Obama Citizenship

Hollister v. Soetoro: Defendant Motion to Dismiss

By Phil

I just received a copy of the Motion to Dismiss in Philip Berg’s recent case, Hollister v. Soetoro. Aside from the usual defensive arguments, the following footnotes are very telling:

Regarding Berg’s claim of ineligibility:

1 President Obama has publicly produced a certified copy of a birth certificate showing that he was born on August 4, 1961, in Honolulu Hawaii. See, e.g., Factcheck.org, ?Born in the U.S.A.: The truth about Obama?s birth certificate,? available at http://www.factcheck.org/elections-2008/born_in_the_usa.html (concluding that the birth certificate is genuine, and noting a contemporaneous birth announcement published in a Honolulu newspaper). Hawaii officials have publicly verified that they have President Obama?s ?original birth certificate on record in accordance with state policies and procedures.? See ?Certified,? Honolulu Star Bulletin, Oct. 31, 2008. This Court can take judicial notice of these public news reports. See The Washington Post v. Robinson, 935 F.2d 282, 291 (D.C. Cir. 1991); Agee v. Muskie, 629 F.2d 80, 81 n.1, 90 (D.C. Cir. 1980).

Citing similarity with other lawsuits…

2 Lawsuits have been filed in at least 10 states claiming that either President Obama or the 2008 Republican Presidential Candidate, Senator John McCain, is not a ?natural born citizen.? All of the cases that have proceeded to judgment have been found to be improper and have been quickly dismissed. See, e.g., Wrotnowski v. Bysiewicz, 958 A.2d 709, 713 (Conn. 2008) (dismissing case regarding Obama for lack of statutory standing and subject matter jurisdiction); Stamper v. United States, 2008 WL 4838073, at *2 (N.D. Ohio Nov. 4, 2008) (dismissing suit regarding Obama and McCain for lack of jurisdiction); Roy v. Federal Election, 2008 WL 4921263, at *1 (W.D. Wash. Nov. 14, 2008) (dismissing suit regarding Obama and McCain for failure to state a claim); Marquis v. Reed, Superior Court Case No. 08-2-34955 SEA (Wash. 2008) (dismissing suit regarding Obama); Hollander v. McCain, 566 F. Supp. 2d 63, 71 (D.N.H. 2008) (dismissing suit regarding McCain on standing grounds); In re John McCain?s Ineligibility to be on Presidential Primary Ballot in PA., 944 A.2d 75 (Pa. 2008); Lightfoot v. Bowen, Supreme Court Case No. S168690 (Cal. 2008) (Original Proceeding) (denying Petition for Writ of Mandate/Prohibition and Stay regarding Obama); Robinson v. Bowen, 567 F. Supp. 2d, 1144, 1147 (N.D. Cal. 2008) (dismissing suit regarding McCain for lack of standing and lack of a state court remedy); Constitution Party v. Lingle, 2008 WL 5125984, at *1 (Haw. Dec. 5, 2008) (unpublished) (dismissing election contest challenging Obama?s Nov. 4, 2008 victory); Martin v. Lingle, Supreme Court Case No. 08-1-2147 (Haw. 2008) (Original Proceeding) (rejecting original writ petition regarding Obama on several grounds); Cohen v. Obama, 2008 WL 5191864, at *1 (D.D.C. Dec. 11, 2008) (dismissing suit regarding Obama on standing grounds); Donofrio v. Wells, Motion No. AM-0153-08T2 before the New Jersey Appellate Division (N.J. 2008).

Use of interpleader statute:

3 Even if plaintiff’s use of interpleader were not illegitimate on its face, the complaint would fail to state a claim upon which relief could be granted. In an interpleader action, there must be adverse claimants to the property in plaintiff’s possession so that plaintiff risks multiple or inconsistent liability with respect to the property. See 28 U.S.C. § 1335 (stating interpleader is proper if “[t]wo or more adverse claimants . . . are claiming or may claim to be entitled to such money or property, or to any one or more of the benefits arising by virtue of any note, bond, certificate, policy or other instrument, or arising by virtue of any such obligation[.]“) (emphasis added); 7 Wright, Miller & Kane § 1705 (”A prerequisite for permitting interpleader is that two or more claimants must be ‘adverse’ to each other. This requirement is not met when one of the claims clearly is devoid of substance, or . . . liability is groundless[.]“). 

Here, not only is the claim clearly devoid of substance, but plaintiff has not alleged facts demonstrating that defendants are adverse claimants. He offers only speculation on this point. See Dkt. #1 at ¶52. He also concedes that it is mere conjecture that there may be more than one claimant. See Dkt. #1 at ¶39. In addition, plaintiff has failed to make any showing regarding the likelihood that a claim on his “property” will ever be made. See supra, at 5 (quoting Dkt. #1 at ¶34, ¶40, ¶44, ¶47).

In short, no matter how the complaint is construed, plaintiff has not stated a plausible claim for relief. See Smith, 544 F. Supp. 2d at 16 (”The facts alleged in the complaint . . . must be sufficient ‘to state a claim for relief that is plausible on its face.’”) (quoting Twombly, 127 S. Ct. at 1974); see also 7 Wright, Miller & Kane §1705 (”[I]nterpleader is inappropriate when the claims not only are remote in time but actually fall below any meaningful threshold level of substantiality.”). His claim must be dismissed.

I will once again note that any time the opposition of a question provides reasoning for their argument, it’s very useful to study it out to find out exactly why things have gone, or are going, the way they are.

-Phil

Full post as published by The Right Side of Life on January 29, 2009 (boomark / email).