barnett v. dunn eac motion to dismiss points and authorities

8/9/2019 Barnett v. Dunn Eac Motion to Dismiss Points and Authorities

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Case 2:lO-cv-02216-FCD-DAD Document 9 Filed 08/27/10 Page 1 of 7

BENJAMIN B. WAGNERUnited States AttorneYOSHINORI H. T. ~ M E L66194Assistant U. S. AttorneySO1 I Street, Suite 10-100Sacramento, California 958 14Telephone: (916) 554-2760Attorneys for Federal Defendant, the U.S. ELECTION ASSISTANCE COMMISSION

IN THE UNITED STATES DISTRICT COURT FOR THEEASTERN DISTRICT OF CALIFORNIA

PAMELA BARNETT, ( No. 2: 10-cv-2216 FCD DADPlaintiff, FEDERAL DEFENDANT'S MOTION TODISMISS: POINTS AND AUTHOR ITIES

Defendants.

v.DAMON JERRELL DUNN, etc., etal.,

NOTICETO THIS HONORABLE COURT AND THE PARTIES' COUNSEL OF RECORD:

PLEASE TAKE NOTICE that onNovember 12,2010 at 10:OO a.m., or as soon asthis matter may be heard in the Courtroom of The Honorable Dale A. Drozd, UnitedStates Magistrate Judge, at the United States Courthouse, 50 1 I Street, Sacramento,California, the United States Election Assistance Commission will bring to hearing themotion set forth below, based on the specified materials and arguments.

Date: November 12,2010Time: 10:OO a.m.Ctrm: 27,Eth F1. (DAD)

MOTIONThe United States Election Assistance Commission, federal defendant, through its

undersigned counsel of record, under Fed. R. Civ. P. 12@)(1) and 12(b)(6), hereby movesFEDERALDEFENDANT'S MOT~ON O DISMISS; POINTS AND AUTHORITIES Page 1


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C as e 2:lO-cv-02216-FCD-DAD Document 9 Filed 08/27 /10 Pag e 2 of 7for an Order d ismissing it from the action and, if approp riate, remanding the action to theSuperior Court, Sacramento County. This motion is based on the First Am endedCom plaint filed in the Superior Court on July 12, 2010; the other pleadings and papersfiled in this case ; the Po ints and Authorities in support hereof; and such written and oralargum ents as may hereinafter be made by the parties.

POINTS AND AUTH ORITIESThis Court lacks sub ject matter jurisdiction of federal defendant because the

plaintiff cannot show an applicable waiver of federal sovereign immunity for suit againstfederal defendant in state court. Should the merits be reached, the complaint fails toallege any unlawful acts (or any acts at all) by federal defendant and therefore it fails tostate a claim upon which relief can be granted.

STATEMENT OF FACTSThe plaintiff, Pam ela Barnett, sued a number of nonfederal parties in the Superior

Court, Sacramento County. She also sued the United States Election AssistanceCom mission (USEA C), an independent federal agency established by the Help Am ericaVote Act, 42 U.S.C. 5 15301 etseq. First Amended C omplaint filed July 12, 2010,attached to removal notice (Arnd . Compl.).'

The complaint mentions the USEA C in its caption and as follows:(1) The "Parties" section contains an allegation "That Defendant Bowen is a

statutory mem ber of the U nited States Election Assistance Com mission by the HelpAmerica to Vote Act o f 2002 (HAVA)." Amd. Compl. 7 5.

' A recent filing, entitled "Plaintiff Pamela Bamett Declaration in Response thesic EAC Notice of Removal with 28 USC $1442(a)l," Clerk's Record (CR) 8, says thatS AC executive director Thom as Wilkey 1s a party. The caption fails to name Mr.AWilkey .FEDERAL DEFENDANT'S MOT ION TO DISM ISS; POMTS AND AUTHORITIES Page 2


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Case 2:lO-cv-02216-FCD-DAD Document 9 Filed 08/27/10 Page 3 of 7(2) The "Parties" section also contains an opaque non-sentence allegation that

"Defendant The United States ELECTION ASSISTANCE COMMISSION ('EAC'),Address United States Election Assistance Commission with THOh4AS R. WILKEY asthe EAC Executive Director located at 1225 New York Avenue N.W., Suite - 1100Washington, DC 20005 Telephone (202) 566-3 100 Toll Free (866) 747-1471 Fax (202)566-3 127 E-mail Address [email protected]; and that the EAC along with thoseparticipating States that maintain a voter registration list within the National VoterRegistration Act of 1993 and HAVA within the Voting Rights Act of 1965 as amendedthereafter (VRA) and that is incorporated into each participating State statutes by 2004that shall create, maintain and safeguard a centralized a national voter registration listdatabase within each State accessible to each State member of the EAC." Amd. Compl.7 10.

(3) A section headed "SECOND CAUSE OF ACTION Defendants Dunn / Kelley/ Bowen Spoliation and Attempted Spoliation of Evidence" contains an allegation "ThatDefendant Kelley along with those similarly situated in control of the Voter Registrationdata base including Defendant Bowen as a member of the EAC charged with suchresponsibility, were Mr. Dunn's egregious commissions available to the Californiaaffiliated Republican Party members and his Endorsers before the June 8,2010 vote manywould have not endorsed or voted for him or contributed funds to the campaign and suchState actions represent an outrageous spoliation and interference with Plaintiff and thosesimilariy situated as aff~liatedmembers of the California Republican Party." Amd.Compl. 7 61 .

(4) A section headed "FOURTH CAUSE OF ACTION Defendants Bowen,Kelley, Dunn, Brown Act Contrary to Public Policy/Interest" contains an allegation "ThatDefendants Bowen as a member of the EAC with responsibilities and duties under HAVAto create, maintain and safeguard the 'National' Voter registration database in Florida,Texas, Arizona as well as California that is centralized by the EAC for each State'sdatabase which is available to Defendant Kelley along with those officials similarlyFEDERAL D EF EN Dm TS MOTION TO DISMISS; POlNTS AND AUTHORITIES Page 3


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C a se 2:lO-cv-02216-FCD-DAD Document 9 Filed 08/2 7/10 Page 4 of 7situated under California Co de (that has incorporated both the NVRA, HAVA and VRA)have failed in their ministerial duties. Defendant Brown was noticed with D m ' s attemptto conceal h is California voter registration fraud (Exhibit C ), and instead of starting acriminal investigation o f Defendant D unn he ignored the fraud and then m isinterpretsCalifornia Election Law with a Judicial Notice filed with the court." Am d. Compl. 7 81.

The comp laint asserts nine prayers for relief. Am d. Compl. at 36-37. Prayers 1and 4-6 seek court orders barring various candidates from California balloting. Prayer 2seeks "an order to investigate forensic evidence of document fraud an d spoliation."Prayer 3 seeks the "birther" remedy of retraction of California's electoral votes forPresident Obam a. Prayer 7 seeks "punitive civil damages for fraud, oppression, andmalice, and pain and suffering from the extrem e stress brought to b ear by the tyrannicalactions of the California state SOS and DOJ." Prayers 8 and 9 seek costs and u nspecifiedfurther relief.

ARGUMENTI. THE COU RT LACKS SUBJECT MATTER JURISDICTION FORSUIT AGAINST T HE FEDERA L DEFENDANT

A federal court's subject matter jurisdiction on removal generally is no greater thanthat of the state court from which the action was removed. "W here the state court lacksjurisdiction of the subject matter or of the parties, the federal court acquires none,although in a like suit originally brought in a federal court it would ha ve had jurisdiction."Minnesota v. United States, 305 U.S. 382, 389 (1939). There is only one exception to thisdoctrine of derivative jurisdiction: actions removed under 28 U.S.C. 3 1441. See 28U.S.C. 3 1441(f). Th is action was rem oved under 28 U.S.C. 3 1442(a)(1), not 3 1441.Thu s, if the state court lacked subject matter jurisdiction, this Cou rt also lacks subjectmatter jurisdiction.

Sovereign immunity jurisdictionally bars any claim against the US EAC . "TheUnited States, as sovereign, is immune from suit save as it consents to be sued, . . . andthe t e rn s of its consent to be sued in any court define that co urt's jurisdiction to entertainFEDERAL DEFENDANT'S MOTION TO DISMISS;POINTS AND AUTHORITIES Page 4


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Case 2:lO-cv-02216-FCD-DAD Document 9 Filed 08/27/10 Page 5 of 7the suit." United States v . Sherwood, 3 12 U.S. 584, 586 (1941). Because of federalsovereign immunity, no suit can be maintained against the United States in a particularcourt unless Congress has explicitly waived federal sovereign immunity for that suit inthat court. Id . ;Minnesota v. United States, 305 U.S. at 388 (reasoning that "it rests withCongress to determine not only whether the United States may be sued, but in what courtsthe suit may be brought," and holding the United States immune &om a condemnationsuit in a state court).

Plaintiff cannot meet her burden to show an applicable waiver of federal sovereignimmunity for actions against a federal agency in state court. "The doctrine of sovereignimmunity prohibits any sort of judicial action against the United States in the absence ofits consent, a consent usually manifested by legislation." Civiletti v. Municipal Court,116 Cal. App. 3d 105, 110 (1981). In particular, this cannot be characterized as a state-court action involving a federal government lien under 28 U.S.C. 24 10, or as a state-court streamwide water rights adjudication under 42 U.S.C. 666(a). Because nosovereign immunity waiver allows a state court to entertain this action against the federalgovernment, this Court on removal lacks subject matter jurisdiction for suit against theUSEAC.

Because there is no applicable waiver of the federal government's sovereignimmunity for suit in state courts, this Court lacks subject matter jurisdiction. The actionas against the USEAC must accordingly be dismissed for lack of subject matterjurisdiction.11. THE AMENDED COMPLAINT FAILS TO STATEA CLAIMAGAINST THE USEAC

Besides showing subject matter jurisdiction, a federal-court plaintiff must make ashort and plain statement of the claim showing that she is entitled to relief. Fed. R. Civ.P. 8(a)(2); see also Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). Far &om making a showingof that quality, the state-court First Amended Complaint affirmatively shows that theplaintiff lacks any claim against the USEAC.FEDERAL DEFENDANTS MOTION TO DISMISS; POINTS AND AUTHORITIES Page 5


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4 makes nine prayers for relief, none of which runs against the USEAC. Damages, inI1

123

The complaint alleges that the USEAC maintains a voter registration database forCalifornia. Amd. Compl. 77 10, 61. It alleges that the USEAC has California Secretaryof State Bowen as an ex of ic io member. Amd. Compl. 17 5,61, 8 1. The complaint

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particular, are prayed against the California Secretary of State and the CaliforniaDepartment of Justice only. Amd. Compl. at 36-37.

78910

16 fails to state a claim upon which relief can be granted.I1

By contrast, and by way of example, the Second Cause of Action accuses certainother defendants of spoliation of evidence, a tort; and the complaint's prayers include tort-type damages against two nonfederal defendants. Amd. Compl. at 12 and 36-37. But asagainst the USEAC the complaint makes no tort allegations, nor does it seek tort damages

1112131415

CONCLUSION

or any other tort remedy against the USEAC.With no allegation of wrongdoing by the USEAC and no prayer for relief against

the USEAC, the complaint fails to assert anything at all against the USEAC. Althoughthe USEAC must be dismissed for lack of subject matter jurisdiction, should the merits bereached the claim against the USEAC also would be dismissable because the complaint

l9 11 The complaint shows that subject matter jurisdiction to sue the USEAC is lacking.20 Therefore the action must be dismissed as against the USEAC.II2 1222324

BENJAMIN B. WAGNERUnited States Attorney

Because the presence of a federal defendant constitutes the sole basis for subjectmatter jurisdiction on this removal under 28 U.S.C. 5 1442(a)(1), subject matterjurisdiction will be lacking after the USEAC is dismissed. The USEAC accordinglysuggests that the action then be remanded to state court.

2526

By: /s/ YHimelYOSHINORI H. T. HIMELAssistant U. S. Attorney

Dated: August 27, 2010

FEDERAL DEFENDANT'S MOTION TO DISMISS; POWTS AND AUTHORITIES Page 6


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CERTIFICATE OF SERVICE BY MAILThe undersigned hereby certifies that she is an employee in the Office of theUnited States Attorney for the Eastern District of California and is a person of such ageand discretion to be competent to serve papers.That on August 27,2010, she served a copy of

FEDERAL DEFENDANT'S MOTION T ODISMISS; POINTS AND AUTHORITIESb placin said copy in an envelope addressed to the persons hereinafter named, at thepr ces an% addresses shown below, which are the last known addresses, and mailing saidenvelope and contents in the U.S. Mail in Sacramento, California.Addressees:Ms. Pamela Barnett2541 Warrego WaSacramento, CA 9x 26

Nicholas S. Chrisos, Coun CounselWend I. Phillips, Senior akpY-epu7333$ Santa h a lvd. Ste. 40P.O. Box 1379Santa h a , CA 93702-1379

/s/ Pamela B eauvaisPAMELA BEAUVAIS


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4.1.1 CWECF - U.S. District C ourt for Eastern California-DAD (PS) Barnett v. Dunn et al

Page

U.S. District CourtEastern District of California -Live System

f Electronic Filingion was entered by H imel, Yo shiiori on 81271201 0 at 4:24 PM PD T and filed on 81271201 0(PS) Bamett v. Dunn et a1

2:lO-cv-022 16-FCD-DA DU.S. Election Assistance Com mission9

DISMISS by U.S. Election Assistance Commission. Motion Hearing set for 11/12/2010 a0:OO AM in Courtroom 27 (DAD) before Magistrate Judge Dale A. Drozd. (Himel, Yoshinori)

FCD-DAD Notice has been electronically mailed to:Paul O'Brien [email protected], [email protected]

T. Hildreth sdiaz@bm hlaw.comT. Himel [email protected], [email protected], [email protected]~

FCD-DAD Electronically filed documents must be served conventionally by the filer to:,NCAED

3 We st Santa Ana Boulevardh a , CA 92702-1379

J. Phillips, NCAEDest S anta Ana BoulevardAna, C A 92702-1379

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