A Very Mixed Day


It was very disappointing to hear Judge Potter dismiss the Virginia Walker v. Kimberlin, et al. lawsuit. I’m sure that if the Gentle Reader wishes to hear the celebratory crowing from Team Kimberlin, he can find it on Twitter or one of the websites associated with them.

Let me do a stream of consciousness brain dump on the day. Some of this will duplicate information found at The Other McCain.

1. The judge appeared to be reading from a prepared order which seemed too long to have been written during the recess he took between hearing the oral arguments and ruling. The Gentle Reader is left to draw his own conclusion.

2. There were a couple of people in the courtroom that I could not identify. One was a well-dressed fellow who seem to be a lawyer—perhaps an associate of Jeff Cohen’s firm observing the hearing? The other was a rather rough looking fellow who sat on the back row—muscle?

3. I had a chance to interview both Aaron Walker and Dan Backer after the hearing. While they haven’t formulated their exact response, an appeal or a motion to reconsider are possibilities. Furthermore, the two Walker v. Kimberlin, et al. suits are not the only arrows in the quiver. They might be merely an opening salvo. Some of those possibilities are very interesting.

4. I wound up having lunch with Stacy McCain and Wombat-socho. This was the first time that I’ve met either of them. Wombat’s an impressive guy; he reminded me of the closing lines of the Ogden Nash poem The Wombat:

But I would not engage the wombat
In any form of mortal combat.

5. TDPK has won round one and round two, but the match isn’t over yet. He and his crew need to be brought to justice.

6. Now that I’ve had a chance to size up Stacy McCain, I’d like to echo the warning that Glen Reynolds made about not trying to out-crazy Mr. McCain. Team Kimberlin should not expect to be able to divert him from relentlessly blogging about their mischief.

7. Similarly, they should not expect Hogewash! to let go either. While I consider myself simply to be pigheaded, I have been described as having weapons-grade persistence. I have turned the Vast Hogewash Research Organization loose on Team Kimberlin. The data is rolling in, and, as it becomes useful in bringing the truth to light, it will be published. You can also expect that I won’t tell everything as soon as I know it. Somethings need to wait until the time is ripe.

8. Some material published about me has been blatantly defamatory. I have not responded. Yet. I believe that making corrections and offering apologies for errors is a wise policy.

24 thoughts on “A Very Mixed Day

  1. What did Judge Potter say was the basis for his ruling? Jurisdiction? Venue? Failure to state a claim, for all 33 claims? Or something else?

    It’s not nefarious that the opinion was (largely or entirely) written in advance of the hearing. Judges usually make up their mind in advance. Oral argument is often just for show. Or if they have a few particular doubts, they will seek answers during oral argument. It’s possible he edited the pre-written opinion during the 10-minute break, so it’s wrong to conclude that the oral argument had zero effect on him.

  2. Another donor to JTMP for you: The Calvert Foundation. Evidently, 3 $10,000 over three years. Patterico has a link to an article about it.

    I’ve read the 2010 990; there’s not much to say about it, it’s a fairly standard foundation. But it’s $10,000 more accounted for in 2008, 2009, and 2010.

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  4. Like King David in Psalms, it seems the wicked flourish, but their time will come. Remember the story of the scorpion and the frog. At some they will turn against each other, just because that’s their way. I appreciate your careful research and reporting and look forward to your posts.

  5. When I first read this, I was outraged. But, having about 10 minutes to ruminate on it, I think I know what is going on here.

    Judge Potter, not wanting to be on the wrong side of a convicted terrorist, dismisses it hoping it will simply go away.

    If Dan Backer takes this to the appeals process, he’s going to get an order from the appeals court kicking it back down to Judge Potter, saying “there’s a disputed issue of law or fact here that if taken as true (as required for a dismissal motion) REQUIRES to be heard.” The subtext will be “quit screwing around and get on with it, already.”

    The upshot of that for Judge Potter is then he can say to Kimberlin “hey, I dismissed it, but my superiors are ORDERING me to hear it, so don’t blame me when you lose.”

    However the rub against Judge Potter is that now NOBODY will comply with Discovery orders in his court because he’s shown himself to be toothless, and if he decides to sanction someone, they will have an immediate grounds for interlocutory appeal of the sanction for lack of due process by being being treated differently under similar circumstances.

    The ONLY other two possibilities are too horrible for a member of the legal system to even contemplate: 1.) Graft; or 2.) A directive from “on high” to dismiss (aka political interference).

    • “However the rub against Judge Potter is that now NOBODY will comply with Discovery orders in his court because he’s shown himself to be toothless, and if he decides to sanction someone, they will have an immediate grounds for interlocutory appeal of the sanction for lack of due process by being being treated differently under similar circumstances.”

      That’s not really correct. Courts of appeal give extreme latitude to trial court judges when it comes to discovery. A past screwy discovery order doesn’t prevent the judge from issuing good orders in the future.

      • If I were practicing in Potter’s court room, I would be paying pretty close attention to this.

        Give me a discovery request? I’ll wait until the last minute then file a protective motion and hold discovery until the judge rules on it. Citing Kimberlin v. Walker that discovery does not need to be answered if there’s a dispositive motion.

        If this is how the judge runs his courtroom, then I would behave accordingly.

      • Daryl, that is entirely egd’s point. Judge Potter now CAN’T sanction a party for behaving the same way, unless he want’s to draw an appeal of the sanction for lack of due process. Judge Potter created his own precedent by allowing TDPK’s shenanigans, and subsequent parties and attorneys are free to cite them back to the court as justification for future actions, especially if it protects their clients and because the opposing party may use it as a sword in order to get discovery without providing their own.

      • The judge could sanction me (or my client). But then I’d appeal the sanction and argue before the appellate court that the judge had created his own local rule via precedent in the TDPK case. Worst case, I would get the sanctions overturned and be ordered to comply with discovery, and I’d have my responses ready in advance.

        Judges get a lot of lattitude on how they run their courtroom. But they can’t run it capriciously.

  6. Also, what happened to the “Default” judgment motions against FMNR and CMNB? The judge is legally obligated to enter the default motions against them for failure to defend (they’re not entitled to TDPK’s dismissal of the action as to their claims, unless there’s some quirk of Virginia law that I’m unfamiliar with.

    • If the entire lawsuit is dismissed, then it doesn’t matter that AW would have a default judgment against them. The question I have is why the entire lawsuit got dismissed. We will need to see the written order (or see the transcript of the hearing) to know that.

      • Hi Daryl,
        That’s what I was inarticulately attempting to get at. If I read the complaint correctly, there were independent claims against the other parties which would have precluded the entire suit from being dismissed in this way, unless the Judge is going to suggest that the claims were so intertwined that they could not possibly have been heard or brought in separate actions (which I think is clearly erroneous). The written order will have to be illuminating as to what Judge Potter was thinking, lest Judge Potter get this kicked back to him.

      • Yep, lots of appreciation to the host.

        But what I was trying to say is that those of us who weren’t there really can’t intelligently discuss the judge’s ruling until we see it, the grounds it was based on, etc.

        Not licensed in VA, but in the jurisdictions I’m familiar with it seems to me Walker clearly would have at the very least a cognizable claim against Kimberlin for tortious interference. All by itself, the dismissal of that claim begs to be appealed.

  7. Pingback: Da Tech Guy's Blog » Blog Archive Hal Chase in 1918: Walker v Kimberlin dismissed » Da Tech Guy's Blog

  8. Pingback: Hump-Link-Around: Kimberlin Wins Round One « Nice Deb

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