Tes left an analysis of Jerry Collette's draft opposition to the MTD in his case. Oh my.
Jerry Collette: Has the defense raised any challenges sufficient to dismiss my case without litigating the merits?
Yes, the defense has clearly set forth the applicable LAW requiring that your case be dismissed.
Jerry Collette: Have I sufficiently rebutted those challenges?
No. In the current draft, the couple pages contain information that is irrelevant — and that indeed would be improper for a court to consider. (The court’s duty is to interpret the LAW – not worry about some legacy or lack thereof). The next couple pages attack opposing counsel and characterize their statements. Then, the brief goes into a discussion (pp 4-7) of irrelevant information mischaracterized as “evidence” — indeed, it just makes the same sort of allegations already determined by multiple courts to be “bare allegations” based on “suspicions” that are insufficient to state a cause of action.
Then, in an attempt to convince the court that there is a legal dispute (p 8), you cite a case which would indicate to any Florida state court judge that s/he should not decide it because it’s a federal issue.
Then a bunch more discussion about defendants (waste of space, really — judge isn’t really interested in how YOU characterize their arguments. Judge wants to know what LAW refutes their arguments. This brief is woefully lacking in any LEGAL analysis distinguishing their cases and authority — although — 13 pages in you finally get to saying that one of the cases they cite is distinguishable. Haven’t checked to see how close to reality your interpretation of that case is.)
Your FAC alleges two “alternative theories,”
With respect to the “foreign born” claim – your FAC fails to allege sufficient FACTS (rather than bare suspicions) sufficient to survive a motion to dismiss. And your opposition to the motion to dismiss fails to cite any Florida (or other) cases that would support a contention that the claim you allege is sufficiently supported by facts.
With respect to the “definition of NBC” – your opposition to the motion to dismiss fails to counter sufficiently the defendant’s (correct) statement that every case to look at the issue has determined that under Wong Kim Ark, Obama is a natural born citizen.
Your opposition fails to cite any authority (Florida or elsewhere) to counter defendants’ statement (supported by SCOTUS precedent) that “the complaint fails to state a cause of action because the Democratic Party has a constitutional right to nominate whomever it desires as its candidate for President of the United States.”
Your opposition fails to show the judge any way in which Florida law could be read to “authorize interference with this constitutionally protected candidate selection process, and Defendants cannot be enjoined from advancing President Obama’s candidacy.”
Your opposition fails to cite any law or authority to counter the defendants’ contention that the FAC does not present any “bona fide justiciable controversy between the parties and that the judgment of the court is merely sought to answer questions propounded out of curiosity or for political purposes.”
Your opposition does cite to the Tennessee LLF case to argue that there is an actual case or controversy. However, in citing that case, you inform the court that the issue is one for FEDERAL courts, not state courts. Not helpful to your case. (To put it mildly.)
Your opposition fails to cite any law or authority to counter defendants’ contention that “no event could monetary damages be warranted for the type of injury alleged by Plaintiff” and/or that there “exists no cause of action for damages for violation of the alleged rights, duties or obligations claimed by the Plaintiff.”
Your opposition fails cite any law or authority to counter defendants’ contention that you have failed to join indispensible parties (i.e., Governor of the State of Florida and the Department of State). Your opposition fails to distinguish the authority cited by the defendants in this regard.
Your opposition states “My Causes of Action Are Actionable Before This Court “ but fails to cite a single law or case supporting your argument that any of the actions may proceed.
As to declaratory judgment, you fail to show (as is *required* under Florida law), that “there is a bona fide, actual, present practical need for the declaration; that the declaration should deal with a present, ascertained or ascertainable state of facts or present controversy as to a state of facts; that some immunity, power, privilege or right of the complaining party is dependent upon the facts or the law applicable to the facts; that there is some person or persons who have, or reasonably may have an actual, present, adverse and antagonistic interest in the subject matter, either in fact or law; that the antagonistic and adverse interests are all before the court by proper process or class representation and that the relief sought is not merely the giving of legal advice by the courts or the answer to questions propounded from curiosity. These elements are necessary in order to maintain the status of the proceeding as being judicial in nature and therefore within the constitutional powers of the courts.” (quoting from Wells v. Wells, 24 So. 3d 579, 583 (Fla. Dist. Ct. App. 2009 – but there are many cases – in each circuit – adopting/applying this rule).
As to your request for an injunction, you fail to acknowledge the requirements, much less show how you meet the requirements.
Your opposition states that “I Am Entitled to Prove Money Damages” – and that you reserve the right to ask for them. Yet it cites no law supporting such entitlement. Yet again, this demonstrates your fundamental misunderstanding of the motion to dismiss. You HAVE to state the legal support for any such right in order to survive the motion to dismiss.
Now, about the law you do cite:
Your opposition states “The U.S. Supreme Court held, in one of the two cases cited by defendants, New York Board of Elections v. Lopez-Torres, 128 S. Ct. 791, 797-798, 552 U.S. 196 (2008): “[A political party’s] rights are circumscribed, however when the State gives the party a role in the election process—as … giving certain parties the right to have their candidates appear with party endorsement on the general-election ballot.” But fails to explain how that excerpted statement has any relevance to your case or to their argument. (I’ve just read the case and have no idea what point you may be trying to make here. Judge won’t either.)
Your opposition states that you “INTEND” to present “400+ years of law showing that the decision in Wong Kim Ark does not apply to natural born citizenship as it pertains to presidential eligibility.” Per prior post, you have a fundamental misunderstanding of how a motion to dismiss works if you think you can promise to later explain the legal argument in order to survive such a motion.
Your citation to Fla. Const. art. I, § 21 (“The courts shall be open to every person [emphasis added] for redress of any injury [emphasis added] …”) is unavailing. The courts *ARE* open to you. You filed your case. That the court is open to you to FILE a case does not mean that you are entitled to PROCEED with the case, when you fail to meet the standard necessary to state a cause of action.
Your citation to McDaniel Reserve Realty Holdings, LLC v. B.S.E. Consultants, Inc., 39 So.3d 504, 509 (Fla. 4th DCA 2010) is similarly unavailing – because McDaniel Reserve Realty Holdings does not say that venue is proper when the injury for which you seek relief was first suffered by the plaintiff in the county at issue. Rather, the case cites to F.S.A. § 47.011, which provides that actions shall be brought “only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located.” The place of injury is only relevant in a TORT action. You have not brought a tort action. Therefore, the case is inapposite.
Your citation to Davis v. Pinellas County Police Benevolent Ass’n, Inc., 743 So. 2d 540 (Fla. 2nd DCA, 1998) for the proposition that a declaratory judgment need not allege the minimum damages amount in order to vest the court with jurisdiction may or may not be good — I can’t tell for sure – and don’t know the Florida Court system well enough to respond (so won’t pretend that I do). But it is the only citation/legal argument with any potential merit in the entire brief. What I can tell from the Davis case and authority cited therein, is that it appears that there’s a difference between jurisdiction over declaratory judgment actions in circuit courts and in county courts. Per Davis, original jurisdiction for such cases lies in the circuit court – not the county court. Per pleading captions, you appear to be in the circuit court.
So far, hardly anybody has mentioned the MTD’s, or my opposition. Instead, most of the discussion has been on the primary issues of the case, which won’t even be before the court until and unless I survive the MTD’s.
The discussion tracks your opposition. Rather than actually addressing the legal issues raised in the opposition, you spend pages making political statements, demonstrating a misunderstanding of the state of your proceedings and your burden in the context of a motion to dismiss. In short, as is typical or a birther brief, your draft is not a legal brief. It’s a political statement devoid of any valid legal argument (except, possibly, the minimum damages argument).