Gohmert et al v. Pence

Filing 34

REPLY to Response to Motion re 2 Emergency MOTION for Preliminary Injunction AND EXPEDITED DECLARATORY JUDGMENT Reply to Plaintiffs Response 1/1/21 re Rule 19 filed by Timothy P Dowling. (Dowling, Timothy)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
Louie Gohmert, Tyler Bowyer,
Nancy Cottle, Jake Hoffman,
Anthony Kern, James R. Lamon,
James Moorhead, Robert Montgomery,
Loraine Pellegrino, Greg Safsten,
Kelli Ward and Michael Ward
Plaintiffs

v.

Civil Action No. 6:20-cv-00660
(Election Matter)

The Honorable Michael R. Pence, Vice
President of the United States,
in his official capacity,
Defendant
Reply of Timothy P. Dowling to Plaintiffs’ Pleading Filed
January 1, 2021 (Document No. 30) in Order to Respond to
Plaintiffs’ Arguments About Their Failure to Join Indispensable
Parties under Federal Rule of Civil Procedure 19

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To the Honorable Jeremy D. Kernodle, United States District Court
Judge:
Timothy P. Dowling (“Dowling”) hereby files his reply to Plaintiffs’
contentions in their January 1, 2021 pleading (Document No. 30; “Plaintiffs’
Reply”) regarding their failure to make genuinely adverse parties defendants in this
case and the consequences thereof under Federal Rule of Civil Procedure 19. In
support thereof Dowling would show the Court the following (by Dowling not
responding more comprehensively to Plaintiff’ Reply that does not in any way
imply the Dowling agrees with any portion of Plaintiffs’ Reply).
1. Defendant Vice President Pence correctly points out that “Plaintiffs are …
not sufficiently adverse to the legal interests of the Vice President to ground a
case or controversy under Article III.” Document No. 18 at 7 (ECF page
number). Defendant correctly notes that “a suit to establish that the Vice
President has discretion over the count, filed against the Vice President, is a
walking legal contradiction.” Id. at 8 (emphasis in the original). Both Defendant
and Dowling correctly argue that Plaintiffs have failed to sue who they should
have.
2. In response to the portion of Dowling’s motion to dismiss address Plaintiffs’
violation of Federal Rule of Civil Procedure 19 (Document No. 20 at 6-8)
Plaintiffs argue that the lawfully selected Presidential Electors under Arizona
law (the Democratic Electors, not the Arizona Plaintiffs in this case) “cannot
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claim an ‘interest’ in an unconstitutional statute.” Plaintiffs’ Reply at 28. Of
course no litigant can contend that an unconstitutional statute should be
enforced, but clearly the parties who Dowling has argued unquestionably
Plaintiffs should have sued—the United States, Arizona’s actual Presidential
Electors, Joseph Biden, and Kamala Harris-- have a very direct and enormously
consequential “interest” in opposing Plaintiffs’ arguments that the statutes they
challenge in this case are unconstitutional. Plaintiffs’ contention that they have
no “interest” in the outcome regarding whether Plaintiffs’ unconstitutionality
argument is accepted or rejected is ludicrous. By choosing not to sue them,
Plaintiffs employed procedural gamesmanship to deny them the opportunity to
oppose the relief they seek. It is typically much easier to obtain a court victory
if you do not sue your true adversary.
3. Plaintiffs further illogically argue that the relief they seek “has no legally
prejudicial effect on any absent party.” Plaintiffs’ Reply at 28. This contention
is equally absurd. If Plaintiffs’ arguments are accepted, the winning Presidential
candidate and the winning Vice Presidential candidate (Joseph Biden and
Kamala Harris) will be transformed into the losers of the 2020 election.
Furthermore, Arizona’s actual Presidential Electors will not have their Electoral
votes counted in Congress although they are the proper Presidential Electors

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under Arizona law. It would be hard to imagine a more “prejudicial effect” on
an absent party.
4. It is clear that by their selection of who to make a defendant in this case
Plaintiffs violated Rule 19(c), which unequivocally states that “when asserting a
claim for relief a party must state… the name, if known, of any person who is
required to be joined if feasible but is not joined and… the reasons for not
joining that person.” The question is what to do about Plaintiffs’ egregious
violation of this Rule. Rule 19(a)(2) is clear: “If a person has not been joined as
required, the court must order that the person be made a party” (emphasis
added). Plaintiffs suggest that the actual Arizona Presidential Electors may not
be subject to service of process in this Court. Plaintiffs Reply at 28. What
Plaintiffs should have done was sue them as indispensable parties under Rule
19, and see if they objected to being before in this Court. No doubt if their
choice was to have no involvement in this Court at all where their rights would
be nonetheless determined, or have the opportunity to appear in this Court to
protect those rights, they would choose the latter option.
5. Even if that was not the case, Rule 19(b) provides the answer regarding what
this Court should do. That Rule states that “if a person who is required to be
joined if feasible cannot be joined, the court must determine whether, in equity
and good conscience, the action should proceed among the existing parties or
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should be dismissed.” One of the key considerations the court is to evaluate is
“the extent to which a judgment rendered in the person’s absence might
prejudice that person or the existing parties.” Rule 19(b)(1). As pointed out
above, clearly those who Plaintiffs should have made defendants in this case
will be severely prejudiced if the relief Plaintiffs seek is granted in their
absence. There is no way this Court can sufficiently lessen or avoid this
prejudice. Dismissal of this case for failure to join proper defendants under Rule
19 would be appropriate because dismissal will have been brought about only
because of Plaintiffs’ unwise and unfair manipulation of the judicial process by
suing a single defendant when both that defendant and all that Plaintiffs wish to
have Donald Trump remain as President, and Defendant remain as Vice
President, after January 20, 2021.
6. Therefore Dowling requests that the Court dismiss this case under Rule 19
(or alternatively take no action in this case until after Plaintiffs at a minimum
have joined Joseph Biden, Kamala Harris, and Arizona’s lawful Presidential
Electors as defendants), and if the Court does not dismiss this case due
Plaintiffs’ flagrant violation of Rule 19, that the Court dismiss this case for the
other reasons pointed out in Dowling’s motion to dismiss, and also for the
reasons justifying dismissal pointed out by others who have filed pleadings in
this case. A proposed order of dismissal is attached as Exhibit 2 to Dowling’s
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motion to dismiss (Document No. 20), and Dowling requests that the Court sign
that order. Dowling requests that the Court additionally grant him such further
additional relief, whether in law or in equity, as may be just.
/s/ Timothy P. Dowling
Pro se
Texas State Bar No. 06083900
8017 Villefranche Dr.
Corpus Christi, TX 78414
[phone]
[e-mail]

Certificate of service
The undersigned hereby certifies that counsel who have made an appearance
in this case were served on January 1, 2021 after this pleading was filed via the
Court’ ECF filing system.

/s/ Timothy P. Dowling

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