Hollister v. Soetoro ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
GREGORY S. HOLLISTER, :
:
Plaintiff, :
:
v. : Civil Action No. 08-2254 (JR)
:
BARRY SOETORO, et al., :
:
Defendants. :
MEMORANDUM
This case, if it were allowed to proceed, would deserve
mention in one of those books that seek to prove that the law is
foolish or that America has too many lawyers with not enough to
do. Even in its relatively short life the case has excited the
blogosphere and the conspiracy theorists. The right thing to do
is to bring it to an early end.
The plaintiff says that he is a retired Air Force
colonel who continues to owe fealty to his Commander-in-Chief
(because he might possibly be recalled to duty) and who is
tortured by uncertainty as to whether he would have to obey
orders from Barack Obama because it has not been proven -- to the
colonel’s satisfaction -- that Mr. Obama is a native-born
American citizen, qualified under the Constitution to be
President. The issue of the President’s citizenship was raised,
vetted, blogged, texted, twittered, and otherwise massaged by
America’s vigilant citizenry during Mr. Obama’s two-year-campaign
for the presidency, but this plaintiff wants it resolved by a
court.
The real plaintiff is probably Philip J. Berg, a lawyer
who lives in Lafayette Hill, Pennsylvania, and who has pursued
his crusade elsewhere, see Berg v. Obama, 574 F. Supp. 2d 509(E.D. Pa. 2008), invoking the civil rights statutes, the Federal
Election Campaign Act, the Freedom of Information Act, the
Immigration and Nationality Act, and the law of promissory
estoppel. That case was the subject of a scholarly opinion by a
judge who took Mr. Berg’s claims seriously –- and dismissed them.
Mr. Hollister is apparently Mr. Berg’s fallback brainstorm,
essentially a straw plaintiff, one who could tee Mr. Berg’s
native-born issue up for decision on a new theory: If some
“value” could be assigned to the “duties” the plaintiff thinks he
might someday be called upon to fulfill under the Commander-in-
Chief, then those “duties” could be deposited in the registry of
this Court as the res whose distribution is to be decided by a
suit in interpleader!
The filing and service of the complaint required
private counsel to appear for President Obama and for Vice
President Biden (whose citizenship is not challenged but who was
presumably considered a necessary party in a suit seeking to
unseat the President). Those counsel have moved to dismiss,
asserting both that this Court has no jurisdiction (Rule
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12(b)(1)) and that the plaintiff has stated a claim for which
relief cannot be granted (Rule 12(b)(6)).
Plaintiff having invoked both diversity and the federal
interpleader statute, 28 U.S.C. § 1355, I do have jurisdiction.
Because plaintiff’s only claim invokes the interpleader statute,
however, the suit must be dismissed for failure to state a claim.
I have already called the interpleader claim
“frivolous” in two interlocutory rulings [#10 and #14], and I do
so again here. As the defendants noted in their motion to
dismiss, “interpleader allows a party exposed to multiple claims
on a single obligation or property to settle the controversy and
satisfy his obligation in one proceeding.” Commercial Union Ins.
Co. v. U.S., 999 F.2d 581, 583 (D.C. Cir. 1993). It is typically
used in insurance cases where the plaintiff holds property on
behalf of another but does not know to whom among several adverse
parties the property should be transferred [#9 at 8]. Resort to
interpleader is inappropriate when it “is sought for improper or
ulterior purposes.” Wright & Miller § 1707 (3d ed. 2001).
Plaintiff has not cited a single case that lends even
colorable support to the notion that his alleged “duties” can be
the “money or property” to which the interpleader statute
applies. The interpleader suits he cites are all about money or
tangible property: American Fidelity Fire Ins. Co. v.
Construcciones Werl, Inc., 407 F. Supp 164 (D. V.I. 1975) is
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about contested HUD monies; Underwriters at Lloyd's v. Nichols,
363 F.2d 357 (8th Cir. 1966), is about insurance proceeds; Dunbar
v. United States, 502 F.2d 506 (5th Cir. 1974) is about money
seized from the mails. The only interpleader case plaintiff
cites that involves a "duty" is Bank of Neosho v. Colcord, 8
F.R.D. 621 (W.D. Mo. 1949) (Complaint, para. 12), an inapposite
decision declining to strike a cross-claim for specific
performance in an interpleader case that began, as interpleader
cases do, with the deposit of funds. This suit will accordingly
be dismissed.
Mr. Berg and Lawrence J. Joyce, an attorney who lives
in Tucson, Arizona, signed the complaint in this case. (They
have been filing electronically although they have not been
admitted pro hac vice, see [#10].) They are agents
provocateurs –- and any attempt to sanction them for misuse of
the public and private resources that have had to be devoted to
this case would only give them a forum to continue their
provocation. John D. Hemenway, on the other hand, is a member of
the Bar of this Court. He may have been enlisted by Messrs. Berg
and Joyce as a foot soldier in their crusade, but he is
nevertheless directly responsible to this Court for the pleadings
that have been filed on behalf of the plaintiff. Because it
appears that the complaint in this case may have been presented
for an improper purpose such as to harass; and that the
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interpleader claims and other legal contentions of plaintiff are
not warranted by existing law or by non-frivolous arguments for
extending, modifying or reversing existing law or for
establishing new law, the accompanying order of dismissal
requires Mr. Hemenway to show cause why he has not violated Rules
11(b)(1) and 11(b)(2) of the Federal Rules of Civil Procedure,
and why he should not be required to pay reasonable attorneys
fees and other expenses to counsel for the defendants.
JAMES ROBERTSON
United States District Judge
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