In this part, we hear from the defendants and notice how they provide several cases of authority to support their claims. It should also be noted that Orly cites none and does not even appear to be familiar with the relevant rules or cases.
THE COURT: …
Then there is a motion for sanctions filed by Dr. Taitz. There is motion for judgment on the pleadings filed by Democratic Party of Mississippi, motion to remand to state file by Dr. Taitz,and also filed by her is a motion for sanctions.
Then Docket No. 27 is a motion to strike the motion for sanctions of Orly Taitz, and this motion was filed by the Democratic Party of Mississippi.
Docket No. 35 also was filed by the Democratic Party of Mississippi. This is a motion to supplement counsel, and this, a response in opposition to the plaintiff’s motion for sanction.
And then Docket No. 37, Docket No. 30 — well, Docket No. 37 is in two parts. It asks for a hearing on these matters and also is a motion to supplement a response.
And then Docket No. 40 is a motion to expedite, and that’s also filed by the plaintiff.
So there are a number of motions which have been filed here. But the motions that the court proposes to hear this morning concern removal and remand.
This case originally was filed in state court and then removed to federal court. The movant contends that this court has subject matter jurisdiction under federal question jurisdiction, which is bestowed by Section — by 28, USC, Section 1331.
The plaintiff, on the other hand, challenges the removal and contends this case ought to be returned to state court.
So it is the motion of the plaintiff to remand in this matter, but the party seeking the jurisdiction of federal court has the burden to show that this court actually is the requisite forum for this matter.
The court has subject matter jurisdiction either under 1331 federal question or under Section 1332, which is diversity of citizenship.
Section 1332 is not here implicated. Section 1331, federal question, is the, is the section upon which the defendants rely for their removal of this matter from state court to federal court.
So then I will start with, well, the defendant. They made the removal, they have the burden, and I’ll hear their arguments and allow Dr. Taitz to respond.
Is that okay with you?
DR. TAITZ: Yes, Your Honor.
THE COURT: Okay, then. You may proceed.
MR. MATHENY: Thank you, Your Honor. Justin Matheny on behalf of the Mississippi Secretary of State. The brief procedural factual background is important to the motion to remand. This action was originally filed on February 17th, 2012, and the original complaint was filed against the Secretary of State of Mississippi and the Mississippi Democratic Party.
February 28th, 2012, the Hinds County Clerk issued summonses for the original complaint to the plaintiffs.
On March 20th, 2012, a copy of the summons and original complaint was delivered to the Secretary of State. That was when service was made on the Secretary of State.
On April 19th, 2012, while the case was pending in state court, the plaintiffs filed a first amended complaint, and that was wherein they added federal RICO claims against several new defendants that were not originally named; and those new defendants included President Obama, Obama for America, Nancy Pelosi, Alvin Onaka, Loretta Fuddy and Michael Astrue. And I believe that there were also Jane and John Does listed in that first amended complaint.
[NBC: It’s this amended complaint in which Orly foolishly claimed RICO, which provided the defendants with the option to have the case remanded to Federal Court. In fact, the Court later gets Orly to admit that she did file the RICO suit which set in motion the remand.]
Five days later, on April 24th, 2012, the Secretary of State, joined by the Mississippi Democratic Party filed a joinder. We removed the case to this court based on the RICO allegations that were pled in the new first amended complaint.
On May 11th, 2012, the plaintiffs filed their motion to remand that’s currently before the court.
The reason that removal was proper is that the court obviously has 1331 jurisdiction over the federal RICO causes of action and then supplemental jurisdiction over any state law claims that are included in the first amended complaint.
The plaintiff’s claim for improper remove — or their grounds for remand is that there was not unanimous joinder by all of the defendants when the case was removed.
The problem with their argument is that only the defendants who have been properly served with the first amended complaint were required to join in removal.
So all of the new defendants that were added by the first amended complaint had to be properly served with the first amended complaint before they could be required to join.
The reason that we know as a matter of fact that they were not properly served was that, first off, and this has been filed with the court as an exhibit, the docket sheet from Hinds County, the Hinds County Circuit Clerk’s docket, does not show that it ever issued any summonses to these new defendants so that they could be served with the first amended complaint.
We also know that there are no returns of service filed in the Hinds County Circuit Clerk’s office or in the clerk’s office of this court for any of the new defendants.
We also know that what was filed by the plaintiffs were some certified mail receipts.
Under Mississippi law, which governs the service of process before the case was removed, the — if you are going to accomplish service of process on a person under — with the certified mail, under Mississippi Rule 4, you have to serve that certified mail, restricted delivery.
You can see by the certified mail receipts that are filed by the plaintiff with their motion to remand that the restricted delivery box has not been checked and that they did not properly serve by certified mail.
We also have the fact that obviously none of the new defendants that were named, none of them, since they were not properly served, they are obviously not here today; they are not before the court.
And lastly, Your Honor, this is kind of an alternative grounds, there is case law that says that when a removing defendant removes the case, that all properly served defendants have to join in. But if the removing defendants do not know whether the unjoined or the defendants who have not joined in the removal, if they did not know if they have been properly served or not, then that doesn’t invalidate the removal.
The process is pretty simple. Once they are served, once they are before the court, then that’s when they get to have their say as to whether or not they join in removal or not.
But in this case, since none of the defendants were properly served, they’re not before the court, they never joined in the removal, it’s not a procedural defect that amounts to improper removal in this case and not grounds for remand.
Your Honor, we briefed all the legal issues attendant to these facts and the argument that I am making, but I will go over the highlights, hit those for you.
The removal statute, 1446(b), is the authority that says that all defendants who have been properly joined and served must consent to removal of the action. But only the defendants who have been properly served are required to join, and that’s the familiar unanimity rule. There are several cases, even opinions from this court, that recognize the unanimity rule for joinder and removal.
Merely sending a copy of a complaint to a defendant is not proper service. It’s not proper under Mississippi’s Rule of Civil Procedure 4. It’s not proper under Federal Rule of Civil Procedure 4.
And the United States Supreme Court has a case that’s very instructive in this regard. It was cited in our briefs. It’s the Murphy Brothers versus Michetti Pipe Stringing case from 1999, where the United States Supreme Court recognized that sending a complaint without any formal service does not trigger the jurisdiction of the court over the defendant, and it also does not trigger the need to participate or comply with the procedural removal statutes.
Numerous federal courts have recognized that Murphy Brothers applies in a situation like this, and defendants who have not been properly served do not have to join in removal.
The issue boils down to this, Your Honor: Were any of the new defendants properly served before the case was removed? The answer is clearly no.
I’ve described the Mississippi law on Rule 4, but I would also note that the Mississippi Supreme Court has clearly said that a summons and a complaint must be served.
Just to show you how strictly the rule is construed, in the Bilbo versus Thigpen case, 647 So.2d 678, from 1994. The plaintiff in that case served the — a defendant with a copy of the summons and the complaint, and the Mississippi Supreme Court said that the copy was not even good enough to effect service. You have to have a original summons issued by the clerk’s office and serve that with the complaint in order to properly serve process.
And, again, we know that that was not done in this case for all the reasons I noted earlier, including that there is no record that the Hinds County Circuit Clerk ever even issued a summons for President Obama and the other new defendants in this action.
Last, Your Honor, I would say that the point that I had cited earlier, the alternative argument, but there is a — the non-served defendant exception to the Section 1446, that’s the joinder requirement under the federal statute, the defendants — the removing defendants are entitled to rely on the lack of service on the other defendants if they do not know whether or not they have been served.
And I cited a couple of cases in the response to motion to remand on that point, Your Honor, chiefly the K-Mart case and the Driscoll case that are there in the brief.
But the point is that the Secretary of State was served — or the first amended complaint was filed, served on the Secretary of State April 24th, 2012 — I mean, I’m sorry, April 19th, 2012. April 24th, 2012, is when we removed it.
In that five-day period there was no — nothing from the plaintiffs to indicate that any of the new defendants had been properly served. And therefore, for all these reasons, Your Honor, it’s the Secretary of State’s position that the motion to remand based on failure of all the defendants to join should be denied.
THE COURT: Do you anticipate any other arguments made for remand?
MR. MATHENY: I believe, and it’s a little hard to follow from some of the documents that were filed, Your Honor, but I believe that the plaintiff contended at some point that it was — the case was not properly removed because the plaintiffs believed it was in front of the Mississippi Supreme Court at the time that it was removed.
I don’t think that that’s factually correct, first, Your Honor. I think there was a ruling or a dispute about recusal of the original judge that was assigned to the case. And the plaintiffs took what I believe would be best fairly characterized as some kind of interlocutory appeal to the Mississippi Supreme Court.
[NBC: Rule 5F of the MS Appellate Court shows that such a case is indeed not stayed by the mere filing of an interlocutory appeal.]
But we know that it doesn’t matter which state court a case is pending in, if removal of jurisdiction — if removal is proper, it doesn’t matter where in the state court system it comes from. And I think most tellingly in that regard was that following removal, the Mississippi Supreme Court entered an order recognizing that upon the filing of the removal the case was no longer within the jurisdiction of the state court and was at that point, pursuant to federal law, pending before Your Honor instead.
THE COURT: Now, you removed this case under Section 1331; is that correct?
MR. MATHENY: That’s correct, Your Honor.
THE COURT: And you removed it upon your assertion that the plaintiffs were urging grounds for relief under RICO?
MR. MATHENY: That’s correct.
THE COURT: Now, the plaintiff is going to argue that those RICO claims are not directed at your client.
MR. MATHENY: There’s two points in that regard, Your Honor. The first one is — and we cited the case law in my brief that I had filed, but specifically the Cartwright versus Thomas Jefferson University Hospital case. If a case is removable, then any defendant, even those who are not named in any federal law count, may be permitted to file a notice of removal.
We think the case law clearly supports that any defendant could remove it.
The other thing is that this is not a situation where only the Secretary of State removed it. The way that the clerk’s office works, Your Honor, is that the notice of removal is filed, it shows up on the ECF system, and then everyone can file joinders and such.
In this instance, Your Honor, we filed the notice of removal, and then as soon as it was possible for the Mississippi Democratic Party to join in and adopt that notice of removal, they did so.
So I would say for those two reasons, Your Honor, any argument keyed on the Secretary of State having been the one to actually file the removal papers is a red herring.
THE COURT: All right. Anything else at this point?
MR. MATHENY: That’s it, Your Honor.
[NBC: Note how the defendants addressed all the questions by the Court concisely and with relevant references to authority. That’s how lawyers are supposed to operate.]
THE COURT: All right. Now, you are making an on behalf of all the defendants, that is, both your argument client, Secretary of State, as well as Democratic Party?
MR. MATHENY: Well, I’m only representing the Secretary of State. I’m not sure if Mr. Begley has anything to add to my argument or not.
THE COURT: Then let me turn to Mr. Begley.
MR. BEGLEY: Your Honor, Mr. Tepper may have something to add. We basically tracked the Secretary of State’s arguments, but since he’s on the phone and I only have my brief in electronic form in my car, I would turn to co-counsel to see if he has something to say —
THE COURT: Counsel —
MR. BEGLEY: — with the court’s permission.
THE COURT: — on the telephone?
MR. TEPPER: Yes, Your Honor. I would like to add something, with the court’s permission. It’s the question of whether or not the Secretary of State was timely in his notice of removal. And I believe we’ve covered that in the Docket No. 19, our filing made May 8, 2012.
As Your Honor will recall, the case had originally been filed by Ms. Taitz and was subsequently amended to add the RICO claim. And it was only upon the addition of the RICO claim more than 30 days after the initial filing that the Secretary of State sought removal and the Mississippi Democratic Executive Committee sought to join in that removal.
And there is a case directly on point which we cited at Page 3 of Docket No. 19. It’s Johnson versus Heublein, Inc., a Fifth Circuit case from the year 2000 which actually affirmed a removal by this very court.
And the Court of Appeals, the Fifth Circuit, held that when the entire character of the case had changed by the addition of a new cause of action or claim, there was a — something that it characterized as the revival exception. The right to remove was revised by virtue of amendment changing the character of the case, and there was a new time period during which the defendants could seek to remove.
And so the only other issue, I think, that had not been covered in Mr. Matheny’s presentation is whether or not we sought to remove in a timely fashion, and I believe we did so, Your Honor.
And in Document No. 19 we also point out the cases that hold that a RICO claim of course is a federal claim and can be removed.
So I would just want to make that one addition, Your Honor. Thank you.
THE COURT: All right. Now let’s turn to the plaintiffs.
DR. TAITZ: Yes, Your Honor.
And actually I believe Mr. Matheny just made my case when he mentioned that when the case was pending in the Hinds County court, they removed it. He did not explain why was it pending?
And, Your Honor, I have in front of you the docket of the Supreme Court of the State of Mississippi which shows that the case was in the Supreme Court of Mississippi from April 19. And I would like to present it to you as Exhibit No. 1, case docket for case 2012, APOO26O, Orly Taitz versus Democratic Party of Mississippi. It shows that on April 19th, 2002, the case was in the Supreme Court of Mississippi.
It is hard to find a precedent when a party does something that foolish and removes the case from a wrong court. The case was not in the Hinds County Superior Court; it was clearly, according to the docket, in the Supreme Court of the State of Mississippi.
[NBC: Orly was of course unfamiliar with Rule 5F… She ended up being the foolish one.]
Moreover, as a plaintiff, I did everything that I could when the case was pending. As Mr. Matheny admitted, I provided certified mail receipts showing that the first amended complaint was served on all of the parties. They received proof of service.
[NBC: But proper service requires more than sending the complaint…]
So, first of all, by his own admission, he negates his assertion that the defendants did not have a notice of service to other parties. They did get the notice. They received proof of service stating that all parties indeed were served.
[NBC: Showing that Orly is totally unable to comprehend the rules of service. Something which has caused her significant problems as Tepper has pointed out that Orly so far has failed to properly serve any Federal defendant. In the Judge Carter case, Orly was finally helped by the Court who ordered the AG to walk Orly to the correct office after the defendant had waved personal jurisdiction if Orly would at least properly file.]
Moreover, specifically because, as Mr. Matheny stated, by his own admission, the case was pending in the Superior Court of Hinds County, I could not issue additional summons. The summons that were issued for the Democratic Party and for the Secretary of State were issued back in February when the original complaint was filed.
However, because the case was pending, I could not issue the new summons. They didn’t have jurisdiction to do so. The case was in a different court. It was in the Supreme Court of the State of Mississippi.
[NBC: If Orly had inquired with the Court, she would have known that indeed summons could still be issued, even though there was no judge assigned. The clerk of the court has such powers…]
So in this case there is a valid justification — valid excuse for me to serve the defendants only with a copy of the first amended complaint and wait for the Supreme Court of Mississippi to rule.
[NBC: Valid or not, this still amounts to failure to properly serve. And these arguments are not valid justification as we will see.]
We — moreover, not only I could not issue summons, I did not have a judge. Judge Coleman resigned, and the case was in front of the Supreme Court of Mississippi, and you can see by the docket back on February the 17th, they issued an order assigning Judge Coleman. When Judge Coleman resigned on February 9 — on April 19th, the case was in the front of the Supreme Court of Mississippi, where the Supreme Court was deciding on appointing a different judge.
So therefore, I, as a plaintiff, did the maximum that I could, everything that I could. But I did not have — I could not issue summons because the Superior Court did not have the case, and summons to appear before whom? There was no judge.
So they rushed to bring the case to this court, and they removed it from their own court. They did not even have the case, did not have the jurisdiction. They did not mention the fact that I could not issue summons. We did not have a judge. And I believe the reason they rushed to do so is because they knew that there was criminal complicity in the case. I provided abundant evidence that there was forgery in all of Mr. Obama’s identification papers, that he — I provided a printout from E-Verify SSNVS showing that he is using a Social Security — a Connecticut Social Security number that was issued to another individual.
It was a great embarrassment to the party. And what they tried to do —
MR. BEGLEY: Your Honor, I would move to strike all this argument. This is — if this were out of court this would be slanderous, and there is no record in the evidence to support this. It’s not even relevant to the issue to remand.
THE COURT: All right. Thank you. But let me just ask some questions here. The defendants removed on the basis of 1331, asserting that this court has jurisdiction because in your first amended complaint you raised a RICO claim, which is a federal enactment, federal statute. Then do you agree that in your first amended complaint you did raise a RICO claim?
DR. TAITZ: Yes, I agree. However, they still had to wait for all the defendants to, to join. And as a matter of fact —
THE COURT: Well, before we get to that. So then you agree, then, that you raised a RICO claim.
DR. TAITZ: Yes.
THE COURT: And you agree that it is federal in character.
DR. TAITZ: It is. However, it could be heard in the state court as a supplemental issue because the main issue actually was a state issue. The question is —
THE COURT: Well, hold on.
DR. TAITZ: — what was controlling?
THE COURT: Well, hold it. Hold it. When a federal claim is made in a complaint, don’t the defendants have the right to remove upon that federal claim?
DR. TAITZ: If all the parties join. And Mr. Matheny admitted that they had –
THE COURT: Well, let me go back to another question then.- Doesn’t that statute say that all properly served defendants would have to join in?
DR. TAITZ: Yes. However —
THE COURT: Properly served defendants?
DR. TAITZ: Yes, Your Honor. But —
THE COURT: Now, you said you could not serve them. So that at that point there were two defendants who had been served. So then why couldn’t they remove?
DR. TAITZ: Well, first of all, Your Honor, the 30-day statute of limitations did not even start. They had notice that the parties were served with a complaint. However, due to the circumstances, the whole case was stayed — was pending in the Superior Court of Hinds County. The whole thing was pending.
So I’m arguing that even the removal from Hinds County, they did not have jurisdiction, was illegal, was improper. They could not remove the case from the court that doesn’t even have a case. How can you take jurisdictions from somebody who doesn’t even have jurisdiction in the first place?
THE COURT: Okay. So you’re saying that you had a RICO claim.
DR. TAITZ: Yes. However, as I stated, all the parties had to be removed. They had a notice — I’m sorry, all the parties had to join.
They had two notices. One, the whole case in the Superior Court was pending. And as a matter of fact, Mr. Matheny started with this. He said while the case was pending. So he knew — hold. Hold on. It’s pending. It’s now in front of the Supreme Court.
So he had no right to do anything. He had to wait for the Superior Court of Hinds County to get the case back from the Supreme Court of Mississippi. And he did not do that.
THE COURT: Okay. Do you have any other arguments on why this case ought to be remanded to the state court?
DR. TAITZ: Well, as I stated, other parties have to agree. Now, if the defendants — they’re stating that the other parties were served — I mean they are admitting that they were served with a complaint but not with summons because I couldn’t issue the summons as there was no jurisdiction to issue those summons.
They had an opportunity to seek consent of other parties, and it is quite telling that for five months they don’t get their consent. Where is it? They could have, they could have gone to other parties and seeked their consent for removal with, with reservation of rights to, to state incomplete service, or deficient service. They could have done it.
Why didn’t they do it for five months? What prevented them from doing so?
So not only they had knowledge that the case — that they’re removing the case from a wrong court that doesn’t have jurisdiction; two, they knew — I mean they’re claiming that they had to rush because of 30 days, but they’re admitting now that the case was pending.
There was no rush. There was no 30 days. They know that according to FRCP Rule 4(m), the plaintiffs have 120 days to serve another party with summons. They rushed to remove within five days. Quickly. What was the rush to do so? Because they believed that the federal court, which is part of the federal government, will be more partial in favor of their clients of Mr. Obama than the state court. That was the reason. That’s why they rushed to pull the case from the court that didn’t even have it. They disregarded the fact that it was in the Supreme Court.
And by the way, the Supreme Court just stated that it’s simply awaiting for Your Honor to decide on the motion to remand. They did not rule one way or another. They are just — they just ordered the parties to provide the Supreme Court notice immediately after Your Honor decides on my motion to remove. And then they will appoint a judge. So Supreme Court is ready and willing to appoint a judge and have the case decided.
Also, what is the main issue here? It’s the election in the State of Mississippi. The —
[NBC: In part 2, the Judge politely but in a determined manner grills Orly on her understanding of law, and statute.]