Berg case?

[Aabidano]

What does this mean legally? Yes it's politically motivated, I know that part. I couldn't find anything on it but from sources only the gullible would take at face value.

...Berg filed suit in U.S. District Court in August, alleging Obama is not a natural-born citizen and is thus ineligible to serve as president of the United States. Though Obama has posted an image of a Hawaii birth certificate online, Berg demands that the court verify the original document, which the Obama campaign has not provided.

Now Berg cites Rule 36 of the Federal Rules of Civil Procedure, which states that unless the accused party provides written answer or objection to charges within 30 days, the accused legally admits the matter.

Since Obama has only filed motions to dismiss and has not actually answered the charges in the lawsuit, Berg claims, according to Rule 36, Obama has legally admitted he is not a natural-born citizen.

[Boogahz]

This is the first I have heard of it...

[Fairweather Pure]

Berg is also a Democrat that supported Hillary. I'm talking, fotm supporter. I heard his entire argument and case on Coast to Coast at 2am about a week before the DNC. He's fucking nuts man.

[miir]

http://www.factcheck.org/elections-2008 ... e_usa.html

[Tyek]

I thought McCain was born in Panama or somewhere in South or Central America too.

[Gzette]

Panama. I guess it was a protectorate or something at the time, so technically he's good.

Still, to bring up one when the other actually was born outside the US ... well ... that's the McCain supporters for you.

[Braxter]

Howdy, long time no post. Law school keeps me busy.

More to the point, it also teaches me that if a claim looks bogus, it probably is. If it were this easy to establish something as fact, our legal system would be a joke (the argument could be made that it already is, but the scope of how big a joke doesn't quite reach this far). The short answer is, this doesn't mean anything legally. Here's the long answer:

There's more to it than just Rule 36. Obama has filed, I'm sure, numerous motions to dismiss. Among them would be a Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim. This is a common way of getting rid of frivolous lawsuits. That is, there has to be a legal theory under which the Plaintiff can recover. Without such a theory, a lawsuit should be thrown out before discovery begins. The reason is that if someone sues you frivolously, the court shouldn't allow them to start discovery on you before it is resolved whether their case has any merit. This would mean they get to take your deposition, request documents, subpoena third parties, and ask for sanctions if you failed to comply.

Another way of getting rid of a case before discovery is to dismiss based on lack of standing. For example, if you see on the news that someone ran a red light and killed a pedestrian on the other side of town, you have no standing to bring suit against the driver. Only the state can bring a criminal action and only the pedestrian's estate and/or heirs can bring a civil action. So Berg must not only have a legal theory under which to sue, he must also have standing. Interestingly, the case brought by the GOP against the Ohio Secretary of State under the Help America Vote Act was dismissed because the GOP lacked standing to recover under that statute. So again, this is the type of issue that should be resolved before discovery is allowed.

As a way of forcing parties to set a timeline, another rule (Rule 26) says that you can't even start discovery until you have a conference setting out the rules of how you're going to do discovery. Obama's lawyers are trying to prevent the case from even getting to that point. I seriously doubt that they have reached any agreements about discovery without first contesting the merits of the case or whether Berg even has standing.

But even if they have, Berg's citing rule 36 is no more than political rhetoric. The point of Rule 36 is to expedite discovery. You want to narrow down the issues so that trial doesn't have to take longer than it otherwise might. So rather than asking a jury to decide if the defendant is male or female for example, you save time, effort, and rather uncomfortable courtroom depantsings by simply asking the defendant to admit to it (sure, he can deny that he is male, and then the jury would be asked to decide).

However, the rule lacks the rigidity that Berg would like it to have. The first problem with Berg's legal conclusion is that the courts are reluctant to take away someone's day in court based simply on a procedural issue. Hence, rule 36 provides for withdrawals of admissions. Here's the rule in full:

(a) Scope and Procedure.

(1) Scope. A party may serve on any other party a written request to admit, for purposes of the pending action only, the truth of any matters within the scope of Rule 26(b)(1) relating to:

(A) facts, the application of law to fact, or opinions about either; and

(B) the genuineness of any described documents.

(2) Form; Copy of a Document. Each matter must be separately stated. A request to admit the genuineness of a document must be accompanied by a copy of the document unless it is, or has been, otherwise furnished or made available for inspection and copying.

(3) Time to Respond; Effect of Not Responding. A matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney. A shorter or longer time for responding may be stipulated to under Rule 29 or be ordered by the court.

(4) Answer. If a matter is not admitted, the answer must specifically deny it or state in detail why the answering party cannot truthfully admit or deny it. A denial must fairly respond to the substance of the matter; and when good faith requires that a party qualify an answer or deny only a part of a matter, the answer must specify the part admitted and qualify or deny the rest. The answering party may assert lack of knowledge or information as a reason for failing to admit or deny only if the party states that it has made reasonable inquiry and that the information it knows or can readily obtain is insufficient to enable it to admit or deny.

(5) Objections. The grounds for objecting to a request must be stated. A party must not object solely on the ground that the request presents a genuine issue for trial.

(6) Motion Regarding the Sufficiency of an Answer or Objection. The requesting party may move to determine the sufficiency of an answer or objection. Unless the court finds an objection justified, it must order that an answer be served. On finding that an answer does not comply with this rule, the court may order either that the matter is admitted or that an amended answer be served. The court may defer its final decision until a pretrial conference or a specified time before trial. Rule 37(a)(5) applies to an award of expenses.

(b) Effect of an Admission; Withdrawing or Amending It. A matter admitted under this rule is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended. Subject to Rule 16(e), the court may permit withdrawal or amendment if it would promote the presentation of the merits of the action and if the court is not persuaded that it would prejudice the requesting party in maintaining or defending the action on the merits. An admission under this rule is not an admission for any other purpose and cannot be used against the party in any other proceeding.

Note the last paragraph. The rule gives the courts discretion to allow withdrawal of an admission. The court's decision would turn on whether it would be an injustice to allow the admission to stand. So it is highly unlikely that the court would allow a time limit technicality to determine what would be the central issue of this case.

So how would justice be averted by preventing Obama from withdrawing an admission? It wouldn't even get this far, but the argument he could make is that he needs more time to comply. Given so many lawsuits that have been brought against him, the courts are highly likely to cut him some slack in answering discovery requests. Here is just one lawsuit naming Obama -- as evident by the language of this opinion, the courts are usually level-headed about frivolous lawsuits and they aren't likely to drag everyone down to the courthouse to resolve idiotic claims without first questioning the motives of the Plaintiff.

Armstead v. HSBC Card Services

HSBC CARD SERVICES, and Barack Obama, Defendants.

No. 08-3169.

Aug. 15, 2008.

Brenda C. Armstead, St. Petersburg, FL, pro se.

OPINION

RICHARD MILLS, District Judge.

In a bizarre juxtaposition of the banal and the sublime, Brenda C. Armstead asks this Court to fix her credit card problems and appoint President George W. Bush and Senator Barack Obama co-Presidents for life. Should the court feel so inclined, Armstead also requests that all state and federal officials of every ilk, as well as their staff, be appointed for life.

In order to pursue these claims, Armstead requests in forma pauperis status and has filed an affidavit attesting to her indigence. Nevertheless, courts have an obligation to dismiss suits that are frivilous or malicious, fail to state a claim, or seek monetary relief from an immune defendant. 28 U.S.C. § 1915(e)(2).

The frivolity of Armstead's appointment requests are self-evident.

The credit card claims fare no better. Styled as a “Petition to Revoke State Business License,” the filing summarily alleges fraud and forgery because “Plaintiff is having difficulty with the Postal Service forwarding current mail to new address ... and because Plaintiff is not receiving forwarding mail, HSBC is adding charges that is [sic] not the Plaintiff's fault.” That is not fraud or forgery.

Accordingly, this case and all pending motions are dismissed.

Unfortunately, Armstead's frivolity comes as little surprise, as her legions of groundless suits have taxed the resources and patience of federal and state courts across the nation. See, e.g., Armstead v. Sorrentino, 2003 WL 23142222 (W.D.Wis. Feb. 7, 2003).

While Armstead's litigious inclinations have thus far proven impervious to correction, this Court nonetheless adds its voice to the chorus of others warning Armstead that further baseless suits will result in sanctions.

IT IS SO ORDERED.

I can imagine that the frequency of Obama's name showing up as defendant on lawsuits has increased of late. As I said before, courts are unlikely to force defendants to comply with rules unless the wording of the rule is pretty rigid (here it is not) and the defendant has no excuse (here he does).

G'day.

[Forthe]

Fail

http://www.philly.com/philly/hp/news_up ... allot.html

[Aabidano]

Thanks Braxter, thought something along those lines was the case, but wasn't sure. The other day was the first time I'd heard of it, I'd thought this was all ironed out months ago

Still, to bring up one when the other actually was born outside the US ... well ... that's the McCain supporters for you.

Yes, yes, we all know anyone who doesn't support Obama is a two faced liar and a fundamentalist baby eater. Blah, blah, blah.