“Hold it,” I hear the Gentle Reader cry. “What do you mean ‘Non-Party Twitchy?'” I mean that Twitchy doesn’t consider itself to be a party to the suit, and that’s probably correct.
This goes back to one of the errors The Dread Pro-Se Kimberlin made in his original complaint. He listed 20 defendants in the caption of the complaint and named 22 in the text. When this screwup was pointed out, he almost, but not quite, fixed it with his amended complaint that he filed with the court. In that version of the amended complaint, he added one of the two missing defendants to the caption, but he didn’t add Twitchy. That’s the amended complaint on file with the court—the one that counts. Twitchy is shown in the caption of the “amended complaint” TDPK sent me, but Twitchy is not a party to the suit as far as the court is concerned.
The Clerk of the Court issued 18 summonses to defendants in the suit, and they are shown as Docket Item 4 on PACER. Here’s the list of summonses issued:
1. James O’Keefe
2. The Franklin Center
3. National Bloggers Clug
5. Erick Erickson
6. Mercury Radio Arts
7. Patrick Frey
8. Michelle Malkin
9. Glen Beck
10. Ali Akbar
11. William Hoge
12. Robert Stacy McCain
13. Lee Stranahan
14. Aaron Walker
15. Simon & Schuster
16. The Blaze
17. Ace of Spades
No summonses were issued for Kimberlin Unmasked, Mandy Nagy, DB Capitol Strategies, or Twitchy.
According to the Malkin/Twitchy motion to dismiss, on 6 January, Mrs. Malkin received a copy of the amended complaint as it was filed with the court, but she did not receive a copy of her summons. That means that she has not been served in the lawsuit. No summons, no service. Thus, TDPK’s claim in his report on the status of service of process to the court is false.
The Malkin/Twitchy motion claims that TDPK attempted to serve Twitchy at about the same time as the defective service on Mrs. Malkin. The amended complaint sent to Twitchy is the same version TDPK sent me, and Twitchy was sent a summons.
“Hold it,” I hear the Gentle Reader cry again. “Didn’t you just say the Clerk never issued a summons for Twitchy?”
Mr. Kimberlin appears to have simply inserted Twitchy’s name and address in place of those of Mr. Walker, the intended recipient of the summons actually issued by this Court.
Notice that the summons is addressed to “Twitchy c/o Salem Communications.” The sale of Twitchy to Salem Communications was announced on 10 December, and there was no public knowledge of the sale prior to that date. How did that address get put on a summons datestamped by the court on 12 November?
Finally, Mr. Kimberlin’s apparent falsification of court documents in an attempt to deceive Twitchy into thinking it was a defendant that this Court has summoned constitutes a fraud on this Court, and a violation of numerous court rules. Leaving aside whether it also constitutes mail fraud and/or any other criminal offense, this misconduct constitutes a separate, independent basis for dismissing the FAC [First Amended Complaint] under this Court’s inherent powers and/or Rule 41(b).
Michelle Malkin and Twitchy have also filed a request for a hearing on their motion to dismiss. Local Rule 105.6 allows the judge to rule on the motion without a hearing, but given all of the evidence that is piling up concerning defective service of process and questionable documents, he may schedule one.
UPDATE—TDPK seems to be having real difficulties with his paperwork. I’m reminded of the following exchange between Michael Palin and John Cleese:
Clerk: This is a dog license with the word “dog” crossed out and the word “cat” written in in crayon.
Mr. Praline: The man didn’t have the proper form.
UPDATE 2—Here’s the top part of the summons form as shown on PACER. Document 41 is the Malkin/Twitchy motion to dismiss. Document 4 is all the summonses issued by the Clerk of the Court. It’s amazing how crude the apparent forgery is.