Team Kimberlin Post of the Day


Ah, yes! The legal doctrine of res judicata. Dan Backer’s motion to dismiss in the Kimberlin v. The Universe, et al. RICO Madness discusses the applicability of res judicata to the case.

The doctrine of res judicata bars a subsequent lawsuit when there was: (1) a final judgment on the merits in a prior suit; (2) an identity of the cause of action in both the earlier and the later suit; and (3) an identity of parties or their privies in the two suits. Pueschel v. United States, 369 F.3d 345, 354- 55 (4th Cir. 2004). Res judicata bars not only claims that were raised and fully litigated but also bars all grounds for recovery previously available to the plaintiff regardless of whether they were raised or litigated in the prior suit. Peugeot Motors of Am. v. E. Auto Distribs., Inc., 892 F.2d 355, 359 (4th Cir. 1989); See also Nevada v. United States, 463 U.S. 110, 129-30 (U.S. 1983) (holding res judicata not only bars the matters litigated also bars claims for any other admissible matter which might have been offered). The Fourth Circuit has upheld res judicata in a motion to dismiss a court may take judicial notice of facts from a prior judicial proceeding when the res judicata defense raises no disputed issue of fact as to the factual accuracy of the record of the prior suit. Andrews v. Daw, 201 F.3d 521, 524 n.1 (4th Cir. 2000) (citing Thomas v. Consolidation Coal Co., 380 F.2d 69, 75 (4th Cir. 1967)).

Plaintiff sued numerous Defendants in this case in his concurrent Maryland state case, Kimberlin v. Walker, et al., No. 380966V (Md. Mont. Co. Cir. Ct. 2013), on substantially similar claims yet failed to include Backer or DB Capitol Strategies PLLC as a party to such case. Plaintiff admits that he filed the case the judgments or orders in the case will help him “decide whether to file the motion [for preliminary injunction] in this case or withdraw the request to file as moot. (ECF No. 175). All state claims have been litigated and that court was so unpersuaded by them that it directed judgment, after earlier dismissing several of Plaintiffs other colorful claims. Kimberlin v. Walker, et al., No. 380966V (Md. Mont. Co. Cir. Ct. 2013). Because the laundry list of predicate acts claimed by Plaintiff to gin up his RICO claim have been deemed not actionable by the state court, Plaintiff cannot continue to rely on these debunked claims. Consequently, the same claims made here, and the fantastical conspiracy to commit these acts found not to be unlawful, cannot be sustained against the defendants who allegedly made them or those in the alleged conspiracy to further them. Accordingly, Plaintiff’s Second Amended Complaint in its entirety as to Backer should be dismissed in accordance with the doctrine of res judicata.

The Dread Pro-Se Kimberlin shouldn’t be allowed to relitigate his losing case that failed in state court.

res_judicata_mugsOf course, one of TDPK’s claims is that I’ve been using my reporting on his activities to raise money by defrauding the Gentle Readers who hit my Tip Jar. He has yet to explain how that injures him. In any event, I’m always thankful for  reader support.

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