Case 8:09-cv-00082-DOC-AN Document 79 Filed 10/01/2009 Page 1 of 8

1 UITED STATES JUSTICE FOUDATIO

GARY G. KREEP; SB 066482
2 932 “D” Street, Suite 2
(Email: usjf@usjf.net)
3 Ramona, California 92065
Tel: (760) 788-6624
4 Fax: (760) 788-6414
5
Attorney for Plaintiffs,
6 Dr. Wiley S. Drake and
Markham Robinson
7
8 UITED STATES DISTRICT COURT
9 FOR THE CETRAL DISTRICT OF CALIFORIA
10 SATA AA (SOUTHER) DIVISIO
11
12 CAPTAIN PAMELA BARNETT, ) CIVIL ACTION NO:
et al., ) SACV09-00082-DOC (Anx)
13 )
Plaintiffs, ) PLAITIFFS’ MOTIO FOR
14 ) SEVERACE OR I THE
v. ALTERATIVE LEAVE TO FILE A
) AMEDED COMPLAIT
15 )
BARACK HUSSEIN OBAMA, et
16 al., ) DATE: October 5, 2009
) TIME: 8:30 a.m.
17 Defendants ) CTRM: 9D
) Hon. David O. Carter
18 )
19
20
21 ITRODUCTIO
22 Plaintiffs, Dr. Wiley Drake and Markham Robinson (hereinafter referred to as
23 “PLAINTIFFS”), move this Court for a severance from all other Plaintiffs in this
24 case or, in the alternative, for leave to file a Second Amended Complaint
25 (hereinafter referred to as “SAC”). This motion is timely filed.
26 PLAINTIFFS believe that extraneous matters, not relevant to these
27 proceedings, have been filed by Dr. Taitz herein, in both the initial Complaint and
28 in the First Amended Complaint (hereinafter referred to as “FAC”). In order to
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1 expedite a resolution on the merits of this constitutionally critical issue, it is

2 necessary for PLAINTIFFS to focus on the Constitutional issues that are at the heart
3 of this dispute. Towards that end, if the Court will not grant severance,
4 PLAINTIFFS move the Court for leave to file SAC.
5 Dr. Taitz has argued for this Court to grant her request for a quo warranto
6 motion. This request is not irrelevant to the Constitutional issues raised by
7 PLAINTIFFS.
8 Further, Dr. Taitz has dedicated a large portion of both her Original
9 Complaint and FAC to the issue of her Freedom of Information Act requests.
10 Regardless as to whether her FOIA requests had previously been denied, such
11 requests have no bearing on this case, nor on the Constitutional issues relevant to
12 the instant proceeding, and, as such, only serve to complicate the issues raised by
13 PLAINTIFFS.
14 Likewise, the Civil Rights arguments raised by Dr. Taitz do not have any
15 bearing on PLAINTIFFS’ claims against Defendant Obama, and, instead, have only
16 detracted from the relevant issues raised herein.
17 In addition, PLAINTIFFS only have a constitutional claim against Defendant
18 Obama. PLAINTIFFS take no issue with any of the other Defendants in this action,
19 nor has any cause of action been made by Dr. Taitz against the other Defendants.
20 Thus, due to the fact that none of the other Defendant's have anything to do with
21 this case other than being named as Defendants by Dr. Taitz, PLAINTIFFS do not
22 wish to pursue any claims against any Defendant other than Barack Obama.
23 Finally, PLAINTIFFS do not believe that Dr. Taitz will take any action herein
24 other than to expand upon extraneous issues, such as discussed above, in direct
25 contradiction to Judge Carter's instructions for her to narrow the issues to the most
26 relevant herein, and, as a result, further delay and cloud resolution on the merits.
27 // //
28 // //
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1 REQUEST FOR SEVERACE

2 Under the Federal Rules of Civil Procedure (hereinafter referred to as
3 “FRCP”), “On motion or on its own, the court may at any time, on just terms, add or
4 drop a party.” FRCP 21. This severance is not limited to issues of misjoinder, as the
5 Court may sever not only parties, but also claims. “The court may also sever any
6 claim against a party.” FRCP 21. Therefore, PLAINTIFFS hereby move this Court
7 for severance from all other Plaintiffs in this action on the grounds that
8 PLAINTIFFS’ rights will be adversely affected by continued affiliation with co-
9 Plaintiffs’ counsel. The specific grounds for severance are as follows:
10 1 Dr. Taitz initially filed this case in PLAINTIFFS’ names, without
11 informing PLAINTIFFS that she was doing so. See Exhibit 1.
12 2 Because Dr. Taitz filed this case without PLAINTIFFS permission, and
13 because PLAINTIFFS were not convinced of Dr. Taitz’ competence,
14 PLAINTIFFS sought to retain Gary Kreep to represent them in this
15 matter. However, Dr. Taitz refused to sign the Substitution of Attorney
16 provided to her by PLAINTIFFS, and, instead, filed a notice of
17 dismissal on PLAINTIFFS’ behalf. She therein mislead the Court,
18 claiming that PLAINTIFFS personally told her that they wanted to be
19 dismissed from the case, when they, in fact, neither wanted out of the
20 case, nor spoke to Dr. Taitz about being dismissed from the case. See
21 Exhibit 1.
22 3 This case was filed on January 20, 2009. However, Dr. Taitz failed to
23 prosecute this case for over seven months, due to her failure to make
24 proper service on the Defendants. This failure to prosecute prompted
25 this Court to order Dr. Taitz to show cause why this case should not be
26 dismissed for lack of prosecution on May 12, 2009. See Exhibit 2.
27 The Court issued a second order to show cause why this case should
28 not be dismissed for lack of prosecution on May 27, 2009. See Exhibit
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1 3. Dr. Taitz has thus unduly delayed this case for months, which has
2 harmed PLAINTIFFS’ rights in this case.
3 4 The case was about to be dismissed for failure to prosecute, however,
4 the Court noted Dr. Taitz’ unsuccessful attempts to comply with the
5 Court’s order to show cause, and granted her an exception to serve the
6 complaint on the Defendants. See Exhibit 4. However, despite being
7 granted a second chance, Dr. Taitz still failed to serve Defendants until
8 after Defendants filed their Notice of Failure of Plaintiffs stating that
9 they had not yet been served. See Exhibit 5.
10 5 After a number of personal attacks were made by Dr. Taitz against Mr.
11 Kreep in open court, at the hearing on September 8, 2009, Federal
12 District Court Judge Carter ordered Dr. Taitz and Gary Kreep to meet
13 in the hallway. During that meeting, Dr. Taitz said that, if Judge Carter
14 allowed PLAINTIFFS to reenter the case, with Mr. Kreep as their
15 representation, she would appeal that decision to the Ninth Circuit
16 Court of Appeals. Drake Declaration.
17 6 On her blog, Dr. Taitz made an entry on September 15, 2009, where
18 she suggested that Gary Kreep "only creates an illusion of fighting"
19 this case and others like it. See Exhibit 6. She further claimed that
20 Drake, Robinson and Kreep only have an interest in raising money with
21 this cause and have only sought to be in this case "[n]ow, when there is
22 a possibility of actual judgment, Drake and Robinson make a new deal
23 with Kreep." See Exhibit 6.
24 7 On her blog Dr. Taitz posted an email on September 10, 2009 which
25 stated that "Gary Kreep is undermining Orly’s case and hurting the
26 nation. It does not serve the interests of our cause to give this
27 troublemaker a forum to spread more disinformation." See Exhibit 7.
28 8 PLAINTIFFS’ case will be irrevocably injured if severance is not
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1 granted, as continued association with Dr. Taitz will likely lead to the
2 rights and claims of PLAINTIFFS being lost or at least severely
3 damaged due to her actions, including, but not by the way of exclusion,
4 her failure to be able to comply with court orders and court procedure.
5 9 Dr. Taitz has filed increasingly convoluted pleadings that do not
6 adequately address the injury of PLAINTIFFS, nor do any thing but
7 confuse the issues presented.
8 10 Dr. Taitz has also stated that “in good faith she cannot effectively work
9 or cooperate with PLAINTIFFS’ proposed counsel Gary G. Kreep...”
10 See Exhibit 8.
11 11 Attached to her Notice of Filing Change of Address, Dr. Taitz
12 submitted a letter to the Court in which she stated her intent to move
13 the Court to Disqualify Gary Kreep from this case unless he were to
14 voluntarily refrain from representing PLAINTIFFS in this case within
15 10 days. See Exhibit 9.
16 12 Dr. Taitz’ actions have already resulted in this case barely avoiding
17 dismissal, due to her inability to serve the Defendants with the initial
18 paperwork. In addition, she continually insists that every aspect of this
19 case be expedited, while delaying the case from going forward.
20 13 On page 1, line 27 through page 2, line 7, in her Opposition to
21 Defendants’ Motion to Dismiss, Dr. Taitz conceded an issue, that
22 PLAINTIFFS fully briefed and argued in their Opposition. See Exhibit
23 10.
24 14 That PLAINTIFFS do not want to be unfairly prejudiced due to likely
25 adverse actions caused by continued association with Dr. Taitz.
26 For these above listed reasons, PLAINTIFFS request that this Court grant
27 PLAINTIFFS’ motion for severance from all other Plaintiffs in this case, so that
28 PLAINTIFFS’ rights are preserved.
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1 REQUEST, I THE ALTERATIVE, FOR LEAVE TO FILE A SECOD

2 AMEDED COMPLAIT
3 According to Federal Rule of Civil Procedure 15, "a party may amend the
4 party's pleading once as a matter of course at any time before a responsive pleading
5 is served…[o]therwise a party may amend the party's pleading only by leave of
6 court or by written consent of the adverse party." FRCP 15(a). Where leave
7 of the court is sought, Rule 15 states, "[L]eave shall be freely given when justice so
8 requires." Id. In Foman v. Davis, the Supreme Court held that [i]n the absence of
9 any apparent or declared reason – such as undue delay, bad faith or dilatory motive
10 on the part of the movant, repeated failure to cure deficiencies by amendments
11 previously allowed, undue prejudice to the opposing party by virtue of allowance of
12 the amendment, futility of amendment, etc. – the leave sought should, as the rules
13 require, be "freely given." Foman v. Davis, 371 U.S. 178, 182 (1962). In Advanced
14 Cardiovascular Sys., Inc. v. SciMed Life Sys., Inc., the Court stated that "the court
15 must be very liberal in granting leave to amend a complaint," noting that "[t]his rule
16 reflects an underlying policy that disputes should be determined on their merits, and
17 not on the technicalities of pleading rules." Advanced Cardiovascular Sys., Inc. v.
18 SciMed Life Sys., Inc., 989 F.Supp. 1237, 1241 (N.D. Cal. 1997).
19 As alleged in the initial complaint, Plaintiffs filed a Complaint for
20 Declaratory Action, Injunction, and Common Law Writ of Alternate Mandamus. On
21 January 20, 2009, Plaintiffs brought suit, alleging, in pertinent part, that Defendant
22 Barack Obama does not meet the qualifications required for the Office of the
23 President as specified by Article II, Section 1, Clause 5 of the United States
24 Constitution. More specifically, Plaintiffs allege that Obama has not shown that he
25 is a “natural born” citizen of the United States. Plaintiffs argue that there is evidence
26 to show that the President was actually born in Kenya, and not Hawaii, thus making
27 him ineligible to serve as President. Plaintiffs also argue that the Defendant Barack
28 Obama was citizen of Indonesia and has not gone through the proper immigration
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1 procedures to regain his United States citizenship. Plaintiffs have since filed their
2 First Amended Complaint, which adds to the original complaint.
3 As discussed above, PLAINTIFFS contend that Dr. Taitz has engaged in a
4 pattern and practice of unreasonable delay and a preoccupation with irrelevant
5 issues that detract from PLAINTIFFS’ complaint against Defendant Barack Obama.
6 PLAINTIFFS, therefore, seek to amend the complaint to narrowly develop and
7 clarify the nature of PLAINTIFFS’ complaint regarding this important
8 Constitutional question of whether Defendant Barack Obama is eligible under the
9 Constitution to serve in the office of President.
10 In her SAC, Dr. Taitz expanded upon her already lengthy complaint, in
11 violation of Judge Carter’s instruction to her that she narrowly focus the issues
12 raised in this action. PLAINTIFFS’ proposed Second Amended Complaint does not
13 alter the underlying Constitutional claims set forth in the prior Complaints, nor does
14 it include facts that are not already known to Defendants. Granting this request
15 would be consistent with the "underlying policy that disputes should be determined
16 on their merits, and not on the technicalities of pleading rules." Advanced
17 Cardiovascular Sys., 989 F.Supp. at 1241. Given the aforementioned circumstances,
18 it cannot be said that PLAINTIFFS’ request reflects any "dilatory motive" on
19 PLAINTIFFS’ part, nor would allowing PLAINTIFFS’ Motion For Leave To File A
20 Second Amended Complaint impose any undue prejudice upon defendant SEC.
21 Foman, 371 U.S. at 182. Similarly, there has been no undue delay by PLAINTIFFS
22 in amending the complaint. Granting PLAINTIFFS’ Motion For Leave To File A
23 Second Amended Complaint would provide the Defendant and the Court with
24 important and useful information, properly narrow the issues, and allow for a
25 prompt resolution of this crucial case.
26 Given the fact that PLAINTIFFS’ request to file a Second Amended
27 Complaint would neither prejudice Defendants, nor delay or change any existing
28 pleading, PLAINTIFFS’ Motion in the Alternative For Leave To File A Second
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1 Amended Complaint should be granted if PLAINTIFFS’ motion for severance is

2 denied.
3
4 DATED: October 1, 2009 Respectfully submitted,
5
/s/ Gary G. Kreep
6 GARY G. KREEP
7 UNITED STATES JUSTICE FOUNDATION
8 Attorney for PLAINTIFFS Dr. Wiley Drake and
9 Markham Robinson
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