FL 2012-05-11 Colette v. Obama FDP Motion to Dismiss Amended Complaint

7/31/2019 FL 2012-05-11 Colette v. Obama FDP Motion to Dismiss Amended Complaint

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IN THE CIRCUIT COURT OF THE SIXTH JUDICAL CIRCUIT,

IN AND FOR PASCO COUNTY, FLORIDA

CASE NO. 51-2012-CA-2041-WS

CIVIL DIVISION

JERRY COLLETTE,

Plaintiff,

v.

BARACK OBAMA,

STATE EXECUTIVE COMMITTEE OF

THE FLORIDA DEMOCRATIC PARTY,

and DOES 1 THROUGH 1000, INCLUSIVE,

Defendants.

DEFENDANT FLORIDA DEMOCRATIC PARTYS MOTION TO DISMISS FIRST

AMENDED COMPLAINT PURSUANT TO RULE 1.140(B)

Defendant State Executive Committee of the Florida Democratic Party (the FDP),

through undersigned counsel, moves pursuant to Rule 1.140(b) to dismiss the First Amended

Complaint and, in support thereof, state:

The amended complaint challenges the eligibility of Barack Obama of Barack Obama to

be listed on Florida ballots as a candidate for President of the United States. The thrust of the

amended complaint is that President Obama is foreign born and that [n]o matter where he was

born, he is not anatural borncitizens because he was born of foreign paternity, each of which, it

as alleged, renders him ineligible for the office of President of the United States under Article II,

Section 5 of the Constitution of the United States.


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This assertion, having been rejected by every federal and state court to consider this issue,

is utterly baseless. The question of President Obamas citizenship has long been settled. He is a

natural born citizen, having been born in 1961 in Honolulu, Hawaii to his mother, the late Ann

Dunham, who was indisputably a citizen of the United States. Therefore, he satisfies the

requirements of Article II, Section 1 of the Constitution of the United States; he is eligible to serve

as President of the United States; and he is eligible to stand for re-election to that office. Plaintiffs

allegations have no basis in fact or in law.

1. President Obama is indisputably a natural born citizen by virtue of his birth in the

United States. See United States v. Wong Kim Ark, 169 U.S. 649, 705 (1898)(holding that a

person born to non-citizens for China was a citizens of the United States because [e]very person

born in the United States, and subject to the jurisdiction thereof, becomes at once a citizens of the

United States); see also Ankeny v. Governor of the State of Indiana, 916 N.E. 2d 678, 688 (Ind.

Ct. App. 2010)(citingWong Kim Ark, and holding that both President Obama and Senator John

McCain were natural born citizens because persons born within the borders of the United

States are natural born citizens for the Article II, Section 1 purposes, regardless of the citizenship

of their parents.). Because President Obama satisfies all eligibility requirements for the office of

President of the United States, the complaint should be dismissed for failure to state a cause of

action.

2. Despite the Plaintiffs baseless assertions regarding the Presidents eligibility, the

complaint fails to state a cause of action because the Democratic Party has a constitutional right to

nominate whomever it desires as its candidate for President of the United States. See California

Democratic Party v. Jones, 530 U.S. 567, 575 (2000)(Unsurprisingly, our cases vigorously affirm

the special place the First Amendment reserves for, and the special protection it accords, the


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process by which a political party select[s] a standard bearer who best represents the partys

ideologies and preferences. (internal citation and quotation marks omitted)); cf. New York Board

of Elections v. Lopez-Torres, 552 U.S. 196 (2008)(A political party has a First Amendment right

to choose a candidate selection process that will in its view produce the nominee who best

represents its political platform.) Florida law does not authorize interference with this

constitutionally protected candidate selection process, and Defendants cannot be enjoined from

advancing President Obamas candidacy.

3. Defendant FDP moves to dismiss the complaint for failure to state a cause of action

inasmuch there is no bona fide justiciable controversy between the parties and that the judgment of

the court is merely sought to answer questions propounded out of curiosity or for political

purposes.

4. Defendant FDP moves to dismiss the complaint for lack of jurisdiction, in that the

complaint fails to allege an amount of damages necessary to vest jurisdiction in the circuit court.

Assuming, but not conceding, that Plaintiff could state a cause of action, in no event could

monetary damages be warranted for the type of injury alleged by Plaintiff. Thus, Plaintiffs claim

for damages must be dismissed.

5. Plaintiffs claims for damages must also be dismissed for failure to state a casue of

action inasmuch as there exists no cause of action for damages for violation of the alleged rights,

duties or obligations claimed by the Plaintiff.

6. Defendant FDP moves to dismiss the amended complaint for failure to join

indispensible parties on the ground that the Governor of the State of Florida and the Department

of State are each indispensible parties to this action who have not been joined as party defendants.


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7. The amended complaint seeks that Defendants be enjoined from having the name

of defendant Obama, as a candidate for United States President: a) Printed on ballots in Florida;

or b) Listed or counted as write in candidate in Florida. SeeAmended Complaint, Prayer for

Relief, p.7.

8. Under Florida law, [e]ach political party of the state shall be represented by a state

executive committee.

See Section 103.091(1), Florida Statutes. Plaintiff has alleged that the

Defendant FDP, under Florida law, plays a key role in determining who is listed as the Democratic

Party candidate for President of the United States on the Florida ballot. SeeAmended Complaint,

4.

9. Section 103.021(1), Florida Statutes, provides as follows:

103.021 Nomination for presidential electors.Candidates for presidentialelectors shall be nominated in the following manner:

(1) The Governor shall nominate the presidential electors of each political party.The state executive committee of each political party shall by resolution

recommend candidates for presidential electors and deliver a certified copy thereof

to the Governor before September 1 of each presidential election year. The

Governor shall nominate only the electors recommended by the state executive

committee of the respective political party. Each such elector shall be a qualifiedelector of the party he or she represents who has taken an oath that he or she will

vote for the candidates of the party that he or she is nominated to represent. The

Governor shall certify to the Department of State on or before September 1, in

each presidential election year, the names of a number of electors for each political

party equal to the number of senators and representatives which this state has in

Congress.

(2) The names of the presidential electors shall not be printed on the generalelection ballot, but the names of the actual candidates for President and Vice

President for whom the presidential electors will vote if elected shall be printed on

the ballot in the order in which the party of which the candidate is a nomineepolled the highest number of votes for Governor in the last general election.

10. Pursuant to Florida law, it is the duty of the Governor to nominate the presidential

electors of each political party as recommended by the state executive committee of each political

party.


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11. Once certified by the Governor, it is the duty of the Department of State to include

the names of the actual candidates for President and Vice-President on the general election ballot.

SeeSection 103.021(2), Florida Statutes.

12. Thus, the Governor of the State of Florida and the Department of State are

indispensible parties to this action.

13. Defendant FDP moves to dismiss the amended complaint for improper venue, in

that none of the named defendants are residents of Pasco County, Florida.

14. The amended complaint states:

3. Defendant is

the governing body of the Florida Democratic Party, and is sued that capacity.

4. Under the Florida election code, defendant

plays a key role in determining who is listed as a

Democratic Party candidate for President of the United States on Florida Ballots

and, accordingly, is an indispensable party to the remedies sought, even if the court

should find that it has no liability with respect to causes of action alleged below.

5. Plaintiff does not know the true names and capacities of the defendantssued as DOES 1 through 1000, inclusive, and will amend this complaint to allege

their true names and capacities when ascertained.

(Emphasis in Amended Complaint.)

15. The filing of a John Doe complaint, without more, does not commence an action

against a real party. Gillam v. Smart, 809 So. 2d 905, 908 (Fla. 1st DCA 2002), citing to Grantham

v. Blount, Inc., 683 So. 2d 538 (Fla. 2d DCA 1996). Inasmuch as naming John Doe defendants

does not initiate an action, likewise, it does not establish venue.

16. There is no allegation that any of the defendants reside in Pasco County or that

there is any property which is the subject of the litigation located in Pasco County.


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17. Plaintiff alleges that [t]his is an action for declaratory judgment [and] injunctive

relief . See Amended Complaint, 55, 66. A suit for declaratory relief does not itself

constitute a cause of action for venue purposes, it is the underlying relief which determines venue.

Royal Jones & Assoc., Inc. v. Kaplan Ind, Inc., 575 So. 2d 309, 310 (Fla. 2d DCA 1991); Oliver v.

Severance, 542 So. 2d 408, 410 (Fla. 1st DCA 1989). In the amended complaint, the Plaintiff

prays that Defendants be enjoined from having the name of defendant Obama, as a candidate for

United States President: a) Printed on ballots in Florida; or b) Listed or counted as write in

candidate in Florida. See Amended Complaint, Prayer for Relief, p.7. Pursuant to Section

103.021, Florida Statutes, these actions will take place in Tallahassee, Leon County, Florida, in

conjunction with the Governor of the State of Florida and the Department of State.

18. Plaintiff alleges that [t]his is an action for money damages. See Amended

Complaint, 55, 66. In the amended complaint, Plaintiff seeks [m]oney damages in an amount

to be determined. See Amended Complaint, Prayer for Relief, p.7. Assuming, but not

conceding, that a cause of action for damages exists, [f]or venue purposes in a tort action, a cause

of action is deemed to accrue where the act creating the right to bring the action occurred.

Soowal v. Marden, 452 So. 2d 625, 626 (Fla. 3d DCA 1984). Pursuant to Section 103.021, Florida

Statutes, the actions required to list Barack Obama on Florida ballots for President of the United

States will take place in Tallahassee, Leon County, Florida, and a cause of action, if any, will accrue

in Tallahassee, Leon County, Florida.

19. Thus, the Amended Complaint should be dismissed for improper venue or, in the

alternative, be transferred to Tallahassee, Leon County, Florida.


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WHEREFORE, for the reasons stated herein, the amended complaint should be

dismissed as to the Defendant State Executive Committee of the Florida Democratic Party.

Respectfully submitted on this 11th

day of May, 2012, by:

_________________________

Mark Herron

Florida Bar No. 199737

Joseph Brennan Donnelly

Florida Bar. No. 268895

Robert J. Telfer, III

Florida Bar. No. 128694

Messer, Caparello & Self, P.A.

Post Office Box 15579

Tallahassee, FL 32317

Telephone (850) 222-0720

Facsimile: (850) 558-0659

Stephen F. Rosenthal


Podhurst Orseck, P.A.

25 West Flagler Street, Suite 800

Miami, FL 33130-1720

Telephone (305) 358-2500Facsimile: (305) 358-2382

Richard B. Rosenthal


The Law Offices of Richard B. Rosenthal, P.A.

169 East Flagler Street, Suite 1422

Miami, FL 33131

Telephone (305) 779-6097

Facsimile: (305) 779-6095

Attorneys for Defendant State Executive Committeeof the Florida Democratic Party


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I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by

U.S. mail on this 11th

day of May, 2012, to:

Jerry CollettePost Office Box 3664

Holiday, FL 34692

__________________________

MARK HERRON

Documents

FL 2012-05-11 Colette v. Obama FDP Motion to Dismiss Amended Complaint