KLAYMAN v. OBAMA et al

Filing 85

MOTION For Entry Of Default And To Strike Government Defendants Answer To Plaintiffs Third Amended Complaint re 83 Answer to Amended Complaint, by LARRY E. KLAYMAN, CHARLES STRANGE, MARY ANN STRANGE (Attachments: # 1 Exhibit 1 -- Affidavit Demonstrating Proper Service, # 2 Text of Proposed Order)(Klayman, Larry)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

LARRY KLAYMAN, et. al
Plaintiffs,
v.
BARACK HUSSEIN OBAMA II, et. al
Civil Action No. 1:13-cv-00851
Defendants.

MOTION FOR ENTRY OF DEFAULT AND TO STRIKE GOVERNMENT
DEFENDANTS’ ANSWER TO PLAINTIFFS’ THIRD AMENDED COMPLAINT
Plaintiffs, Larry Klayman, Charles Strange, and Mary Ann Strange, hereby move this
honorable Court for an entry of default and to strike Government Defendants’ Answer to
Plaintiffs’ Third Amended Complaint pursuant to Federal Rules of Civil Procedure (“FRCP”)
55(a), 55(d) and 12(f).
I.

MOTION FOR ENTRY OF DEFAULT

While the Third Amended Complaint sues the individual Government Defendants in their
official and individual capacities under Bivens v. Six Unknown Named Agents of Federal Bureau
of Narcotics, 403 U.S. 388 (1971) – as did the first Complaint filed on June 6, 2013 – for gross
violations of the Fourth, First, and Fifth Amendments to the U.S. Constitution, and while the
individual Government Defendants were served in both of these capacities (indeed it is nonsensical to conclude that service occurred only in their official capacities as service of the
Complaint is service and the U.S. Justice Department entered an appearance after service
occurred), the Answer filed by the individual Government Defendants’ lawyers seeks to flout the

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law and refuses to answer for the Government Defendants in their individual capacities. Thus,
the individual Government Defendants are in default and this Court should so rule.
Indeed, the individual Government Defendants, as plead in the Third Amended
Complaint, are liable for their tortious, unconstitutional acts under Bivens. The Supreme Court
held in that case that a violation of the Fourth Amendment’s command against unreasonable
searches and seizures by a federal agent acting under color of federal authority – precisely what
is occurring now by Government Defendants – gives rise to a federal cause of action for damages
as a consequence of the agent’s unconstitutional conduct. Id. at 395. Specifically, the Court
ruled: “ . . . petitioner is entitled to recover money damages for any injuries he has suffered as a
result of the agents’ violation of the Amendment.” Id. at 397. Consequently, the Fourth
Amendment does not serve only as a limitation on federal defenses to a state-law tort claim
against federal agents, but is an independent limitation upon the exercise of federal power. Id. at
394.
Finally, attached is an affidavit (Exhibit 1) confirming that service was made on the
individual Government Defendants in all capacities, both official and personal. Indeed, the
served Complaint sets forth that they are being sued in their individual and professional
capacities, and each individual Government Defendant thus had additional notice of this when
each was served. Further, when the Obama Justice Department entered its notice of appearance,
they made no distinction about service in both capacities and subsequent pleadings also bear this
out. It stands to reason that when an individual Government Defendant receives the complaint,
he or she is served in both capacities, especially when the complaint specifically states so. The
Obama Justice Department is playing its usual game, which has been to try to delay, obstruct and

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throw a monkey-wrench into every aspect of this case, which as the Court has observed is a
matter of “pinnacle” national importance.
It thus stands to reason, given the Court’s preliminary injunction order of December 16,
2013 which finds a clear cut violation of the Fourth Amendment concerning the unconstitutional
collection of telephonic metadata, that not only a default judgment be entered, but that the Court
enter judgment on liability against all of the individual Government Defendants pursuant to
FRCP Rule 55(a) and 55(d), particularly given the flouting of this Court’s process. The issue of
damages alleged against the individual Government Defendants can be tried later before the jury,
after the parties have the opportunity to take discovery on damages.
II.

MOTION TO STRIKE

The answer of the Government Defendants should also be stricken because it refuses to
respond to the allegations of the Third Amended Complaint by attempting to hide behind claims
of national security. Specifically, Government Defendants acknowledge that “[t]his answer is not
submitted on behalf of Defendants Obama, Holder, and Alexander in their personal as opposed
to their official capacities. They retain their rights, upon being served, to plead separately and to
raise any defenses available to them.” Government Defendants’ Answer at Fn. 1 (“Gov’t Defs.
Ans.”) They continue, “Government Defendants can neither admit nor deny allegations
regarding the number of such records produced under the Secondary Order without revealing or
tending to reveal classified national security information that is subject to protection from
disclosure by law.” Gov’t Defs. Ans. at para. 3. While the Government Defendants’ “[a]dmit that
the bulk telephony metadata program is carried out with the approval of the President, under
authority of the FISC,” they simultaneously “deny that it is a ‘surveillance program.’” Id. at para.
5. In fact, in over eight places in the Government Defendants’ Answer, the Government’s

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lawyers spurn this Court by hiding behind classified national security information claiming
“Government Defendants can neither admit or deny” the many of Plaintiffs’ allegations,
“without revealing or tending to reveal classified national security information that is subject to
protection from disclosure of law.”
It seems that the Government Defendants conveniently forget that this Court has a
security clearance and that if indeed there are legitimate national security issues, the Government
Defendants should have responded to the Court with an in camera answer, in addition to the
public one.
By avoiding a complete answer to the Third Amended Complaint with this obvious
subterfuge, the Government Defendants are withholding vital information necessary for this case
to move forward and are again showing a disrespect not just to this Court, but the entire judicial
system. Apparently, they think they can make up, as it suits them, the Federal Rules of Civil
Procedure, and ignore the admonitions of this Court at the status conference/hearing of February
3, 2014. See Transcript at Docket entry 84 at pg. 2. Accordingly, the answer should be stricken1,
unless the Government Defendants in a separate, in camera submission file within five (5)
calendar days an answer with the required information withheld under their obviously tactical
claims of national security under seal with this Court. That they may not trust or respect the
Court given its prior preliminary injunction ruling, and thus continue to play games as it suits
them with Court process, cannot absolve them from the consequences of their lawless,
obstructionist actions.

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FRCP Rule 12(f) provides, “[t]he court may strike from a pleading an insufficient defense or
any redundant, immaterial, impertinent, or scandalous matter.” The Government Defendants’
deliberate flouting of this Court’s process is at a minimum insufficient, and indeed it is
scandalous given that material information is being withheld which bears on egregious violations
of the Constitution.
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III.

CONCLUSION

For the foregoing reasons, Plaintiffs respectfully request that their motion for entry of
default and to strike Government Defendants’ Answer to Plaintiffs’ Third Amended Complaint
be granted2 by this honorable Court.

Dated: February 20, 2014
Respectfully submitted,
/s/ Larry Klayman
Larry Klayman, Esq.
General Counsel
Freedom Watch, Inc.
D.C. Bar No. 334581
2020 Pennsylvania Ave. NW, Suite 345
Washington, DC 20006
Tel: [phone]
Email: [e-mail]
Attorney for Himself, Pro Se, and Plaintiffs

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The Government Defendants oppose this motion.
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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 20th day of February, 2014, a true and correct copy of the
foregoing Motion for Entry of Default And To Strike Government Defendants’ Answer To
Plaintiffs’ Third Amended Complaint (Civil Action No. 13-cv-851) was submitted electronically
to the District Court for the District of Columbia and served via CM/ECF upon the following:

James J. Gilligan
Special Litigation Counsel
Civil Division, Federal Programs Branch
U.S. Department of Justice
P.O. Box 883
Washington, D.C. 20044
[phone]
Email: [e-mail]
Randolph D. Moss
WILMER CUTLER PICKERING HALE & DORR LLP
1875 Pennsylvania Avenue, NW
Washington, DC 20006
[phone]
Fax: [phone]
Email: [e-mail]
Attorneys for Defendants.

Respectfully submitted,
/s/ Larry Klayman
Larry Klayman, Esq.
General Counsel
Freedom Watch, Inc.
D.C. Bar No. 334581
2020 Pennsylvania Ave. NW, Suite 345
Washington, DC 20006
Tel: [phone]
Email: [e-mail]

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