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Constitution Association, Inc v Kamala Devi Harris, SD California & Appeal, Ninth Circuit

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Re: Constitution Association, Inc v Kamala Devi Harris, SD California

#26

Post by chancery »

northland10 wrote: Mon Oct 04, 2021 9:02 pm My impression on the without prejudice was that, while realizing that it was very likely impossible to remedy the flaws, the judge felt the courts should error on the lenient side. Assuming they screw up service again, it won't really cause any time losses to boot it again. I somehow recall a great deal of the dismissals of the past were without prejudice. Most get the point that they have to actually fix the errors, except for folks like Klayman.
Courts do sometimes err on the lenient side when dealing with goofballs, but there's a separate technical reason for why this dismissal is without prejudice. A dismissal with prejudice is an adjudication on the merits, which means that the plaintiff is barred from bringing the same claims, not only in the current court, but in any other court.

Since the court has correctly ruled that it does not have subject matter jurisdiction, it doesn't have power to decide the merits. Hernandez v. Conriv Realty Assocs., 182 F.3d 121, 123 (2d Cir. 1999) (“[W]here a court lacks subject matter jurisdiction, it also lacks the power to dismiss with prejudice.”).

This leaves the plaintiff free to file the same claims in a court that does have jurisdiction, if such a court exists.

What is and isn't "merits," and the difference between "merits" and "jurisdiction" can lead to tricky questions, in part because courts use the two terms in a number of different senses. My rule of thumb is that merits are on the right side of the timeline, preliminary matters are on the left, and the needle dividing the two concepts itself tends to move from left to right as a litigation progresses.

In this matter, however, since no court with jurisdiction exists, we don't need to worry about subtle distinctions.

And we don't have to worry about the court being inappropriately lenient, as bob just noted.
bob wrote: Fri Nov 05, 2021 3:24 pm
Reality Check wrote: Fri Nov 05, 2021 3:01 pmDismissed w/o prejudice again so I assume they could refile the mess if they wished to cough up the filing fee?
Yeah. Self-sanctions! :dance:

Or they could appeal. Self-sanctions! :dance:
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Re: Constitution Association, Inc v Kamala Devi Harris, SD California

#27

Post by Foggy »

'Course, their morale was already at the bottom of the barrel after the loss of Mario Apuzzo.

:biggrin:
Out from under. :thumbsup:
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Re: Constitution Association, Inc v Kamala Devi Harris, SD California

#28

Post by bob »

Foggy wrote: Fri Nov 05, 2021 5:27 pm 'Course, their morale was already at the bottom of the barrel after the loss of Mario Apuzzo.
Here's the thing, tho: I think the entirety of their "research" into previous eligibility lawsuits was ... talking to Taitz. :o

Who told them they would fail. :shock:
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Re: Constitution Association, Inc v Kamala Devi Harris, SD California

#29

Post by Reality Check »

bob wrote: Fri Nov 05, 2021 4:12 pm :snippity:
I presume the shipping clerk would ... ship it to the same judge.
WTF is with the clerk in this case? Does he think he has to have the last word or something?
gov.uscourts.casd.694824.20.0.pdf
(221.88 KiB) Downloaded 73 times
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Re: Constitution Association, Inc v Kamala Devi Harris, SD California

#30

Post by bob »

Reality Check wrote: Fri Nov 05, 2021 5:32 pm WTF is with the clerk in this case? Does he think he has to have the last word or something?

gov.uscourts.casd.694824.20.0.pdf
It looks like boilerplate to me. What are you seeing?
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Re: Constitution Association, Inc v Kamala Devi Harris, SD California

#31

Post by jcolvin2 »

I read Reality Check's comment asking about what was wrong with the clerk (having to have the last word) as being tongue in cheek.
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Re: Constitution Association, Inc v Kamala Devi Harris, SD California

#32

Post by chancery »

bob wrote: Fri Nov 05, 2021 5:40 pm
Reality Check wrote: Fri Nov 05, 2021 5:32 pm WTF is with the clerk in this case? Does he think he has to have the last word or something?

gov.uscourts.casd.694824.20.0.pdf
It looks like boilerplate to me. What are you seeing?
Bob is the expert, but this seems normal to me. Rule 58(a) of the Federal Rules of Civil Procedure requires that “Every judgment and amended judgment must be set out in a separate document ….”

It can get tricky, because there are exceptions in the very text of the Rule, and there can be local rules and practices that create further exceptions and ambiguities about what is and is not an appealable paper. If I were representing the plaintiff I would treat the deadline for filing the notice of appeal as having started to run when the dismissal order was filed.

But it appears that the clerk concluded that in this case Rule 58 -- which the clerk knows backwards and forwards -- required a separate judgment paper, and duly prepared one. It appears to be in the ordinary course to me.
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Re: Constitution Association, Inc v Kamala Devi Harris, SD California

#33

Post by Reality Check »

bob wrote: Fri Nov 05, 2021 5:40 pm
It looks like boilerplate to me. What are you seeing?
This is the same clerk that issued a default all on his own. I think there is something out of the ordinary with him.
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Re: Constitution Association, Inc v Kamala Devi Harris, SD California

#34

Post by chancery »

Not on her own frolic. There was an application by plaintiff (docket # 4), with a supporting affidavit, a declaration of service, and proof of service

No one's bothered to purchase the application papers for recap, so we don't know if they look suspicious, but the clerk's office is supposed to take proof of service and party affidavits at face value unless obviously insane.

And, as Bob has hinted, a clerk's entry of default is not a default judgment, but rather a ministerial act that might end up being the first step towards an eventual default judgment, but frequently is not.
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Re: Constitution Association, Inc v Kamala Devi Harris, SD California

#35

Post by bob »

chancery wrote: Fri Nov 05, 2021 9:18 pm Not on her own frolic. There was an application by plaintiff (docket # 4), with a supporting affidavit, a declaration of service, and proof of service

No one's bothered to purchase the application papers for recap, so we don't know if they look suspicious, but the clerk's office is supposed to take proof of service and party affidavits at face value unless obviously insane.
The proof of service wasn't "obviously insane." But they did just mail a letter to the White House.

A sharp clerk would have caught that.

They did use a process server, so maybe the papers looked in order (to the clerk).
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Re: Constitution Association, Inc v Kamala Devi Harris, SD California

#36

Post by Reality Check »

chancery wrote: Fri Nov 05, 2021 6:19 pm :snippity:

But it appears that the clerk concluded that in this case Rule 58 -- which the clerk knows backwards and forwards -- required a separate judgment paper, and duly prepared one. It appears to be in the ordinary course to me.
This could be routine as you say but I do not recall an order signed by a clerk in their own name and not only behalf of a judge before. Struck me as odd but IANAL.
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Re: Constitution Association, Inc v Kamala Devi Harris, SD California

#37

Post by noblepa »

bob wrote: Sat Nov 06, 2021 12:20 am
chancery wrote: Fri Nov 05, 2021 9:18 pm Not on her own frolic. There was an application by plaintiff (docket # 4), with a supporting affidavit, a declaration of service, and proof of service

No one's bothered to purchase the application papers for recap, so we don't know if they look suspicious, but the clerk's office is supposed to take proof of service and party affidavits at face value unless obviously insane.
The proof of service wasn't "obviously insane." But they did just mail a letter to the White House.

A sharp clerk would have caught that.

They did use a process server, so maybe the papers looked in order (to the clerk).
Given the nature of the institution, isn't there a very specific, and rather unusual procedure for serving papers on the WH? I think I remember someone describing the process and it is much more complicated than simply mailing a letter, registered or otherwise, to the WH. That might (or might not) work for a normal business, but the WH is the target of every crazy person in the world, so they are a little more careful.
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Re: Constitution Association, Inc v Kamala Devi Harris, SD California

#38

Post by chancery »

Reality Check wrote: Sat Nov 06, 2021 12:48 pm This could be routine as you say but I do not recall an order signed by a clerk in their own name and not only behalf of a judge before. Struck me as odd but IANAL.
Well yeah, even though you are a savvy and experienced court watcher, how often do you have occasion to look at a federal court judgment? :roll:

IAAL, and I don't have such occasion very often at all. The text of a judgment is not particularly memorable or interesting, unless you need one for a notice of appeal or for the appendix for an appeal brief. Or maybe to frame after a victory, but even then you'd be more likely to frame the key text from a judge's order.

Momentous court orders like judgments, standing or housekeeping orders issued by the entire court, announcements to the bar, and orders meant to be relied on by other courts or non-parties typically do bear the signature of the clerk of the court or of one of the deputy clerks. It's the institutional equivalent of a notary's acknowledgment, a form of proof that the document is genuine.

Note this sample judgment, posted by the Administrative Office of the U.S. Courts, set up for signature by either the clerk of the court or a deputy clerk.

https://www.uscourts.gov/sites/default/files/ao450.pdf

See also the summons in this action, docket # 3, signed on behalf of the clerk of the court by Deputy Clerk S. Dunbar.

https://storage.courtlistener.com/recap ... 24.3.0.pdf

Also note that the clerk’s entry of default and the Clerk’s judgment were signed by different deputy clerks (S. Andersen and J. Petersen, respectively)

So respectfully, I don’t agree that there’s any indication of a run-amuck clerk here. :fingerwag:
Although, come to think of it, Andersen and Petersen are both Danish sounding names, so maybe something's fishy in Denmark … :think: :lol:

Edited several times to fiddle with text.
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Re: Constitution Association, Inc v Kamala Devi Harris, SD California

#39

Post by chancery »

noblepa wrote: Sat Nov 06, 2021 1:01 pm
Given the nature of the institution, isn't there a very specific, and rather unusual procedure for serving papers on the WH? I think I remember someone describing the process and it is much more complicated than simply mailing a letter, registered or otherwise, to the WH. That might (or might not) work for a normal business, but the WH is the target of every crazy person in the world, so they are a little more careful.
Yeah, I dimly recall some discussion about that on the old Fogbow. The Secret Service won't let a process server into the White House or the U.S. Naval Observatory, there's no service of process office as there is for the Attorney General or the U.S. Attorney, and you can't be sure who's going to open a registered letter.

But I don't think it's that complicated. You hire an experienced D.C. process server, one of the fancy expensive ones with lawyers on staff, and if the process server reports difficulties, call up the office of the White House counsel (or the president's personal attorney, depending) and work out a mutually agreeable method. Counsel are unlikely to play games, because judges aren't amused.* Oh, and of course you remember to serve the U.S. Attorney & the Attorney General. But that's easy.

But I strongly doubt that it's anything that concerns a district court clerk's office, unless the proof of service says something along the lines of "I served these papers by stuffing them into the cavity of a goat, which I then burned with appropriate ceremony."

___________
* I have pleasing memories of a federal judge who raised his hand to cut short a quite amusing narrative of process-server dodging by a sketchy corporate defendant, looked over at opposing counsel, and quietly said: "Consider yourself served."
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Re: Constitution Association, Inc v Kamala Devi Harris, SD California

#40

Post by chancery »

bob wrote: Sat Nov 06, 2021 12:20 am
The proof of service wasn't "obviously insane." But they did just mail a letter to the White House.

A sharp clerk would have caught that.

They did use a process server, so maybe the papers looked in order (to the clerk).
This is addressed to Bob.

Just idly wondering here.

So let's say the clerk notices the absence of service on the U.S. Attorney and the Attorney General, required for all complaints against federal employees and officials.

What would she do about it. Isn't that the Assistant U.S. Attorney's job, and then ultimately the judge's responsibility? In other words, more a matter of substance than of form?

And if a clerk did notice that something was screwy with service, and felt the need to do something, I wonder if the normal response would be to send something to the assigned judge's chambers rather than anything that would appear on the docket sheet, like a notice of defective filing. And of course once chambers took a look at the complaint, it would realize that there were bigger problems. Plus, no need for anyone to worry about defective service, because they can rely on the government to be all over that.
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Re: Constitution Association, Inc v Kamala Devi Harris, SD California

#41

Post by Reality Check »

chancery wrote: Sat Nov 06, 2021 10:14 pm
This is addressed to Bob.
:snippity:
So now we are changing our tune about the clerk are we?
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Re: Constitution Association, Inc v Kamala Devi Harris, SD California

#42

Post by chancery »

-?

No.

From my perspective and experience, everything that the various clerks have done in this action seems normal and unexceptional. But Bob knows much much more than I do about what happens on the other side of the counter. So I am asking Bob to say more about what he meant by his aside about a sharp clerk.
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Re: Constitution Association, Inc v Kamala Devi Harris, SD California

#43

Post by Reality Check »

chancery wrote: Sat Nov 06, 2021 11:14 pm -?

No.
:snippity:
Just pulling your chain.

You would think a chief clerk to a federal judge would at least question whether you can serve the Vice President of the US by mailing a letter to the White House.
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Re: Constitution Association, Inc v Kamala Devi Harris, SD California

#44

Post by bob »

chancery wrote: Sat Nov 06, 2021 10:14 pm So let's say the clerk notices the absence of service on the U.S. Attorney and the Attorney General, required for all complaints against federal employees and officials.

What would she do about it. Isn't that the Assistant U.S. Attorney's job, and then ultimately the judge's responsibility? In other words, more a matter of substance than of form?
Three basic options, depends on the clerk:
1. File; my job is to file!
2. Consult with chambers (like the chief shipping clerk, not the judge).
3. Make the call: refuse to file, with an explanation.

Every court has ( :shh: ) an internal manual on how to clerk. I wouldn't be surprised if, say, the D.D.C.'s manual has some detail on proper service on government officials, while other courts aren't so specific.

And it really does depend on the clerk. Some are happy to just stamp the papers and move on. Others want to do the right thing, and will ask around if there are doubts. And others kinda enjoy sending rejection letters to attorneys ("Three years at Harvard and you can't do even this? HA!").

The extremes cause paperwork. The file-happy clerk is going to make work for the opponents to set aside, etc. The over-denier will draw the occasional "motion to tell the clerk to just file the damn paperwork" motion.

But most are in the middle, and can read the rules. The local rules can be important here, because judges sometimes delegate some of these kinds of decisions to clerks, so the local rules might have clues on who you are trying to impress.

And, of course, seasoned litigators (read: their support staff) know which clerks are assigned to which cases and judges, and react appropriately.

* * *

Federal courts are big on delegating signatures. Judges delegate to the Big Clerk to sign on their behalf, who in turn delegates to deputy clerks. So a deputy clerk's wet-ink signature being the only one a document is very normal. Taitz experienced this by insisting the clerks were shrouding the justices from her filings. And she's not wrong :shock: : A clerk examined her dreck, had an extremely brief exchange with the justice, and then did the backstage magic to deny. The justice trusts the shipping clerk's ability to accurately summarize, so the justice doesn't have to personally review every piece of paper. :shh:
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Re: Constitution Association, Inc v Kamala Devi Harris, SD California

#45

Post by chancery »

Reality Check wrote: Sun Nov 07, 2021 8:34 am
Just pulling your chain.
Fair enough; I have an unfortunate pedantic streak. :oopsy: And I'm currently trying to distract myself from an unexpected and involuntary move out from an apartment, so I'm more than usually susceptible.
You would think a chief clerk to a federal judge would at least question whether you can serve the Vice President of the US by mailing a letter to the White House.
Pedantry & Speculation: "Well actually," you can, under FRCP 4(e)(1), as the government conceded, if the mailing is signed for by the Vice President herself, or by "someone authorized to accept mail on [her] behalf." Docket # 9 at 2.
https://storage.courtlistener.com/recap ... 24.9.0.pdf And counsel for the plaintiffs did represent that the envelope had been signed for.

If he had submitted a copy of the return receipt, and hadn't muffed the additional US Att'y & AG service requirement, and if it hadn't been a pointless waste of time, the court might have been receptive to the argument that the fact that a White House employee signed for mail unambiguously addressed to the Vice President was to some degree evidence that the employee was authorized to receive mail for the Vice President. The government didn't deny that the Vice President had been served; it only contended that it was unclear.

/ Pedantry & Speculation.

Time to go scrounge up another car load of packing boxes. :cry:
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Re: Constitution Association, Inc v Kamala Devi Harris, SD California

#46

Post by chancery »

bob wrote: Sun Nov 07, 2021 12:53 pm
Three basic options, depends on the clerk:
:snippity:
* * *
Federal courts are big on delegating signatures. :snippity:
Thanks Bob. :dance:
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Re: Constitution Association, Inc v Kamala Devi Harris, SD California

#47

Post by Foggy »

chancery, you and your pedantic streak are the best. :bighug:
Out from under. :thumbsup:
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Re: Constitution Association, Inc v Kamala Devi Harris, SD California

#48

Post by bob »

The boys filed a notice of appeal today. :roll:

They probably won't get their dismissal affirmed until 2023. P.S.: Send money.
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Re: Constitution Association, Inc v Kamala Devi Harris, SD California

#49

Post by bob »

The boys filed a notice of appeal today.
Assigned a case number and a briefing schedule was set.
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Re: Constitution Association, Inc v Kamala Devi Harris, SD California

#50

Post by chancery »

bob wrote: Fri Nov 05, 2021 3:24 pm Or they could appeal. Self-sanctions! :dance:
bob wrote: Mon Nov 29, 2021 5:19 pm
The boys filed a notice of appeal today.
Assigned a case number and a briefing schedule was set.


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