Native and Natural Born Citizenship Explored (Re-opened for limited business)

Orly

15.The court has made an erroneous and prejudicial statement regarding the service of process by the plaintiffs. It was a clear error of fact and of law. Mr. Obama has been served four times and evaded service of process.   As the original action was filed by the undersigned counsel on the Inauguration Day (prior to swearing, as Mr. Obama took a proper oath only the next day, on January 21^st) by the undersigned counsel against Mr. Obama as an individual for his actions as an individual prior to the election, the undersigned counsel has properly served Mr. Obama as an individual under rule 4e and properly demanded from the court a default judgment and post default discovery.

Orly’s claim is a reiteration of the oral and written arguments presented to the Court and inappropriate to be argued in a motion for reconsideration.

L.R. 7-18 Motion for Reconsideration . A motion for reconsideration of the decision on any motion may be made only on the grounds of (a) a material difference in fact or law from that presented to the Court before such decision that in the exercise of reasonable diligence could not have been known to the party moving for reconsideration at the time of such decision, or (b) the emergence of new material facts or a change of law occurring after the time of such decision, or (c) a manifest showing of a failure to consider material facts presented to the Court before such decision. No motion for reconsideration shall in any manner repeat any oral or written argument made in support of or in opposition to the original motion.

In addition to being inappropriate, Orly is also clearly wrong.

First of all, Orly claims that she sued Obama as an individual and that FRCP 4(e) would be sufficient. However, in the Summons, filled out by Orly she clearly marked 60 days, indicating that she was suing Obama in his official capacity

Nolu Chan explains

A person served as an private individual has 20 days to respond. [Rule 12(a)(1)(A)(i)] A government officer sued individually has 60 days to respond. [Rule 12(a)(3)] On the summons obtained by Dr. Orly the blank is filled in as 60 days, not 20. On the summons form itself is printed, “[Use 60 days if the defendant is the United States or a United States agency, or is an officer or employee of the United States. Allowed 60 days by Rule 12(a)(3).]“

Assume for the moment that Orly made a mistake in selecting 60 days instead of 20. Did her service satisfy 4(e)?

Nolu Chan explains why she failed

On 5/18/2009 Dr. Orly filed the first “Proof of Service” by Mary Ann McKiernan dated 5/17/2009. Mary Ann McKiernan filled in the blanks to read, “I served the summons on [Mail Clerk], who is designated by law to accept service of process on behalf of [Department of Justice, Mail Room Clerk] on [February 10, 2009]“.

Note that she documented she was serving on some unidentified individual whom she thought to be designated by law to accept service of process on behalf of the Department of Justice. The Department of Justice mail clerk is not designated by law to accept service for citizen Obama.

In other words, Orly failed to follow even FRCP 4(e) as also the Statement of Interest filed by the United states shows.

Even assuming, arguendo, that only Rule 4(e) applied here, Plaintiffs have not shown, nor can they show, that a mail clerk at the Department of Justice to whom Ms. Mckiernan gave some unspecified “Pleading” was authorized, by appointment or by law, to receive service of process on behalf of Barack H. Obama in lawsuits where he was sued in his private, individual capacity. Indeed, it strains credulity past the breaking point to conclude that an otherwise unidentified mail clerk in the Department of Justice would have been authorized through appointment by Defendant Obama, or by law, to receive service of process on Defendant Obama’s behalf in cases where he was sued only in his private, individual capacity.

Rule 4(e) states

(e) Serving an Individual Within a Judicial District of the United States.Unless federal law provides otherwise, an individual — other than a minor, an incompetent person, or a person whose waiver has been filed — may be served in a judicial district of the United States by:

(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or

(2) doing any of the following:

(A) delivering a copy of the summons and of the complaint to the individual personally;

(B) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or

(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

 

The Department of Justice was right when it observed

As the foregoing discussion demonstrates, Plaintiffs’ Motion for Reconsideration is without merit factually, legally or logically, and it should be denied forthwith. Morever, the questions presented by the Motion are so frivolous and insubstantial that they do not merit an interlocutory appeal pursuant to 28 U.S.C. § 1292.