009, Plaintiffs’ request to file a Second Amended Complaint, even if filed today, will not be ready for hearing by October 5 and will therefore not affect that hearing
Okay…
“Pursuant to Federal Rule of Civil Procedure 15(a), a party may only amend its pleading once as a matter of course. FED. R. CIV. P. 15(a)(1). After that party has amended its pleading once, the party may only further amend its pleading with the opposing party’s written consent or the court’s leave.”
…is this a backdoor way of asking if she can amend her pleading a second time because, correct me if I’m wrong, it sounds like she is saying “I give up on the Quo Warranto, but I can still argue the other points of my case since I didn’t get to fully plead them and since you (Judge Carter) didn’t say it was final, I get to keep amending…” Sounds to me like a kid who doesn’t take no for an answer and keeps on finding new ways to ask for the toy they cannot have.
The other point that has me a bit confused here is that this is referring to an amended motion that went before the Judge BEFORE the Oct 5th hearing, was denied and then the judge granted the defenses motion to dismiss later….right? So what is the game plan that Orly is up to? Is she trying to go back and get a mulligan on her motions to undermine the dismissal?
As entertaining as this has been, it still gives me a headache at times…LOL!
Rather than a multi-year appeal, Orly is trying to keep the case alive. She filed a second amended motion earlier and was told by the Court about the Rules. Orly apparently never filed a motion for leave to file a second amended motion and I doubt the defendants would agree anyway.
It’s a desperate move based on poor legal judgment but who knows…
response went up there instead of here… O_o
It’s a desperate move based on poor legal judgment
Which pretty much sums up Orly’s cases to date.
Okay, that makes sense to not have a multi-year appeal going, because that could be drawn out well past 2016 when it wouldn’t be relevant to Orly’s agenda.
Desperate measures for a desperate situation is probably where she is coming from…but at some point doesn’t the question of what is sane come into play since doing the same thing over and over but expecting different results is not a sane act? LOL!!
I guess this won’t be over for a long while….
In the 9th Circuit, in 2008 the median time for completing an appeal was 19 months from the filing of the notice of appeal. So the prospect of an appeal that would not be completed by the 2012 election is pretty slim.
You would expect this case to be decided faster than average because of the relatively clear cut legal issues and the lack of an extensive record (no discovery or trial). But Orly’s inability to comply with basic procedural rules cuts the other way.
Far be it from me to defend yet another of Orly’s obtuse filings, but this one is only half-incompetent. (Yeah, I know, that’s like being half-pregnant.)
Judge Carter’s order dismissing the suit did, IMHO, leave several housekeeping issues outstanding. I commented on that at the time the order was issued in the thread here, but I see now that the thread was scrubbed of replies about the time this site went out of business temporarily.
Orly is actually correct in noting that the order was not designated a “final order” — a term of art that does, indeed, have an impact on appealability. Neither was it clear which claims were dismissed with or without prejudice.
My take at the time was that most were 12(b)(1) dismissals for lack of subject matter jurisdiction and would thus technically be without prejudice. The RICO crap and claims against Michelle Obama failed to state a claim under 12(b)(6) and are probably WITH prejudice. (These would also be considered to be rulings on the merits, BTW.) The Quo Warranto claim, I believe, was dismissed for venue alone, which leaves open the possibility of being refiled in the District of Columbia (not that it’s likely to fly any better there).
Because Judge Carter’s order was not explicit with respect to these issues, a request for clarification is not altogether unreasonable.
However…and this is a BIG HOWEVER…nothing about those issues would entitle Orly to file additional amended complaints. The original case is this District Court is over. Period. Although J. Carter did not designate the order as a “final order” (a mere housekeeping detail), it WAS a final order, meeting customary appellate court criteria for distinguishing a final order from an interlocutory order. (I’m paraphrasing here, but the gist of it is that a final order is one that disposes of all the issues between the parties,)
The only implication of a dismissal without prejudice, as applies here, is that if Orly could find some other court that did, in fact, have subject matter jurisdiction over her claims (she can’t, of course), it could be refiled in the proper court of competent jursidiction. Given that there is no alternative court available with subject matter jurisdiction (e.g., another Federal District Court), the difference is really academic.
Hence, I’d only grade this filing an “F”, rather than her usual “F-minus”.
Why not do this as a moot court exercise at a law school? That would be appropriate, since the case became moot when Congress approved the vote. Orly would be a wonderful exhibit on how not to be a lawyer.
Alternately, there is Judge Judy, although even the dumber litigants there have better cases and present them better than Orly. Judge Scheindlin is far less patient with nonsense than Judge Carter, though. It would be entertaining at least.
Hey, I like that idea. But I’m not sure how good of a moot court case this would make. In law school, those are designed either as a practicum to sharpen trial skills (e.g., become facile with rules of evidence, etc.) or to argue complex and/or difficult issues where there are two real sides.
Unfortunately, in this case there is no admissible evidence and, beyond jurisdiction, there are no real issues.
Heh, Orly’s brass-balls contention that she retains something in the nature of a “right to file a second amended complaint”, after the court explicitly denied her request to file one, borders on self-flagellation. Ya gotta wonder whether she could possibly be this stupid and deluded or whether it is an intentional tack to to keep the circus focused on her. I suspect a little bit of both.
Clearly, Judge Judy would dispense with this nonsense before the first commercial: “Cut the baloney, Ms. Taitz. This isn’t about social security numbers. I wanna know who racked up the charges on the cell phone!”
Adding in a (slightly) more serious vein….
Occasionally, haggling over what is versus what isn’t a final order can have the effect of extending the time for perfecting an appeal. Here, though, I believe that Orly is time-barred from raising these issues at this point in the bidding. (Note that any problems she had with the form or substance of the dismissal order could just as easily been folded into her motion to reconsider.)
Naturally, I can’t predict how J. Carter will handle this, but if I were him, I’d consider entering a nunc pro tunc order to add the term “final order” and insert a couple of “without prejudice” and “with prejudice” phrases in his original order.
[Nunc pro tunc (Latin meaning "now for then") orders are used to correct errors and omissions in an original order or other document without affecting the dating. Since any competent (!) attorney should be able to infer that an order dismissing all of the causes of action in a lawsuit is, in fact, a final order, this would hardly prejudice poor ol' Orly unfairly.]
Guess we’ll see, eh?
****
Q. How many bites does it take Orly to eat an apple?
A. One more.
In my opinion, the dismissal order was a final order.