BERG v. OBAMA et al

Filing 24

MOTION to Dismiss for Lack of Jurisdiction filed by THE FEDERAL ELECTION COMMISSION.Memorandum. (Attachments: # 1 Memorandum of Law)(STREETER, BENJAMIN)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA PHILIP J. BERG, Plaintiff, v. BARACK HUSSEIN OBAMA, et al., Defendants. ) ) ) ) ) ) ) ) )

Civil Action No. 08-cv-4083 Motion to Dismiss

DEFENDANT FEDERAL ELECTION COMMISSION'S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(1) Defendant Federal Election Commission ("FEC" or "Commission") moves to dismiss the Complaint in this matter pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. Plaintiff's Complaint does not present an Article III case or controversy because plaintiff lacks standing to raise the issue of a candidate's constitutional eligibility. Moreover, even if Berg had standing to raise the constitutional eligibility issue, the Commission should be dismissed as a party to this case because it has no oversight over the Constitution's Presidential Qualifications Clause.

Pursuant to Local Rule 7.1 accompanying this Motion is a Memorandum of Law in support thereof and a Proposed Order. Respectfully submitted, /s/ Thomasenia P. Duncan______ Thomasenia P. Duncan General Counsel

/s/ David Kolker David Kolker Associate General Counsel

___

/s/ Kevin Deeley______________ Kevin Deeley Assistant General Counsel

/s/ Benjamin A. Streeter III_________ Benjamin A. Streeter III Attorney FOR THE PLAINTIFF FEDERAL ELECTION COMMISSION 999 "E" Street, N.W. Washington, DC 20463 [phone]

October 21, 2008

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing DEFENDANT FEDERAL ELECTION COMMISSION'S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(1) was electronically filed this 21st day of October, 2008 and served upon the following parties of record by the Court's ECF system and is available for viewing and downloading on that system: Philip J. Berg, Pro Se 555 Andora Glen Court Suite 12 Lafayette Hill, PA 09867 John P. Lavelle, Jr. 1735 Market Street 5th Floor Philadelphia, PA 19103

/s/ Benjamin A. Streeter III Benjamin A. Streeter

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA PHILIP J. BERG, Plaintiff, v. BARACK HUSSEIN OBAMA, et al., Defendants. ) ) ) ) ) ) ) ) ) ORDER AND NOW, this ____________ day of ___________, 2008, upon consideration of Defendant Federal Election Commission's Motion to Dismiss, it is hereby ORDERED that said Motion is GRANTED WITH PREJUDICE.

Civil Action No. 08-cv-4083 Order

______________________________ United States District Judge