Case 1:09-cv-00253-JBS-JS Document 26 Filed 06/08/2009 Page 1 of 5

[Doc. No. 11]

THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

CHARLES F. KERCHNER, et al., :

:
Plaintiffs, :
:
v. : Civil No. 09-0253 (JBS)
:
:
BARACK HUSSEIN OBAMA II, et al., :
:
Defendants. :
:

ORDER

This matter is before the Court on the “Motion to Extend Time in which to

Answer, Move or Otherwise Respond to Plaintiffs’ Complaint” [Doc. No. 17] filed by

Elizabeth A. Pascal, Assistant United States Attorney on behalf of Defendants. The

docket entries reflect that Ms. Pascal is counsel of record for all Defendants. Albeit, Ms.

Pascal’s Declaration [Doc. No. 17-2] indicates that she has only been assigned to

represent President Barack Obama and the United States of America. (See Declaration at

¶6.) Ms. Pascal also notes that former Vice President Richard Cheney has requested

representation from the Department of Justice (“DOJ”), which was granted. (Id. at ¶7.)

To date no attorney from the DOJ, besides Ms. Pascal, has entered an appearance. In

addition, Ms. Pascal notes that other Defendants in the case requested representation from

the DOJ but these requests are still being processed. (Id. at ¶8.) On behalf of all

Defendants, Ms. Pascal seeks an extension of twenty (20) days from the date of this Order

to answer, move or otherwise reply to Plaintiffs’ Complaint. Plaintiffs oppose

 Case 1:09-cv-00253-JBS-JS Document 26 Filed 06/08/2009 Page 2 of 5

Defendants’ motion. [Doc. No. 21]. The Court has also received and reviewed numerous

letters from non-parties opposing Defendants’ motion [Doc. Nos. 18, 19, 20, 22, 23, 24,

25].

Plaintiffs filed their original complaint on January 20, 2009 [Doc. No. 1] against

the United States Senate, United States House of Representatives, former Vice President

Cheney and House of Representatives Speaker Nancy Pelosi (collectively referred to as

“Congressional Defendants”), as well as President Obama and the United States of

America. Plaintiffs subsequently filed a first amended complaint on January 21, 2009

[Doc. No. 2] and a second amended complaint on February 2, 2009 [Doc. No. 3]. In their

complaint Plaintiffs assert violations of their constitutional rights alleging that Defendants

have failed to conclusively prove that President Obama is a natural born citizen and

therefore may not be eligible to serve as President of the United States.

According to the docket entries, summons were served on the United States

Attorney for the District of New Jersey on or about February 17, 2009 and on the United

States Attorney General on or about February 23, 2009. (See Doc. Nos. 7-13.) Ms. Pascal

entered her appearance on behalf of the United States and President Obama on April 13,

2009 and requested a Clerk’s Order to extend the time to answer as to these Defendants

until May 5, 2009, which the Clerk of Court entered. (See Doc. Nos. 14-16.)

In support of her present motion, Ms. Pascal argues that on April 24, 2009 she

learned that Defendant Cheney requested and was granted representation by the DOJ. Ms.

Pascal further argues that on April 9, 2009, she learned that Defendants Pelosi and the

House of Representatives also requested representation by the DOJ, which has not yet

been decided. Ms. Pascal seeks additional time to answer, move or otherwise respond on

2
 Case 1:09-cv-00253-JBS-JS Document 26 Filed 06/08/2009 Page 3 of 5

behalf of all the Congressional Defendants in order to allow the DOJ time to complete the

representation determinations. Ms. Pascal argues that the failure to file an answer or

otherwise respond before the time required by the applicable Federal Rules of Civil

Procedure is not the result of any neglect on Defendants’ part.

Ms. Pascal also requests that the extension of time to answer, move or otherwise

respond to the complaint include Defendants President Obama and the United States of

America even though the time for them to answer had not yet expired when Defendants’

motion was filed. Ms. Pascal argues that granting an extension of time to respond to

Plaintiffs’ complaint will not prejudice Plaintiffs.

Plaintiffs oppose Defendants’ motion arguing that whether President Obama is

“eligible for the office he occupies is of utmost national importance” and that President

Obama has been given enough time to answer the complaint. (Plaintiffs’ Opposition Brief

at ¶8.) Plaintiffs argue that they will be prejudiced if Defendants’ motion is granted. (Id.

at ¶11.)

Pursuant to Fed. R. Civ. P. 6(b)(1), the court may, for good cause, extend the time

to answer: “(A) with or without motion or notice if the court acts, or if a request is made,

before the original time or its extension expires; or (B) on motion made after the time has

expired if the party failed to act because of excusable neglect.” Excusable neglect is a

somewhat “elastic concept” and “the determination is at bottom an equitable one, taking

account of all relevant circumstances surrounding the party’s omission.” Doug Brady, Inc.

v. New Jersey Bldg. Laborers Statewide Funds, 250 F.R.D. 171, 177 (D.N.J. 2008)

(quoting Pioneer Inv. Services Co. v. Brunswick Assoc. LP, 507 U.S. 380, 392 (1993)).

Such circumstances include “the danger of prejudice . . . , the length of the delay and its

3
 Case 1:09-cv-00253-JBS-JS Document 26 Filed 06/08/2009 Page 4 of 5

potential impact on judicial proceedings, the reason for the delay, including whether it was

within the reasonable control of the movant, and whether the movant acted in good faith.”

Id.

The Court finds good cause to grant Defendants an extension of time and will

therefore grant Defendants’ motion. The Court finds that Defendants’ failure to respond

to Plaintiffs’ Complaint in a timely manner was not caused by any neglect. Plaintiffs’

Complaint raises significant issues necessitating that the named Defendants engage

competent counsel to represent their interests. Given the high ranking positions of the

Defendants, the decision as to who will represent them in the case is not simple and

straightforward. Thus, since Defendants need more time to identify and engage counsel,

their request for more time to respond to Plaintiff’s Complaint is reasonable and

appropriate under the circumstances. There is no evidence that Defendants have acted in

bad faith in failing to respond to Plaintiffs’ Complaint or in requesting an extension of

time to respond. The Court further finds that granting Defendants an extension of time

will not prejudice Plaintiffs or materially delay the resolution of the case. The Court is

confident that after all the attorneys enter their appearances on behalf of all Defendants,

that the case will proceed expeditiously.

Accordingly, for good cause shown

IT IS on this 8th day of June, 2009 hereby

ORDERED that Defendants’ Motion Extending Time in which to Answer, Move

or Otherwise Respond to Plaintiffs’ Second Amended Complaint is GRANTED; and it is

further

4
 Case 1:09-cv-00253-JBS-JS Document 26 Filed 06/08/2009 Page 5 of 5

ORDERED that Defendants shall file and serve their response to Plaintiffs’

Complaint in accordance with the Federal Rules of Civil Procedure no later than June 29,

2009; and it is further

ORDERED that this ORDER is entered without prejudice to Defendants’ right to

request additional time to respond to Plaintiffs’ Second Amended Complaint provided

good cause is shown.

/s/ Joel Schneider

JOEL SCHNEIDER
United States Magistrate Judge