In Re RICO Madness

I have not been served a copy of this letter, and it has not been posted to the Kimberlin v. The Universe, et al. RICO Madness case docket on PACER. (H/T @adamsteinbaugh) It’s a marvelous example of Brett Kimberlin’s gross misunderstanding of both the Case Management Order (on a point he has already been corrected by the judge) and the First Amendment. The idiocy it demonstrates is breathtaking.

BTW, I concur with Patterico’s opinion.

39 thoughts on “In Re RICO Madness

  1. Wait, wait, let me get this straight…

    So Patterico calls Kimberlin a “cretin” on his personal blog and this is a violation of the case management order, because it is uncivil.

    Kimberlin describes Patterico as like an old southern sherrif, lawman by day and Klansman by night, in the freaking legal document he submitted in this case, and thinks that is just hunky dory?

    I guess if standards are good, double standards must be twice as good…

      • Brett really is a small man. And a cretin to boot! I guess like calls to like as I have discovered that the term ‘cretin’ is quite aptly applied to members of Team Kimberlin, from the cretinous bunny to the ‘Cretin in a Can™’ in Elkridge.
        Curious that.

  2. I would hope this would be the gauntlet thrown down just a bit too far. Kimberlin repeatedly used highly defamatory language to describe Patrick Frey in his opposition to the various motions to dismiss, and there is now the perfect opportunity to call him out on that clear-cut violation of the management order.

    • What is the “perfect opportunity” is to demand to see the “confidential settlements” agreed to by those that settled. The reasoning is clear: we have this thing called “due process.” If Brett Kimberlin is demanding that the courts punish Patrick Frey for “scuttl[ing] resolution with two defendants,” then Patrick Frey has the right to know which two defendants allegedly balked at a “settlement,” and why. Certainly, For all we know, their lawyers negotiated a “resolution” with Brett Kimberlin that their clients found to be unsatisfactory. There is nothing sinister against opting not to settle. However, there is something sinister to giving publicity to settlement negotiations based solely on the fact that they ended poorly. One has to ask the question that in the knowledge of negative reactions to those that settled could it be that Brett Kimberlin is abusing the sanctions process to leak confidential settlements negotiations to further embarrass those that he has targeted with lawfare.

      • I would, also, note that if the settlement agreements were “confidential,” we have no reason to believe Brett Kimberlin’s assertion that, “there has been give and take on both sides.” I would note that it our position that this suit is completely without merit filed solely for the purposes of “shutuperry.” As such, it only possible that Brett Kimberlin “took.” The only legitimate thing he had to “give” was voluntary dismissal with the issue of fees to determined by the court, which obviously, he did not.

      • The whole thing is absurd. Popehat (presumably Ken) was also calling out the Franklin Center. Even if you grant that “2 settlements were scuttled” (which smells of BS to me anyway) whose to say that it wasn’t due to people realizing that it was going to turn a well respected free speech blog against them. Or is BK looking to add Popehat to the list of conspirators.

  3. BTW, I concur with Patterico’s opinion.

    The Franklin Center is one of the two sponsors of the Breitbart Awards. They really need to walk away from that. It would be like getting an Internet Decency Award from Anthony Weiner.

    • Here is from The Franklin Center:

      “Tabitha Hale, New Media Director at the Franklin Center for Government and Public Intergrity, says ‘These tactics are just appalling. A free press is essential to a free society, and attempts to silence those who are telling the truth are entirely unacceptable. We are glad to have a small part in the fight to protect the First Amendment by supporting victims of these attacks. We will always err on the side of free speech.'”

      Apparently, that is not the case. For the Franklin Center to have issued such strong words, and, then, wave the White flag of surrender in the face of a SLAPP action is appalling. Are people not suppose to notice the rank hypocrisy between their words and their deeds?

  4. I fully concur with Hoge’s concurrence, and would like to concur with Patterico’s opinion that Brett Kimberlin is a cretin, “which is defined as a general term of abuse.” (Brett had to put that in, because a judge who has dealt with him for months might not know what a cretin is.)

    I’d say someone who sings songs about sleeping with teenage girls, blows the leg off a man using a homemade bomb, who sues the widow of that victim, refuses to pay a million dollar+ settlement, and who expects others to zip their lips about his fraudulent life…yeah cretin is the best you can expect. (Since it was a tweet, maybe Frey was running out of available characters and didn’t have room for douche-bag.)

    • Don’t forget – DeLong was likely a random victim, not specifically targeted. Brett Kimberlin was adjudicated to have placed that bomb in a high school parking lot, where it was found by DeLong walking out from a high school football game.

      There were likely a lot more children at the game than adults; players, other students, siblings, friends, etc. The odds were higher that the bomb would have been found by a child. Makes the bomb that blew up a police cruiser pale in comparison.

      • All of his bomb targets were selected to maximize fear. You didn’t know if your child would be murdered at highschool, or if your mom would be murdered at the supermarket.

        He did a short amount of the 50 year sentence for this particular crime, and a little more for his torment of one of the victims. A tremendous failure of our justice system.

  5. Typical BK logic.

    Telling someone not to give your hard earned money to an organization that’s shown itself to be cowardly (and thus unlikely to advocate very hard for any issue) is a “threat.”

    In which case, there needs to be a ton of people rounded up for “Threatening” business every time a boycott is announced.

    • Take note here – if Brett whines loudly about a certain tactic, you should always carefully evaluate whether that’s because he knows the tactic would be effective against him.

      I’m no lawyer but I wish those who settled would (among other actions) reneg and say “sue me again, Brett.” Although I guess that is a bad outcome if he might then win. Undoing a settlement may be more like “unbaking a cake.” But if settlers drop out of the fight against Brett, more of us should take up the banner diligently.

      • That might be a problem. It would not be a problem for Johnathan Segal to admit that in this case he acted incompetently. His actions have permanently damaged the reputation and credibility of his client.

      • Once you sign a settlement agreement then the dispute is no longer about the underlying facts, but about the contract. Standard contract defenses would apply (fraud, duress, etc), but they couldn’t open the case to the underlying facts.

  6. By the way, I first got wind of a possible settlement between Franklin Ctr and Kimberlin here, with BK’s voluntary dismissal (though it was all on his request). The 404 seemed to confirm it.

    I thought them cowards immediately. I would never give them the time of day let alone a nickel of my money for the disgraceful caving in. They are entitled to act on their interests, but MINE diverge. They have no willingness to act to block this cretin from his life of predation.

    Had nothing to do with anything Patrick Frey said. Franklin earns its own reputation here.

  7. But I think now I might use the word cretin more often with respect to a tiny little bomber and girl-loving psychopath.

  8. It is disturbing to see that some of the victims of this lawfare have been successfully extorted. A white feather for each of them. Their capitulation will only encourage the perjuring bomber to continue using the courts to terrorize and intimidate his many critics.

    • I wonder if there are any precedents where sanctions for bad faith (e.g. lying in court papers) have required the sanctioned to disgorge any proceeds from settlements with other parties.

      • Well, I don’t think there were any monetary proceeds, but it is the principle that matters. From a purely moral (if not legal) standpoint, Kimberlin’s settlements were obtained by extortion and thus there is no moral reason why they should be enforced ir adhered to. Kimberlin deserve s nothing in settlement. He deserves less than nothing in settlement. Each time he tries to extort a blogger, in lieu of settlement there should be a thousand articles appearing that day recapitulatung his crimes, lawfare, pedophilia, and unatoned for victimization. I hope anyone reading this will try to make that vision a little closer to happening.

  9. I am not sure why the Franklin Center is the object of such anger. They aren’t the first to settle with BK. They are the first not to issue a joint motion.

    I am sure the Center is not massively funded. What they took down was a notice of seminar that has long since passed. In the grander scheme I don’t see them more cowardly than the Spectator. Or Lynn Thomas.

    I have said it before, but terrorism works, that is why people do it.

    The cost benefit ratio does not work out. And if nuisance suits were outlawed a lot of lawyers would be unemployed, and since our politicians are lawyers they aren’t about to do that.

    But now is the time for all remaining defendants to file for sanctions against BK. Grimm was the one that denied an earlier attempt by BK on sanctions saying that the matter was still before him. Well, Grimm is gone, and the forgery has had no response. Each remaining defendant should send a letter to the judge asking for sanctions against BK for that, and for the violations of the Case Management Order. And whatever else you can think of.

    • … maybe join the pro bono team and help draft those letters? If not, your analysis and commentary is still made in an effort to help the good guys and therefore praiseworthy.

    • Also – you really sure it’s not massively funded? Devoted Brett Kimberlin defender @liberaluniverse was telling people on twitter that it received millions from Koch brothers. I would hate to imagine he is somehow misinformed about something.

    • Well to be fair we all criticized and mocked The American Spectator when it wet its pants and ran away too.
      And I no longer give it any of my traffic.
      I can do no more. (Except to tell friends to do the same, which I do.)

  10. Your honor, in reply to letter to the court dated Dec 10th, 2014 by Brett Kimberlin I would note the following:

    1) It is not at all clear that any of lawyers representing any of the defendants reads Patterico’s Pontifications. Therefore, there is no reason to assume that his blog posts affected any of the alleged settlement negotiations in any manner. If Brett Kimberlin actually believed that that those words prejudiced his chances to achieve a settlement with any of the defendants it would have been in his best interest to remain quite. Instead, Brett Kimberlin decided it was in his interest to provide copies of those words to each of the attorneys.

    2) Plaintiff Kimberlin seems to forgot that litigation is an adversarial act in which he is suing each of the defendants. Plaintiff Kimberlin has a vested interest in each defendant losing, and, therefore, is no position to argue to the court what the best interests of any particular defendant is. If any of the other defendants wish to argue to the court that defendant Frey’s blog post has damaged their case they are free to do so. It should be noted none has to date.

    3) In a related point, Plaintiff Kimberlin has continued with his annoying pattern of standing in judgment of the merits or demerits of opposing counsel. As recently as this week, he has characterized the actions of opposing counsel as “beneath contempt.” Now, upon entering into a settlement, one of opposing counsel’s is not elevated to the level of “an expert.” Good Cop, Bad Cop is a game, and, so to is Good Counsel, Bad Counsel. This Court should see the bad faith. It should be remembered that it is not an accident that two of the defendants here represented a person previous sued by Plaintiff.

    4) Previously, Plaintiff Kimberlin asked this Court for permission to file for what amounts to a “gag order” against the defendants. In response to this Court’s very generous offer to allow to file a motion for relief that is against every relevant precedent Plaintiff asked for an extension. When the Court noted that, “either relief is needed or it not,” Plaintiff Kimberlin opted to not file the motion, instead informing the Court that he would file for injunction relief in yet another Federal lawsuit. To date, no such action has been filed. It can only be concluded that Plaintiff Kimberlin believes that no such relief is needed. Plaintiff has acceded to the Defendants discussing this case in their blogs. That is all that has happened in this instance.

    5) Either Defendant Kimberlin can move to make the content, extent, parties, and results of settlement negotiations public or not. What he can’t do is testify as what he claims has happened, and, then, claim any actual evidence to support his accusations is “confidential.” Defendant Frey, like all the defendants, has Due Process rights. Whether, or not, two defendants were in settlement negotiations, or whether they agreed in principle to a settlement, or whether, or not, those talks collapsed, or whether Plaintiff made extensive efforts to settle, or minimal efforts to settle, or whether Plaintiff “gave” a lot, or nothing, remain matters of pure conjecture until the contents of those negotiations are opened.

    6) It should be noted that the Court has been very lenient regarding sanctions. To date, Plaintiff has admitted to forging a Summons in the name of the Court, forging an exhibit in another court which he submitted as a genuine exhibit in this Court, and repeatedly violated the CMO by including ad hominem, impertinent and scandalous material in his filings. Instead of showing gratitude for being treated gently by this Court, Plaintiff Kimberlin has in act of hubris demanded this Court move straight to a Show Cause motion against Defendant Frey without any granting him any process whatsoever.

    Assuming for the sake of argument that there were settlement negotiations that collapses, one explanation for the collapse of settlement negotiations is that the parties were intimidated by a blog post, but, another explanation is that the defendants were dissatisfied by the “best deal” their lawyers could negotiate on their behalf and preferred to litigate. Reading Patterico’s words you could see why other defendants could feel equally strongly about settling.

    What is clear is that Defendant Frey simply has not violated the CMO. It has already been explained to Plaintiff KImberlin that remarks outside of the Court are not covered by the CMO. Offering a bad faith reading to the Court is one thing. Ignoring explicit directives from the Court is another.

    What is also clear is that CMO forbids requests for filing motions for sanctions. Either we have a CMO in effect, or we do not. The implicit understanding is that when the Court forbids motions for sanctions it is also taking that responsibility upon itself. If the Court does not enforce the CMO on its own initiative it inherently prejudices the cases of those that follow it in good faith in favor of those that blatantly disregard it.

    • There are some typos but I like this post as a nexus of discussion.

      About #6, aren’t actions such as Kimberlin’s fairly rare in federal court proceedings? And wouldn’t they normally receive sanction if opposing counsel requested it? I don’t have a feel for what is typical and would appreciate knowing, just for my curiosity.

      The point about the CMO reminds me of how Brett always abuses process. If there is a CMO, Brett will try to find an angle to abuse it. Of course, this is also a man who managed to abuse the policies of House of Ruth by making sure to establish a client relationship with them before his wife tried to turn to them for help. Same man abuses a process meant to stop mistreatment of prisoners, only he uses it to complain about the type of guitars available to him, or earlier, that he wasn’t allowed to hold press conferences from prison. His entire legal “career” since his bombing conviction has been nothing but abuse of process. I believe we should seek justice for every single victim who was ever affected by this, past present and future. There should be an entire big community devoted to offering the best possible resources for anyone dealing with Brett Kimberlin. Right now it is too small for my tastes and I wish we had better talent (sorry, I have none to offer) and more money (I have a little of that) to use.

      • Regarding #6, Kimberlin’s actions are beyond the pale for any attorney and would absolutely subject one to discipline by the state bar. Sanctions would be likely, but probably merely monetary damages not anything affecting the case.

        Although I expect any attorney that forged service of process documents would, at a minimum, not be able to file any motions without another attorney co-signing all filings.

        If the unethical behavior of TDPK is permitted in Judge Hazel’s courtroom, other attorneys with cases before the Judge should take note.

    • As 4B) I would note,

      Patrick Frey’s words were merely an opinion. The First Amendment grants absolute protection for the expression of an opinion. To the extent that the Franklin Center suffers any “economical or reputational loss,” it is due solely to the persuasiveness of Frey’s opinion [and, not due to the fact that Patrick Frey is a Deputy District Attorney.] Readers are free to come to their own conclusions ranging from adding their voices to the condemnation of the Franklin Center to donating money to the Franklin Center. If the Franklin Center has done nothing untowards, that Truth ought to prevail in the market place of ideas. However, if the Franklin Center has in fact done something objectionable, then, it ought to suffer in the court of public opinion. Let the marketplace of ideas resolve that question.

      What has occurred here is that yet again Brett Kimberlin has filed a motion intent on silencing public participation.

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