DMEAST #10135871 v1

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

PHILIP J. BERG, : 

 : 

 Plaintiff : 

 : 

v. : Civ. Action No. 2:08-cv-04083-RBS 

 : 

BARACK OBAMA, et al., : 

 : 

 Defendants : 

____________________________________: 

ORDER

AND NOW, this ___ day of _____________, 2008, upon consideration of the 

Motion of Defendants Democratic National Committee and Senator Barack Obama to Dismiss 

First Amended Complaint, and of the submissions of the parties relating thereto, it is hereby 

ORDERED that said Motion is GRANTED. 

 BY THE COURT: 

____________________________________ 

 Surrick, J. 
IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

PHILIP J. BERG, : 

 : 

 Plaintiff : 

 : 

v. : Civ. Action No. 2:08-cv-04083-RBS 

 : 

BARACK OBAMA, et al., : 

 : 

 Defendants : 

____________________________________: 

MOTION OF DEFENDANTS DEMOCRATIC NATIONAL COMMITTEE 

AND SENATOR BARACK OBAMA TO DISMISS 

FIRST AMENDED COMPLAINT

 Pursuant to Fed. R. Civ. P. 12(b)(1), and 12(b)(6), defendants Democratic 

National Committee and Senator Barack Obama respectfully move the Court for an order 

dismissing plaintiff’s First Amended Complaint on the grounds that this Court lacks 

subject-matter jurisdiction over the claim asserted and that the First Amended Complaint 

fails to state a claim upon which relief can be granted. 

 Pursuant to Local Rule 7.1, accompanying this Motion is a Memorandum of Law 

in Support of Motion to Dismiss and a proposed Order. 

 Respectfully submitted, 

 /s/ John P. Lavelle, Jr. 

Dated: October 20, 2008 John P. Lavelle, Jr. 

 Attorney I.D. PA 54279 

BALLARD SPAHR ANDREWS & INGERSOLL, 

LLP 

1735 Market Street, 51st Floor 

Philadelphia, PA 19103 

(215) 864-8603 

(215) 864-9125 (Fax) 

lavellej@ballardspahr.com
2 

Of counsel: 

Joseph E. Sandler 

General Counsel, Democratic National Committee 

SANDLER, REIFF & YOUNG, P.C. 

300 M Street, S.E. #1102 

Washington, D.C. 20003 

Telephone: (202) 479-1111 

Fax: (202) 479-1115 

Robert F. Bauer 

General Counsel, Obama for America 

PERKINS COIE 

607 Fourteenth Street, N.W. 

Washington, D.C. 20005-2003 

Telephone: (202) 628-6600 

Facsimile: (202) 434-1690 

RBauer@perkinscoie.com

 Attorneys for Defendants 

 Senator Barack Obama and 

 Democratic National Committee 
IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

PHILIP J. BERG, : 

 : 

 Plaintiff : 

 : 

v. : Civil Action No. 2:08-cv-04083-RBS 

 : 

BARACK OBAMA, et al., : 

 : 

 Defendants. : 

 : 

MEMORANDUM OF LAW OF DEFENDANT DEMOCRATIC NATIONAL 

COMMITTEE AND DEFENDANT SENATOR BARACK OBAMA 

IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS 

FIRST AMENDED COMPLAINT

 On September 24, 2008, Defendants Democratic National Committee (“DNC”) 

and Senator Barack Obama filed a motion to dismiss the original Complaint filed in this 

case, pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), on the grounds that the Court 

lacks subject matter jurisdiction over the claims asserted and that the Complaint fails to 

state a claim upon which relief can be granted. On October 6, 2008, plaintiff Philip Berg 

filed a Motion for Leave to File a First Amended Complaint, together with a First 

Amended Complaint for Declaratory and Injunctive Relief (“Amended Complaint”). 

Assuming that no leave to amend is required under Fed. R. Civ. P. 15(a) because 

defendants have not filed a responsive pleading,1

 the First Amended Complaint should 

 

1

 A motion to dismiss does not constitute a responsive pleading for purposes of Rule 

15(a). E.g., Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000). Plaintiff has 

nevertheless filed a Motion for Leave to File a First Amended Complaint rather than 

simply filing his proposed First Amended Complaint. Regardless of the procedural 

posture, Plaintiff’s First Amended Complaint fails to state a claim, and must be 
2

nevertheless be dismissed, on the same grounds. No amendment to the Complaint can 

possibly cure its fundamental defects. Not only are the allegations patently false, but 

plaintiff lacks standing and there is no federal cause of action for enforcement of Article 

II of the Constitution. Nor has plaintiff set forth, in the Amended Complaint, any other 

viable federal cause of action. 

I. The Amended Complaint 

 The basis of plaintiff’s Amended Complaint is the same as that of his original 

complaint: the entirely false and baseless allegation that Senator Barack Obama, the 

Democratic Party’s nominee for President of the United States is not a natural born 

citizen and is therefore ineligible to run for President. Amended Complaint ¶ 6, passim. 

 Plaintiff has added four new defendants: the Pennsylvania Bureau of 

Commissions, Elections and Legislation; Pedro Cortes, the Secretary of the 

Commonwealth of Pennsylvania; the United States Senate Committee on Rules and 

Administration; and Senator Diane Feinstein (D-CA), Chair of the U.S. Senate 

Commission on Rules and Administration. Amended Complaint ¶¶ 21 – 24. In addition 

to the causes of action included in the original complaint, the Amended Complaint 

purports to assert new causes of action under the Civil Rights Act, 42 U.S.C. §§1983, 

1985 and 1986; the Federal Election Campaign Act of 1971 as amended, 2 U.S.C. §§431 

et seq.; the Freedom of Information Act, 5 U.S.C. §552; and the Immigration and 

Nationality Act, 8 U.S.C. §1481. 

 

dismissed. See Lorenz v. CSX Corp., 1 F.3d 1406, 1414 (3d Cir. 1993) (denial of leave to 

amend may be based on “futility of amendment”); Jablonski v. Pan American World 

Airways, 863 F.2d 289, 292 (3d Cir. 1988) (amendment is considered futile “if the 

amendment will not cure the deficiency in the original complaint or if the amended 

complaint cannot withstand a motion to dismiss”) citing Massarsky v. General Motors 

Corp., 706 F.2d 111, 125 (3d Cir.), cert. denied, 464 U.S. 937 (1983). 
3

II. Discussion 

 Plaintiff’s Amended Complaint should be dismissed because the Court lacks 

subject matter jurisdiction and the Amended Complaint fails to state a claim upon which 

relief can be granted. First, no amendment can cure the fundamental jurisdictional 

deficiency in the original complaint: plaintiff’s lack of standing to challenge the 

qualifications of a candidate for President of the United States. Regardless of what cause 

of action plaintiff might attempt to assert, plaintiff cannot possibly show any actual 

particularized injury to himself by reason of the alleged lack of qualifications of a 

candidate for President. Hollander v. McCain, 2008 U.S. Dist. LEXIS 56729 (D.N.H. 

2008); Jones v. Bush, 122 F. Supp.2d 713 (N.D. Tex.), aff’d w/o opinion, 244 F.3d 134 

(5th Cir. 2000). 

Second, for the reasons stated in defendants’ Motion to Dismiss the original 

complaint, the Amended Complaint fails to state a cause of action under Article II of the 

Constitution or the Declaratory Judgment Act. 

Third, none of the additional counts contained in the Amended Complaint sets 

forth any viable federal cause of action. With respect to Counts Two, Three and Four, 

invoking the Civil Rights Acts, it is clear that the Amended Complaint does not set out 

factual allegations sufficient to state a claim under sections 1983, 1985 or 1986. “‘To 

state a claim under § 1983, a plaintiff must allege the violation of a right secured by the 

Constitution and laws of the United States, and must show that the alleged deprivation 

was committed by a person acting under color of state law.’” Harvey v. Plains Township 

Police Dep’t, 421 F.3d 185 (3d cir. 2005), quoting West v. Atkins, 487 U.S. 42, 48 (1988). 

The Amended Complaint does not set forth any specific allegations that would show any 
4

deprivation of plaintiff’s constitutional or statutory rights by virtue of the DNC or 

Senator Obama exercising any state governmental authority. See Amended Complaint 

¶¶91-108. The Complaint lacks any allegations of conspiracy sufficient to establish a 

cause of action under section 1985. See, e.g., Conroy v. City of Philadelphia, 421 F. 

Supp. 2d 879, 888 (E.D. Pa. 2006)(§1985 conspiracy claims “must be pled with some 

degree of specificity’). And section 1986 requires a predicate violation of section 1985. 

Id. 

As to Count Five of the Amended Complaint, there is no private right of action to 

enforce the Federal Election Campaign Act unless and until an administrative complaint 

has been filed with the Federal Election Commission and the FEC has disposed of or 

failed to act on that complaint. E.g., Perot v. Federal Election Comm’n, 97 F.3d 553, 

557-58 (D.C. Cir. 1996), cert. denied sub nom Hagelin v. FEC, 520 U.S. 1210 (1997). 

Plaintiff does not allege that he has filed any administrative complaint with the FEC. 

As to Count Six, no cause of action can be asserted against the DNC or Senator 

Obama under the Freedom of Information Act, 5 U.S.C. §552, as neither is a federal 

agency subject to the provisions of FOIA. And finally, with respect to Count Seven, 

there is no private right of action under the Immigration and Nationality Act or any other 

statute to have a federal court make a determination under that Act about a third person. 

For these reasons, the First Amended Complaint does not state a cause of action 

upon which relief can be granted. 
5

CONCLUSION

 For the reasons set forth above, plaintiff’s First Amended Complaint should be 

dismissed pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). 

 Respectfully submitted, 

 /s/ John P. Lavelle, Jr. 

Dated: October 20, 2008 John P. Lavelle, Jr. 

 Attorney I.D. PA 54279 

BALLARD SPAHR ANDREWS & INGERSOLL, 

LLP 

1735 Market Street, 51st Floor 

Philadelphia, PA 19103 

(215) 864-8603 

(215) 864-9125 (Fax) 

lavellej@ballardspahr.com

Of counsel: 

Joseph E. Sandler 

General Counsel, Democratic National Committee 

SANDLER, REIFF & YOUNG, P.C. 

300 M Street, S.E. #1102 

Washington, D.C. 20003 

Telephone: (202) 479-1111 

Fax: (202) 479-1115 

Robert F. Bauer 

General Counsel, Obama for America 

PERKINS COIE 

607 Fourteenth Street, N.W. 

Washington, D.C. 20005-2003 

Telephone: (202) 628-6600 

Facsimile: (202) 434-1690 

RBauer@perkinscoie.com

 Attorneys for Defendants 

 Senator Barack Obama and 

 Democratic National Committee
CERTIFICATE OF SERVICE

I hereby certify that on this day, a true and correct copy of the foregoing 

Motion of Defendants Democratic National Committee and Senator Barack Obama 

to Dismiss First Amended Complaint and Memorandum of Law in Support thereof 

was served by First Class U.S. Mail, postage prepaid, upon the following: 

Philip J. Berg, Esquire 

555 Andorra Glen Court, Suite 12 

Lafayette Hill, PA 19444-2531 

Plaintiff 

Dated: October 20, 2008 /s/ John P. Lavelle, Jr. 

John P. Lavelle, Jr.