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Default default

Orly Taitz once had a chance to obtain a default judgment against Barack Obama in Georgia, but she threw it away by demanding to put on her case and obtain a judgment on the merits (she lost due to lack of merit). Since then, she has filed notices of default from time to time, recently in the case of Judd v. Obama. The whole case was dismissed sua sponte shortly thereafter.

The word is that Taitz has filed another notice of default, this time against the Indiana Secretary of State and Elections Commission for failing to respond to her “Second Amended Complaint.” I’ve been trying to sort out this Indiana stuff without a great deal of success. One cannot just click a couple of links to get court documents from Marion County, Indiana, Superior Court, so I have to rely largely on what Orly Taitz chooses to disclose.

A hearing was held in Indiana on September 26 to consider a preliminary injunction to keep Obama off the ballot. That motion was denied in an order published October 16.

I bought a copy of the Marion County docket for the case this morning. It shows that Taitz filed her “First Amended Complaint” on May 7, 2012, and as best I can tell, a response was filed May 21. If I understand the rules, once a response has been filed, plaintiffs cannot file another amended complaint without leave of the court, and I have not seen any information as to this leave being granted which the Court has granted. The language in the court’s order for the trial this coming Monday references the causes and defendants in the “First Amended Complaint” only. The notice of default doesn’t appear, but there is a motion to dismiss the “Second Amended Complaint” filed yesterday (October 18).

On Monday, the trial will involve only two of the causes, declaratory relief and permanent injunction. I presume that these two were selected because they involve the conduct of the election, and this is an expedited hearing. What continues to baffle me is how this can be litigated without Barack Obama as a party.

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28 Responses to Default default

  1. avatar
    gorefan October 19, 2012 at 11:36 am #

    IIRC – there was a hearing on June 12th, much of the case (1st amended complaint?) was dismissed.

    http://www.obamaconspiracy.org/2012/06/taitz-v-indiana-elections-commission/

    In the comments there is the first hand report of the hearing from “A Legal Lohengrin”.

  2. avatar
    Dr. Conspiracy October 19, 2012 at 1:00 pm #

    I wanted the following text to appear on the Internet somewhere. It is what Orly Taitz said on the Peter Boyles show yesterday regarding Judge Reid. I post this now so that one may contrast it to whatever Orly will say about Judge Reid Monday:

    On Monday we have trial in Indiana, and this is the first time we have actual trial against Obama and it’s gonna be in Superior Court in the State of Indiana. So if anybody is able to come to trial, I’m asking [inaudible] … It’s gonna be Monday, 10 AM Superior Court in Indianapolis, 200 East Washington Street, Division 14, Judge Sherry K. Reid. So I hope that people come and support me. There will be seven witnesses testifying to the fact that Obama is using a social-security number that was never assigned to him according to eVerify and SSNVS, last name that’s not legally his, forged Selective Service certificate, forged birth certificate. And we are seeking a declaratory relief and an injunction preventing him from being on the ballot in Indiana.

    And people ask me, “why Indiana?” [inaudible] We do have cases in other courts and they go at different speeds, as you know. We have different judges.This judge is actually a conservative judge who is not afraid to come up with controversial decisions. She did grant us expedited trial. …

  3. avatar
    gorefan October 19, 2012 at 1:00 pm #

    This may not be completely accurate but this is what i think has happened:

    February 24, 2012 – Indiana Ballot Committee holds hearing and denies challenge.

    March (?), 2012 Orly files lawsuit in Indian Superior Court, that complaint is found to be defective, she files First Amended Complaint.

    May, 2012, Judge Reid orders hearing for June 12th.

    Taitz files motion for preliminary injunction (?), possible other motions

    June 12th, first amended complaint dismissed

    Judge Reid orders Sept 26th hearing on Preliminary injunction

    Sept 26, 2012, Preliminary injunction denied.

    Oct, 22nd, 2012 – hearing on remaining motions (?)

  4. avatar
    JPotter October 19, 2012 at 1:31 pm #

    Dr. Conspiracy: This judge is actually a conservative judge who is not afraid to come up with controversial decisions. She did grant us expedited trial. …

    Sounds similar to the hosannas sung for the bench prior to the much ballyhooed Georgia hearing. Also for Judge Roberts prior to the ACA ruling by SCOTUS. And praises of the union NFL refs prior to their return.

    Wingers like the idea of what they imagine authority figures could do much better than the reality of said authorities doing their jobs.

    _______

    As for how the case is litigated sans Obama, I presume she aims at state parties because they were the agent that committed the ‘crimes’ .. said parties accepted and pushed a fraud (in Taitz’s mind anyway), and Taitz is tilting to the rescue on behalf of the poor, defrauded, disenfranchised voters of [fill-in name of current state-cum-stage here].

  5. avatar
    Dr. Conspiracy October 19, 2012 at 1:38 pm #

    Still, the trial, and that’s the word used by the court, scheduled for Monday (whether it happens or not) is on the injunction to keep Obama off the ballot and a declaration that Obama is not eligible to office. The Fraud cause is not on the agenda.

    JPotter: As for how the case is litigated sans Obama,

  6. avatar
    Yoda October 19, 2012 at 2:13 pm #

    I have given up any attempts to follow the procedures in her cases because she screws them up so badly. I just enjoy the E-ticket ride that comes with them.

  7. avatar
    Butterfly Bilderberg October 19, 2012 at 3:06 pm #

    As you note, there is neither a motion for leave to amend nor an order granting such. The operative complaint is the FAC. Out of an abundance of caution the SOS and Election Commission have nevertheless filed a motion to dismiss the SAC.

    Moreover, the relief sought against these two defendants — declaratory relief, injunctive relief and mandamus — may not be granted simply upon default. Whether Orly thinks she has a claim against these agencies of the State of Indiana for monetary damages is unclear from the muddled mess that is the SAC, but in any event she wouldn’t be entitled to financial damages without a demonstration that the State has waived sovereign immunity, thus a default judgment does not obtain there, either.

    What a friggin idiot.

  8. avatar
    Dr. Conspiracy October 19, 2012 at 3:16 pm #

    I think she wants a default judgment against Obama. Oh wait, he’s not a plaintiff. Never mind.

    Butterfly Bilderberg: thus a default judgment does not obtain there, either.

  9. avatar
    realist October 19, 2012 at 3:58 pm #

    Dr. Conspiracy:
    I think she wants a default judgment against Obama. Oh wait, he’s not a plaintiff. Never mind.

    I think you meant “he’s not a defendant.

  10. avatar
    realist October 19, 2012 at 4:02 pm #

    I sometimes get Orly’s MS and IN cases mixed up. Is IN the case where the judge allowed Orly to proceed on 3 causes of action that had not been adjudicated prior, fraud, breach of fiduciary duty and (one other I can’t remember) and is the SAC the operative complaint for those “new” actions? Or at least is supposed to be?

    I admit I could be confuzzled on the 2 cases, but just sayin’.

  11. avatar
    Slartibartfast October 19, 2012 at 6:35 pm #

    Personally, I’m hoping that Orly gets some sort of “trial” in Indiana so that the defense can cite the holding in Ankeny saying President Obama is a natural born citizen. I would pay to see Orly’s response to such an event…

  12. avatar
    Keith October 19, 2012 at 7:09 pm #

    document:
    First of all I want to say wonderful blog! I had a quick
    question that I’d like to ask if you don’t mind. I was interested to
    know how you center yourself and clear your thoughts before writing.
    I have had a tough time clearing my thoughts in getting my ideas out.
    I truly do take pleasure in writing but it just seems
    like the first 10 to 15 minutes are usually lost simply just trying to figure
    out how to begin. Any ideas or tips? Thank you!

    I don’t know about the Doc, but I have a couple of hits off a nice big bambu.

  13. avatar
    gatsby October 19, 2012 at 7:35 pm #

    document:
    First of all I want to say wonderful blog! I had a quick
    question that I’d like to ask if you don’t mind. I was interested to
    know how you center yourself and clear your thoughts before writing.
    I have had a tough time clearing my thoughts in getting my ideas out.
    I truly do take pleasure in writing but it just seems
    like the first 10 to 15 minutes are usually lost simply just trying to figure
    out how to begin. Any ideas or tips? Thank you!

    Spambot has been asking that question a lot lately.

  14. avatar
    LW October 19, 2012 at 7:49 pm #

    gatsby: I truly do take pleasure in writing but it just seems
    like the first 10 to 15 minutes are usually lost simply just trying to figure
    out how to begin. Any ideas or tips? Thank you!

    Spambot has been asking that question a lot lately:

    What a world, when even spambots have writer’s block. Personally, I blame the liberal media.

  15. avatar
    misha marinsky October 19, 2012 at 8:19 pm #

    LW: Personally, I blame the liberal media.

    No, it’s the fault of universal health care, and higher education. If people only learned the three Rs, they wouldn’t write blogs and the Lord would be the center of their lives.

    People become ill because they don’t pray enough.

  16. avatar
    misha marinsky October 19, 2012 at 8:23 pm #

    LW: What a world, when even spambots have writer’s block.

    They wouldn’t have writer’s block if we had lower taxes.

  17. avatar
    Northland10 October 19, 2012 at 8:33 pm #

    gatsby: Spambot has been asking that question a lot lately:

    Spambot is far more coherent, logical and pleasant then most birther comments I come across. I suspect that Spambot could write far better legal briefs than Orly. Granted, the bar there is so low there are common loons who could write better briefs and they would be less looney.

  18. avatar
    GeorgetownJD October 19, 2012 at 9:13 pm #

    realist:
    I sometimes get Orly’s MS and IN cases mixed up.Is IN the case where the judge allowed Orly to proceed on 3 causes of action that had not been adjudicated prior, fraud, breach of fiduciary duty and (one other I can’t remember) and is the SAC the operative complaint for those “new” actions? Or at least is supposed to be?

    I admit I could be confuzzled on the 2 cases, but just sayin’.

    No. Arguably the FAC is the operative complaint. See Ind.R.Tr.P. Rule 15(A):

    “A party may amend his pleading once as a matter of course at any time before a responsive pleading is served … . Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party;”

    Once ANY defendant files a motion or answer, leave of court is required.

  19. avatar
    Dr. Conspiracy October 19, 2012 at 9:42 pm #

    I had that wrong. The court did grant Orly leave to file a second amended complaint to cover issues not dismissed on June 12.

    Butterfly Bilderberg: As you note, there is neither a motion for leave to amend nor an order granting such. The operative complaint is the FAC. Out of an abundance of caution the SOS and Election Commission have nevertheless filed a motion to dismiss the SAC.

  20. avatar
    Dr. Conspiracy October 19, 2012 at 9:46 pm #

    The Court granted leave. It’s foggy, but I sort of remember this now from the hearing from June. This is what the Indiana SoS said in their motion to dismiss the SAC:

    Plaintiffs filed a Second Amended Complaint on September 4. 2012, after the Court granted Plaintiffs leave to file a second complaint on issues other than what had been dismissed on June 12. 2012.

    GeorgetownJD: “A party may amend his pleading once as a matter of course at any time before a responsive pleading is served … . Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party;”

  21. avatar
    Wild Bill October 19, 2012 at 9:49 pm #

    “Orly Taitz once had a chance to obtain a default judgment against Barack Obama in Georgia, but she threw it away by demanding to put on her case and obtain a judgment on the merits”

    I wonder if this is true? I know the birfers all said that the judge offered this – in chambers without any witnesses.

    Some judges will grant a default solely based on the failure to answer when required, but many will (and in my opinion all should) first look to make sure the complaint is colorable on the face. Orly’s wasn’t.

    I wonder if the Judge actually said he would rule on the complaint without evidence if the Plaintiffs wished. Perhaps even with a hint that the complaint on the face was insufficient, which prompted the “evidence.”

    Just pure speculation.

  22. avatar
    Slartibartfast October 20, 2012 at 1:37 am #

    Wild Bill,

    I don’t have anything but speculation to back it up but I disagree.

    Here’s what I think happened (I’m not a lawyer, but I have argued with Leo Donofrio on the internet… 😉 ) This is nothing but my opinion based on my impressions at the time:

    President Obama’s attorney (Jablonski?) was pissed that Judge Malihi denied the motion to dismiss and essentially decided that he wasn’t going to take part in Malihi’s circus. This annoyed Malihi who saw the opportunity to embarrass Jablonski (and the president) by issuing his non-binding recommendation to remove President Obama from the ballot—which he could get away with by saying Jablonski was in default because he didn’t show up—this would then make headlines across the country before being ignored by the SoS (which wouldn’t be his problem). Figuring that the birthers were smart enough to recognize that this was a great deal for them (think of the birther buck$ Orly would have gotten or the octogenarian hatriot tail that David “out of breath” Farrar could have had—Orly never would have let one of her clients get any money—if they had been responsible for a headline like “JUDGE RULES OBAMA INELIGIBLE”). Unfortunately for Judge Malihi, the birthers were incapable of realizing just what a pile of crap their case was or the PR value of what they were being offered and instead demanded to put on their case—secure in their “knowledge” that there was no way that their “evidence” could lose to an empty chair (we all know that Orly could never conceive of this at least, and I don’t think the other two were anywhere near sane except in comparison to Orly). Of course, after they put on their case (without the objections of a defense attorney to reign in the crazy), Judge Malihi had no choice but to rule for President Obama if he wanted to avoid attaching himself to the patently incompetent birthers (and I don’t think it is likely that he understood quite the level of insane arboreal rodent feces he was dealing with…). To me, that’s the explanation that best fits the facts of what we saw. If I recall correctly, all three birther parties claimed they were offered a “default” of some sort (I’m not sure all three used that word specifically), so I tend to believe that, although what the birthers in general and Orly in particular said was probably twisted beyond belief by their cognitive dissonance, they were offered something by the judge in the meeting before the hearing which was somehow characterized as a “default”.

  23. avatar
    Keith October 20, 2012 at 3:01 am #

    Slartibartfast: This is nothing but my opinion based on my impressions at the time:

    Plausible, but I think differently from you. IANAL either, but I have argued with Corsi on the innertubes.

    I suspect it went pretty much as you describe, but I don’t think Malihi was interested in putting in a dig at Jablonski in the way you describe. I think he just felt that since there was no possibility of defense objections to their ‘testimony’ and the gist of the ‘testimony’ was already in the complaint that he had enough information to make his decision and why waste everybody’s time with a hearing if there was no need.

    Orly’s ego wouldn’t allow that of course, especially since she needed product to sell. I doubt very much that her live performance affected the outcome much at all.

    As I understand it, and I repeat IANAL, a ‘default judgement’ doesn’t automatically mean that the party who is present wins over the empty chair. The Judge still has to take into account the actual law and his own knowledge of the law – that is to say: he still has to judge.

  24. avatar
    Slartibartfast October 20, 2012 at 4:26 am #

    I’m still not a lawyer, but I was moderated into silence at Mario Appuzo’s website 😉

    Judge Malihi’s motivations aside, I believe that he did offer to make a non-binding recommendation to the SoS that President Obama be removed from the ballot. While I don’t think that this was a “default judgement” in any legal sense, I suspect that the word “default” was used by Judge Malihi—also remember that Judge Malihi was an administrative law judge (i.e. a small fish) who had tried to get the hearing moved to a bigger room with better AV equipment. It’s not clear if he understood just how many “zibits” would be getting out of the clown car once he opened Pandora’s box, but he didn’t seem to have a problem with the circus coming to town in the first place…

    While I agree regarding Orly’s ego (which, I believe, is inversely proportional to her competence [and her decency as well]), I do believe that her performance (as well as that of the warm up acts) played a role. I think Judge Malihi was prepared to rule* (as a procedural matter) against President Obama—so long as he didn’t have to take official notice of the pile of offal that was the birther case. Once the “evidence” was part of the official record, he had no choice but to recognize its complete lack of quality, logic, sanity, and merit, but until they put on their dog and pony show, he a plausible deniability and a reasonable rationale for the “default”.

    As you say, Judge Malihi may have just been trying to spare Orly the opportunity to embarrass herself, but then why did he try to get her a bigger stage?

    * by which I mean: make a non-binding recommendation

    Keith: Plausible, but I think differently from you. IANAL either, but I have argued with Corsi on the innertubes.

  25. avatar
    Paul Pieniezny October 20, 2012 at 10:40 am #

    Slartibartfast: While I agree regarding Orly’s ego (which, I believe, is inversely proportional to her competence [and her decency as well]), I do believe that her performance (as well as that of the warm up acts) played a role. I think Judge Malihi was prepared to rule* (as a procedural matter) against President Obama—so long as he didn’t have to take official notice of the pile of offal that was the birther case. Once the “evidence” was part of the official record, he had no choice but to recognize its complete lack of quality, logic, sanity, and merit, but until they put on their dog and pony show, he a plausible deniability and a reasonable rationale for the “default”.

    I think a political game might have been played here, with Jablonski knowing full well (by studying the birfer websites) that those fools were never going to accept a default. And Kemp and Malihi, republicans, rightfully believing that Kemp would be allowed to discarda non-binding decision by Malihi and that the Superior Court would still rule that the case should have been dismissed. Which, by the way, happened when the Plaintiffs not connected to Orly appealed Malihi-Kemp.

    Another thing here: never try to convince a birfer of it, because you will not be able to (they seem to think that all the nonsense they conjure up against Obama is somehow accumulative) but the claims made by Orly and by the non-Orly plaintiffs were legally mutually exclusive. You cannot base a Vatellite argument against Obama’s eligibility on Obama’s birth certificate and then re-start the clock and say the birth certificate is a forgery. FFC allowed Malihi to say that the non-Orly side was right on the facts but wrong on the legal argument (Wong Kim Ark) and thus dismiss Orly’s claims as moot ab ovo.

    Remember all the fuss about a Kenyan newspaper that had once claimed Obama was Kenyan-born? While technically they were wrong (Obama was Briton-born) they were simpy saying that he was Kenyan when born (important note to Orly and any Slav-born contributor here: carefully note the absence of the indefinite article “a” in front of “Kenyan”). In a large part of the English-speaking world, English speakers know that “Kenyan-born” and “Kenya-born” are not 100% identical. There are “Kenyan-born”s who are not “Kenya-born” and there are “Kenya-born”s who are not “Kenyan-born” (=predominantly whites who, as the children of British planters, while born in Kenya, had parents who elected not to choose Kenyan citizenship at the age of 21, may include some Indians and Pakistanis). Now why do Americans (not only birfers!) read the phrase “Kenyan-born” and think it means born in Kenya? Because they know (having been taught at school of course) that born in the US means you are a (US) American. Thers is no difference between the two terms under US law. And that is an example of the BC birfers destroying the Vatellite argument. Berg would have loved it.

  26. avatar
    GeorgetownJD October 20, 2012 at 12:18 pm #

    Wild Bill:
    “Orly Taitz once had a chance to obtain a default judgment against Barack Obama in Georgia, but she threw it away by demanding to put on her case and obtain a judgment on the merits”

    I wonder if this is true?I know the birfers all said that the judge offered this – in chambers without any witnesses.

    Some judges will grant a default solely based on the failure to answer when required, but many will (and in my opinion all should) first look to make sure the complaint is colorable on the face. Orly’s wasn’t.

    I wonder if the Judge actually said he would rule on the complaint without evidence if the Plaintiffs wished.Perhaps even with a hint that the complaint on the face was insufficient, which prompted the “evidence.”

    Just pure speculation.

    The petitioners were offered a default, not a default judgment. A default means simply that the ALJ will render his determination on the basis of the record without the benefit of the nonappearing party’s evidence. However, it does not guarantee that the petitioners’ evidence will carry the day. There is no requirement for the ALJ to assign any weight or credibility to whatever the petitioners offer in the way of evidence or argument, and that is exactly what happened in Georgia — the “record” made by Orly & Co. was woefully deficient and could not overcome the force of Georgia election law.

  27. avatar
    Keith October 20, 2012 at 8:54 pm #

    GeorgetownJD: The petitioners were offered a default, not a default judgment.

    Thanks Georgetown.

    I was trying to say pretty much what you said, but IANAL, even if I have responded to some of Apuzzo’s drivel on this site.

  28. avatar
    Slartibartfast October 20, 2012 at 11:05 pm #

    I was thinking that what Orly & Co. were offered was a “default” non-binding recommendation—i.e. they had the choice of Judge Malihi making the recommendation that the side who showed up wanted, or putting on their dog & pony show and having the recommendation based on the evidence they presented, but it sounds like you think the birthers were bound to be sunk by their lack of credible evidence either way. Is that correct?

    I may not be a lawyer, but at least I listen to those that are (well, those not named Appuzo, Donofrio, Berg, Irion, et al. anyway—I think Taitz is worth listening to for the best possible example of the worst possible way to litigate in any given situation)

    GeorgetownJD: The petitioners were offered a default, not a default judgment.A default means simply that the ALJ will render his determination on the basis of the record without the benefit of the nonappearing party’s evidence.However, it does not guarantee that the petitioners’ evidence will carry the day.There is no requirement for the ALJ to assign any weight or credibility to whatever the petitioners offer in the way of evidence or argument, and that is exactly what happened in Georgia — the “record” made by Orly & Co. was woefully deficient and could not overcome the force of Georgia election law.