One of the defenses that may be offered in a motion to dismiss is that a plaintiff has failed to state a valid claim, that is to say that even if everything alleged is true, there is no remedy at law. TDPK attempts to raise such a defense in his Motion to Dismiss filed in the federal Walker v. Kimberlin, et al. lawsuit. Let’s see how he did.
<fisking>TDPK offers this description of the four counts in the federal lawsuit:
Count One alleges that Defendant interfered with Plaintiff’s First Amendment rights apparently for identifying him as the publisher of the Muslim hate blog.
OK, interfering with someone’s First Amendment rights is a claim for which there are legal remedies, so this is an admission that if Aaron Walker can prove his case, then he has a valid claim. That destroys TDPK’s possible use of the defense he is asserting.
Game Over. Everything else in the motion is wasted. However, let’s continue our fisking for the fun of it. It turns out that Count One of Mr. Walker’s complaint has little to do with TDPK’s outing of Aaron Walker as the author behind the Aaron Worthing pen name.
39. Defendant Kimberlin has unlawfully retaliated against Plaintiff for exercising his First Amendment rights as a media entity.
That refers to the TDPK seeking peace orders Mr. Walker because of his blogging and tweeting about Mr. Kimberlin.
Continuing with TDPK’s attempted defense …
Count Two alleges that Defendant abused the legal process by using the State Courts to file Peace Orders and an assault charge in retaliation for Plaintiff exercising his First Amendment rights.
There’re legal remedies for abuse of process, so, once again, TDPK has shot down his own defense. Also, TDPK’s description of Count Two is not strictly accurate.
43. Defendant Kimberlin has also violated Maryland Rule 1-341 because he has brought, threatened, or maintained actions against Plaintiffs [sic] in bad faith and without substantial justification.
44. The actions have included frivolous bar complaints and threats to sue media entities for publishing truthful information.
The complaint is much broader than TDPK describes it. His description of Count Three is also flawed.
Count Three alleges that Defendant filed a Bar Complaint without justification.
That’s true, but incomplete. Oh, and there are remedies for false bar complaints as well, so Mr. Walker has stated a valid claim here too.
49. These proceedings include [emphasis mine] bar complaints filed with the State Bar of Virginia against Plaintiff Walker.
And finally, here’s what he says about Count Four …
Count Four alleges that Defendant tortiously interfered with Plaintiff’s contract to be employed by identifying him as publisher of the Muslim hate blog.
… and here’s what Count Four really alleges:
52. Defendant of his cohorts have interfered with Plaintiff’s employment by contacting employers and threatening baseless lawsuits and trying to intimidate Plaintiffs [sic] employers and have Plaintiffs [sic] terminated.
Again, there are remedies at law for that sort of behavior, so TDPK hasn’t raised a proper defense here either.</fisking>
Note that none of the descriptions that TDPK offers of the counts are accurate, but even his inaccurate descriptions do not point to actions for which there is no legal remedy. That’s what’s required in a motion to dismiss, and it’s missing here.
<mockery>IANAL, so I don’t understand the legal strategy behind including facts and arguments that undermine one’s own motion in a court filing. We’ll see if the judge understands it soon enough.</mockery>
While this post deals with an aspect of the federal Walker v. Kimberlin, et al. suit, the next real action will be coming in the Virginia case. That lawsuit has a different set of et al. After looking at the Virginia docket and doing a bit of arithmetic, I suspect that the next few days might be interesting for the Virginia et al. If so, it could be fun watching them squirm.
I recommend having plenty of popcorn ready. Stay tuned.