Case 2:08-cv-04083-RBS Document 15 Filed 10/06/2008 Page 1 of 10
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
PHILIP J. BERG, :
:
Plaintiff :
:
v. : Civ. Action No. 2:08-cv-04083-RBS
:
BARACK OBAMA, et al., :
:
Defendants :ORDER
AND NOW, THIS ___ DAY OF ___________, 2008, upon consideration of the
Motion of Defendants Democratic National Committee and Senator Barack Obama for
Protective Order Staying Discovery Pending Decision On Dispositive Motion, and of the
submissions of the parties relating thereto, it is hereby ORDERED that said Motion is
GRANTED.Surrick. J.
DMEAST #10127194 v1
Case 2:08-cv-04083-RBS Document 15 Filed 10/06/2008 Page 2 of 10IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
PHILIP J. BERG, :
:
Plaintiff :
:
v. : Civ. Action No. 2:08-cv-04083-RBS
:
BARACK OBAMA, et al., :
:
Defendants :MOTION OF DEFENDANTS
DEMOCRATIC NATIONAL COMMITTEE AND
SENATOR BARACK OBAMA FOR A PROTECTIVE ORDER
STAYING DISCOVERY PENDING DECISION ON DISPOSITIVE MOTION
Pursuant to Fed. R. Civ. P. 26(c)(1), defendants Democratic National Committee
and Senator Barack Obama respectfully move the Court for a protective order staying all
discovery in this action pending the Court’s decision on defendants’ motion to dismiss
the action for lack of subject matter jurisdiction and for failure to state a claim upon
which relief can be granted.Pursuant to Fed. R. Civ. P. 26(c)(1), on October 6, 2008, counsel for defendants
conferred with plaintiff about agreeing to stay or defer discovery, including deferring
responses to the discovery requests already served by plaintiff (attached as Exhibit A
hereto). Plaintiff refused to consent to any such stay or deferral.DMEAST #10127157 v1
Case 2:08-cv-04083-RBS Document 15 Filed 10/06/2008 Page 3 of 10Pursuant to Local Rule 7.1, accompanying this Motion is a Brief in Support of
Motion for Protective Order and a proposed Protective Order.
Respectfully submitted,
/s/ John P. Lavelle, Jr.
Dated: October 6, 2008
John P. Lavelle, Jr.
Attorney I.D. PA 54279
BALLARD SPAHR ANDREWS & INGERSOLL,
LLP
1735 Market Street, 51st Floor
Philadelphia, PA 19103(215) 864-8603
(215) 864-9125 (Fax)
lavellej@ballardspahr.comOf counsel:
Joseph E. Sandler
General Counsel, Democratic National Committee
SANDLER, REIFF & YOUNG, P.C.
300 M Street, S.E. #1102
Washington, D.C. 20003
Telephone: (202) 479-1111
Fax: (202) 479-1115Robert F. Bauer
General Counsel, Obama for America
PERKINS COIE
607 Fourteenth Street, N.W.
Washington, D.C. 20005-2003
Telephone: (202) 628-6600
Facsimile: (202) 434-1690Attorneys for Defendants
Senator Barack Obama and
Democratic National CommitteeDMEAST #10127157 v1
2
Case 2:08-cv-04083-RBS Document 15 Filed 10/06/2008 Page 4 of 10IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
PHILIP J. BERG, :
:
Plaintiff :
:
v. : Civ. Action No. 2:08-cv-04083-RBS
:
BARACK OBAMA, et al., :
:
Defendants :BRIEF OF DEFENDANT DEMOCRATIC NATIONAL COMMITTEE
AND DEFENDANT SENATOR BARACK OBAMA
IN SUPPORT OF MOTION FOR PROTECTIVE ORDER
STAYING DISCOVERY PENDING DECISION ON
DISPOSITIVE MOTION
Defendants Democratic National Committee and Senator Barack Obama submit
this Brief in support of their Motion for Protective Order Staying Discovery Pending
Decision on Dispositive Motion. Plaintiff has served extensive discovery requests on
defendants. As noted in Defendants’ Brief in Support of their Motion to Dismiss, this
lawsuit is entirely without merit and plaintiffs’ allegations are patently false. Defendants
have moved to dismiss this action for lack of subject matter jurisdiction and failure to
state a claim. That motion presents solely issues of law; no discovery is needed in order
to resolve the motion. If the motion is granted, it will dispose of the entire action,
obviating the need for the burdensome discovery sought by plaintiff. A protective order
staying discovery is therefore warranted.DMEAST #10127159 v1
Case 2:08-cv-04083-RBS Document 15 Filed 10/06/2008 Page 5 of 10I. Procedural Background
In his Complaint, plaintiff Berg alleges that Senator Barack Obama, the
Democratic Party’s nominee for President of the United States, is not eligible to serve as
President under Article II, section 1 of the Constitution because, Mr. Berg alleges
(falsely), Senator Obamais purportedly not a natural-born citizen. Complaint ¶3. Mr.
Berg seeks a declaratory judgment that Senator Obama is ineligible to run for President;
an injunction barring Senator Obama from running for that office; and an injunction
barring the DNC from nominating him.On September 15, 2008, plaintiff Berg served on Senator Obama’s office a
request for production of seventeen different categories of documents, including copies of
all of the Senator’s college and law school applications, requests for financial aid, college
and law school papers, and “a copy of your entire presidential file pertaining to being
vetted.” Plaintiff also served 56 requests for admission on Senator Obama. On that same
date, plaintiff served on the DNC 27 requests for admission and requests for production
of five categories of documents, including all documents in the possession of the DNC
relating to Senator Obama.1On September 24, 2008, defendants filed a motion to dismiss the complaint for
lack of subject matter jurisdiction and failure to state a claim, on the grounds that, as a
matter of law, plaintiff has no standing to challenge the qualifications of a candidate for
President of the U.S. and has no federal cause of action.True and correct copies of these discovery requests are attached as Exhibit A hereto.
DMEAST #10127159 v1
2
Case 2:08-cv-04083-RBS Document 15 Filed 10/06/2008 Page 6 of 10II. Discussion
Rule 26(c)(1) authorizes the Court to enter a protective order to protect a party
“from annoyance, embarrassment, oppression, or undue burden or expense,” including an
order forbidding the discovery or specifying terms for discovery. “While the court should
not automatically stay discovery because a motion to dismiss has been filed, ‘a stay is
proper where the likelihood that such motion may result in a narrowing or an outright
elimination of discovery outweighs the likely harm to be produced by the delay.’” 19th
St. Baptist Church v. St. Peters Episcopal Church, 190 F.R.D. 345, 349 (E.D. Pa. 2000),
quoting Weisman v. Mediq, Inc., 1955 WL 273678, 1995 U.S. Dist. LEXIS 5900 *2 (E.D.
Pa. 1995). “Where a pending motion to dismiss may dispose of the entire action and
where discovery is not needed to rule on such motion, the balance generally favors
granting a motion to stay.” Weisman, 1995 U.S. Dist. LEXIS at *5.In Weisman, in which this Court found that a motion to dismiss could be decided
on the pleadings, and could be decided in a relatively short time period, the Court granted
a stay of discovery. Similarly, in Norfolk Southern Rwy Co. v. Power Source Supply,
Inc., 2007 U.S. Dist. LEXIS 15306 (W.D. Pa. 2007), defendant filed a motion to dismiss
based on lack of subject matter jurisdiction; plaintiff served interrogatories and document
requests while that motion was pending. The court granted defendant’s motion for a
protective order staying discovery, ruling that, “where, as here, an objection to the
Court’s jurisdiction made under Rule 12 might compel the dismissal of an entire action,
the Court finds that considerations of fairness and efficiency suggest the prudence of
limiting discovery to those facts necessary to resolve the motion. Because the Parties in
this matter have fully briefed the jurisdiction issue and await only the Court’s ruling,DMEAST #10127159 v1
3
Case 2:08-cv-04083-RBS Document 15 Filed 10/06/2008 Page 7 of 10discovery in this case shall be stayed and Defendant protected from the requests that
Plaintiff has already propounded.” Id. at *4.In this case, as in Weisman and Norfolk Southern Rwy., defendants’ pending
motion to dismiss for lack of subject matter jurisdiction would dispose of the entire
action. The motion does not involve any disputed issues of fact: defendants contend that,
as a matter of law, plaintiff lacks standing to challenge the qualifications of a candidate
for President and that there is no federal cause of action that could serve as a means for
such a challenge. Thus, discovery is not needed in order to rule on the motion. In these
circumstances, a stay of discovery is warranted and appropriate.DMEAST #10127159 v1
4
Case 2:08-cv-04083-RBS Document 15 Filed 10/06/2008 Page 8 of 10CONCLUSION
For the reasons set forth above, the Court should grant the motion of defendants
DNC and Senator Barack Obama for a protective order staying discovery pending adecision on their motion to dismiss.
Respectfully submitted,
/s/ John P. Lavelle, Jr.
Dated: October 6, 2008 John P. Lavelle, Jr.
Attorney I.D. PA 54279
BALLARD SPAHR ANDREWS & INGERSOLL,
LLP
1735 Market Street, 51st Floor
Philadelphia, PA 19103
(215) 864-8603
(215) 864-9125 (Fax)
lavellej@ballardspahr.com
Of counsel:
Joseph E. SandlerPLEASE TAKE NOTE: EMPHASIS ADDED TO POINT OUT THE ATTY FOR THE DNC AND OBAMA IS ALSO THE SAME ATTY WHO REPRESENTS LOUIS FARRAKKAN AND THE NATION OF ISLAM AMONG OTHER QUESTIONABLE CLIENTS! COINCIDENCE?? DOUBTFULL!
General Counsel, Democratic National Committee
SANDLER, REIFF & YOUNG, P.C.
300 M Street, S.E. #1102
Washington, D.C. 20003
Telephone: (202) 479-1111
Fax: (202) 479-1115 (Emphasis added)Robert F. Bauer
General Counsel, Obama for America
PERKINS COIE
607 Fourteenth Street, N.W.
Washington, D.C. 20005-2003
Telephone: (202) 628-6600
Facsimile: (202) 434-1690Attorneys for Defendants
Senator Barack Obama and
Democratic National CommitteeDMEAST #10127159 v1
5
Case 2:08-cv-04083-RBS Document 15 Filed 10/06/2008 Page 9 of 10IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
PHILIP J. BERG, :
:
Plaintiff :
:
v. : Civ. Action No. 2:08-cv-04083-RBS
:
BARACK OBAMA, et al., :
:
Defendants :CERTIFICATION PURSUANT TO LOCAL RULE 26.1(F)
Undersigned counsel for Defendants Democratic National Committee and Senator
Barack Obamahereby certifies pursuant to Local Rule 26.1(f) that the parties, after reasonable
effort, are unable to resolve the dispute that is the subject matter of Defendants’ Motion for
Protective Order Staying Discovery Pending Decision On Dispositive Motion.
/s/ John P. Lavelle, Jr.
Dated: October 6, 2008
John P. Lavelle, Jr.
Attorney I.D. PA 54279
BALLARD SPAHR ANDREWS & INGERSOLL, LLP
1735 Market Street, 51st Floor
Philadelphia, PA 19103(215) 864-8603
(215) 864-9125 (Fax)
lavellej@ballardspahr.comDMEAST #10127199 v1
Case 2:08-cv-04083-RBS Document 15 Filed 10/06/2008 Page 10 of 10CERTIFICATE OF SERVICE
I hereby certify that on this day, a true and correct copy of the foregoing
Defendant Democratic National Committee’s and Defendant Senator Barack Obama’s
Motion for a Protective Order Staying Discovery Pending Decision on Dispositive Motion
and Brief in Support thereof was served by First Class U.S. Mail, postage prepaid, upon the
following:Philip J. Berg, Esquire
555 Andorra Glen Court, Suite 12
Lafayette Hill, PA 09867Plaintiff
Dated: October 6, 2008 /s/ John P. Lavelle, Jr.
John P. Lavelle, Jr.DMEAST #10127407 v1
Jeez! Am I the only one who thinks it’s getting too deep here? I mean instead of just showing the proof Obama and the DNC filed a motion to dismiss and then when Berg filed for discoverey ect. they request an order to delay any and all discovery until after the motion to dismiss has been ruled on. In other words ( I’m no lawyer) they don’t want to respond or show proof. They filed to dismiss on grounds they don’t think Berg has a case (yeah right) and when berg filed to force discovery (in other words show the documents) they ask the court to protect them from having to show proof until they get the judge to dismiss the case so they won’t have to.
BULLSHIT! Show us the proof you fucking cowards! All this posturing and begging the court to do his bidding is just too much! They are wasting time and resources instead of simply digging out the documents requested and putting his money where his mouth is so to speak! For crying out loud! He wants the top job in the country and he gets insulted and asks for special treatment, special protection from the rules and laws the rest of us have to live by every time anyone questions him on qualifications, experience, eligibility, specific definitions of his “Hope” and “Change” you know little things like that.
I recently read a comment about how we should all just fall on our knees and worship the “great leader” instead of wasting time on such tiny, little technicalities. I suppose the Constitution is just a technicality then?
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