The Dread Pro-Se Kimberlin wrote in one of his filings that Ace of Spades lawyer was being “hyper technical” by insisting that Kimberlin was suing the entity actually called out in his Kimberlin v. The Universe,et al. RICO Madness complaint rather than a third party. In his omnibus opposition to the motions to dismiss the RICO Madness he claims that we defendants are relying on technicalities rather than facts.
This is ripe for fisking.
<fisking>
Because there is no truth to their defamatory statements …
The reason TDPK lost his state Kimberlin v. Walker, et al. lawsuit was because he couldn’t show that anything we said and wrote about him was false. The doctrine of res judicata prohibits him from retrying those issues related to defamation. He can now longer use any of the evidence that he raised in that trial against Aaron Walker, Stacy McCain, Ali Akbar, or me. Not only that, but he can’t use any of evidence that was available to him at the time that he could have raised but failed to do so.
… they instead ask the Court to dismiss the case for many technical reasons, …
“Technical reasons” means points of law.
… such as, 1) the three year statute of limitations should not apply to the false light claim, …
Yep. It should. The Smith v. Esquire decision that says so is a binding precedent in the District of Maryland. Kimberlin has misrepresented the Allen v. Bethlehem Steel case as being a ruling of the Maryland Court of Appeals which would be a binding interpretation of state law. In fact, it is a decision from a lower court and isn’t binding on the U. S. District Court. Also, TDPK has provided a false citation to the case.
… 2) defamation and false light cannot apply to Plaintiff because he is a public figure and 3) defamation proof, …
I don’t recall any of the defendant arguing that a public figure can’t sue for defamation or false light, but several of us have pointed out that Brett Kimberlin’s reputation was so bad before we ever wrote or said one word about him that it was impossible to take it any lower. Brett Kimberlin is a convicted serial bomber like Ted Kaczynski (the Unabomber), and convicted serial bombers are notorious public figures with bad reputations.
… 4) the Defendants did not engage in a RICO Enterprise, …
As a matter of fact, we didn’t, and simply say that we did without saying who did what to whom on which day is not a well-plead allegation as required by Federal Rule of Civil Procedure 8.
… 5) the First Amendment allows fair comment …
Yes, it does.
… 6) Defendant Frey did not act under color of law, …
Well, he didn’t, and the U. S. District Court for the District of Southern California ruled that he didn’t in the very similar Naffe v. Frey case. Given that the facts of that case are so similar to the half-baked allegations in the RICO Madness, given that TDPK has not explained why that court got anything wrong, and given the rulings in similar cases by the Fourth Circuit (the next higher federal court to the District of Maryland), Kimberlin doesn’t have much of a case here.
… and 7) the SAC violates the Maryland Anti-SLAPP statute.
SAC stands for “second amended complaint,” and, yes, it does. It has the effect of chilling discussion of a topic of public interest.
Each of these and other arguments is without merit and belied by the facts and law.
Uh, huh.</fisking>
#SMH
If the “other arguments” are without merit, why doesn’t he tell us what those arguments are and why they are without merit?
Oh, yeah. Because he can’t any more than he did with the arguments he did purport to rebut.
It is entirely possible he just isn’t very bright.
Reblogged this on A Conservative Christian Man.
Reblogged this on Truth Before Dishonor and commented:
Is it possible to get any more whinier or prepubescent when trying to tattle on some big bad meanies to the daddy dressed in a long, black dress?
After all this time, it turns out one of his basic arguments is that you are callously using the law against him. He’s used the law against lots of folks. It’s time he got a taste of it.
And every day he gives us an opportunity to mention that he plotted the death of a prosecutor, exploded multiple bombs in his own hometown, exploded one at a high school football game, was responsible for the suicide of one man who could not stand the pain of his injuries… We can go on. This is and was a very guilty man. Your reporting was accurate.
Typo, while fisking you missed “the three year statute of limitations should NOT apply.”
Thanks, fixed it.
TDPK could have saved some much-needed space battling the page limit by rephrasing the entire section as such:
Defendants should not be allowed to defend themselves because I haz a sad when they do. Innocence is not a defense, but rather a technicality.
That his allegations are false are merely “technical reasons” for dismissing the case … wow, TDPK gets more incompetent and more incoherent with every filing.
The truth or falsity of a defendant’s claims are irrelevant in a motion to dismiss. For the purposes of a MTD all of the Plaintiff’s accusations are presumed to be true. We know Brett Kimberlin knows this because Brett Kimberlin has argued exactly this in pleading before the Court. A motion to dismiss can only be granted for certain points of law, which Brett Kimberlin wishes to dismiss as “technical.” The defendants are merely abiding by the rules of Civil Procedure. For Brett Kimberlin to imply, infer or “impute” any of defendants have abandoned the Truth as a complete defense is outrageous, immoral, unethical, devious and intellectually dishonest.
BTW, well plead accusation are assumed to be true when deciding a MTD. Whether, or not, certain words “impute” certain conclusions is a question of law. If it weren’t our Courts would be chaotic. Plaintiff’s could seek recourse from even perceived slights. If such self-serving perceptions were allow to survive MTD it would forever shift the balance between Plaintiffs and Defendants in litigation. Wait a minute! That’s exactly what is going on here!
Indeed, and the motions to dismiss make the point that, even if his allegations were true, they aren’t well-pleaded and don’t make claims upon which a court can grant relief. However, a court is also allowed to discount patently false claims, and we’ve been pointing those out as well.
John,
Maybe, you could file a MTD that reads something like, “I move to dismiss this lawsuit for reasons of the following points of law A.B, C…,made by X,Y, Z in their original MTDs which were not rebutted in either Brett Kimberlin’s initial opposition, or SAC….” and, then, go one to “fisk” just one paragraph to give the judge a glimpse of how perniciously intellectually dishonest his filing is. You could then conclude by noting that his fifty page document could require hundreds of pages to refute in detail.
I don’t know what to think… is it absolutely necessary for that to even be pointed out to the judge? If so, I guess the case is going to trial. A trial where Brett’s loss would be even more thorough than the Maryland trial he lost so badly in August. Maybe he realizes this and doesn’t mind the loss.
BSB, I don’t know whether or not John needs your insights but I always find them interesting, so I hope you keep them coming.
BKW, I would have to note Brett Kimberlin has the sociopaths advantage of actually believing his own bullshit. Upon listening to his rhetoric a new observer has to either jump to the immediate conclusion that he is severely mentally ill, or that he seems to believe what he is saying. Given the seriousness of the accusing others of being severely mental illness that observer might give Brett Kimberlin the benefit of the doubt.
When his estranged wife filed charges against Brett Kimberlin for having sexually assaulted her when she was fifteen and he was forty-one, Brett Kimberlin responded by trying to discredit her accusation by having her involuntarily committed. A judge signed commitment papers. It seems it was necessary to point out to that Judge that Brett Kimberlin was a pathological liar. When the warrant was executed at Protective Order hearing the presiding Judge witness the arrest she immediately vacated the order ruling that it was “shit” “that had to stop.” Subsequently, Brett Kimberlin has made the same argument in his state and federal cases. If that fact need not be pointed out to two Federal Judges, then, why has either acted to clear her name?