Grinols et al v. Electoral College et al

MOTION to DISMISS

E.D. Cal.February 15, 2013

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BENJAMIN B. WAGNER United States Attorney EDWARD A. OLSEN, CSBN 214150 Assistant United States Attorney 501 I Street, Suite 10-100 Sacramento, California 95814 Telephone: (916) 554-2821 Facsimile: (916) 554-2900 Email: edward.olsen@usdoj.gov Attorneys for Federal Defendants IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA JAMES GRINOLS, ROBERT ODDEN, in their capacity as Presidential Electors; EDWARD C. NOONAN, THOMAS GREGORY MACLERAN, KEITH JUDD, in their capacity as candidates for the U.S. President; ORLY TAITZ in her capacity as candidate for office in the state of California; EDWARD NOONAN and ORLY TAITZ in their capacity as registered voters in CA and candidates for office in CA, Plaintiffs, v. GOVERNOR OF CALIFORNIA, SECRETARY OF STATE OF CALIFORNIA, U.S. CONGRESS; ELECTORAL COLLEGE; BARACK (BARRY) SOETORO, AKA BARACK HUSSEIN SOEBARKAH, AKA ALIAS BARACK HUSSEIN OBAMA, AKA ALIAS BARACK A. OBAMA, AKA ALIAS HARRISON (HARRY) J. BOUNEL, AKA ALIAS S.A. DUNHAM, in his capacity as an individual and candidate for the U.S. President, and JOHN DOES AND JANE DOES 1-300, Defendants. CASE NO. 2:12-CV-02997-MCE-DAD FEDERAL DEFENDANTS’ MOTION TO DISMISS FIRST AMENDED COMPLAINT Date: March 21, 2013 Time: 2:00 p.m. Place: Courtroom 7, 14 Floorth Judge: Morrison C. England, Jr. [Fed. R. Civ. P. 12(b)(1) and 12(b)(6)] FEDERAL DEFENDANTS’ MOTION TO DISMISS Case 2:12-cv-02997-MCE-DAD Document 71 Filed 02/15/13 Page 1 of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO ALL PARTIES AND THIS HONORABLE COURT: PLEASE TAKE NOTICE THAT on March 21, 2013, at 2:00 p.m. in Courtroom 7, 14th Floor, before the Honorable Morrison C. England, Jr., United States District Judge for the Eastern District of California, Sacramento Division, federal defendants will and hereby doe move to dismiss plaintiffs’ First Amended Complaint with prejudice for lack of subject matter jurisdiction and for failure to state a claim pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Federal Defendants’ motion is based upon this Notice of Motion and Motion, the accompanying Memorandum of Points and Authorities, all records in this action and matters of which the Court may take judicial notice, and any argument to be heard by the Court.1 Respectfully submitted, DATED: February 15, 2013 BENJAMIN B. WAGNER United States Attorney By: /s/ Edward A. Olsen EDWARD A. OLSEN Assistant United States Attorney The undersigned represents the United States, Congress, and any federal employees and1 officials named in their official capacity. In addition, the undersigned appears here to “attend to the interests of the United States.” 28 U.S.C. §§ 517, 547. Plaintiffs do not appear to have properly served President Obama in any capacity under Fed. R. Civ. P. 4(i). According to Plaintiffs’ “Notice of Default . . . Request for an Expedited Default Judgment and a Proposed Default Judgment,” the President was served on January 4, 2013. Docket No. 64. However, plaintiffs’ proofs of service indicate that plaintiffs served only the Department of Justice at 950 Pennsylvania Avenue, N.W., Washington, D.C., and the United States Attorney’s Office in Sacramento. Docket Nos. 49, 50. FEDERAL DEFENDANTS’ MOTION TO DISMISS 2 Case 2:12-cv-02997-MCE-DAD Document 71 Filed 02/15/13 Page 2 of 2