Orly Taitz is in for a big disappointment when the Judge Lamberth rules on her Motion for Reconsideration in Taitz v. Colvin (formerly Astrue). And, her related Motion For Default Judgement. This whole thing started out as a Freedom of Information case seeking information about the alleged use of Obama’s social security number by a Harrison Bounel, who may have been born in 1890. She lost, and the case was closed.
Later, Taitz discovered the “120 year rule” permitting disclosures of social security numbers of extremely old people, whether dead or alive.
Sooo, Taitz filed a Motion For Reconsideration to resurrect the case because of this “new evidence.” It took several filings to actually lodge the Motion, because she incorrectly redacted Obama’s social security number. Eventually, one of her Flying Monkeys handed her a Sharpie Marker, and Taitz was able to properly color the number out. And, stay within the lines!
The Court allowed her to make her 74 page Motion. There was no answer to the motion, and now Taitz is convinced that she will prevail on a “default” basis. That is very unlikely. She is confusing a Motion and a Complaint. If a person fails to respond in a timely fashion to a Complaint, there may indeed be a Default Judgement granted, subject to certain procedural safeguards. But MOTIONS are a horse of a different color.
Wiki defines a Motion as:
In United States law, a motion is a procedural device to bring a limited, contested issue before a court for decision. It is a request to the judge (or judges) to make a decision about the case. Motions may be made at any point in administrative, criminal or civil proceedings, although that right is regulated by court rules which vary from place to place. The party requesting the motion may be called the movant, or may simply be the moving party. The party opposing the motion is the nonmovant or nonmoving party.
I asked my BFF Fabia Sheen, Esq., an attorney, about them and she said that in a very limited, technical sense, the opposing side need never file an Opposition or Response to a Motion because the decision is firmly within the purlieu of the Court’s purview. In other words, to grant or not grant the Motion is up to the judge. Fabia said that in the practical sense, one almost always responds to a Motion, particularly those seeking Summary Judgement, where proof needs to be met with proof. But, a court almost always has the full discretion to grant or not grant Motions.
She said that it is certainly better form, a whole lot safer, and much more professional to respond to Motions, but that there is no specific rule which mandates that run-of-the-mill unresponded-to motions are automatically granted. And, she said that Motions may be made orally in court, and decided on the spot.
Also, there is no theoretical limit to what kind Motion may be filed, although they generally stay within well established precedents. For example, a Movant could file or make a Motion that a witness be prevented from smirking on the stand, or that another be prevented from wearing a red dress to court. Here is an example where you could see the no automatic default rationale in action:
Plaintiff motions the Court, that since Justice is blind, the Judge should be required to wear a blindfold during the trial while the jury is in the room. The Defendant makes no response. Does the Plaintiff prevail automatically through default, and must the judge then wear a blindfold? No. Not on your sweet life.
Here is another hypothetical, less bizarre:
Movant motions for an extension of time to respond to a Motion For Summary Judgement. The Non-Movant is silent, and makes no response.
Here, a judge may grant the extension, and probably will without disagreement from the Non-movant. Yet, the Court is not required to grant the motion. The Movant may have filed multiple motions for extensions of time prior to this, and the Court is within its rights to deny the motion whether or not the Non-movant responds. Even if there is some “local rule” which establishes that no response to a Motion For Extension constitutes assent, the Court is free to grant or not grant the Motion. (However, some local rules require a written response in order to have oral arguments.)
You can read Taitz’s Motion here,
Federal Rule of Civil Procedure No. 55 can be found at Note 3 below. That also makes it evident that “defaults” apply to Complaints, not Motions. To sum it all up, once again Orly Taitz makes a loco, or crazy, Motion, which causes some excitement among the Birthers, to be followed soon by yet another let down.
All in all, just another day in the Land of a Thousand Dunces.
Note 1. The Image. This is from Rich Man’s Frug number in Sweet Charity. Here is a youtube video of the beautifully choreographed Bob Fosse piece:
Note 2. The Frug. As you can see from this video, some people do pronounce it frug, as opposed to froog. This also provides an example of the Practical Frug, as opposed to the highly stylized Frug in Sweet Charity:
This was such an interesting video, I have included two more from the same series. Somehow I just feel that my readers will find this series as entertaining as I did, and will be unable to turn their attention away from the exciting and energetic presentations!
Note 3. F.R.C.P. 55.
Rule 55. Default; Default Judgment
(a) Entering a Default. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party’s default.
(1) By the Clerk. If the plaintiff’s claim is for a sum certain or a sum that can be made certain by computation, the clerk—on the plaintiff’s request, with an affidavit showing the amount due—must enter judgment for that amount and costs against a defendant who has been defaulted for not appearing and who is neither a minor nor an incompetent person.
(2) By the Court. In all other cases, the party must apply to the court for a default judgment. A default judgment may be entered against a minor or incompetent person only if represented by a general guardian, conservator, or other like fiduciary who has appeared. If the party against whom a default judgment is sought has appeared personally or by a representative, that party or its representative must be served with written notice of the application at least 7 days before the hearing. The court may conduct hearings or make referrals—preserving any federal statutory right to a jury trial—when, to enter or effectuate judgment, it needs to:
(A) conduct an accounting;
(B) determine the amount of damages;
(C) establish the truth of any allegation by evidence; or
(D) investigate any other matter.
(d) Judgment Against the United States. A default judgment may be entered against the United States, its officers, or its agencies only if the claimant establishes a claim or right to relief by evidence that satisfies the court.
Here is the link in case you wish to read the notes:
Note 4. Land Of A Thousand Dances. Well, since I did a pun on it, I might as well make up for it by providing a youtube video of this wunnerful version!