Team Kimberlin Post of the Day

You keep using that word. I do not think it means what you think it means.

103.  On June 8, 2012, Defendant Hoge, who lives in Maryland, wrote a letter to a Congressman in Maryland and imputed that Plaintiff was involved with swattings …

Kimberlin v. The Universe, et al.

im·pute transitive verb \im-ˈpyüt\ represent as being done, caused, or possessed by someone; attribute.

Gentle Reader, you can read the letter The Dread Pirate Kimberlin cites here. Although the letter refers to Brett Kimberlin as a central figure in a controversy and mentions that some bloggers have been SWATted, nothing in it imputes that TDPK did or caused any SWATting.

Rule 11 of the Federal Rules of Civil Procedure requires that a person filing a paper with a court certifies that

the factual contentions have evidentiary support …

Clearly, making a false representation about the contents of a publicly posted letter is a factual contention without evidentiary support. That’s the sort of thing that can be sanctioned under Rule 11(c).

If Kimberlin thought he had a difficult day in court last Wednesday, he ain’t seen nothin’ yet.

Stay tuned.

8 thoughts on “Team Kimberlin Post of the Day

  1. For such a valiant defender of the First Amendment, the Cabin Boy is sure confused about what it covers. He also forgets that what a judge says is available in written and/or audio court transcripts.

  2. Also, the use of the word in that sentence is grammatically incorrect. BS is so ticked off by this post that I wonder if he was the “editor” *cough* of the complaint.

  3. I doubt you are going to have much luck with the argument that the case should be dismissed because “impute” was written when “imply” was meant. That kind of technical defect is frequently (and quite properly in my opinion) ignored by judges.

    But that leaves open two other issues: (a) does the letter in fact imply anything defamatory, and (b) if it does, is it privileged under petition for redress? A request to have something investigated seems to me to imply a suspicion rather than an assertion of fact.

    • I think the point here is that the DPBK is telling the court that Mr. Hoge did something illegal, when in fact he did not, and telling the court that he did, when there is written proof to the opposite is, in itself, not legal.

      • Also he’s illiterate. His chronic misuse of language makes a bad impression, and colors both his assertions and his understanding as suspect.

      • I see your point, but I do not think you see mine.

        It is obvious that K is unskilled in the English language. We all agree on that. I greatly doubt, however. that a judge is going to grant a motion to dismiss on the grounds of faulty pleading because “impute” was used when “implied” was meant. Now, as I tried to indicate before, I believe that the cited letter is not technically defamatory and that consequently a judge may and probably should dismiss for that reason. (Or the judge may dismiss for other reasons, such as privilege or K’s being a public figure.) But it seems highly dubious that the judge will find that the certification of evidentiary support of defamation was made in bad faith: it is not patently unreasonable to read the cited letter as implying that K was involved in committing serious crimes. Let me repeat: I do not believe that to be the best reading of the letter, and even if the judge rules that its interpretation is a matter of fact to be determined at trial, there are still probably insuperable legal hurdles that K must clear to prevail over a motion to dismiss.

        In short, Mr Hoge, who obviously has an unusual level of good sense and linguistic competency, is holding K to the Hoge standard, a standard that a court will unlikely believe reasonable for the average person, let alone a convicted felon.

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