Birther Uber-Attorney Larry Klayman, Esq. indirectly confirmed that he filed a baseless lawsuit in Florida. Here are a few excerpts from the Birther blog, The Steady Drip:
SATURDAY, SEPTEMBER 22, 2012
Florida Dem asks for ‘discovery’ into Obama eligibility
“Appellant submitted multiple sworn affidavits setting forth the fraudulent nature of Appellee Obama’s birth certificate and other identifying documents,” said the appeal of a decision by Judge Terry Lewis, who said Obama is eligible and the case shouldn’t go forward.
“Appellee Obama conspicuously offered no evidence to the contrary and instead asked for a stay of discovery in order to avoid a proper determination of his citizenship. With only appellant’s affidavits in front of him as no contra-affidavits were put forth by appellee Obama, Judge Lewis ignored this sworn evidence and incorrectly determined that appellee Obama was a natural born citizen,” the filing explains.
It continues: “A question of fact such as this cannot be determined without the parties having been given the opportunity to take discovery. Appellant was not permitted to investigate through discovery or even observe the underlying documents that allegedly establish appellee Obama’s natural born citizenship.
“If appellee Obama was born outside of the United States then he is not a natural born citizen, or even a citizen. In addition to being born within the United States, as noted above, a natural born citizen must be born to two U.S. citizen parents. If it is shown through discovery that Barack H. Obama Sr., appellee Obama’s father, was not a U.S. citizen at the time of appellee Obama’s birth, then appellee Obama is clearly not a natural born citizen as required by the U.S. Constitution.”
Hmmm. If Klayman has never seen the underlying documents, then what basis is there for concluding they are forged? He relied in part on Sheriff Joe Arpaio’s Cold Case Posse report, which
The problem is, that doesn’t really say much in the way of FACTS. This is a CONCLUSION. Who was defrauded out of what and how? Who prepared these documents? What information has been created, or materially altered? The nearest thing approaching a FACT in Arpaio’s Affidavit is this tidbit:
The problem is that even this statement is weasel-ly. The registrar’s stamp “may have been imported from another source”??? Deputy Mike Zullo’s Affidavit is similarly wishy-washy:
This is more detailed than Arpaio’s statement, but still doesn’t provide any information on the facts supporting the conclusion that the stamp was imported in the document, who did it, or what the effect is in a legal sense. Further, neither Affidavit has anything at all to do with the subject matter claim of the suit, which is that Obama supposedly isn’t a natural born citizen. If Klayma wishes to prove that Obama’s father was a non-citizen, than a copy of Obama’s book, Dreams From My Father, would be sufficient as an admission by a party to the lawsuit.
The lack of relevant supporting factual information sounds like the kind of stuff discussed in the U.S. Supreme Court case on the limits of the discovery process, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). (While Twombly was a Federal case, most state’s rules of civil procedure track the Federal rules to varying degrees. Also, see Note 2, below.) Here are a few excerpts from an Internet Article on the post-Twombly world:
All too often, discovery becomes “not merely an impermissible fishing expedition[, but] an effort to dredge the lake in hopes of finding a fish.” Texaco Inc. v. Sanderson, 898 S.W.2d 813, 815 (Tex. 1995).
Subsequent cases suggest that Twombly and its progeny may be a useful “preemptive” weapon for combating boilerplate toxic tort complaints at the trial court level — especially when it appears that such pleadings are intended to do little more than open the discovery floodgates so that plaintiffs can locate a potential factual basis for their claims at defendants‟ expense.
In Tanner v. International Isocyanates Institute Inc., No. 05-PWG-2341-E (N.D. Ala. filed Nov. 16, 2005), defendants successfully mounted a similar Twombly defense to secure dismissals of plaintiffs‟ fraudulent suppression and conspiracy claims in a putative class action at the pleadings stage.
In response to defendants‟ arguments that plaintiffs‟ blanket fraud allegations failed to provide enough specific facts to satisfy the heightened pleading standard in Twombly, the court dismissed plaintiffs‟ fraudulent suppression and conspiracy claims. The court deemed these claims deficient because plaintiffs failed “to identify the specific
fraudulent statements made to them that was fraudulent or misleading.” Tanner v. International Isocyanates Institute Inc., No. 05-PWG-2341-E at 44 (N.D. Ala. June 9, 2008) (order on motion to dismiss amended complaint).
The court‟s order noted, in part, that “factual allegations in a complaint must „possess enough heft‟ [and] plausibility to suggest that the pleader is entitled to relief … facts that are „merely consistent with‟ the plaintiff‟s legal theory will not suffice.” Id. at 16-17.
Here is the money quote:
Indeed, the Twombly majority expressly rejected the notion that questionable claims should be tolerated simply because they can be resolved later through discovery: “[i]t is no answer to say that a claim just shy of a plausible entitlement to relief can, if groundless, be weeded out early in the discovery process through careful case management …” Id. at 559.
Even before Twombly, discovery fishing expeditions were considered abusive. This is from a 2001 paper on Fishing Expeditions:
The requirement that discovery must be grounded in some basis in fact survives to this day. In Koch v. Koch Industries, Inc., 203 F.3d 1202 (10th Cir.), cert. denied, 121 S.Ct. 302 (2000), the Tenth Circuit ruled on the propriety of “extraordinarily expansive discovery requests” that the proponent argued were “relevant to two broad, non-specific allegations” in their complaint. Id. at 1238. The Tenth Circuit, noting that the district court had found the “likely benefit of this attempted fishing expedition was speculative at best,” held that [w]hen a plaintiff first pleads its allegations in entirely indefinite terms, without in fact knowing of any specific wrongdoing by the defendant,and then bases massive discovery requests upon those nebulous allegations, in the hope of finding particular evidence of wrongdoing, that plaintiff abuses the judicial process.
So, when Larry Klayman comes right out and states that he can’t prove his case without further using the discovery process, then he is admitting that his Sheriff Joe’s and Deputy Zullo’s affidavits are insufficient to prove forgery, INDIRECTLY CONFIRMING that he has no case at all. Maybe that is the reason for this Motion from Obama’s attorneys:
Note 1. The Image. This is from the 1936 courtroom drama, Disorder In The Court, starring the Three Stooges. Of course, we have the video for you!
Note 2. Florida Rules of Civil Procedure and Fishing Expeditions. For anybody who is interested, here is a pdf of the Florida Rules, as of September 1, 2012.
Also, see this piece on “Fishing Expeditions” in Florida, as they relate to one aspect of litigation:
However, Florida does offer an alternative procedure of which Klayman appears to be unaware, The Pure Bill of Discovery. However, it is unlikely he, or any other Birther, could prevail there either based on the weakness of their case.
From that article:
Publix Supermarkets, 696 So. 2d at 1371. The Fourth District vacated the order of the trial court because the petitioner simply wanted to preserve the forklift to determine if he had a cause of action and ordered that the petition be dismissed. Id. In doing so, the court stated that a pure bill of discovery is not to be used as a fishing expedition to see if causes of action exist.
Finally, Florida seems to mirror most of the Federal Rules, but some appear in separate statutes. For example, the familiar Rule 11, is contained in F.S. §57.105:
Note 3. Other Information. For people who are interested in this kind of stuff, here is a Duke Law School Internet Article by John H. Beisner