Case 3:12-cv-00280-HTW-LRA Document 79

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DR. ORLY TAITZ, ESQ., ET AL. V.

PLAINTIFFS CIVIL ACTION NO. 3:12cv280-HTW-LRA DEFENDANTS

DEMOCRAT PARTY OF MISSISSIPPI, ET AL.

DEFENDANT ALVIN ONAKA AND LORETTAS SUPPLEMENTAL BRIEF IN SUPPORT OF THEIR MOTION TO DISMISS

COME NOW the Defendants, Dr. Alvin Onaka (hereinafter Onaka) and Loretta Fuddy (hereinafter Fuddy) (collectively Defendants), by and through undersigned counsel, and file this Supplemental Brief, and without waiving the right to plead and be heard on any other defenses would further show unto this Honorable Court the following:

litigation, including the Court assumed Plaintiffs had sued Defendants in their official capacities. Only after Defendants presented their immunity arguments did Plaintiff Taitz allege, for the first time, that Defendants are being sued in their individual capacities. This new claim is wholly inconsistent with the actual factual allegations in the Plaintiffs First Amended Complaint (FAC) [ECF 1-1] and Plaintiffs RICO Statement (PRS) [ECF 49]. As such, during the

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November 16, 2012 hearing, the Honorable Judge Wingate requested that the Defendants file a brief addressing the arguments in the Motion to Dismiss as if the allegations in the FAC were directed to Defendants in their individual capacities, rather than their official capacities. THE DEFENDANTS ARE BEING SUED IN THEIR OFFICIAL CAPACITIES. The Fifth Circuit has

explained that [a] persons capacity need not be pled except to the extent required to show the jurisdiction of the court. Parker v. Graves, 479 F.2d 335, 336 (5th Cir. 1973) (citing Fed. R. Civ.
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INTRODUCTION. Until the hearing on November 16, 2012, everyone involved in this

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI JACKSON DIVISION

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P. 9(a)). Specifically, F.R.C.P. 9 (a) provides that a pleading need not allege a persons capacity

Plaintiffs are seeking to use the broad jurisdictional provisions of RICO to establish personal

jurisdiction over Defendantsan issue that hinges on whether Defendants were sued in their

official or individual capacities. Where the capacity in which a person is sued is ambiguous, the

determine the nature of the plaintiffs cause of action. Parker, 479 F.2d at 336. The Mississippi Supreme Court has elaborated on this test by including an analysis of the following factors: (1) allegations in the Complaint; (2) the nature of relief sought; and (3) the nature of defenses pled. See E. Miss. State Hosp. v. Callens, 892 So. 2d 800, 811 (Miss. 2004).

Plaintiffs FAC and PRS clearly identify Defendants only in their official capacities. While the FACs caption states only names of all defendants, the Parties section clearly identifies Defendants according to their official capacities as employees of the State of Hawaii. 1 See FAC at 1, 4. Similarly, in their request for declaratory relief, Plaintiffs refer to Fuddy as the Director of Health[.] See id. at 23. Again, in the FACs RICO section, Plaintiffs refer to Fuddy

Hawaii[.] Id. at 32. Additionally, in the PRS, Plaintiffs refer to Fuddy as the [D]irector of

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[H]ealth of HI (PRS at 1), and Onaka as [R]egistrar of the Health Department of Hawaii (id. at 6) and Registrar of the state of Hawaii (id. at 8). The Nature of Plaintiffs allegations clearly show that Defendants were sued in their

official capacities. The FAC alleges that Fuddy personally issued a fraudulent letter, claiming that she observed copying of Obamas birth certificate, or was silent when she had a duty to speak

Specifically, the FAC describes Fuddy as Director of the Department of Health of the [S]tate of Hawaii[,] and Onaka as Registrar of the Department of Health of the [S]tate of Hawaii[.] FAC at 4.

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as [D]irector of Health of the [S]tate of Hawaii[,] and Onaka as Registrar of the [S]tate of

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Fifth Circuit requires that [t]he allegations in the complaint must be examined in order to

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[e]xcept when required to show that the court has jurisdiction[.] This is precisely the case here:

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up when Obama published his long form birth certificate (LFBC) in April 2011 with an

duty to speak up when the LFBC was issued. Id; see also PRS at 1. These allegations alone show that the Defendants were sued in their official capacities, because issuing the LFBC or

determining the authenticity of a birth certificate is an action that could only have done in an

authenticity and copying of the birth certificatean official state document. Additionally, Fuddy issued her letter on official letterhead, and Onakas official seal was used on the certified LFBC. This pattern is sustained throughout all of Plaintiffs pre-November 16, 2012 pleadings: in every one, Plaintiffs either name Defendants in their official capacities or take issue with actions that could only have been taken while acting in an official capacity. See Exhibit A, attached hereto. 2 The method of Plaintiffs attempted service process provides still more evidence that Defendants were sued in their official capacities. Plaintiffs attempted (however unsuccessfully) to serve Defendants as government officials by submitting papers to both the Hawaii Department of Health and the Hawaii Attorney General. See Opp. at 28-29; see also Plaintiffs Additional
Notably, Plaintiffs also failed to raise this argument in their Opposition to the Motion to Dismiss (Opp.) [ECF 65], despite the clear language of Defendants Motion to Dismiss (Motion) [ECF 57] and Memorandum in Support (Memo) [ECF 58] reflecting the then-uncontroverted understanding that they had been sued in their official capacity. While Plaintiffs attempted to distinguish cases involving individual government employees as opposed to governmental entities, it is obvious that Plaintiffs were merely trying to distinguish this case from others where the actual governmental entity was named, rather than a government official. It is worth noting that Plaintiffs Opp. (at 23) contains still more misrepresentations of non-binding law to support the proposition that governmental officials can be civilly liable under RICO in their official capacities, with parentheticals explaining their irrelevance to this case. See LaFlamboy v. Landek, 587 F. Supp. 2d 914 (N.D. Ill. 2008) (addressing potential liability only because defendants were sued in both official and individual capacities, after expressly recognizing that they could not be liable in their official capacity); United States v. Warner, 498 F.3d 666, 696 (7th Cir. 2007) (criminal case that did not address civil RICO liability); United States v. Emond, 935 F.2d 1511, 1512 (7th Cir. 1991) (same); United States v. Garner, 837 F.2d 1404, 1419 (7th Cir. 1987) (same); United States v. Genova, 333 F.3d 750, 758 (7th Cir. 2003) (same); United States v. Angelilli, 660 F.2d 23, 32-33 (2d Cir. 1981) (same); Envtl. Tectonics v. W.S. Kirkpatrick, Inc., 847 F.2d 1052, 1067 (3d Cir. 1988) (commercial bribery case involving non-governmental companies and a Nigerian national public official); Bieter Co. v. Blomquist, 987 F.2d 1319 (8th Cir. 1993) (addressing lower courts excessively narrow views of causation and injury but not addressing civil RICO liability of government officials); Gutenkauf v. City of Tempe, No. CV-10-02129-PHX-FJM, 2011 WL 1672065, at *5 (D. Ariz. May 4, 2011) (addressing potential liability only because defendants were sued in both official and individual capacities but not analyzing capacity liability of government officials sua sponte as Plaintiffs claim).
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official capacity. Indeed, Defendants acted pursuant to statutory obligation in certifying the

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authenticating letter from Fuddy. FAC at 32. Similarly, the Plaintiffs allege that Onaka had a

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proof of service per court request [ECF 71] (Service Pleading) (indicating an indelibly clear

The nature of the relief sought by Plaintiffs and defenses pled further demonstrates that Defendants were sued in their official capacities. Plaintiffs allegations of defamation, slander,

and harassment (which form the basis for the alleged damages), are directed at individuals other

business damages arising from any actions taken by Defendants.

defenses pled by Defendants also contradicts Plaintiffs new claim:

challenged jurisdiction based on ineffective service of process upon Defendants in their official capacity as well as the failure to state a claim for relief under RICO in light of the immunity afforded to the Defendants. 4

PLAINTIFFS NEVER ATTEMPTED TO SERVE DEFENDANTS AS INDIVIDUALS. As Plaintiffs recent filing titled Additional proof of service per court request [ECF 71] confirms, Plaintiffs did not even attempt to serve Fuddy or Onaka as individuals, even though such service is much less burdensome than the process required to serve government officials. Specifically, the

summons and complaint on the individual; (2) leaving copies of the same at the individual's home

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or usual place of abode with someone of suitable age and discretion also residing there; 5 or (3)

One of Plaintiffs exhibits contains an email from Taitz to Hawaii Legal Services, asking them to serve the Director of Health and the Registrar at the health department and with Attorney general. See ECF 71-4 at 1. Also included is an email in which Taitz explained that the Hawaii Attorney General would represent Defendants, a clear declaration against interest in light of Plaintiffs current claims, that Defendants were being sued in their individual capacity. See id. at 3 (Oct. 6 email stating that the Hawaii Attorney General will be representing [Defendants] in court). As undersigned counsel represented to the Court at the hearing, Defendants are represented by the Hawaii Attorney general through the appointment of undersigned counsel as Special Deputy Attorney General.

Miss. R. Civ. Proc 4 requires Plaintiffs to leave a copy of the papers at the defendants usual place of abode with the defendants spouse or some other person over the age of sixteen years who is willing to receive service[.] Miss. R. Civ. P. 4(d)(1)(B). 4

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potentially applicable rules provide that individual service be made by: (1) serving a copy of the

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than Defendants, and Plaintiffs have not even attempted to show that they have suffered any Finally, the nature of the

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attempt to sue the Defendants in their official capacities). 3

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delivering the same to an agent authorized by appointment or by law to receive service of process

4(e). Yet nowhere in Plaintiffs proof of additional service is there any allegation that Plaintiffs attempted to serve Defendants as individuals through any of the permissible methods. Therefore,

the claims against Defendants must be dismissed even if the Court were to find that they were

PLAINTIFFS

CLAIMS WOULD FAIL EVEN IF BROUGHT AGAINST

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DEFENDANTS

sued in their individual capacity, which is denied.

INDIVIDUAL CAPACITIES.

As noted above (supra at 3), every action taken by Defendants about

which Plaintiffs complain was performed in their official capacity or could only be performed in such capacity. Simply put, Defendants could not have certified any Hawaii official records, verified the authenticity of any such record, or granted Plaintiffs access to any such record in any capacity other than as Hawaii governmental officials. As such, the Defendants could not be sued in their individual capacity based on such actions. Therefore, the RICO claims against Defendants should be dismissed for failure to state a claim against Defendants as individuals as well. 6 RESPECTFULLY SUBMITTED, this the 30th day of November, 2012.

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Plaintiffs allege vague aiding and abetting claims against Defendants. See FAC at 32. Many courts, including those within the Fifth Circuit, have held that there is no private RICO cause of action for aiding and abetting under 18 U.S.C. 1962(b)-(c) pursuant to the Supreme Courts decision in Central Bank of Denver v. First Interstate Bank of Denver, 511 U.S. 164 (1994). See In re Mastercard Intl Inc., 132 F. Supp. 2d 468, 494-95 (E.D. La. 2001); Dimas v. Vanderbilt Mortg. & Fin., Inc., No. C-10-68, 2010 WL 3342216 (S.D. Tex. Aug. 25, 2010). To the extent Plaintiffs claims against Defendants can be read to invoke any other subsections of Section 1962, the Defendants respectfully direct the Courts attention to the arguments of counsel for the Mississippi Democratic Party. 5

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BY: BY:

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DR. ALVIN ONAKA AND LORETTA FUDDY, DEFENDANTS DUKES, DUKES, KEATING & FANECA, P.A. s/ Walter W. Dukes WALTER W. DUKES

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IN THEIR

on behalf of the individual. See Haw. R. Civ. P. 4(d)(1); Miss. R. Civ. P. 4(d)(1); Fed. R. Civ. P.

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CERTIFICATE OF SERVICE

electronically filed with the Clerk of Court and thereby served on the following persons, and also separately served by electronic mail as indicated below: Orly Taitz 29839 Santa Margarita Parkway, Suite 100 Rancho Santa Margarita, California 92688 orly.taitz@gmail.com

And to the following persons by electronic mail: Brian Fedorka 812 Shiloh Drive Columbus, MS 39702 bfedorka82@gmail.com Leah Lax 350 Market Street Highspire, PA 17034 lealax1234@aol.com

SO CERTIFIED, this the 30th day of November, 2012.

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s/ Walter W. Dukes WALTER W. DUKES

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Samuel L. Begley Begley Law Firm, PLLC P.O. Box 827 Jackson, Mississippi 39205 sbegley1@bellsouth.net

Harold E. Pizzetta, III Justin L. Matheny Office of the Attorney General 550 High Street, Suite 220 P.O. Box 220 Jackson, Mississippi 39205

Tom MacLeran 1026 Deer Ridge Road Kingston Springs, TN 37082 tom@macleran.com

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Scott J. Tepper Garfield & Tepper 1801 Century Park East, Suite 2400 Los Angeles, California 90067-2326 scottjtepper@msn.com

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I hereby certify that a true and correct copy of the foregoing document has been