Butterfly Bilderberg reports at the Fogbow
[NBC: What a smackdown so far, the Judge had to try to educate Orly as to the rules and precedent and showed how her own filing of RICO claims caused the removal to Federal Court.]
I took 22 pages of notes. This will merely highlight the proceedings and tonight on Reality Check Radio I will provide more details. Unless in quotation marks, I am paraphrasing what the parties and the court stated.
Orly Taitz, Plaintiff pro per
Brian Fedorah, Plaintiff pro per
Justin Matheny, for Defendant Delbert Hosemann, Secretary of State
Samuel Begley, for Defendant Mississippi Democratic Executive Committee
Scott Tepper (telephonically), for Defendant Mississippi Democratic Executive Committee
Judge Wingate began by identifying the motions pending. The plaintiffs’ motion for remand was argued first. Because the removing party(ies) have the burden on jurisdiction, the defendants argued first on this motion. Matheny spoke for about 10 minutes, hitting upon the following points:
Removal is proper under section 1331. The court has jurisdiction because the plaintiff added RICO. The problem with the plaintiff’s argument is that only the federal defendants who were properly served are required to join the SOS’s removal. The docket reflects that no summonses were issued to the newly-added defendants, and there are no returns of service for the new defendants. Plaintiff has only certified mail receipts, but under Mississippi Rule 4 the plaintiff is required to serve by “restricted delivery” and that was not done in this case. All properly served defendants must consent to removal. If a defendant is not served, they do not have to join in the removal. Section 1446(b) – the “unanimity rule.” Merely sending a copy of the complaint to a defendant without formal service does not trigger jurisdiction. Cited Mississippi Rule 4; F.R.Civ.P. Rule 4; Murphy Brothers (USSC 1999). Numerous courts have recognized this, the rule is strictly construed. This case boils down to: Were the other defendants properly served? The answer is no. Here, there is no record that the Hinds County Circuit Court clerk ever issued any summons for President Obama or ther other federal defendants. The removing defendants are entitled to rely on the lack of service to other named defendants.
[NBC: Hilarious how Orly cannot seem to properly perfect service]
With respect to Taitz’s argument that the case was before the Mississippi Supreme Court, (1) that is not factually correct, (3) it does not matter which state court the case is removed from, if removal is appropriate, and (3) the Mississippi Supreme Court recognized the removal jurisdiction and forwarded the case the United States District Court.
The Court: Plaintiffs will argue that RICO is not directed at your client (the SOS).
Matheny: Cartwright v. Jefferson County Mem. Hospital – any defendant can remove. Here, not only did the SOS remove, but he as also joined by the defendant MDP. MDP is a RICO defendants.
Mr. Tepper indicated that the MDEC concurred in the argument by Mr. Matheny, but added the following points:
The SOS was timely in his removal. Docket No. 19 reflects that notice of removal filed on 5/8/2012. Only on addition of the RICO claim that SOS sought removal; the MDP sought to join in the removal. Cited to Johnson v. Hubeline, Inc. (phonetic) (5th Cir. 2006).
Dr. Taitz presented the plaintiffs’ argument.
Taitz: “Mr. Matheny just made my case.: When the case was removed my case was in the Supreme Court of Mississippi. Offered Exhibit 1 (copy of the docket in the MS Supreme Court). Defendants “removed from the wrong court.”
Taitz’s argument was essentially that the non-removing defendants received service of the complaint, as evidenced by the return receipts. Because the case was before the Mississippi Supreme Court, “I could not issue summons.” I did not have a judge” because Judge Coleman resigned. “I did maximum that i could.”
Taitz contended that “the defendants [SOS and MDEC] rushed to remove.” They knew that there was forgery in Obama’s papers, SSN, blah blah blah.
AT this point Mr. Begley moved to strike on basis that there is no factual record to support the statements by Taitz.
Court (to Taitz): The defendants removed on the basis of section 1331 because you raised a RICO claim in the First Amended Complaint.
[NBC: Hilarious, Orly caused her own problems…]
Taitz: “They should have to wait for all the defendants to be served.”
Court: “Do you agree that you filed a RICO claim?”
Taitz: The main issue is the state law claim.
Court: “But the statute says that if there is any federal claim a defendant can remove. Two defendants who were served did remove.”
Taitz: “They rushed to remove.”
Court: “Do you have any other grounds why this should be remanded to state court?”
Taitz: They had knowledge they were removing from the wrong court. They had an opportunity to seek consent from the other [newly-added] defendants. Those defendants could have consented with a reservation of rights. They could have said “Deficient service.” They [SOS and MDEC] rushed to remove.
Taitz argued that the state court “could have heard the federal claim under its supplemental jurisdiction.”
The Court responded, “I don’t understand that argument” (i.e., why removal is proper).
Court: Does your service meet the requisites of Mississippi Rule 4?”
Taitz: “The defendants [SOS and MDEC] did not do their due diligence.” Her argument was that the removing defendants had an obligation to contact the other, unserved defendants to see if they consented to removal.
Court; “Does the law require them to do that?” contact unserved defendants to see if they consent to removal? That’s a specific question. I’ll ask it again.” Whereupon the court repeated the question.
Taitz: “No. But they could have.”
[NBC: Oh my… so clueless]
Court: What statute do you have to support your argument? What case do have to support it? Cite me a case, or cite me a statute.”
Taitz: “There is no statute allowing them to remove.”
Court: “Do you have any authority at all? Any authority?” “You don’t have any authority.”
Taitz: Section 1331.
Court: “No. Section 1331 says that a federal question allows removal. The other side has presented authority for their position. What authority do you have for yours.”
[At this point my notes reflect that the argument was circular. Taitz reiterated her position that there is no statute allowing the defendants to remove. The Court proceeded to lecture on section 1331, much like a law school civil procedure class.]
Court: “As soon as you added a federal RICO claim, the law says a defendants has the choice to hear it in federal court..” The defendants here have the choice under law whether to have the RICO claim heard in state court or federal court. “It does not depend on which court the matter is pending. Once the matters takes on a federal character, it is removable.”
Taitz: The case was in Mississippi Supreme Court, cannot remove it from there.
Court: How can a state court prevent a defendant from removing?”
Taitz: “They have never cited authority.” In their pleading they basically said “We know we have to join everybody [in the removal]. They admit that I served them [the newly-added defendants] a complaint.”
Court: “Hold it. That’s ‘properly served.’ You’ve admitted they weren’t properly served.”
Taitz: “I served complaint.”
Court: “You did it by mail.”
Taitz: “I couldn’t issue a summons. I served complaint, but not summons.” She contended that she is “excused” from serving the compliant with a summons. “It was impossible for me to have summons.” They [SOS and MDEC] could have waited for the Mississippi Supreme Court to name a judge.”
[NBC: Oh my… she couldn’t follow the rules..]
Court: “What about the 30-day rule?”
Taitz: “The case was stayed [by the appeal to the MS Supreme Court].”
Court: “Are you saying the Mississippi Supreme Court can stay the operation of the Federal rules?”
Taitz: “They waited only five days” [from the time the FAC was served before filing the notice of removal.
Court: “Are you going to answer my question? Please answer.”
Taitz: If the Court will remand “I will stipulate to 25 days” [to allow defendants to file for removal. [Editorial: So that gets the case to where? Right back to federal court, where the case presently is pending.]
Court: “Are you familiar with Getty Oil?”
[NBC: Uhoh, the Court is asking Taitz about precedents.. Good luck with that]
[NBC: Totally unexpected….]
Court: “Getty Oil talks about the time period in which a defendant has to effect removal. It begins to run from the date the first defendant is served properly. The 30 days began to run from the time these defendants [SOS and MDEC] were served.” Who filed the First Amended Complaint? Who added RICO? Who chose the time period? You did.”
[To be continued.]
After Taitz rested, Mr. Tepper asked for an opportunity to reply to her argument.
Tepper: Docket No. 19 – the Mississippi Supreme Court deferred to removal. “That’s important.” “Ms. Taitz has misstated Mississippi law on the very argument she is making.” First, this was an interlocutory appeal. Mississippi Rules of Appeal 5(f) states that a petition for interlocutory appeal shall not stay the proceeding in the trial court, absent an order to the contrary. He then rattled off the names of several cases for the proposition that whether a case is pending in state trial court or appellate court does not matter.
[NBC: Tepper has done his homework]
At this point Taitz objected. “This is new argument by Mr. Tepper.”
Court: “This argument was made in the briefs.”
[NBC: But Orly apparently has not done hers…]
Taitz: :mr. Tepper is sitting in his office, he has access to computer. He is citing new cases. “This is prejudicial to plaintiffs.” Something about equal protection rights being violated. “I object to Mr. Tepper to participate int his case.” “I can’t do research here like he is.”
Court: “These cases are in the in the briefs. If you missed them, say you missed them, but do not say this is a new argument. They cited these cases in support.”
[I missed Taitz’s response to the Court’s point.]
Court: “Your appeal was interlocutory. The Mississippi rules say the case is not stayed.” “Getty Oil, Fifth Circuit — have you read it?”
Taitz: I don’t remember.
Court: Did you read any of those cases?”
Taitz: This is a matter of national security. Asked the Court to hear two motions and hold an evidentiary hearing on one issue.
[NBC: The answer appears to be no…]
The judge stopped her.
Court: “First, I will rule on remand.”
The Court proceeded to rule from the bench. Judge Wingate indicated that he will write a lengthier opinion as well.
Court: This goes to subject matter jurisdiction. Federal courts are courts of limited jurisdiction. Statutory confinement. Under section 1331 once a lawsuit takes on a federal character, a defendant can remove it to federal court. This lawsuit initially had no federal character. I t was not removable. But plaintiff decided to amend her complaint. She added defendants. She added a federal claim. Once that claim was included it provided a federal character to this lawsuit.
A defendant has 30 days to effectuate removal. It begins to run when the first defendant is served. This is automatic A state court judge is not involved in the process. Once a notice of removal is filed int he clerk’s office, it is removed. “Rule 5(f) of the Mississippi Rules does not help the plaintiffs.” An interlocutory appeal does not divest the state [trial] court of jurisdiction. “The law says the case can be removed from any state court once it takes on a federal character.” The defendant has 30 days. Here, the defendants chose to remove within five days.
Removal requires the consent of all properly served defendants. If three defendants are served and only two remove, that would be a defect. There are two defendants here. We do not have any other defendants. Two properly served defendants. “The court does not have to have the concurrence of any other defendant because they were not properly served.” The other defendants are still not properly before this court.
The Court is “not persuaded by the arguments.” “This case has taken on a federal character by the plaintiff’s choice.” The Court denies the motion to remand.