Skip to comments.Hollister v. Soetoro (Obama); Attorney John D. Hemenway reprimanded for bringing suit
Posted on 03/25/2009 6:51:50 AM PDT by SvenMagnussen
GREGORY S. HOLLISTER, Plaintiff, v. : Civil Action No. 08-2254 (JR) BARRY SOETORO, et al., Defendants.
We live in a free country. Our liberties are manifold and are the envy of the world. In the very top tier of those liberties, enshrined in the First Amendment, is the right of the people . . . to petition the Government for a redress of grievances. Many of those petitions are presented to judges. Every judge knows that a disturbingly high percentage of them involve petty slights, or imagined injuries, or matters that lie well beyond the reach of the judicial writ, but most judges will agree that it is important at least to listen to them -- especially to the grievances of poor petitioners, or disadvantaged petitioners, or petitioners who do not have lawyers -- even if the courts are powerless to grant relief.
Lawyers who come to court to present grievances, however, are held to a higher standard than disadvantaged or unrepresented persons. For lawyers, there are rules. A lawyer knows that no judge has any business addressing or ruling upon a dispute, no matter how fervently he or his clients may feel about it, unless the judge has both personal and subject matter jurisdiction, unless the client has standing to be heard, unless the cause is ripe and justiciable, and unless the complaint states a claim upon which relief can be granted. A lawyer who comes to federal court also knows, because the Federal Rules of Civil Procedure plainly say so, that his signature on a complaint certifies that to the best of the persons knowledge and belief, formed after an inquiry reasonable under the circumstances, the complaint is not being presented for any improper purpose, Rule 11 (b) (1), and that the claims . . . and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law, Rule 11(b) (2).
John D. Hemenway is a lawyer and a member of the bar of this court. The dispute that he attempted to litigate here was about whether or not Barack Obama is a natural born Citizen, and thereby qualified under Article II, section 1 of the Constitution to be President. Many people, perhaps as many as a couple of dozen, feel deeply about this issue. Attempts have been made to tee the question up for judicial resolution in a number of courts across the country. See, defendants motion to dismiss [Dkt. #9-1 p. 3, n.H . Mr. Hemenways associate, Philip J. Berg, made at least one such attempt, suing in a
federal court in Pennsylvania, naming himself as plaintiff. After that suit was dismissed (for lack of standing), and after the Supreme Court declined to hear him, Mr. Berg (apparently) found another plaintiff, a man who retired from the Air Force as a colonel more than ten years ago and now claims to be uncertain about whether -- if he were recalled to active duty -- he would have to obey commands that come from President Obama as commander-in-chief. Mr. Berg (presumably) enlisted Mr. Hemenway in this cause. Mr. Hemenway, Mr. Berg, and Lawrence J. Joyce then filed this lawsuit. Mr. Hemenway signed the complaint, certifying his compliance with Rule 11 (b) The complaint asserts a single cause of action, invoking the interpleader statute, 28 U.S.C. § 2235. That statute provides: (a) The district courts shall have original jurisdiction of any civil action of interpleader or in the nature of interpleader filed by any person, firm, or corporation, association, or society having in his or its custody or possession money or property of the value of $500 or more, or having issued a note, bond, certificate, policy of insurance, or other instrument of value or amount of $500 or more, or providing for the delivery or payment or the loan of money or property of such amount or value, or being under any obligation written or unwritten to the amount of $500 or more, if
(1) Two or more adverse claimants, of diverse citizenship as defined in subsection (a) or (d) of section 1332 of this title, are claiming or may claim Messrs. erg and Joyce are not members of the bar of this court and were not granted leave to appear pro hac vice. See [*10)
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; and if (2) the plaintiff has deposited such money or property or has paid the amount of or the loan or other value of such instrument or the amount due under such obligation into the registry of the court, there to abide the judgment of the court, or has given bond payable to the clerk of the court in such amount and with such surety as the court or judge may deem proper, conditioned upon the compliance by the plaintiff with the future order or judgment of the court with respect to the subject matter of the controversy.
(b) Such an action may be entertained although the titles or claims of the conflicting claimants do not have a common origin, or are not identical, but are adverse to and independent of one another.
I have said nothing, and have nothing to say, about the merits of the natural born Citizen question that Messrs. Hemenway, Berg, et al., have sought to present here. I have no business addressing the merits, because, having found that Mr. Hemenways interpleader suit failed to state a claim upon which relief can be granted, I have dismissed it. The only question that remains before me is whether Mr. Hemenway, when he signed the complaint, violated Rule 11 (b). It seemed to me when I dismissed the complaint, on March 5, 2009, that Mr. Hemenways invocation of the interpleader statute as the vehicle for his complaint was completely frivolous. For that reason, and in compliance with Rule 11(c) (3), I ordered Mr. Hemenway to show cause why I should not find him in violation of Rule 11(b), either because he presented the suit for an improper purpose,
Rule 11(b) (1), or because his claims and other legal contentions were not warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law, Rule 11(b) (2), or both. Mr. Hemenway, responding to that order, has filed about 35 pages of argument and selfjustification. Most of his submission deals with the merits of his claim, which, again, are not the subject of the present memorandum.
In so far as Mr. Hemenways submission addresses the legal sufficiency of his interpleader claim, his argument may be summarized as follows:
(I.) The word property in the interpleader statute, 28 U.S.C. § 1335, must be construed broadly. For this proposition, Mr. Hemenway cites no authority construing the word property as it appears in the interpleader statute; he cites only cases decided in the context of other statutes:
Carpenter v. U.s., 484 U.S. 19 (1987) (confidential information is property within the meaning of the mail and wire fraud statute); First Victoria Nat. Bank v. U.S., 620 F.2d 1096 (5th Cir. 1980) rice history acreage is property for estate tax purposes); Matter of Nichols, 4 B.R. 711 (E.D. Mich 1980) (in bankruptcy law, property refers to one, or some, of whatever kind of those items which are subject to ownership, whether it is tangible or intangible, visible or invisible, corporeal or incorporeal, real
(ii.) Mr. Hollisters duty can be the subject of an interpleader action. Here, Mr. Hemenway cites Bank of Neosho v. Colcord,, 8 F.R.D. 621 (W.D.Mo. 1949), for the proposition that a duty with respect to a sum of money has . . . been found to be a proper matter for interpleader. [Dkt. #23, p. 10.) That is a significant distortion of the decision. Colcord (even if it were controlling law, which it is not) does not support Mr. Hemenways point. Colcord was a traditional interpleader case that involved a contract for the sale of a ranch. The sale failed, whereupon the disinterested stakeholder, uncertain whether to disburse the $5,000 earnest money to the contract seller or the contract buyer, deposited the funds in the registry of the court and sued for interpleader. The contract buyer then cross-claimed against the contract seller for specific; the contract seller moved to dismiss because the cross-claim was not for interpleader; and the court denied the motion, deciding nothing more than that a cross claim for the duty of specific performance would lie in the same case because it involved the same subject matter as the underlying interpleader action.
he completely misstates it. In Dunbar, the post office refused to deliver a suspicious package of money, and the United States filed an interpleader action to see who might claim it. The court was harshly critical of the governments resort to cosmic interpleader, Id. at 512, and refused to allow the government to use the suit as a vehicle for the conduct of broad discovery. What Mr. Hemenway should have gleaned from the case was the courts finding that a prerequisite for [interpleader] is that the party requesting interpleader demonstrate that he has been or may be subjected to adverse claims. American Fidelity Fire Ins. Co. v. Construcciones Werl, Inc., 407 F. Supp 164, 173 (D.V.I. 1975), which Mr. Hemenway cites with Dunbar, is to the same effect.
Underwriters at Lloyds v. Nichols, 363 F.2d 357 (8th Cir. 1966), an exhaustive and scholarly opinion, comes to the same conclusion, concluding that interpleader requires real claims, or at least the threat of real claims -- not theoretical, polemical, speculative, or Im-afraid-it-might-happen-someday claims.
(iv.) No court has held that [an] intangible res cannot be the subject of Interpleader. [Dkt. #23, p. 11]. This
proposition is remarkable only for the authorities Mr. Hemenway nearly as I can tell); and N.O.W. v. Scheidler, 510 U.S. 249 (1994) (statutory construction: motivation of economic purpose will not be read into RICO statute). Moreover, one might add, no court has held that a claim made for the first time cannot on that account be found frivolous, or that creativity confers immunity from Rule 11 sanctions. Perhaps the most interesting case that Mr. Hemenway cites -- interesting because, more than any of the others in his submission, it demonstrates just what is wrong with his interpleader claim -- is Xerox Corp. v. Nashua Corp., 314 F. Supp 1187 (S.D.N.Y. 1970) . Xerox sued Nashua for infringing its patent on copy paper. Nashua counterclaimed to interplead RCA, asserting that, if it was infringing Xeroxs patent, it was also infringing a patent owned by RCA, and that it did not know to which party it should pay royalties. Judge Weinfeld observed, id. at 1189: Although Nashuas invocation of interpleader in this case is novel, its assertion that if the two patents interfere, interpleader should lie because of the risk of multiple liability is not without appeal. Rule 22(1) of the Federal Rules of Civil Procedure authorizes an interpleader action where (1) two or more persons have claims against the interpleading party, and (2) as a result, the interpleading party is or may be exposed to multiple liability. It is no longer required that the claims be of common origin or that
the interpleading party be a wholly neutral stakeholder. The rule does not even require a stake or fund as such. The action will lie where all that is involved is the threat of multiple liability on what is in fact but a single claim or obligation. While the patent situation is more complex than the normal interpleader situation, its complexity alone does not foreclose interpleader. Judge Weinfeld dismissed the interpleader claim, however, finding that the postulated situation envisaged by Nashua remains no more than a conjectural view of possible conflicting holdings, Id. at 1190 (emphasis added). Judge Weinfeld went on to state, id.: The court is not prepared to cast Xerox and RCA in the role of unwilling litigants where, upon substantial grounds, they challenge the validity of the basis upon which Nashua seeks to force them into adversary positions, while Nashua presents only its bare conclusions in support of its position. Although parties should be protected against multiple and conflicting liability . . . unjustified interpleader proceedings in a case such as this have substantial disadvantages. The case offered no hope whatsoever of success, and plaintiffs attorneys surely knew it. That was the finding of Judge Jackson in Saltany v. Reagan, 702 F. Supp. 319, 322 (D.D.C. 1988), a case in which, as in this one, the plaintiffs had an axe to grind a case, like this one, that [t]he Court surmise[d] was brought as a public statement of protest of Presidential action with which counsel (and, to be sure, their clients) were In profound disagreement. Finding that the plaintiffs injuries were not insubstantial (plaintiffs were suing for
injuries, deaths, and losses suffered in the 1986 American airstrikes against Libya), Judge Jackson concluded that the suit was not frivolous so much as it is audacious, and he declined to find a Rule 11 violation or to impose sanctions on counsel. Saltany, 702 F. Supp. at 322. The Court of Appeals reversed, 886 F.2d 438 (D.C. Cir. 1989). The trial courts finding that [tjhe case offered no hope whatsoever of success, and plaintiffs attorneys surely knew it was, the Court of Appeals held, a finding in substance if not in terms, that plaintiffs counsel had violated Rule 11. Id. at 440.2 Judge Jackson had been inclined to cut counsel a break, because their suit was brought as a public statement of protest. The Court of Appeals was not so inclined: We do not conceive it a proper function of a federal court to serve as a forum for protests, to the detriment of parties with serious disputes waiting to be heard. Ibid.
This case, like Saltany, offered no hope whatsoever of success, and Mr. Hemenway surely knew it. Mr. Hemenway had no colorable authority for the proposition that Mr. Hollisters contingent claim of duty could be the res in an interpleader suit, or, given the speculative and contingent nature of such a 2 That holding was reaffirmed, on a second appeal, by the law of the case doctrine, see Saltany v. ush, 960 F.2d 1060 (D.C. Cir. 992), over the dissent of Judge Wald that no hope whatsoever of success was not an appropriate substitute for the findings required by Rule 11, id. at 1061.
of an interpleader suit - that [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 such obligation. . . . 28 U.s.c. § 1335(a) (1). Mr. Hemenways suit was not a suit in interpleader or in the nature of interpleader. It was legally frivolous. By signing and filing a legally frivolous complaint, Mr. Hemenway violated at least Rule 11(b) (2). The Court of Appeals remanded Santany to Judge Jackson with instructions to impose a sanction, since, when that case was decided in 1989, a sanction was mandatory upon a finding of a Rule 11 violation. The 1993 amendments to Rule 11 made the imposition of sanctions discretionary with the trial court. Extensive Advisory Committee Notes explained that the purpose of Rule 11 sanctions is to deter rather than compensate. Rule 11 (c) (4) thus contemplates and permits a monetary sanction in the form of a penalty, but such a sanction is now limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated.3 My order to show cause in this case [Dkt. 422] suggested, as one appropriate sanction, that Mr. Hemenway be ordered to pay the attorneys fees and expenses that his improper filing made necessary. Mr. Hernenway correctly observes, however, that Rule 11(c) no longer permits an order for the payment
Mr. Hemenway is 82 years old and takes considerable and justified pride in his patriotic public service and his status as a Rhodes Scholar. He is unlikely to repeat the conduct that gave rise to this proceeding, and in his case the permissible alternative sanction of a reprimand will be sufficient. Others similarly situated -- the people who put Mr. Hemenway up to filing this foolish suit - are unlikely to be deterred, except by a penalty that would be unreasonable to impose on Mr. Hemenway alone.
John D. Hemenway is hereby reprimanded for his part in the preparation, filing, and prosecution of a legally frivolous suit in this court. The order to show cause [Dkt. #22] is discharged. It is SO ORDERED.
JAMES ROBERTSON United States District Judge of attorneys fees and expenses except upon motion and no such motion has been filed.
See http://www.obamaerirnes.info/ (last visited 3/24/09) 02/13/09:
PRESS RELEASE - Berg Fighting On. 3 Pending Lawsuits to Expose Obama for not being Constitutionally qualified/eligible to be President and Berg requests help to spread the word as the major media refuses . . . Request - Everyone who can Please raise, by asking four  friends $10.00 each, or contribute $60.00 to us now. You can use PayPal or credit card on our website or mail a check.
Ping the usual suspects.
The judge can't help but throw in a snarkey comment can he?
James Robertson (born 1938) is a judge for the United States District Court for the District of Columbia. James Robertson was appointed a United States District Judge by President Bill Clinton in 1994.
Chief Justice William Rehnquist later placed him on the Foreign Intelligence Surveillance Court. On December 20, 2005, Judge Robertson resigned his Foreign Intelligence Surveillance Court position.
The injustice was that SCOTUS declined the case. Lower courts aren't going to rock the boat that the SCOTUS refuses to rock.
Sad that SCOTUS has become so ideological, so political...that it will choose to ignore one party's qualifications to be properly examined.
That being said...the handwriting is on the wall. Lower courts are going to be irritated that the injustice is brought up *again* to them when the issue has been settled by SCOTUS.
Funny, he don’t look like no “blue gum baboon”
His Honor is challenging ‘We the People’ to encourage, support and assemble for Hemenway’s appeal of this unconscionable ORDER.
The doors to justice are closed.
Not likely. SCOTUS granted Joyce leave to file Amicus on behalf of AZ Elector Bill Anderson. Any interpretation the matter is settled by SCOTUS is sadly mistaken.
Even more ironic is that Judge Robertson was disrepectful to Joyce AFTER Joyce was granted leave to file the Amicus Curiae with SCOTUS.
I am simply having a brainstorm her and NOT advocating or suggesting someone do something illegal.
The issue must be resolved!! Legal action has, to date, failed. Many folks are becoming more frustrated. Just Sayin.
I don't care what the merits of the case are. If I were a judge, and anyone in my courtroom referred to the President of the United States -- whoever he is -- as a "blue gum baboon," I'd throw them in jail for contempt.
He’s not the President because he’s an usurper.
A much better (and easier) option is to get his college records.
There is a reason they have not been released, and I don’t think it’s grades.
He’s almost certainly listed as an international student, probably Indonesian, and probably on scholarship.
Maybe even copies of the BC there.
There are surely plenty of people at Occidental, Columbia, Harvard, with access.
Maybe not, but it was funny.
If the courts let this pass then perhaps a fund could ne built for the reward sum of $$$ for the BC.
Someone somewhere might just cough it up.
For some oddball reason, Judge Robertson cites Berg’s fundraising website (incorrectly).
See http://www.obamaerirnes.info/ (last visited 3/24/09) 02/13/09:
(actually it’s http://www.obamacrimes.info )
Did this turd even read his own dismissall ? I quote one part from it :
This case, if it were allowed to proceed, would deserve mention in one of those books that seek to prove that the law is foolish or that America has too many lawyers with not enough to do. Even in its relatively short life the case has excited the blogosphere and the conspiracy theorists. The right thing to do is to bring it to an early end.....The issue of the Presidents citizenship was raised,vetted, blogged, texted, twittered, and otherwise massaged byAmericas vigilant citizenry during Mr. Obamas two-year-campaign for the presidency, but this plaintiff wants it resolved by a court.
What an A**HOLE ( or should I say O-HOLE ). So now he says he never commented on the merits ?
Judge appointed by Clinton. Here is info on him:
From 1965 to 1969, he was in private practice with the law firm of Wilmer, Cutler & Pickering. From 1969 to 1972, Judge Robertson served with the Lawyers' Committee for Civil Rights Under Law, as chief counsel of the Committee's litigation offices in Jackson, Mississippi, and as director in Washington, D.C. Judge Robertson then returned to private practice with Wilmer, Cutler & Pickering, where he practiced until his appointment to the federal bench. While in private practice, he served as president of the District of Columbia Bar, co-chair of the Lawyers' Committee for Civil Rights Under Law, and president of Southern Africa Legal Services and Legal Education Project, Inc. Now Wilmer, Cutler and Pickering is also known as WilmerHale LLP. ( the 23rd largest law firm in the world ) They donated $119,245 to the Obama campaign. Also, Obama served on the board of the Chicago branch of the Lawyers' Committee for Civil Rights Under Law.
Here is one more: If you look at the questionnaire part 1, you will see where he lists that he was a member of the board of the same group as the judge. This link also explains about what this "board" did.
Here is an excerpt from an article on what the Lawyers Committee for Civil Rights Under Law does :
Uses the courts to bypass the electorate and its officials in order to gain what it perceives as desirable and just outcomes
Today LCCR uses the courts to mandate race-based affirmative action preferences in business and academia. Its major objective is to use the skills and resources of the bar to obtain equal opportunity for minorities by addressing factors that contribute to racial justice and economic opportunity. Given our nations history of racial discrimination, de jure segregation, and the de facto inequities that persist, LCCR elaborates, the Lawyers Committees primary focus is to represent the interest of African Americans in particular, other racial and ethnic minorities, and other victims of discrimination, where doing so can help to secure justice for all racial and ethnic minorities.
An article about this judge: Article
From the last paragraph:
Of course, the media neglect to mention that Judge Robertson was responsible for dropping two charges against Clintonista and Friend of Hillary, Web Hubbell. "Don't be surprised if Democrats win the White House one of their nominations to the Supreme Court is Judge James Robertson. Don't be surprised, " said Sid Francis
Judge Robertson reminds me of the crying Judge in determining the custody issue of Anna Nicole Smith’s child ... too much emotion and not enough juris prudence.