The motion to dismiss filed by Michael Smith on behalf of Defendant Michelle Malkin and Non-Party Twitchy in the Kimberlin v. The Universe, et al. RICO Madness is a nice bit of legal writing. Here are a couple of excerpts.
In Cardillo v. Doubleday, Inc., 518 F.2d 638 (2d Cir. 1975), plaintiff sued for libel the authors and publisher of a book, My Life in the Mafia. Affirming the grant of summary judgment in defendants’ favor, the Second Circuit recounted plaintiff’s extensive background of securities fraud, bail jumping, receiving stolen property, and other wrongdoing, and found as a matter of law that he was libel-proof, i.e. “so unlikely by virtue of his life as a habitual criminal to be able to recover anything other than nominal damages as to warrant dismissal of the case, involving as it does First Amendment considerations.” 518 F.3d at 639-640 (citations omitted). …
The libel-proof plaintiff doctrine warrants dismissal of the defamation count, since Mr. Kimberlin’s lengthy record renders him even less reputable than the plaintiffs in the above cases. As lengthy as Cardillo’s record was, he doesn’t appear ever to have conspired with intent to distribute 10,000 pounds of marijuana loaded onto a Colombian airplane, or illegally possessed and/or used the seal of the President of the United States or Department of Defense insignia, or impersonated a federal officer, or received explosives as a convicted felon. Kimberlin v. Dewalt, 12 F. Supp. 2d 487, 489-490 (D. Md. 1998). Cardillo was not a convicted perjurer. United States v. Kimberlin, 483 F. Supp. 350 (S.D. Ind. 1979). He never conducted a bombing spree in which an innocent couple leaving a high- school football game were permanently injured and maimed, and then, after one victim eventually committed suicide, sued the surviving widow. Kimberlin, 12 F. Supp. 2d at 490 (citation omitted). Simply put, even if Mr. Kimberlin’s complaint allegations were true, and even disregarding his failure to describe with particularity the defamatory statements he attributes to Mrs. Malkin, FAC [First Amended Complaint] ¶¶ 80-81, 99, nothing she (or any defendant) wrote could possibly lower his public standing further than the subterranean level to which his own depraved conduct has taken it.