Case: 12-6634

Document: 006111629798

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DEFENDANTS-APPELLEES MOTION TO DISMISS FOR LACK OF JURISDICTION Pursuant to Federal Rule of Appellate Procedures 3 and 27 and Sixth Circuit Rule 27(d), Defendants-Appellees, the Tennessee Democratic Party (TNDP), and Chip Forrester (collectively the TNDP Defendants and together with the

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Democratic National Committee and Debbie Wasserman Schultz the Defendants or Appellees) file this Motion to Dismiss for Lack of Jurisdiction, seeking to dismiss this appeal filed by the Liberty Legal Foundation, John Dummett, Leonard Volardarsky, and Creg Maroney, (collectively the Appellants or Plaintiffs).

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IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ) LIBERTY LEGAL FOUNDATION, ) JOHN DUMMETT, LEONARD ) Case No. 12-6634 VOLODARSKY, CREG ) MARONEY, ) ) Plaintiffs-Appellants, ) On Appeal From The United vs. ) States District Court For The ) Western District Of Tennessee, NATIONAL DEMOCRATIC ) Case No. 2:12-cv-02143-cgc PARTY OF THE USA, INC., ) DEMOCRATIC NATIONAL ) COMMITTEE, TENNESSEE ) DEMOCRATIC PARTY, DEBBIE ) WASSERMAN SCHULTZ, and ) CHIP FORRESTER, ) ) Defendants-Appellees. )

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INTRODUCTION This case is one of literally hundreds of birther lawsuits filed across the

the Presidency or for running for that office for failure to satisfy Article IIs

prior to Appellants filing the case at bar, for failure of plaintiffs to demonstrate

2011 U.S. App. LEXIS 25763 (9th Cir., Dec. 22, 2011); Kerchner v. Obama, 612

Obama, 707 F. Supp. 2d 1 (D.D.C. 2010); Wrotnowski v. Bysiewicz, 289 Conn. 522 (Sup. Ct. Conn. 2008).

Ultimately, the District Court in the case at bar, following the lead from many previous courts, dismissed the complaint determining that Appellants, like

claims challenging President Obamas qualifications to hold or to run for the

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Office of the President of the United States. Additionally, the District Court sanctioned Appellants for filing frivolous claims they should have known they

lacked standing to pursue. After entry of the final judgment, Appellants filed a Notice of Appeal that

limited the appeal to a single issue the Order establishing the amount of the fee to

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plaintiffs in many other previously filed birther cases, lacked standing to bring

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F.3d 204 (3d. 2010); Berg v. Obama, 586 F.3d 234, 239 (3d Cir. 2009); Taitz v.

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standing to bring these inherently frivolous claims. See e.g., Drake v. Obama,

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natural born citizen requirement. Many courts have dismissed these lawsuits,

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country seeking to disqualify President Barak Obama from holding the Office of

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be paid by Appellants attorney for his sanctionable actions. Importantly, the Notice of Appeal did not specify or refer to the order actually imposing sanctions, but the Appellant Brief, filed on February 19, 2013 (Doc. 611595016, Appellant Brief), only addresses whether the District Court properly imposed sanctions in

the fee imposed by the District Court. Because the Appellants Notice of Appeal

review the order imposing sanctions.

Accordingly, since no portion of the

presented to this Court to consider and this appeal should be dismissed in its entirety.

Appellants initially filed this case in the Chancery Court of Shelby County,

District Court for the Western District of Tennessee. (RE No., 1 at PageID 1-3.)1

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Strangely, Appellants opposed the removal on the spurious grounds that a complaint seeking to disqualify President Obama from appearing on the ballot on the grounds that he was unqualified under the United States Constitution did not

raise a federal question triggering the District Courts subject matter jurisdiction.
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Appellants failed to file an appendix as required by 6 Cir. R. 30(a). Accordingly, references in this brief will be to the district court record document number and specific page cites.

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Tennessee and Defendants successfully removed the case to the United States

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FACTUAL BACKGROUND

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Appellant Brief actually addresses the order that was appealed, no issues have been

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does not identify the order imposing sanctions, this Court lacks jurisdiction to

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the first instance and contains no discussion whatsoever concerning the amount of

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(RE No. 13 at PageID 122-26.) The District Court rightfully disagreed and agreed to keep the case in federal court. (RE No. 18.)

for the extraordinary purpose of keeping President Barack Obama off the Tennessee

IIs Natural Born Citizen requirement to hold the office of President of the United

attempted to delegitimize the President with these accusations, over 140 cases in

as Exhibit A (identifying the numerous birther cases that have been filed in federal and state forums).)

The Defendants filed three Motions to Dismiss (RE Nos. 4 through 8) pursuant to Fed. R. Civ. P 12(b)(1) and (6), 12(b)(2) and 12(b)(3). Defendants

the lawsuit and when the Appellants failed to do so, the TNDP Defendants moved

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for sanctions. (RE No. 25 and 26-1 at PageID 340-44.) Shortly after the parties briefed the motions to dismiss, the Court granted the

Defendants consolidated Rule 12(b)(1) and (6) Motion to Dismiss (RE Nos. 4-5) on the basis that the Court lacked subject matter jurisdiction due to the Appellants lack of standing to pursue their claims. (RE No 31 at PageID 476-486.) That Order

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additionally sent a Rule 11 letter requesting that the Plaintiff immediately dismiss

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federal and state court have alleged similar claims. (See Appendix, attached hereto

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States.

(RE No., 1-2 at PageID 10-25.)

This was not the first time parties

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ballot for the November 2012 election on the basis that he did not satisfy Article

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The operative complaint is a class action complaint seeking injunctive relief

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is now final.

Thereafter, the Court granted the TNDP Defendants Sanctions

Motion and found that the TNDP Defendants counsel was entitled to the fees it incurred in drafting the consolidated Rule 12(b)(1) and (6) Motion to Dismiss. (RE No. 32 at PageID 500-01, the Sanctions Order.)

violated 28 U.S.C. 1927. (Sanctions Order, RE No. 32 at PageID 495-500.)

U.S.C. 1927, held that sanctions were warranted because:

(Id. at PageID 496.)

In response to the Sanctions Order and the Courts directive therein, the

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TNDP Defendants filed their Petition for Attorneys Fees on September 14, 2012, seeking $22,800 in attorneys fees awarded by the Sanctions Order. (RE No. 37.) The Court ultimately granted, in part, this petition and awarded attorneys fees in the amount of $10,565.23. (RE No. 53 at PageID 708-09, the Fee Award Order.)

Immediately thereafter, the Court entered final judgment. (RE No. 54.)

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The Court holds that Defendants have shown that counsel for Plaintiff knew or reasonably should have known that the claims in this case had no basis in law. Specifically, counsel for Appellants reasonably should have known that Appellants lacked standing to pursue their claims related to Defendants efforts to certify President Obama as the Democratic Partys nominee for the Tennessee general election.

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Specifically, the District Court, relying on Sixth Circuit precedent interpreting 28

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The Sanctions Order found that, by filing the lawsuit, the Appellants

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Appellants then filed their Notice of Appeal stating the following: Notice is hereby given that all plaintiffs in the abovenamed case hereby appeal to the United States Court of Appeals for the 6th Circuit from a judgment entered by the United States District Court for the Western District of Tennessee (R.54) granting in part defendants petition for reasonable attorneys fees (R.53), entered in this action on the 4th day of December, 2012.

(RE No. 55 at PageID 711.) As is clear from the Notice of Appeal, Appellants did

only identified the Fee Award Order (RE No. 53.).

amount of the attorney fee awarded. (See generally Appellant Brief.) There is no discussion of the hourly rates charged, the amount of time worked, or any other factor that went into determining the reasonableness of the fee awarded. The Appellant Brief conclusion makes clear that the actual order appealed from is the

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(Appellant Brief at 34.) Similarly, the first sentence of the Statement of the Case portion of the Appellant Brief states, [t]his is an appeal of the District Courts

imposition of sanctions against Plaintiffs attorney pursuant to 28 U.S.C 1927. (Appellant Brief at 11.)
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Sanctions Order:

For all the reasons discussed above, the PlaintiffAppellants request that this Court reverse the district Courts grant of Defendant-Appellees motion for sanctions.

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Strangely, the Appellant Brief does not raise a single issue related to the

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not identify the Sanctions Order (RE No. 32) as the order appealed from, but rather

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ARGUMENT It is well settled in this Circuit that a court of appeals has jurisdiction only over the areas of a judgment specified in the notice of appeal as being appealed.

JGR, Inc. v. Thomasville Furniture Indus., Inc., 550 F.3d 529, 532 (6th Cir. 2008);

968 F.2d 595, 598 (6th Cir. 1992) ("[W]here a notice of appeal specifies a

appeal."). Accordingly, this Court has held that "[a]n appellant waives any appeal

'designate specific determinations in his notice.'" United States v. Pickett, 941 F.2d 411, 415 n.3 (6th Cir. 1991)

This rule stems from the requirements of Rule 3 of the Federal Rule of Appellate Procedure , which obligates a party to designate in the notice of appeal

Corp., 591 F.2d 352, 361 at n.10 (6th Cir. 1978) (quoting Rule 3(c), Fed.R.App.P).

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The Sixth Circuit has held that "strict obedience to Rule 3(c) is warranted, United States v. Glover, 242 F.3d 333, 335 (6th Cir. 2001), and the rule "imposes

jurisdictional requirements that this court cannot waive." Martin v. Gen. Elec. Co.,

187 Fed. Appx. 553, 557 (6th Cir. 2006) (citing Torres v. Oakland Scavenger Co., 487 U.S. 312, 317, & n.3 (1988)). This Court, on at least two occasions, has

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the judgment, order or part thereof appealed from. Drayton v. Jiffee Chemical

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to a portion of a judgment not mentioned in his notice of appeal if he chooses to

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particular order, only the specified issues related to that order may be raised on

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see also Bonner v. Perry, 564 F.3d 424, 429 (6th Cir. 2009); Caldwell v. Moore,

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emphasizedthat strict obedience to Rule 3(c) is warranted, even though it may have harsh results in certain circumstances. Glover, 242 F.3d at 335 (citing

(6th Cir. 1990) (en banc); United Sates v. Universal Mgmt. Servs., Inc., 191 F.3d

Accordingly, to the extent that the Appellant Brief seeks to address issues

those matters. JGR, 550 F.3d at 532; Bonner, 564 F.3d at 429; see also Martin,

failing to identify the order awarding sanctions in the partys notice of appeal); Chandler v. Crews, Case No. 11-6128, 2012 U.S. App. LEXIS 22303 (6th Cir. Oct. 26, 2012) (holding that the Court lacked jurisdiction to review an order when the appellant identified a different order in his notice of appeal).

the Appellants sought to appeal the Sanctions Order. In relevant part, the Notice of

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Appeal states:

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No reasonable interpretation of the Notice of Appeal could encompass that

Notice is hereby given that all plaintiffs in the abovenamed case hereby appeal to the United States Court of Appeals for the 6th Circuit from a judgment entered by the United States District Court for the Western District of Tennessee (R.54) granting in part defendants petition for reasonable attorneys fees (R.53), entered in this action on the 4th day of December, 2012.

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187 Fed. Appx. 553, *11 (holding that a party failed to perfect an appeal by

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not properly noticed in the Notice of Appeal, this Court lacks jurisdiction to decide

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750, 757 (6th Cir. 1999)).

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Minority Employees v. Tenn. Dept of Employment Sec., Inc., 901 F.2d 1327, 1329

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(RE No. 55 at 1 (emphasis added).) The Notice of Appeal specifically identifies the Fee Award Order and specifically limits the appeal to the Court granting

[Appellees] petition for reasonable attorneys [sic] fees. (Id.) The petition for reasonable attorneys fees never raises whether sanctions are appropriate in this

instance (see generally RE No. 37) nor can the Fee Award Order raise any issue of whether sanctions are appropriate (see generally RE No. 53). Both the fee petition and the Fee Award Order address only the setting of a reasonable fee in light of the Sanctions Order and discuss issues limited to a traditional lodestar calculation (i.e. reasonable hourly rates, reasonable hours worked, lodestar multiplier, etc.). (See generally RE Nos. 37 and 53.) No where in the fee petition (RE No. 37) or the Fee Award Order (RE No. 53) does the issue of whether sanctions were appropriately granted in the first place ever addressed. The Notice of Appeal even recognizes this by using the term reasonable attorneys [sic] fees. (RE No. 55.) Since the fee petition, the Fee Award Order, and the Notice of Appeal all

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deal with issues strictly related to the reasonableness of the fee award, and not whether the Court properly granted sanctions in the first instance, Appellants appeal is strictly limited to the issue of whether the District Court set an appropriate fee award (i.e. whether $10,565.23 is an appropriate amount of sanctions). JGR, 550 F.3d at 532 (holding that a parties failure to identify a specific portion of an order in its notice of appeal barred the appellant from

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seeking review of that portion of the order); Bonner, 564 F.3d at 429 (holding that the Sixth Circuit only had jurisdiction over issues specifically identified in the notice of appeal and did not encompass an order filed after the appellant filed a

notice of appeal); Jordan v. Young, 791 F.2d 933, *7 (6th Cir. 1986) (unpublished)

of appeal limited the appeal to those issues specifically enumerated in the notice of

jurisdiction to overturn the impositions of sanctions when the appellant only

sanctions in its notice of appeal); Chandler, 2012 U.S. App. LEXIS 22303, *3-4 (holding that the Court lacked jurisdiction to review an order when the appellant identified a different order in his notice of appeal). After all, Appellants, and specifically Appellants attorney who is the

opportunity to file a general notice that would have allowed the entire judgment to

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be taken up on appeal. McLaurin v. Fischer, 768 F.2d 98, 101-02 (6th Cir. 1985) ([T]he law is well settled that an appeal from a final judgment draws into question all prior non-final rulings and orders.) (citing Munoz v. Small Business Administration, 644 F.2d 1361, 1364 (9th Cir. 1981); Herron v. Rozelle, 480 F.2d

282, 285 (10th Cir. 1973); Elfman Motors, Inc. v. Chrysler Corp., 567 F.2d 1252,

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individual ultimately responsible for paying for the sanctions at issue here, had the

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identified the order granting summary judgment and not the order imposing

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appeal); Martin, 187 Fed. Appx. 553 at *11 (holding that the Court lacked

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(holding that appellants identifying specific portions of the judgment in his notice

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1253 (3d Cir. 1977); 9 J. Moore, B. Ward & J. Lucas, Moore's Federal Practice para. 203.18 (1985).) Here, Appellants attorney chose to designate specific determinations in his notice of appeal rather than simply appealing from the entire judgment and as a result his appeal is limited only [to] the specified

In short, having designated only the Fee Award Order in their Notice of

Order (i.e. whether the $10,565.23 attorney fee award is reasonable under the

reasonableness of the fee award, and it is clear from the statements in the Appellant Brief alone, that Appellants only seek to appeal the Sanction Award. (See e.g. Appellant Brief at 11 (This is an appeal of the District Courts imposition of sanctions against Plaintiffs attorney (emphasis added)); at 20, n.2 (While the

sanctions (emphasis added)); at 34 (the Plaintiff-Appellants request that this

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Court reverse the District Courts grant of Defendant-Appelllees motion for sanctions. (emphasis added)).2 Because Appellants failed to address issues in the
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Appellants did file an earlier Notice of Appeal designating the Sanctions Order as the order being appealed. (RE No. 35.) This Court correctly determined that this Notice of Appeal was premature. Liberty Legal Foundation, et. al v. National Democratic Party of the USA, Inc., et. al, Sixth Cir. Case No. 12-6082, Order Filed October 5, 2012. However, this Notice of Appeal is of no relevance to the appeal at bar because it cannot relate forward to the final judgment entered months after the original notice of appeal was filed. FirsTier Mortgage Co. v. Investors Mortgage Ins. Co., 498 U.S. 269, 276 (holding that Rule 4(a)(2) does not permit[] a notice of appeal from a clearly interlocutory decision such as a discovery ruling or a sanction order- to serve as a notice of appeal from the final

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instant appeal requests review only of the District Courts imposition of

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circumstances).

Appellants Brief does not address any issue related to the

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Appeal, Appellants are now limited to only the issues raised in the Fee Award

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issues. McLaurin, 768 F.2d at 102 (citing Drayton, 591 F.2d at 361, n.10).

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Fee Award Order in their Appellant Brief, those arguments are now waived. Hills v. Kentucky, 457 F.3d 583, 588 (6th Cir. 2006); Thaddeus-X v. Blatter, 175 F.3d 378, 403 n.18 (6th Cir. 1999)

Accordingly, the appeal in its entirety should be dismissed because of

this Court jurisdiction to review the Sanctions Order. JGR, 550 F.3d at 532;

at *11; Chandler, 20120 U.S. App. LEXIS 22303. CONCLUSION

In light of the foregoing, the Court should dismiss this appeal in its entirety. Submitted this 22nd day of March, 2013.

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judgment.) Nor do the Appellants believe this Notice of Appeal is controlling as the only Notice of Appeal identified by Appellants in the Appellant Brief is the Notice of Appeal filed after the District Court entered its final judgment. Appellant Brief at 10 (The Plaintiffs-Appellants filed a timely notice of appeal on December 27, 2012. Notice of Appeal, R.55, Page ID#711.)

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By:

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/s/ J. Gerard Stranch, IV J. Gerard Stranch, IV (BPR #023045) Benjamin A. Gastel (BPR # 028699) BRANSTETTER, STRANCH & JENNINGS, PLLC 227 Second Avenue North, 4th Floor Nashville, TN 37201-1631 Telephone: 615/254-8801 Facsimile: 615/250-3932 gerards@branstetterlaw.com beng@branstetterlaw.com Counsel for the Appellees Tennessee Democratic Party, Chip Forrester,

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Bonner, 564 F.3d at 429; Jordan, 791 F.2d 933, at *7; Martin, 187 Fed. Appx. 553

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Appellants failure to file a properly noticed Notice of Appeal which would give

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Democratic National Committee, and Debbie Wasserman Schultz

I hereby certify that the foregoing was served via the Courts CM/ECF

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Van Irion Liberty Legal Foundation 9040 Executive Park Dr., Ste. 200 Knoxville, TN 37923

/s/ J. Gerard Stranch, IV

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system, on March 22, 2013, upon:

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CERTIFICATE OF SERVICE

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