March 13, 2013

Grinols v. Electoral College; Motion for Reconsideration of Order; Obama Demands Service Through DoJ AG

by Sven Magnussen

Orly Taitz, attorney for Grinols, et. al., in Grinols v. Electoral College, filed a Motion for Reconsideration and Stay of Proceedings in response to Chief Judge England's Order denying a default judgment against Obama for failure to file a responsive pleading or answer in Grinols v. Electoral College.

Grinols v. Electoral College; Chief Judge England explains F.R.C.P. 4, Service.

Federal Rule of Civil Procedure 4 governs service. It requires a plaintiff to serve a defendant within 120 days of filing a complaint. Rule 4(i) explains how to serve the United States and its agencies, corporations, officers or employees. Rule 4(e) spells out how to serve an individual. Plaintiffs are adamant that they are suing President Obama as an individual, not in his capacity as the President of the United States. (ECF Nos. 54, 56 and 64.) However, the Plaintiffs have failed to serve President Obama as Rule 4(e) requires.

Rule 4(e) provides that Plaintiffs could serve President Obama in the following ways:

(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or

(2) doing any of the following:

(a) delivering a copy of the summons and of the complaint to the individual personally;

(b) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or

(c) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

California law provides for three means to effect service:

(1) Personally delivering to the individual or someone authorized to receive service (the agent). Cal. Civ. Proc. Code § 415.10.

(2) Leaving a copy of the summons and complaint with a responsible person at the individual’s (or agent’s) usual home, office, place of abode, or mailing address and afterward mailing a copy to the individual (or agent) at such home, office, place of abode, or mailing address. Id. § 415.20(b).

(3) Mailing a copy to the individual (or agent) with notice and acknowledgment forms along with a pre-paid return envelope. Service is complete when acknowledgement of receipt of summons is executed and returned to sender. Id. § 415.30.3

Jercich v. Cnty. of Merced, 2006 WL 3747184 *5 (E.D. Cal., Dec. 19, 2006)

Case law makes it clear that when a plaintiff proceeds against an agent of the government in his or her individual capacity, a plaintiff must effect personal service on that agent under Rule 4(e); otherwise, the Court has no jurisdiction over the defendant.

Footnotes are not included in quote. See Memorandum and Order order for details.

Taitz responds to Judge England's Memorandum and Order with a Motion to Reconsider Order and Stay Proceedings. Taitz included an affidavit of process server, Daniel Williams, attesting to the fact Obama requires personal service to be processed through the DoJ/U.S. Attorney's office.

Affidavit of Process Server

I, Daniel Williams, declare that I am a professional process server employed by the "Same Day Process" service of process agency. I attempted to serve Mr. Barack Obama at his residence at 1600 Pennsylvania Avenue, Washington DC. I was told by the Secret Service detail at the entrance that Mr. Obama refuses to accept service of process at his residence and I need to serve him through the Department of Justice/U.S. Attorneys' Office.

/s/ Daniel Williams

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