moment.
Posted on 10/21/2008 6:05:29 AM PDT by Calpernia
Original thread can be reviewed here:
http://www.freerepublic.com/focus/news/2109876/posts
So, why is it taking so long? What is the judge waiting for? (Berg vs Obama)
By NoobRep
Today's Update by WestCoastGal
Unless the Obama Campaign applies for a withdrawal of admission and shows GOOD CAUSE, as of today, October 21, 2008, the Obama Campaign has legally admitted that Barack Hussein Obama is ineligible to hold the office of Presidency. Full coverage of this court proceeding can be read here: http://www.americasright.com/
Below is today's legal admission!
Tuesday, October 21, 2008
Berg: Due to Procedure, Obama and DNC Admit all Allegations
According to Rule 36 of the Federal Rules of Civil Procedure, a party upon whom requests for admissions have been served must respond, within 30 days, or else the matters in the requests will be automatically deemed conclusively admitted for purposes of the pending action.
On September 15, as part of his federal lawsuit contending that the Illinois senator is ineligible, pursuant to the U.S. Constitution, to serve as president of the United States, Philadelphia attorney Philip Berg served Barack Obama and the Democratic National Committee with just such a request. Soon thereafter, on October 6, Barack Obama and the DNC acknowledged service in their motion for protective order, filed in an attempt to persuade the court to stay discovery. The Federal Rules require that a response to a request for admissions be served within the 30-day time limit, and Barack Obama and the DNC have not done so.
Therefore, this morning, amidst news reports that Barack Obama will be suspending his campaign for a few days so he can fly to Hawaii to visit his grandmother, who has suddenly fallen ill, Philip Berg will file two motions in district court in Philadelphia:
A motion requesting an immediate order deeming his request for admissions served upon Barack Obama and the DNC on September 15 admitted by default, and
A motion requesting an expedited ruling and/or hearing on Berg’s motion deeming the request for admissions served upon Obama and the DNC admitted.
Berg contends that the failure to respond and serve the response within the time limit is “damning,” and made two appearances overnight on Rollye James’ talk radio program, the second one coming shortly after midnight, during which he disclosed the meat of today’s filings and the legal and political ramifications of the defendants’ failure to respond.
“They did not file answers or objections or anything else to the request for admissions we served upon them on September 15,” Berg said to me shortly before midnight, noting that Obama and the DNC did in fact acknowledge service of the admission in their motion for protective order. “They knew the admissions were due. They knew they must object or answer specifically in 30 days. Here, they did nothing.”
Typically, requests can be used to ascertain three types of information: (1) the veracity of facts, (2) the authenticity of documents, or (3) the “application of law to fact.” Pretty much anything not privileged is fair game, and while the idea behind such a request is to obtain information, requests for admissions of facts and of the genuine nature of documents are generally not designed as a part of discovery, per se, but rather more of a mechanism used to whittle down proof later in the proceedings.
Unless permitted by the court or allowed pursuant to a written agreement between the parties, the party served with the request must serve a response within 30 days. How serious is a failure to respond? This, from PreTrial, by Thomas A. Mauet:
The automatic provision of Rule 36 makes it a formidable weapon because inertia or inattentiveness can have an automatic, and usually devastating, consequence. Hence, there is one cardinal rule for practice under this provision: Make sure you respond and serve the response within the 30-day period.
Given the “usually devastating” consequence of failure to respond in time to a request for admissions such as those served upon Obama and the DNC on September 15, just what were some of the admissions that Berg asserts Barack Obama and the DNC have, at least procedurally, admitted to?
Admit you were born in Kenya.
Admit you are a Kenya “natural born” citizen.
Admit your foreign birth was registered in the State of Hawaii.
Admit your father, Barrack Hussein Obama, Sr., admitted Paternity of you.
Admit your mother gave birth to you in Mombosa, Kenya.
Admit your mother’s maiden name is Stanley Ann Dunham a/k/a Ann Dunham.
Admit the COLB [Certification of Live Birth] posted on the website “Fightthesmears.com” is a forgery.
Admit you were adopted by a Foreign Citizen.
Admit you were adopted by Lolo Soetoro, M.A. a citizen of Indonesia.
Admit you were not born in Hawaii.
Admit you are a citizen of Indonesia.
Admit you never took the “Oath of Allegiance” to regain your U.S. Citizenship status.
Admit you are not a “natural born” United States citizen. Admit your senior campaign staff is aware you are not a “natural born” United States Citizen.
Admit the United States Constitution does not allow for a Person to hold the office of President of the United States unless that person is a “natural born” United States citizen.
Admit you are ineligible pursuant to the United States Constitution to serve as President and/or Vice President of the United States.
There are, however, several options for Barack Obama and the DNC at this point. The first, and most obvious, is the argument that pursuant to Rule 26(f), a request for admission may only be served after the conference for the purpose of planning discovery detailed under that rule, and therefore the 30-day time limit on Berg’s request has not yet begun. Here, though, Berg could feasibly argue either that the request for admissions is not a true discovery mechanism and is actually meant to streamline the future need for discovery, or that the defendants’ acknowledged service of the request in their October 6 motion for protective order and failed, at that time, to specifically object or answer. The second option for the defense, still easily foreseen, is that Obama and the DNC could file a motion to withdraw admissions which have been deemed admitted.
In order to file a motion to withdraw admissions deemed admitted by default, a party must show
(1) “good cause” regarding why there was no response and
(2) that such a motion to withdraw would not cause undue prejudice to the plaintiff. Here, Berg could contend that Obama and the DNC failed to meet those standards, that they cannot show “good cause” for failing to answer or object, and that withdrawing the admissions would cause undue prejudice.
Still, for Berg, the issue is clear. He simply wanted answers or objections, he said, and instead received nothing. Rule 36, according to Berg, is fairly cut-and-dry.
“It all comes down to the fact that there’s nothing from the other side,” Berg said. “The admissions are there. By not filing the answers or objections, the defense has admitted everything. He admits he was born in Kenya. He admits he was adopted in Indonesia. He admits that the documentation posted online is a phony. And he admits that he is constitutionally ineligible to serve as president of the United States.”
moment.
F.R.Civ.P. 55 governs the entry of default and default judgment against a party who fails to plead or assert a defense by way of a motion to dismiss:
(a) Entry. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party’s default.
(b) Judgment.. Judgment by default may be entered as follows:
(1) By the Clerk. When the plaintiff’s claim against a defendant is for a sum certain or for a sum which can by computation be made certain, the clerk upon request of the plaintiff and upon affidavit of the amount due shall enter judgment for that amount and costs against the defendant, if the defendant has been defaulted for failure to appear and is not an infant or incompetent person.
(2) By the Court. In all other cases the party entitled to a judgment by default shall apply to the court therefor; but no judgment by default shall be entered against an infant or incompetent person unless represented in the action by a general guardian, committee, conservator, or other such representative who has appeared therein. If the party against whom judgment by default is sought has appeared in the action, the party (or, if appearing by representative, the party’s representative) shall be served with written notice of the application for judgment at least 3 days prior to the hearing on such application. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper and shall accord a right of trial by jury to the parties when and as required by any statute of the United States.
Id.
Although F.R.Civ.P. 55(a) speaks in mandatory terms, the Clerk has some discretion in declining to enter default, where the request does not provide complete information. Dow v. Jones, 232 F.Supp.2d 491, 494 (D.Md. 2002). In that case, a criminally convicted defendant sued his defense attorney for malpractice. The plaintiff served process upon the defendant on June 19, 2002, making a responsive pleading due on July 9, 2002. The defendant filed a motion to dismiss on July 12, 2002. After the Clerk advised that an affidavit in support of a request to enter default filed July 15, 2002 did not recite that the defendant had filed a motion to dismiss, the plaintiff filed a motion seeking to enter default.
In denying the motion seeking to enter default, the court discussed that it has discretion to grant additional time to a party to plead or otherwise defend.” Id. 232 F.Supp.2d at 494, citing 10A Wright, Miller & Kane, Federal Practice And Procedure § 2682 (3d ed.1995). The court additionally focused on, “[T]he judicial preference for a decision on the merits.” Id. citing First Am. Bank, N.A. v. United Equity Corp., 89 F.R.D. 81, 86-87 (D.D.C. 1981). Likewise, the court considered the absence of prejudice to the plaintiff, given that the defendant’s motion to dismiss had been filed only three days late. Id. citing Mason & Hanger-Silas Mason Co., Inc., v. Metal Trades Council of Amarillo, Texas and Vicinity, AFL-CIO, 726 F.2d 166, 168 (5th Cir.1984); Martin v. Delaware Law Sch. of Widener Univ., 625 F.Supp. 1288, 1296 n. 3 (D.Del.1985), aff’d, 884 F.2d 1384 (3d Cir.1989).
How’d you like to wake up in the morning, roll over and see that?
“So a threat of riots voids the Constitution? I don’t think so Tim.”
I didn’t say or imply that at all. If he is ineligible, he is out, plain and simple. I’m just predicting what would happen.
yesterday they could have asked for more time, today they are out of time, they still could ask but likely wouldn’t get more time, and also have then acknowledged they see the requests for admissions which they apparantly do not want to do, I just think it’s a case of the big head
Good point. That did not get a lot (any) coverage by the mainstream media. The next two weeks are going to be exciting.
Judges never just act on their own. In fact, it is quite likely that the judge is completely unaware of the Request For Admissions and the non response.
The appropriate procedure is for Berg to file a Motion For Summary Disposition requesting a judgment based on the admissions.
Does he live here now? When did she move from Indonesia?
Very True.
My nephew was born here in NY his dad is in the Air Force they have moved quite a bit, 16 years later he wants to get his license. Nobody gave any of it a thought until now, the BC was obtained and on it’s way to CO within 2 days.
It’s not hard.
Now we know why he flew to Hawaii so suddenly.
Sick grandmother my butt!!
I think that is the OTHER grandmother, the one in Kenya.
Exactly what I was thinking.
Do we have any FReepers in Hawaii with connections to the hospitals where Mrs. Dunham was likely to have been admitted, to verify NObama’s claims that she’s ill?
Could NObama be traveling to Hawaii to access his records there where he could state, “Well lookie here. I was born in Kenya. My mother always told me I was born in Hawaii. She tricked me. It wasn’t my fault.”??
So, help me out here. Obama isn’t going to Hawaii to see his “ailing” grandmother? He’s going to pick up his Indonesian Passport and flee the 57 United States of America?
Michelle and the girls are US Citizens, so they don’t have to flee?
The Fairy Tale of Barry Dunham Soetoro aka Obama gets stranger and stranger.
WHY have not people who went to Occidental or Columbia or Harvard spoken up? What or who are they afraid of?
Agreed, I won’t believe a thing until it’s all over the TV screen and Internet blogs.
That was a thread, which addressed the title you just responded to:
http://www.freerepublic.com/focus/news/2109876/posts
So, why is it taking so long? What is the judge waiting for? (Berg vs Obama)
Hawaii. Isn’t that just the convenient coincidence happenstance
Ok-Ok. So the research I posted was not so on point. What it does show is a bais toward reaching an adjudication on the merits rather than based upon procedure.
In this case, it will be up to the Plaintiff here to file a motion for summary disposition based upon the discovery default. The hearing ofthis will take a few weeks, so there is no quick decision. Obama then comes and makes arguments in opposition - like the serving of Request for Admissions was not permitted in the Discovery Order - Or the dog ate my homework - and the judge puts you back on track in preparing for trial.
The Court won’t give you one fast and dirty - and especially not in this case.
“Obama and the DNC have to show cause for this admission to be dismissed. Other than that, their goose is cooked.”
There is always a way to delay these things. Look how long it took to get any info out of the KKKlintons. They will drag this out until after inauguration day. Then try removing a sitting President based on what will be called a “technicality” by the RAT/MSM complex. The consequences will be biblical. Human sacrifice, dogs and cats living together, mass hysteria! It would be awesome to watch.
Well, in that case, not only would he not be eligible to run for President, but he'd have to step down as US Senator as well. So, I don't think he will admit that. :O)
He's waiting for the FEC to respond, their's is due today.
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