Oppositon To Motion To Dismiss Civil Lawsuit Against Romney And The RNC Scheduled Monday August 6, 2012

RICHARD C. GILBERT / SBN 85912
Law Offices of Gilbert & Marlowe
950 West Seventeenth Street, Suites C, D & E
Santa Ana, California 92706-3573
Telephone: 714-667-1038
Fax: 714-667-2388
Attorney for Plaintiffs
U.S. DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
SOUTHERN DIVISION – RONALD REAGAN COURTHOUSE
DELEGATES TO THE REPUBLICAN
NATIONAL CONVENTION AS
FOLLOWS:
Alaska National Delegate,
BARBARA ANDERSEN; . . .
(See attachment pages)
Plaintiffs,
vs.
REPUBLICAN NATIONAL
COMMITTEE;
REINCE PRIEBUS, Chairman of the
Republican National Committee; . . .
(See attachment pages)
Defendants.
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CASE NO. SACV 12 - 00927 DOC (JPRx)
PLAINTIFFS OPPOSITION TO
DEFENDANTS’ MOTION TO DISMISS
COMPLAINT
Defense counsel files the instant Motion to Dismiss in violation of L.R. 7-3 which requires
in all cases not exempted that the moving party must Meet and Confer fully prior to the filing of the
Motion, which did not occur in this case.
There is no statement by the moving counsel referencing the required language as follows:
“This motion is made following the conference of counsel pursuant to L.R. 7-3 which took
place on (date).”
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OPPOSITION TO MOTION TO DISMISS– 2
On numerous occasions attorney Richard C Gilbert had contacted Defense counsel
requesting and demanding to Meet and Confer about several issues which were ignored by counsel
for Defendants.
Attached hereto as Exhibit A is a true and correct copy of the letter from Plaintiffs’
counsel dated July 03, 2012, which in the final two paragraphs specifically recites as follows:
“I previously warned you that your refusal to Meet and Confer in
writing regarding my Meet and Confer letters which included a Notice of
Ex Parte was at your own peril.
Hence, your purported Motion to Dismiss will undoubtedly be based upon
your own failure to properly Meet and Confer.”
Plaintiffs’ letter specifically refers to this Motion to Dismiss, and, still Defense counsel
violated L.R. 7-3 and neither Met and Conferred regarding the Motion to Dismiss nor complied
with the requirement for the language informing the Court that a Meet and Confer took place, and,
the salient contents of the Meet and Confer .
On July 13, 2012, Plaintiffs’ counsel sent written correspondence to Defense counsel, the
same Defense counsel filing this Motion stating in the first paragraph of said letter as follows:
“I have received your letter dated June 28, 2012, wherein you
acknowledge receipt of all of my Meet and Confer letters.”
On the second page of this same July 13, 2012, letter Plaintiffs’ counsel
states as follows:
“If you fail to properly respond to my Meet and Confer letters, you do so at
your own peril”.
The above reference dated July 13, 2012, a true and correct copy of which, is attached
hereto as Exhibit B.
In addition to the two above written letters demanding compliance with the Meet and
Confer rules, Plaintiffs’ counsel made several telephone calls, more than three, to counsel for the
Republican National Committee in an effort to Meet and Confer about issues prior to the appearance
of the current Law Firm representing Defendants.
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OPPOSITION TO MOTION TO DISMISS– 3
All of the above efforts to comply with the Court’s requirements to Meet and Confer had
been unacceptably ignored by the moving party counsel.
For this reason alone, the Motion should be denied.
In addition to Defense counsel’s refusal to comply with the Meet and Confer requirements
of the Federal Court, Plaintiffs’ counsel urges great caution because Defense counsel has profound
conflicts of interest among the Defendants which Defense counsel is not informing the Court of.
There are Defendants who are falsely represented by Defense counsel who do not seek to
have this case dismissed, nor did they share Defense counsel’s position that Delegates should not be
unbound in accordance with the Federal Law.
In written correspondence dated July 02, 2012, Plaintiffs’ counsel demanded written
waivers of Defense counsels’ conflicts of interest which is required by California Rules of
Professional Conduct Rule 3-310 which recites in pertinent part as follows:
“(B) A member shall not accept or continue representation of a client without
providing written disclosure to the client where:
(1) The member has a legal, business, financial, professional, or personal
relationship with a party or witness in the same matter; or
(2) The member knows or reasonably should know that:
(a) the member previously had a legal, business, financial, professional, or
personal relationship with a party or witness in the same matter; and
(b) the previous relationship would substantially affect the member's
representation; or
(3) The member has or had a legal, business, financial, professional, or personal
relationship with another person or entity the member knows or reasonably should
know would be affected substantially by resolution of the matter; or
(4) The member has or had a legal, business, financial, or professional interest in
the subject matter of the representation.
C) A member shall not, without the informed written consent of each client:
(1) Accept representation of more than one client in a matter in which the interests
of the clients potentially conflict; or
(2) Accept or continue representation of more than one client in a matter in which
the interests of the clients actually conflict; or
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OPPOSITION TO MOTION TO DISMISS– 4
(3) Represent a client in a matter and at the same time in a separate matter accept
as a client a person or entity whose interest in the first matter is adverse to the
client in the first matter.”
A true and correct copy of Plaintiffs’ counsel’s letter dated July 02, 2012, is attached hereto
as Exhibit C.
Several Defendants in this case are duly elected party chairmen who are open supporters of
Dr. Ron Paul. These party chairmen do not subscribe to the legal theories being presented in their
name and Defense counsel continues to audaciously present legal arguments that are contrary to
these Defendants without obtaining and producing written conflicts of waiver as required by
California Rules of Professional Conduct Rule 3-310.
Paragraphs 3, 4, and 5, of Plaintiffs’ counsel letter dated July 02, 2012, (Exhibit C)
regarding the failure to obtain written waivers of conflict of interest from these Defendants recites
as follows:
“I fully expected to have in my office your written waivers of conflict of interest
this morning. They are not here. Your conduct goes far beyond malpractice into the realm
of a RICO Cause of Action.
Correct your fraud immediately. Notify all of your clients as to your conflict of interest.
Then submit forthwith written conflicts waivers.
If I do not receive the written conflicts waivers by 4:00 P.M. this afternoon I will assume
you do not represent all of the Defendants in this case, especially since you have not filed
any document with the Court advising that you are the attorney of record.”
As of the writing of this Opposition the moving parties’ Defense counsel continues to
refuse to provide any evidence of a written waiver of profound conflicts of interest from several, and
all of the Defendants, several of which are supporters of Dr. Ron Paul, and supporters of the
Delegate Plaintiffs in this case who support the law and legal positions being advanced by Plaintiffs’
counsel.
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OPPOSITION TO MOTION TO DISMISS– 5
Therefore, great caution is respectfully urged regarding the bona fides of the argument,
such as it is, advanced by the moving parties’ Defense counsel.
On June 29, 2012, Plaintiffs’ attorney, Richard C Gilbert, transmitted a written Meet and
Confer letter, a true and correct copy of which is attached here as Exhibit D.
Paragraph 5 of page 1 of the letter recites as follows:
“With respect to your conflicts of interest it is demanded that you forward
to me your written conflicts waivers.”
On Page two of the June 29, 2012, Meet and Confer letter paragraph 3 recites as follows:
“If you fail to properly respond to my Meet and Confer letters, you do so at
your own peril.”
The Meet and Confer Rules of the Court as set for in Local Rule 7-3 states as follows:
“Conference of Counsel Prior to Filing of Motions.2 In all cases not listed
as exempt in L.R. 16-12, and except in connection with discovery motions (which
are governed by L.R. 37-1 through 37-4) and applications for temporary
restraining orders or preliminary injunctions, counsel contemplating the filing of
any motion shall first contact opposing counsel to discuss thoroughly, preferably
in person, the substance of the contemplated motion and any potential resolution.
If the proposed motion is one which under the F.R.Civ.P. must be filed within a
specified period of time (e.g., a motion to dismiss pursuant to F.R.Civ.P. 12(b), or
a new trial motion pursuant to F.R.Civ.P. 59(a)), then this conference shall take
place at least five (5) days prior to the last day for filing the motion; otherwise, the
conference shall take place at least ten (10) days prior to the filing of the motion.
If the parties are unable to reach a resolution which eliminates the necessity for a
hearing, counsel for the moving party shall include in the notice of motion a
statement to the following effect:”
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OPPOSITION TO MOTION TO DISMISS– 6
“This motion is made following the conference of counsel pursuant to L.R. 7-3
which took place on (date).”
For the above reasons Defendants’ Motion to Dismiss should be denied.
OPPOSITION ON THE MERITS
In an abundance of caution, Plaintiffs hereby oppose the Motion to Dismiss on the merits
as follows:
The standard for a pleading is mere plausibility as set forth in Bell Atlantic Corp. V.
Twombly, 550 U.S. 544, 127 S. Ct. 1955.
The allegations set forth in the First Amended Complaint fully conform
with the plausibility requirement even if there were a cause of action for fraud, although, there is not.
Notably, the First Amended Complaint, and its allegations therein, reference percipient witness
affidavits at page 34 lines 11 through 19 which are incorporated by reference with the use of the
conjunction “and” as set forth on page 34 lines 11 through 19 as follows:
“Plaintiffs, for the reasons set forth herein, and the reasons set forth in the
Affidavits filed with this Court are living in great fear for their personal safety
now and at the Convention. Bones have been broken. A gun has been used to
threaten a Plaintiff to vote as ordered while inside of a school. Plaintiffs have
been followed. Plaintiffs have been threatened with future life-time harassment if
Plaintiffs do not vote as directed. Plaintiffs have been threatened to remove their
names from this lawsuit or face adverse consequences. Plaintiffs request an order
of this Court that the Court retain jurisdiction until a substantial time past the
Convention and into the future to protect the personal safety of Plaintiffs and to
assure that any order this Court makes is complied with by Defendants.”
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OPPOSITION TO MOTION TO DISMISS– 7
The Motion to Dismiss as it is styled is essentially a Demurrer as if there was a Cause of
Action for Fraud seeking monetary relief.
This is misplaced for the following reasons :
1. The relief sought by the Plaintiffs is a Federal Question that seeks the guidance
of the Court as to which law the Delegates should follow at the Republican National Convention in
August 2012.
2. Attached to the Complaint as Exhibit A is a legal memorandum from Defendant
RNC, Jennifer Sheehan associate counsel, Republican National Committee which recites that “the
national convention allows Delegates to vote for the individual of their choice. . .” on page 4 of
Exhibit A to the First Amended Complaint. Nowhere do the moving party Defendants explain this
contradiction, nor deny it anywhere in their Motion to Dismiss.
3. The operative First Amended Complaint recites as follows at page 25 thereof
lines 1 through 16:
“A National Convention of a political party that convenes for the
purpose of selecting nominees for Federal Office such as President and Vice
President of the United States is subject to the Voting Rights Statutes
commencing with 42 U.S.C. 1971 and US Supreme Court Decisions regarding
delegates and their right to be unbound to vote their conscience free from any
intimidation from any person or entity.
Plaintiffs come to Federal Court to seek the guidance of the Court
regarding the Federal Question as to whether Plaintiffs are free to vote their
conscience on the first and all ballots at the Federal Election known as the
Republican National
Convention or whether Plaintiffs are bound to vote for a particular candidate as instructed
by Defendants’ State Party Bylaws, or State Laws, or the preference of political operatives
seeking affidavits of loyalty to a particular candidate under penalty of perjury.
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OPPOSITION TO MOTION TO DISMISS– 8
Plaintiffs do not seek any reimbursement for Court Fees and Plaintiffs do not seek any
award of Attorney Fees. Plaintiffs seek only the guidance of the court and Injunction Relief
as set forth herein.
Plaintiffs will not appeal the guidance of this Court if guidance is given as to what law
governs.”
4. At page 26 of the operative First Amended Complaint at lines 9 through 26
recites as follows:
“Notwithstanding the clarity of the above Federal Laws the
Republican National Committee and its Chairman, Reince Priebus, and Defendants are
acting to obstruct, intimidate, and harass Delegates from voting their conscience. These
Defendants have intentionally violated Federal Laws and Supreme Court Decisions by
seeking to bind Delegates to the Candidate of Defendants’ choice and these Defendants
have refused to follow Federal Law.
No candidate can be assured that they are the nominee until the Delegates
vote because the Delegates have a statutory and Constitutional Right to vote their
conscience.
For purposes of the Federal question before the Court, all RNC Rules are
irrelevant because of the Doctrine of Preemption pursuant to Article 2 of the U.S.
Constitution, the Supremacy Clause, as well as a plethora of Federal Statutory
Law and Case Law make the Federal Laws dispositive of the Federal question
before the Court. All State Party Rules and State Laws are irrelevant.
Plaintiffs allege that in almost every state in the United States Defendants engaged in a
scheme to intimidate and harass Delegates who were supporting a Candidate that Defendants did not
approve of. This harassment included the use of violence, intimidating demands that Delegates sign
affidavits under penalty of perjury with the threat of criminal prosecution for perjury as well as
financial penalties and fines if the Delegate fails to vote as instructed by Defendants rather than vote
the Delegate’s conscience as mandated by the US Statutes and US Supreme Court Decisions.”
5. At page 27 of the operative First Amended Complaint, lines 21 through 27
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OPPOSITION TO MOTION TO DISMISS– 9
recites as follows:
“The fact that the Republican Party is a private organization becomes
legally irrelevant when the party convenes a National Convention for the purpose
of selecting a candidate for Federal Office, in this case, President and Vice
President of the United States. For all purposes the convention is an “election”
subject to Supreme Court case decisions and Federal Statutory Law.
The Convention of a national political party is a “Federal Election” subject
to the laws established by the United States Supreme Court and the Legislative
Branch of the Federal Government when signed into law by the President of the
United States.”
6. On page 28 of the operative First Amended Complaint, lines 1 through 3 recites
as follows:
“U.S. Supreme Court Decisions and Federal Statutory Law preempt any
contradictory Party Rule or State Law that attempts to deny a Delegate the right to
vote in accordance with their own conscience free from any attempt to bind the
Delegate to vote for a particular candidate.”
7. On page 31 of the First Amended operative Complaint, at lines 7 through 28,
page 32 of the First Amended Complaint lines 1 through 28, page 33 of the First Amended operative
Complaint, page 34 of the First Amended operative Complaint, all recite as follows:
“In a Memorandum prepared by legal counsel for the RNC, legal counsel
agrees with the legal arguments that Delegates are free to vote their conscience on all
ballots. [A true and correct copy is attached hereto as Exhibit A.]
This Federal Lawsuit is made necessary because the RNC and its
Chairmen are violating these laws and are promoting and tolerating efforts to bind
Delegates to a particular candidate instead of protecting Delegates from
intimidation , the Delegates are being subjected to in States throughout the Nation.
Indeed, the RNC and its Chairman , and Defendants rely upon the violation of
these laws to intimidate Delegates in support of the RNC’s position that Governor
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OPPOSITION TO MOTION TO DISMISS– 10
Romney is the nominee of the Party when Governor Romney does not have the
minimum number of delegates and no vote has yet taken place and the Convention
has not begun. There is no historical precedent that Delegates must be bound. In
2008, at the Republican National Convention which nominated John McCain for
President, a Delegate who was purportedly bound to vote for Governor Romney
exercised his independent conscience on the first ballot and cast his vote for John
McCain. Defendant RNC recognized the right of the Delegate to vote his
conscience and registered the vote for John McCain. Hence, the precedent is that
the RNC does not recognize a rule of bound Delegates as evidenced by Exhibit A
to this Complaint and the practice in 2008 at the National Convention.
Plaintiffs are Delegates elected to nominate The Republican Nominee for
President of The United States at a Convention to be held commencing the week
of August 27, 2012, in Tampa, Florida.
Although U. S. Supreme Court Cases hold that a Convention for this
purpose is subject to Federal Law, The Republican National Committee and State
Republican Parties have intimidated all Delegates to become bound to one
candidate thereby denying all Delegates their Constitutional and Statutory Right to
vote their conscience.
Many Delegates are required to sign Affidavits under Penalty of Perjury
declaring the Delegate agrees to be bound to one candidate. Fines and criminal
prosecutions are threatened against Delegates if they fail to vote as told rather than
vote their conscience.
Delegates who refuse to sign the Affidavit are told they may not serve as Delegates,
although they were duly elected. Plaintiff Renato D’Amico is a Massachusetts duly
elected National Delegate who refused to sign an Affidavit presented by Defendant
Republican Party of Massachusetts swearing under penalty of perjury that he would vote for
Governor Romney although this Plaintiff was elected to vote for Ron Paul. Said Defendant
has no Party Rule that permits such an Affidavit nor such an ultimatum, nor has said
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OPPOSITION TO MOTION TO DISMISS– 11
Defendant ever required such an Affidavit in the past. Said Plaintiff requests an order of
this Court restoring said Plaintiff as a duly elected Certified National Delegate to the
Massachusetts Delegation to the National Convention in Tampa this August 2012.
In Massachusetts at least 17 Delegates duly elected were ordered to sign under penalty of
perjury an affidavit swearing allegiance to vote for Governor Romney. When the Delegates
refused, as was their right under Federal Law, all 17 or more Delegates were unlawfully
removed from their status as Certified Delegates. Plaintiff Renado D’Amico is a duly
elected National Delegate from the State of Massachusetts who was unlawfully removed
from the State Delegation when he refused to sign the unlawful affidavit. Plaintiffs request
an order of this Court reinstating Plaintiff Renado D’Amico to his duly elected position as
a Certified National Delegate from the State of Massachusetts and further requests that all
Massachusetts Delegates be reinstated who were removed solely for refusing to sign the
unlawful Affidavit.
Certain Delegates have already been denied their credentials because they will not sign such
an affidavit.
Plaintiffs seek a remedy for a Court Order compelling The RNC and Each State Party
Defendant To Inform In Writing by serving a copy of the Order the Court makes Notifying
every Delegate that in accordance with United States Supreme Court Decisions and Federal
Statutes all Delegates at all times are free to vote their conscience for any candidate they
choose by their own conscience on all ballots.
Plaintiffs further seek an Order that any Delegate who has been denied their seat on their
State Delegation for refusing to submit to surrender their free will to vote their conscience
be restored to their Delegation and certified.
Plaintiffs further seek an Order Prohibiting the RNC and Each State Party Defendant from
attempting to intimidate with threats of fines or criminal prosecution of any delegate who
chooses to vote their conscience on the First or any subsequent ballot pursuant to Federal
Civil Procedures Rule 65.
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OPPOSITION TO MOTION TO DISMISS– 12
Plaintiffs allege there has been a systematic campaign of election fraud at State
Conventions including programing a voting machine in Arizona to count Ron Paul votes as
Governor Romney votes; ballot stuffing, meaning the same person casting several ballots in
several states; altering and falsifying ballot totals for each candidate; the use of violence at
several State Conventions; altering procedural rules to prevent votes being cast for Ron
Paul, all as acts of intimidation to prevent National Delegates from voting their conscience.
For the reasons stated in the previous paragraph, Plaintiffs seek an order of the Court that
each named Defendant maintain all ballots cast, all documents reflecting the counting of
votes and vote totals, all voting machines and their computer programs until further order
of the Court to protect the sanctity of the evidence of election fraud that has taken place in
several of the States.
Plaintiffs do not seek any award of attorney fees or court costs or monetary relief of any
kind. Given that Plaintiffs only ask that the Rule of Law set forth in United States Supreme
Court Cases and Federal Statutes be ordered to be complied with and that all of the ballots
and voting machines as set forth in the previous paragraphs be preserved until further order
of the Court. Hence, Defendants have no financial issues to defend and no meritorious
legal issues that Defendants could submit to this Court that are contra to the legal Points
and Authorities presented.
Plaintiffs are suffering irreparable harm because their right to vote in accordance with their
conscience on the first and all ballots of the Convention is being impeded by threats of
monetary fines, criminal sanctions, and / or removal from their status as a Certified
Delegate to participate in the Convention unless they submit to State Party Rules, State
Laws, or the demands of political operatives requiring signatures on affidavits promising to
be bound to a particular candidate under penalty of perjury, all in violation of U.S. Federal
Statutes and Supreme Court Rulings.
Since the filing of the Complaint Plaintiffs have been harassed with threats to withdraw as
Plaintiffs or they will be subjected to further harassment and intimidation or they will be
removed from their status as Certified Delegates to the National Convention.
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OPPOSITION TO MOTION TO DISMISS– 13
Without the Orders requested from this Court, Plaintiffs will be denied their right to vote in
accordance with their conscience on the first and all ballots of the Federal Election that is
the Convention of the Republican Party set to commence during the week of August 27,
2012, in Tampa, Florida.
Plaintiffs, for the reasons set forth herein, and the reasons set forth in the Affidavits filed
with this Court are living in great fear for their personal safety now and at the Convention.
Bones have been broken. A gun has been used to threaten a Plaintiff to vote as ordered
while inside of a school. Plaintiffs have been followed. Plaintiffs have been threatened
with future life-time harassment if Plaintiffs do not vote as directed. Plaintiffs have been
threatened to remove their names from this lawsuit or face adverse consequences. Plaintiffs
request an order of this Court that the Court retain jurisdiction until a substantial time past
the Convention and into the future to protect the personal safety of Plaintiffs and to assure
that any order this Court makes is complied with by Defendants.
Hence, the Federal Question is whether Plaintiffs are free to vote their conscience for the
Candidate of their choice on the first and all ballots notwithstanding any attempt by
Defendants to bind Plaintiffs, or whether Plaintiffs are bound to particular Candidates
pursuant to local State Party Rules or any State Law, or Rule of the RNC.
Plaintiffs seek an order reinstating the Massachusetts Plaintiff and all Massachusetts
Delegates that were wrongfully removed from their Delegation after being duly elected as
National Delegates.”
8. To address the Federal Question before the Court as to which law the Delegates
should follow, regarding whether they are free to vote their conscience, or whether the Delegates are
bound to vote for a particular candidate on the first ballot. The issue of fraud has no relevance
whatsoever.
9. The Defendants may be confused if Defendants erroneously believe that Fraud
allegations are in any way salient to the Federal Question before the Court which is a question of
what law should be applied, nothing more.
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OPPOSITION TO MOTION TO DISMISS– 14
10. In the Motion to Dismiss itself, the Defendants all admit on page 1 of the Motion
at lines 24 through 26 thereof that Defendants intend to force Plaintiffs to violate Federal Law by
stating “ 4. Plaintiffs are not entitled to have delegates to the Republican National Convention
“unbound” and to thereby ignore the results of their states’ presidential preference primary elections”
Here, Defendants seek to mislead the Court. Many states have “beauty contests” where the voters of
the state know that Delegates are actually chosen at State Convention, or state caucus. As a result,
these “beauty contests” states often have a voter turn out near 20% because the voters know that they
are actually represented at the state convention where Delegates from every county, or every District
attends the convention to represent the entire State’s Population to select National Delegates.
11. Hence, Defendants argument, as it applies to the Federal Question is entirely
misplaced. Even if there had been no fraud whatsoever, the Federal Question is properly plead before
the Court.
12. The statement of jurisdiction on page 24 of the First Amended Complaint recites at
lines 1 through 3 as follows:
“This Court has jurisdiction pursuant to 28 U.S.C. §§ 1343(a)(3), 2201 and
2202, and 42 U.S.C. § 1971(d).”
13. There are allegations within the operative Complaint alleging nationwide massive
election fraud. This is not surplusage.
14. Plaintiffs are requesting in the prayer, as in the First Complaint, for an injunction
enjoining all Defendants to preserve all ballots cast at State Conventions / Caucuses as well as a
prayer request on page 36 at prayer item 7 that the Court retains jurisdiction over this case
throughout the convention and beyond, and the prayer request at item 8 that all Defendants cease and
desist from intimidating and harassing Plaintiffs and all Delegates, and the prayer request that U.S.
Marshals observe the convention at item 9 because Plaintiffs are in fear of their personal safety due
to violence.
15. The prayer recites at pages 35 through 36 of the First Amended Complaint as
follows;
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OPPOSITION TO MOTION TO DISMISS– 15
“PRAYER
WHEREFORE, Plaintiffs pray, and respectfully request that the Court enter judgment:
1. For Declaratory Judgment that pursuant to the US Statutes cited and US Supreme
Court Decisions a Court Order issue declaring that all Delegates to the Federal
Election also known as the Republican National Convention in August 2012 be
unbound from any Candidate and free to vote their conscience on the first and all
ballots.
2. For an Order that all Defendants serve on every Delegate within their jurisdiction a
hard copy of the Federal Court Order not later than a date set by the Court with
proof of compliance to be filed with the Court.
3. For a Preliminary Injunction enjoining all Defendants to preserve all ballots cast at
their State Conventions / Caucuses including all voting machines, the computer
programs for all voting machines, any and all records related to the counting of the
ballots, and any and all records related to any Rules, Rule changes made within 30
days of the Convention / Caucuses, including the day of the Convention / Caucus.
4. For a Permanent Injunction enjoining all Defendants to preserve all ballots cast at
their State Conventions / Caucuses including all voting machines, the computer
programs for all voting machines, any and all records related to the counting of the
ballots, and any and all records related to any Rules, Rule changes made within 30
days of the Convention / Caucuses, including the day of the Convention / Caucus.
5. For any Order the Court deems just to carry out the intent of the Court including,
but not limited to, ordering a hand recount of ballots, or where the sanctity of the
ballots are untrustworthy, ordering a new Convention for the Delegates to re-vote
with knowledge that all Delegates shall be unbound and free to vote their
conscience at the Federal Election known as the Republican National Convention in
August 2012.
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OPPOSITION TO MOTION TO DISMISS– 16
6. Plaintiffs do not request any reimbursement for costs of this Federal Case nor any
reimbursement for legal fees.
7. Plaintiffs request the Court to retain jurisdiction over this case throughout the
entirety of the Convention being held in Tampa, Florida in August 2012 for the
purpose of assuring that the Orders of this Court are complied with, and to retain
jurisdiction for a substantial time post Convention to protect the safety of Plaintiffs.
8. Plaintiffs request an Injunction, Preliminary and Permanent, that all Defendants
cease and desist from intimidating, or harassing Plaintiffs or all Delegates in any
way because of their participation in or support for this Federal Case.
9. Plaintiffs are in fear of their personal safety due to violence that has already
occurred and request the Court to order the attendance of U.S. Marshals at the
Convention in Tampa, Florida in August 2012 to assure the safety of Plaintiffs
inside the convention hall and to assure compliance with Court Orders made.”
16. Notably, the allegations of harassment, intimidation and coercion of the Plaintiffs
are set forth throughout the operative Complaint with ample particularity more than sufficient to
satisfy the prayer set forth above. It must be emphasized that the First Amended Complaint refers to
the reasons set forth in the Affidavits filed with this Court wherein it is stated that Delegates are
living in great fear for their personal safety now and at the convention.
17. The affidavits filed with the Court are more than one hundred affidavits each
containing percipient knowledge of acts committed by Defendants relating to fraudulent conduct
salient to each States’ Conventions / caucuses voting irregularities which include violence, the threat
of violence, ballot tampering, and voting machine programing irregularities. Page 34 of the First
Amended Complaint at lines 11-19 recites as follows:
“Plaintiffs, for the reasons set forth herein, and the reasons set forth in the
Affidavits filed with this Court are living in great fear for their personal safety now
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OPPOSITION TO MOTION TO DISMISS– 17
and at the Convention. Bones have been broken. A gun has been used to threaten a
Plaintiff to vote as ordered while inside of a school. Plaintiffs have been followed.
Plaintiffs have been threatened with future life-time harassment if Plaintiffs do not
vote as directed. Plaintiffs have been threatened to remove their names from this
lawsuit or face adverse consequences. Plaintiffs request an order of this Court that
the Court retain jurisdiction until a substantial time past the Convention and into the
future to protect the personal safety of Plaintiffs and to assure that any order this
Court makes is complied with by Defendants.”
18. The allegations of harassment, intimidation, voter fraud, violence and threats of
violence are set forth in the First Amended Complaint with sufficient particularity on pages 26, 27,
31, 32, 33 and page 34 of the First Amended Complaint. The allegations set forth by themselves,
and, together with the affidavits of percipient witnesses filed with the Court are more than ample to
surpass the mere plausibility standard in support of the injunction relief requested.
19. The operative Complaint seeks the reinstatement of the Massachusetts Plaintiffs and
the Massachusetts Delegation that was duly elected for the reasons set forth on page 32 of the First
Amended Complaint which clearly states that there is no party rule permitting such an affidavit. No
such ultimatum may issue from Defendants. This is not denied by the moving party .
20. For all the reasons ser forth herein it is respectfully requested that Defendants’
Motion to Dismiss be denied.
DATED: July 17, 2012
RICHARD C. GILBERT, ESQ.
State Bar No. 85912