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MTD filed in Collette v. Obama

The Florida Democratic Party has filed a Motion to Dismiss the case of Collette v. Obama. This lawsuit is the first exercise of Collette’s “Do it Yourself Ballot Challenge Kit.”

I discussed this case in my two articles:

Jerry Collette was kind enough to send a link to a copy of the Motion to Dismiss, embedded below. He, not being an attorney, seems to have some basic problems getting started with the suit, issues with service and venue.

 

Collette has a Draft Amended Complaint on the web, but it doesn’t appear to answer the technical issues raised in the Motion to Dismiss. I think this case will be over very quickly.

Update:

I sent Jerry this critique of the Draft Amended Complaint:

You say (4) "Plaintiff does not know the true names and capacities of the defendants sued as DOES 1 through 1000, inclusive, and will amend this complaint to allege their true names and capacities when ascertained." This is your amended complaint. You don’t get another shot. Unless you name some names, and serve those people, your case will be dismissed for lack of service.

You say (7) "Plaintiff has standing under Fla. Const. art. I, § 21 (2011)." However, based on the Florida cases I’ve read, you are exactly the kind of person who does not have standing. Your alleged harm (to the extent that you even allege harm) is generalized and not particular.

You say (8) "Causes of action alleged in this complaint accrued in, among other places, Pasco County. Accordingly, under Fla. Stat. § 47.011 (2011), Pasco County is a proper venue for this case." The new section of law that you cite still requires a defendant or a cause of action in Pasco County and I don’t see this in the complaint. 

You say (10) "As set forth below, an actual, present, and justiciable controversy exists between the parties in that…" However, what you describe following is not an actual controversy, but a difference of opinion. An actual controversy is not a disagreement, but something in which one party is damaged by another. The statement of the controversy is exactly the kind of disagreement that is not justiciable. The way this paragraph is written, you are essentially admitting that your complaint is not justiciable.

Have you served Barack Obama? If not, the case will be dismissed as regards to him. (Colette informs me that he served Ashley Walker, FL Director of Obama for America.)

You say (18) "Neither the U.S. Constitution, nor any federal statute enacted thereunder, provide for a procedure to assure that Presidents of the United States and candidates for said office meet the Eligibility Requirements." See my article: How we insure our Presidents are eligible

You say (19) "Therefore, according to the Tenth Amendment of the U.S. Constitution, the states and the people retain the right to make such assurances." However, the Constitution gives the Congress the duty to deal with a President-elect who does not qualify. Therefore, the people do not retain this right except as to their choice in voting.

You say (21) "Nonetheless, nothing prevents this court from adjudicating the issues presented and granting the relief requested in this case." This is a conclusion of law, and an unsupported one. It will be ignored when considering the MTD.

You say (37) "Plaintiff asserts that, even if defendant Obama is a native born citizen, he does not meet the Eligibility Requirement of a natural born citizen due to his being born of foreign paternity." This is a question of law, and so far 5 courts considering Obama challenges have rejected this assertion.

Points 38-58 are irrelevant to the case and do not belong in it.

You say (54) "This is an action for declaratory judgment, injunctive relief, and money damages." How can you claim money damages if you don’t allege particular and individual damage? This goes to the lack of standing because your alleged injury is diffuse.

You say (55) "The Eligibility Requirements, by implication, give plaintiff a constitutional right to not be governed by officials who fail to meet them." However, you are not alleging that the plaintiffs are barring you from having an eligible President. You are alleging that the plaintiffs are allowing an ineligible candidate to appear on the ballot. The Constitution (Amendment XX) clearly assumes that the voters can vote for an unqualified candidate. The Constitution itself makes it clear that you have no right to be protected from an ineligible candidate on the ballot since an unqualified candidate can be elected. If you believe that an ineligible candidate has been elected, then the proper venue for your complaint would be with Congress.

You say (64) "Defendants owed a duty to plaintiff to ascertain that defendant Obama meets the Eligibility Requirements." However, you cite no statute that places an obligation on any defendant you name to ascertain eligibility. Insofar as you rely solely on the Constitution, that argument fails because the Constitution does not require candidates for President to be eligible, and in fact it foresees the case when one is not eligible. Where there is no duty, there is no negligence.

It appears in general that your lawsuit is an attempt to win an argument about whether Obama is eligible or not through a fabricated controversy, non-existent duties, and generalized, non-specific damages. It will never fly.

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36 Responses to MTD filed in Collette v. Obama

  1. avatar
    Daniel April 25, 2012 at 11:18 am #

    So just to keep the stats correct, would this count as one failure, or 234 failures 😉

  2. avatar
    richCares April 25, 2012 at 11:49 am #

    how many “Dooms” before the courts refuse to take up this garbage?

  3. avatar
    nbc April 25, 2012 at 12:14 pm #

    Wow, these do-it-yourself kits are worse than Orly’s filings and that says a lot. Failure to properly serve, failure to include defendants, failure to state a cause of action.
    Well, you know what they say about pro-se’s….

  4. avatar
    The Magic M April 25, 2012 at 12:29 pm #

    The DIYBCK seems geared to guarantee failure.

    Again, is this a symptom that *everyone* involved with birtherism is, sorry, retarded or is this deliberate stupidity?

    Ever since the first birther cases, they should have learned how to claim “particularized injury” as opposed to “generalized grievance”. Or add some hints as to how to properly serve the defendant(s).

    This reminds me of a quote from “Two and a half men”:

    CHARLIE: “Wow. I lost $8,000 playing poker, I have no idea where my car is, threw up in my mouth three times, and I’m still having a better night than you are.”

    I could say “I am from another country, have no idea about US law, am not a native speaker, and I still could write a more cohesive and less attackable ballot challenge than any of these birther lawyers”.

  5. avatar
    donna April 25, 2012 at 1:19 pm #

    I could say “I am from another country, have no idea about US law, am not a native speaker, and I still could write a more cohesive and less attackable ballot challenge than any of these birther lawyers”.

    =======

    i don’t get it REALLY

    ANYONE, NOT DEVOID of reading comprehension skills, can read the state ballot laws and understand the challenges they have

    ANYONE, NOT DEVOID of reading comprehension skills, can read court precedents and realize how they will FAIL

    as of 4/17, Birther Scorecard 0-123 with 11 pending

    http://www.scribd.com/doc/22707260/Birther-Scorecard-String-Cite-Birthers-Win-O-Lose-123-Pending-11-Total-134-Updated-April-17-2012

    INCROYABLE!!!!!!

  6. avatar
    HellT April 25, 2012 at 1:27 pm #

    Y’know, I could argue that the general citizenry of the US has standing in any court to file suits against Orly and every other birther who wastes our tax dollars and clogs our court dockets in the pursuit of chimeras. I wonder if the birthers would support my claim of standing, since it’s essentially the same as theirs. I also wonder how *they’d* like to be the targets of endless legal harassment.

  7. avatar
    nbc April 25, 2012 at 1:31 pm #

    donna: INCROYABLE!!!!!!

    Vraiment!!

  8. avatar
    Horus April 25, 2012 at 2:06 pm #

    donna: i don’t get it REALLY

    ANYONE, NOT DEVOID of reading comprehension skills, can read the state ballot laws and understand the challenges they have

    That’s key here, because they do not bother with all that reading.
    They cannot be bothered with reading anything, if they did they would not believe Obama is a fraud.

  9. avatar
    misha April 25, 2012 at 2:14 pm #

    To Jerry Collette:

    In your complaint, you asserted:

    (37) “Plaintiff asserts that, even if defendant Obama is a native born citizen, he does not meet the Eligibility Requirement of a natural born citizen due to his being born of foreign paternity.”

    Willard Mitt Romney’s father was born in Mexico to a man who was a bigamist kept concubines polygamist. George Romney did not set foot in the US until age 6. We don’t know for sure who George Romney’s biological mother was, plus Willard Romney owns a home in Canada, and has much of his wealth in off shore banks.

    You don’t hound (pun intended) Willard Romney, the way you, Orly Taitz, Gary Kreep and the rest of their coterie harass President Obama. Plus, Gary Kreep is a Holocaust denier.

    Why is that? You may contact me with your detailed explanation at marinskym [at] gmail [dot] com. I eagerly await your explanation.

  10. avatar
    donna April 25, 2012 at 2:17 pm #

    the FIRST step BEFORE filing a challenge/lawsuit is LEGAL RESEARCH

    i DO BLAME the COURTS for ALLOWING this mishegas to continue

    a few more $20k sanctions at the beginning and this would have STOPPED

  11. avatar
    Arthur April 25, 2012 at 2:29 pm #

    Dr. C.:

    Your perfectable sensible analysis of Mr. Collette’s complaint will be completly incomprehensible to any birther.

  12. avatar
    misha April 25, 2012 at 2:53 pm #

    donna: this mishegas

    I just thought I would mention that my mother and her father, spoke to each other exclusively in Yiddish.

    OT aside: I grew up in my grandfather’s house. I highly recommend “Lies My Father Told Me,” now on DVD. I bought mine from a seller in Montreal, where it actually was filmed.

    Thank you for the fond memories.

    Orly and the rest are making a big tsimmes צימעס, over nothing.

  13. avatar
    donna April 25, 2012 at 3:19 pm #

    misha: thanks for the tip

    my family spoke italian (sicilian) so the kids couldn’t understand what they were saying

    lol – that’s HOW i LEARNED italian and my fondness for languages grew from there

    i am interested in reading madeline albright’s new book too

    can you imagine the ditz taitz’s book?

    oy vey …..kvetches

  14. avatar
    Rickey April 25, 2012 at 3:49 pm #

    donna:

    i am interested inreading madeline albright’s new book too

    She was interviewed on The Daily Show last night. She had led a remarkable life.

  15. avatar
    wayne April 25, 2012 at 5:58 pm #

    This is done wrong. Obama needs to be brought up on treason charges under his name only! As a Citizen any and all should be able to file this charge, and site what he is doing and previous cases. such as 1.5 billion of our tax dollars to go to the muslum brotherhood (aka arab spring) both the FBI and the CIA consider the muslum brotherhood terrorist and a danger to the US and our allies, this is giveing terrorists tax dollars to fund terrorism against the US and its allies. Useing Oliver North and the Iran contra case should show presidence to move forword with charges against Obama. The democratic party had no problem going against Reagan and North because they are Republicans, but they have a big problem with the (what’s good for goose is good for the gander)when it comes to their Party. I am going to try to look up other treason cases (if anyone knows of any please contact me) and I will file TREASON charges against this President. Sept. 11th part 2 should not be funded with US TAX DOLLARS!! I’ll make it easy for Obama and his supporters to understand since they wont get why what he is doing is treason,and harmful. Democrats Read this part carefuly and dont be scared to ask for help to understand this comparison, what Obama is doing by funding the “arab spring” is the same as you giveing a known killer a loaded gun after he as killed one of your family members and threatend to kill you. WAKE UP PEOPLE this is just one of many treasonous acts this man is doing. AND dont try to blame Bush for Sept.11th, a Democratic President named Clinton could have prevented it, he had a chance to kill Bin Laden and did NOTHING, and thousands of our fellow citizens were killed,with thousands of others now missing their murdered family members. “We the people” cannot let another Democrat KILL one more of us.

  16. avatar
    Majority Will April 25, 2012 at 6:45 pm #

    wayne: This is done wrong. .(bizarre rant)

    That’s an Incredibly off topic and delusional post but at least you admit he must be a citizen.

    How many members of Al Qaeda including Bin Laden have been eliminated under President Obama’s watch?

  17. avatar
    nbc April 25, 2012 at 6:47 pm #

    wayne: This is done wrong. Obama needs to be brought up on treason charges under his name only!

    ROTFL… Sure, accuse President Obama of treason for things he did not really do…

  18. avatar
    Daniel April 25, 2012 at 6:55 pm #

    wayne:
    This is done wron…blahblahblahblahblahblahblahblahblahblahblahblahblahblahblahblahblahblahblah blahblahblahblahblahblahblahblahblahblahblahblahblahblahblahblahblahblahblahblahblahblahblahblah blahblahblahblahblahblahblahblahblahblahblahblahblahblahblahblahblahblahblahblahblahblahblahblah blahblahblahblahblahblahblahblahblahblahblahblahblahblahblahblahblahblahblahblahblahblahblahblah blahblahblahblahblahblahblahblahblahblahblahblahblahblah…ne more of us.

    The Farce is strong with this one.

  19. avatar
    Daniel April 25, 2012 at 6:56 pm #

    Why don’t birthers just look up the word “treason” in any good dictionary? Do they enjoy being laughed at?

  20. avatar
    Northland10 April 25, 2012 at 7:05 pm #

    Somebody should mention to the nurse that Wayne has been hiding his pills again.

  21. avatar
    misha April 25, 2012 at 7:12 pm #

    wayne: This is done wrong.

    I completely agree. The thorazine isn’t working.

  22. avatar
    misha April 25, 2012 at 7:20 pm #

    donna: oy vey …..kvetches

    Did you ever think what B.B. King would sound like if he were Jewish?

    First, his guitar would not be named Lucille; it would be named Zelda.
    Instead of hitting a few chords and saying “Sing it, Lucille,” he would hit a few chords and say, “Zelda, stop kvetching.”

    Thank you. I’ll be here all week.

  23. avatar
    Thomas Brown April 25, 2012 at 7:55 pm #

    Poor Wayne.

    “This is done wrong! Obama needs to be brought up on treason charges under his name only, right now, or I’m gonna hold my breath until I turn blue! And since I used an exclamation point, that means I’m right! As a deranged, gullible right-wing Citizen I should be able to file this charge, and cite what he is doing and make mudpies and name my toes and stuff like that! Don’t try and stop me! Anyone who thinks 1.5 billion of our tax dollars have been given to the muslim brotherhood (aka arab spring) should have their heads examined. Neither the FBI nor the CIA consider the Muslim Brotherhood to be terrorists and a danger to the US and our allies. Traitorous pinheads like me would rather Obama had left our hero Khaddafi in power, the guy who funded the Lockerbie bombing! Using Oliver North and the Iran/Contra case should prove that charges against Obama make no sense whatsoever. The Democratic party had no problem going against Reagan and North because they were criminals, and they have nothing comparable (what’s good for goose is good for the gander) when it comes to their Party. I am going to try to look up other treason cases (if anyone knows of any please contact me at the Alabama State Home for Angry Cranks) and I will file TREASON charges against this President, if I can get out of this darn straight jacket and find a stamp.Sept. 11th part 2 funded with US TAX DOLLARS is my favorite delusion, and I’m sticking to it!! I’ll make it easy for Obama and his supporters to understand that I haven’t a clue since I think I am smarter than all of them, although my spelling is worse than a fifth-grader, and I foolishly believe anything I read on right-wing propaganda websites. Democrats who read this part carefully will understand this comparison: what Obama is doing by supporting the “arab spring” is 1000 times better than Bush giving the terrorists an excuse to kill your family members and you. There are many fictitious acts this man is baselessly accused of doing, but the fact that he killed Bin Laden and Bush let him off the hook should tell you spmething. Bush alone is to blame for Sept.11th; a Democratic President named Clinton warned him about it, Bush did NOTHING, and thousands of our fellow citizens were killed,with thousands of others now missing their murdered family members. ‘We the people’ cannot let another Republican kill one more of us, unless we can blame a Democrat for it.”

    FIFY.

  24. avatar
    Thrifty April 25, 2012 at 8:33 pm #

    I read Wayne’s post and expected it to segue into some speech about how a beloved uncle was killed by Obama and an inheritance of 220 million dollars was left in a bank in Saudi Arabia and he needs the help of a trusted American compatriot to move the funds to the US, in exchange for a 20% fee.

  25. avatar
    Majority Will April 25, 2012 at 8:53 pm #

    Thrifty:
    I read Wayne’s post and expected it to segue into some speech about how a beloved uncle was killed by Obama and an inheritance of 220 million dollars was left in a bank in Saudi Arabia and he needs the help of a trusted American compatriot to move the funds to the US, in exchange for a 20% fee.

    Wouldn’t that require a more fully functioning frontal lobe?

  26. avatar
    Majority Will April 25, 2012 at 8:54 pm #

    Thomas Brown: Poor Wayne.

    Well done.

  27. avatar
    misha April 26, 2012 at 12:16 am #

    wayne: This is done wrong.

    I’ll say. “Nurse, Wayne got out of his restraints again.”

  28. avatar
    BillTheCat April 26, 2012 at 12:36 am #

    wayne:
    Unhinged rant in the form of a wall of unbroken text on par grammatically with the best Orly Taitz screeds .

    Did you just stumble in here by mistake and all of that spilled out? Yikes.

  29. avatar
    Dr. Conspiracy April 26, 2012 at 1:00 am #

    It is generally understood based on prior Attorney General opinions dating since 1973 that a sitting President cannot be arrested or indicted. He can only be impeached, and then if removed from office he would be liable for criminal prosecution. See:

    http://www.justice.gov/olc/sitting_president.htm

    Also, private citizens cannot “file charges” against someone. (There is Civil RICO, but I don’t see how that would apply to a general citizen without a particular injury.)

    wayne: This is done wrong. Obama needs to be brought up on treason charges under his name only! As a Citizen any and all should be able to file this charge, and site (sic) what he is doing and previous cases.

  30. avatar
    Keith April 26, 2012 at 1:06 am #

    wayne: This is done wrong.

    Yes, you have done it all wrong. I’ll try to help you out a little.

    The United States Constitution.

    Article 3 Section 3.

    Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

    The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.

    Since you bring it up, you might notice that even though Oliver North actually sold guns to ‘the enemy’ which under any definition is giving both aid and comfort to the enemy, he was never charged with treason. Though if anybody deserved that charge in the last 20 years of the 20th century, it was him.

    President Obama is certainly NOT giving aid and comfort to the enemy by promoting democracy in Egypt. Egypt is not our enemy.

  31. avatar
    The Magic M April 26, 2012 at 4:34 am #

    donna: my family spoke italian (sicilian) so the kids couldn’t understand what they were saying

    lol – that’s HOW i LEARNED italian and my fondness for languages grew from there

    Same here. My parents often talked to each other in Low German (spoken up in the North) which is almost incomprehensible to the ordinary German (it’s more like another language than just a dialect, unlike Bavarian for example). And I’ve had a penchant for languages since I can remember.

    wayne: presidence to move forword

    Wowser, the English is weak in this one.

    wayne:The democratic party had no problem going against Reagan and North because they are Republicans

    This argument doesn’t fly. Because I can retort “then why aren’t the Republicans going after the Democrat President?”. To which you could only reply “they are in the tank with the Dems” and then I shoot your argument down with “then why did they go after Reagan/North if they’re all conspiring?” 🙂

  32. avatar
    JPotter April 26, 2012 at 12:12 pm #

    wayne: a Democratic President named Clinton could have prevented it, he had a chance to kill Bin Laden and did NOTHING,

    There are craters at various sites in East Africa and the Middle East that beg to differ. Wingers at the time accused Clinton of making too big a deal out of bin Laden in an attempt to distract the country from the “real crisis”, the one involving Monica Lewinsky. This was the “Wag the Dog” scenario, see feature film of the same name. Clinton was further criticized for the collateral damage caused by thie “overly aggressive” pursuit. “Overly aggressive” despite the fact that bin Laden’s organization was already responsible for numerous attacks and a healthy American body count spanning the decade prior to 9/11.

    Thinking of those 1000s of dead on 9/11 in conjunction with the Lewinsky affair, I believe what you and the entire winger nation mean to say is, “Oops, we was wrong.” If that isn’t a serious indictment of partisanship, I don’t know what is.

    Did I mention Bush blowing off Bin Laden within a few years of 9/11 in order to pursue an imaginary threat in Iraq? It was in the news a few times.

  33. avatar
    Paul Pieniezny April 26, 2012 at 3:41 pm #

    wayne: a Democratic President named Clinton could have prevented it, he had a chance to kill Bin Laden and did NOTHING, and thousands of our fellow citizens were killed,

    Never any Republicans who blamed Clinton for not keeping Osama as a friend of the USA, of course.

    (unfortunately for you, the Internet has a long memory)

  34. avatar
    misha April 26, 2012 at 11:57 pm #

    wayne: AND dont try to blame Bush for Sept.11th, a Democratic President named Clinton could have prevented it, he had a chance to kill Bin Laden and did NOTHING

    Hate to break this to you, but when bin Laden was a mujahideen, your BFF Reagan armed bin Laden along with his compatriots. Those people became the Taliban and al-Qaeda.

    Reagan authorized Stingers for that bunch, which was an act of clinical insanity.

  35. avatar
    Keith April 27, 2012 at 3:27 am #

    misha: wayne: AND dont try to blame Bush for Sept.11th, a Democratic President named Clinton could have prevented it, he had a chance to kill Bin Laden and did NOTHING

    Hate to break this to you, but when bin Laden was a mujahideen, your BFF Reagan armed bin Laden along with his compatriots. Those people became the Taliban and al-Qaeda.

    Reagan authorized Stingers for that bunch, which was an act of clinical insanity.

    Not only but also, it was the REPUBLICAN Congress that told Clinton not to go after bin Laden.

  36. avatar
    Keith April 27, 2012 at 3:36 am #

    Perhaps I misspoke there. It wasn’t the Congress that Clinton wasn’t getting support from, it was the CIA and FBI who wouldn’t (or couldn’t) ‘certify’ that OBL was the culprit and the DoD who couldn’t (or wouldn’t) come up with a viable plan.