Kerchner v. Obama: Judge Grants Defendant’s Second Time Extension (Apuzzo Update)by Phil on 06/10/2009
Mario Apuzzo, attorney for Plaintiffs in Kerchner v. Obama, reports that US Magistrate Judge Joel Schneider granted the Defendant’s second request for a time extension in this case (Court document follows).
As Mr. Apuzzo noted on April 13, the government is always given 60 days by which to respond to any complaint brought against it. On that same date, the federal government requested an additional 15 days by which to respond, making the deadline May 5, 2009 for any motions on their part. Subsequently, per paragraph 10 of the motion, the Defendants had requested an additional 20 days to respond. Today’s order now makes the new deadline June 29, 2009.
Mr. Apuzzo is in New Jersey Superior Court over the next two days on another case and will be responding to this Order sometime thereafter.
Of the reasons for the time extension request, Assistant US Attorney Elizabeth Pascal mentioned that Vice President Dick Cheney and House Speaker Nancy Pelosi had both requested the DOJ to represent them in this matter. Also, Attorney Pascal mentioned in the Defense’s original motion:
“I was unaware that I could move for an extension of time to answer, move, or otherwise respond to the complaint pending the representation decision for those Defendants”
“The Department is still processing that request and determining which Congressional Defendants it will represent.”
She also noted in a later paragraph:
“The delay in filing a response in this case would in no way prejudice the Plaintiffs, but would provide a fair opportunity for the Department to respond appropriately to the allegations in the Complaint…”
A footnote to this paragraph stated:
“The Second Amended Complaint is extensive, as it is comprised of 12 counts, with 347 paragraphs and 43 single-spacedendnotes of allegations, and a 30-paragraph prayer for relief.”
The following is the actual Court document; key paragraphs are highlighted below the embedded document…
Update: Mr. Apuzzo expanded on his original posting (linked above) with the following:
When you read the order you will see that the court addressed this second request for an extension in great detail in his five page order. On page two the Judge writes, “In their complaint Plaintiffs assert violations of their constitutional rights alleging that Defendants have failed to conclusively prove that President Obama is a natural born citizen and therefore may not be eligible to serve as President of the United States.” Then on page four the Judge writes, “Plaintiffs’ Complaint raises significant issues necessitating that the named Defendants engage competent counsel to represent their interests.” The Judge points out that the Department of Justice still has not decided who is going to represent whom for the seven defendants in the case. Later he then writes, “The Court is confident that after all the attorneys enter their appearances on behalf of all Defendants, that the case will proceed expeditiously.” The Judge of course noted that we opposed the extension. And previously on page two, the Judge noted, “The Court has also received numerous letters from non-parties opposing Defendants’ motion [Doc. Nos. 18, 19, 20, 22, 23, 24, 25].” The order was written and signed by U.S. Magistrate Judge Joel Schneider who serves at the:
United States Courthouse
400 Cooper Street
Camden NJ 08102-1570
I will comment in more detail later.
Notable quotes in the Judge’s Order include the following:
[Assistant United States Attorney] Ms. [Elizabeth A.] Pascal also notes that former Vice President Richard Cheney has requested representation from the Department of Justice (“DOJ”), which was granted. (Id. at ¶7.) To date no attorney from the DOJ, besides Ms. Pascal, has entered an appearance. Inaddition, Ms. Pascal notes that other Defendants in the case requested representation from the DOJ but these requests are still being processed. …
Plaintiffs oppose Defendants’ motion. [Doc. No. 21]. The Court has also received and reviewed numerousletters from non-parties opposing Defendants’ motion [Doc. Nos. 18, 19, 20, 22, 23, 24,25]. …
In their complaint Plaintiffs assert violations of their constitutional rights alleging that Defendants have failed to conclusively prove that President Obama is a natural born citizen and therefore may not be eligible to serve as President of the United States. …
In support of her present motion, Ms. Pascal argues that on April 24, 2009 shelearned that Defendant Cheney requested and was granted representation by the DOJ. Ms.Pascal further argues that on April 9, 2009, she learned that Defendants Pelosi and the House of Representatives also requested representation by the DOJ, which has not yet been decided. Ms. Pascal seeks additional time to answer, move or otherwise respond on behalf of all the Congressional Defendants in order to allow the DOJ time to complete the representation determinations. Ms. Pascal argues that the failure to file an answer orotherwise respond before the time required by the applicable Federal Rules of Civil Procedure is not the result of any neglect on Defendants’ part. …
Ms. Pascal argues that granting an extension of time to respond toPlaintiffs’ complaint will not prejudice Plaintiffs. …
The Court finds good cause to grant Defendants an extension of time and will therefore grant Defendants’ motion. The Court finds that Defendants’ failure to respond to Plaintiffs’ Complaint in a timely manner was not caused by any neglect. Plaintiffs’ Complaint raises significant issues necessitating that the named Defendants engage competent counsel to represent their interests. Given the high ranking positions of the Defendants, the decision as to who will represent them in the case is not simple and straightforward. Thus, since Defendants need more time to identify and engage counsel,their request for more time to respond to Plaintiff’s Complaint is reasonable and appropriate under the circumstances. There is no evidence that Defendants have acted in bad faith in failing to respond to Plaintiffs’ Complaint or in requesting an extension oftime to respond. The Court further finds that granting Defendants an extension of time will not prejudice Plaintiffs or materially delay the resolution of the case. The Court is confident that after all the attorneys enter their appearances on behalf of all Defendants, that the case will proceed expeditiously. …
ORDERED that this ORDER is entered without prejudice to Defendants’ right torequest additional time to respond to Plaintiffs’ Second Amended Complaint provided good cause is shown.
As a non-attorney casual observer, it appears to me that the following sentiments are true:
- Other high-profile Defendants being named has forced this case to become much more time-consuming;
- The Defendants are not easily dismissing this case for the fact that the President’s eligibility is not the sole grievance about which the Plaintiffs are petitioning the Judiciary; of key note for the Plaintiffs is the absence of a call for objections during the 2008 Joint Session of Congress;
- The Order is entered without prejudice, which means, in theory, the Defense could move for yet additional time to respond.
Other than the above, I look forward to hearing back from Mr. Apuzzo on his take of this recent Order.
See the following links regarding the eligibility saga:
- Obama’s Presidential Eligibility: What You Need to Know
- Obama’s Sealed Background Documentation
- Citizen Grand Jury Updates and Eligibility Lawsuit Listing