Team Kimberlin Post of the Day


Ah, yes! The legal doctrine of res judicata. Dan Backer’s motion to dismiss in the Kimberlin v. The Universe, et al. RICO Madness discusses the applicability of res judicata to the case.

The doctrine of res judicata bars a subsequent lawsuit when there was: (1) a final judgment on the merits in a prior suit; (2) an identity of the cause of action in both the earlier and the later suit; and (3) an identity of parties or their privies in the two suits. Pueschel v. United States, 369 F.3d 345, 354- 55 (4th Cir. 2004). Res judicata bars not only claims that were raised and fully litigated but also bars all grounds for recovery previously available to the plaintiff regardless of whether they were raised or litigated in the prior suit. Peugeot Motors of Am. v. E. Auto Distribs., Inc., 892 F.2d 355, 359 (4th Cir. 1989); See also Nevada v. United States, 463 U.S. 110, 129-30 (U.S. 1983) (holding res judicata not only bars the matters litigated also bars claims for any other admissible matter which might have been offered). The Fourth Circuit has upheld res judicata in a motion to dismiss a court may take judicial notice of facts from a prior judicial proceeding when the res judicata defense raises no disputed issue of fact as to the factual accuracy of the record of the prior suit. Andrews v. Daw, 201 F.3d 521, 524 n.1 (4th Cir. 2000) (citing Thomas v. Consolidation Coal Co., 380 F.2d 69, 75 (4th Cir. 1967)).

Plaintiff sued numerous Defendants in this case in his concurrent Maryland state case, Kimberlin v. Walker, et al., No. 380966V (Md. Mont. Co. Cir. Ct. 2013), on substantially similar claims yet failed to include Backer or DB Capitol Strategies PLLC as a party to such case. Plaintiff admits that he filed the case the judgments or orders in the case will help him “decide whether to file the motion [for preliminary injunction] in this case or withdraw the request to file as moot. (ECF No. 175). All state claims have been litigated and that court was so unpersuaded by them that it directed judgment, after earlier dismissing several of Plaintiffs other colorful claims. Kimberlin v. Walker, et al., No. 380966V (Md. Mont. Co. Cir. Ct. 2013). Because the laundry list of predicate acts claimed by Plaintiff to gin up his RICO claim have been deemed not actionable by the state court, Plaintiff cannot continue to rely on these debunked claims. Consequently, the same claims made here, and the fantastical conspiracy to commit these acts found not to be unlawful, cannot be sustained against the defendants who allegedly made them or those in the alleged conspiracy to further them. Accordingly, Plaintiff’s Second Amended Complaint in its entirety as to Backer should be dismissed in accordance with the doctrine of res judicata.

The Dread Pro-Se Kimberlin shouldn’t be allowed to relitigate his losing case that failed in state court.

res_judicata_mugsOf course, one of TDPK’s claims is that I’ve been using my reporting on his activities to raise money by defrauding the Gentle Readers who hit my Tip Jar. He has yet to explain how that injures him. In any event, I’m always thankful for  reader support.

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Blogsmoke


BlogsmokeSOUND: MODEM CONNECTING FADES UP TO FULL MIKE—SINGLE SHOT—RICHOCHET

MUSIC: UP AND UNDER—RECORDED—CUT 1

ANNOUNCER: (VOICE OVER MUSIC) Around Twitter Town and in the territory of the net—there’s just one way to handle the harassers and the stalkers—and that’s with an Internet Sheriff and the smell of “BLOGSMOKE”!

MUSIC: THEME HITS: FULL BROAD SWEEP AND UNDER—RECORDED—CUT 2

ANNOUNCER: “BLOGSMOKE” starring W. J. J. Hoge. The story of the trolling that moved into the young Internet—and the story of a man who moved against it. (MUSIC: OUT)

JOHN: I’m that man, John Hoge, Internet Sheriff—the first man they look for and the last they want to meet. It’s a chancy job—and it makes a man watchful … and a little lonely.

MUSIC: MAIN TITLE—RECORDED—CUT 3 Continue reading

Scotland


I was up until the wee hours of this morning watching the live coverage of the Independence Referendum on the Internet feed from BBC Scotland. (It was much more interesting than the main BBC coverage.) Here are few random impressions.

1. The politics in Scotland are heavily skewed to the left. Representatives of the Labour party often represented the unionists view which was deem to be a “conservative” position.

2. The first returns were from small districts and were roughly 60/40 for No. When Dundee reported its results, the margin dropped into the 51/49 range, but it quickly settled into roughly 54/46 as other districts reported. When Edinburgh finally reported, the final result was 55/45 for No.

3. Scotland counted over 3,600,000 paper ballots in about 8 hours. By hand.

4. The vote from East Lothian, the area from which my ancestor emigrated in 1680, voted 62/38 for No.

5. The Yes vote won in only four districts (out of 32), all areas of high unemployment in what could be considered the Rust Belt of Scotland.