KLAYMAN v. OBAMA et al

Filing 92

REPLY to opposition to motion re 85 MOTION For Entry Of Default And To Strike Government Defendants Answer To Plaintiffs Third Amended Complaint re 83 Answer to Amended Complaint, filed by LARRY E. KLAYMAN, CHARLES STRANGE, MARY ANN STRANGE. (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.

PLAINTIFFS' REPLY IN SUPPORT OF 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 file this Reply
In Support Of Their Motion 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).
The Government Defendants' opposition is yet another attempt to delay the case and jerk
the parties and this Court around. From the inception of this case, the Government Defendants
have repeatedly attempted to postpone, stall, and delay this matter in order to and prevent this
Court from ruling on the merits of this lawsuit, which arises out of the unconstitutional bulk
collection of internet and telephone metadata. Now the Government Defendants are attempting
to further prevent this Court from hearing the merits of this case through arguing that service of
process was improper, essentially implying that the individual Government Defendants "wear
two hats." However, at the time each individual Government Defendant was served, they were
given notice that they were being served in both their professional and individual capacities, and

1

as such they were not wearing two hats, as the Government Defendants allege by drawing this
distinction. Thus, this Court should respectfully grant a default and default judgment against the
individual Defendants on the issue of liability.1
The individual Government Defendants, all of them, were properly served in compliance
with the Federal Rules of Civil Procedure and the method prescribed under the rules.
Specifically, the individual defendants were served via United States Postal Service Certified
Mail. D.C. Superior Cr. Civ. R. 4(i)(2)(b), 4(c)(3) simply require that service be made "by
mailing a copy of the summons, complaint and initial order to the person to be served by
registered or certified mail, return receipt requested." Under these clear rules, service is
complete upon the mailing of the summons and the complaint. The fact that return receipts were
received from all the individual Defendants, except for the Honorable Roger Vinson, is
conclusive evidence that not only were they sent, but that they were received by the Defendants
as well.2 Even more absurd is the fact that the Government Defendants, who had filed a notice
of appearance well before the parties were even served, are now claiming that they have not
accepted service and that they did not have knowledge of this lawsuit.
Further, it is inconceivable that individuals such as the President of the United States
should be required to be served in any way other than through Certified Mail. In fact, Certified
Mail is the only method of service that would be possible in order to serve the individual
Defendants. Yet Defendants would have this Court believe that in order for "proper"
service to occur that Plaintiffs must somehow walk into The White House and personally
hand President Barack Obama a copy of the summons and the Complaint.
1
2

This case must still go to trial on the issue of damages.
Since service is completed upon mailing, and not upon receipt, service of Defendant Vinson is
still valid, even without the return receipt having been received by Plaintiffs.

2

As with the discovery issues, the Government Defendants have demonstrated a consistent
refusal to be forthcoming with not only Plaintiffs, but this Court and the American public as
well. Their strategic attempt to hold all the cards and hinder Plaintiffs' ability to fully and fairly
litigate this case must be stopped. In order for justice to occur, the Government Defendants must
put an end to these games, and litigate the merits of the NSA spying program.
Notwithstanding that the individual defendants have been served, rather than creating
further delay the individual Government Defendants could even have simply accepted service.
But that obviously is not their intent; their desire is to avoid coming before the bar of justice.
Even the President of the United States is not above the law. See United States v. Nixon,
418 U.S. 683 (1974); Clinton v. Jones, 520 U.S. 681 (1997)
Moreover, instead of a good faith effort to accept service, the Government Defendants
are instead playing games and stalling these proceedings as much as possible. Most recently,
they have moved the U.S. Court of Appeals for the D.C. Circuit for a two month extension to file
a dispositive motion.
The Government Defendants, who have been delegated with the responsibility of
representing the American people, have duly sworn under oath to uphold the same U.S.
Constitution that they are now egregiously violating by evading their duties and obligations in
their attempt to circumvent the Court's processes. However, rather than accept service, the
Government Defendants are up to their "usual tricks" of avoiding litigation on the merits of this
lawsuit and actually confronting their outrageous violations of Americans' constitutional rights
and have instead, tirelessly implemented tactics to only delay and stall consideration of the
merits of this case.

3

For the foregoing reasons, this Court should respectfully grant a default and a default
judgment against the individual Government Defendants on the issue of liability.

Dated: March 5, 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

4

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 5th day of March, 2014, a true and correct copy of the
foregoing Plaintiffs' Reply In Support Of 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]

5