In Re RICO Madness

Last Friday, Aaron Walker and I filed a joint request with Judge Hazel asking that The Dread Pro-Se Kimberlin’s opposition to Stacy McCain’s motion to dismiss the Kimberlin v. The Universe, et al. RICO Madness be stricken as a surreply.

The letter speaks for itself, so I don’t intend to comment further until the judge rules on our request.

56 thoughts on “In Re RICO Madness


  1. This is one of my favorite filings so far. Your noted remarks about BK’s mention of Roy is particularly compelling.


  2. After the middle of the second page Brett Kimberlin did address Stacy McCain’s Rule 4(m) and Rule 41 argument that Brett Kimberlin is a “liar” [and, therefore, not to believed in his undocumented claims that he sent service] by raising the counter-claim that Stacy McCain is a “racist.” Notably, Brett Kimberlin could not even pound the table that Stacy McCain is a “liar.” Nor, could he dispute any of the evidence that Stacy McCain presented that he had repeated lied to various Courts. All that he could muster is the child’s playground argument, “Timmy did it worse!”


  3. Excellent, well argued, and easy to read. Though if I may pick one nit, near the top of page 2 the plaintiff should be “flouting” rules, not “flaunting” them. (Unless it’s saying that he is flaunting that the rules don’t seem to apply to him.) Though these days, the two words seem to be interchangeable, and the judge probably won’t even notice. I suspect spell check probably prefers flaunt too.


  4. I’m assuming Aaron is responsible for the theatrical “(gasp)”. I furthermore assume that our gentle and put-upon host is responsible for the brevity.


  5. A little long and superfluous on page 2, but it’s still just a 3 page letter. I’m sure the judge is getting sick of these “requests to file a motion that really reads like a motion,” but he brought the situation on himself.

    I continue to be disappointed by the court.


  6. So here is the thing.

    You wrote, hey, this looks a lot like the last one, and even though we raised this objection before, Plaintiff is doing it again.

    Well, of course. Because the judge can’t be bothered to manage the case. He won’t punish perjury by the Plaintiff – he is going to bounce a surreply by him? I know, he did bounce one from Levy, but that was for a defendant who didn’t actually even exist!


      • It’s not uncommon. The last civil case I worked on was filed in 2007; it didn’t go to trial until last month. After all, look at the case load these judges are carrying. In 2014, there were about 7,900 active cases in the Maryland District Court, spread across 15 judges (+9 magistrate judges, but I’m ignoring those since they technically only assist the “full” judges). That’s 525 cases per judge. It takes hours to prepare a substantive order, even with clerks researching and writing first drafts. Add in trials, especially criminal trials (they always get first priority), and it’s easy to see how a civil case goes slowly.

        There may also be other factors, but that would be giving certain litigants hints about what they’re doing wrong.


    • The judge hasn’t micromanaged the case, but he does manage it. I wouldn’t assume the judge let him get away with the last one. It might merely be that he just hasn’t gotten around to dropping the hammer, yet.

      My prediction: the case will be dismissed. I don’t know how he sustains it at this point. He can’t want to go through this nightmare of a case, and the legal standard hasn’t been met. I like to think judges rule primarily by law, but psychology plays a role, too. And psychologically? Next up, we have discovery, then motions to compel when Brett refuses to comply with discovery (not if, WHEN). Then, motions for summary judgment. And then assuming Brett gets through that, a f—king trial. All with multiple pro-ses on both sides. It’s a nightmare. So the law is on our side, psychology is on our side, what is left on Brett’s?

      And if he dismisses it, he is unlikely to strike things but let it go because we won, after all. He frankly is more likely to simply ignore Brett’s surreply and sursurreply. The more interesting question is whether the judge entertains sanctions. If he wants to make sure Brett doesn’t darken his doorway ever again, he will be interested in them, in order to make it clear to Brett there is a price for filing a patently frivolous suit.

      I will add that you nice people should dial back the public criticism of the judge. It is not all fair. For instance, I think many of you wrongly perceive a bias in favor of finding service occurred as a bias in Brett’s favor. And I think ya’ll misperceive his “wait and see” approach as letting the Plaintiff get away with things. And more basically, it just isn’t a good idea to criticize the presiding judge in the middle of the case and any criticism should avoid ad hom attacks such as assertions of bias. It’s a free internet and john doesn’t heavily moderate his blog, so you do what you want, but I am making this request to all of you.


      • http://i212.photobucket.com/albums/cc78/supertwan/a811dj.gif

        From what I’ve noticed, I think the most common criticism is the delay in rulings, and the lengthy nature of a federal suit. Most of us just aren’t/weren’t familiar with how common it is for these things to drag on and on. It’s been quite an eye-opener about the process, and has made me a big supporter of Tort Reform Now!

        Anti-SLAPP is a step in the right direction, but as we can see from this case, it doesn’t go nearly far enough to protect innocent targets from malicious lawsuits.

        <strongTORT REFORM NOW!!


      • I hear you.

        So the judge is waiting and seeing whether it is actually wrong to fake up a summons from his court and sending it to a defendant not even named in the suit?


      • It’s more, I think, that the judge is waiting to see if it matters one way or another. I assume, as I think Aaron does, that the judge is just as able to see how fatally flawed the complaint is, as we are. So he knows he’s going to end up dismissing the case with prejudice, but to preclude the possibility of both a tenable appeal, and another case filed against any defendants he dismisses prematurely, he’s letting all the preliminaries play out. I’m pretty sure that’s how it’s supposed to work, anyway.


      • I continue to have a problem with this. We are supposed to believe that the judge has made up his mind already – already decided that he is going to rule against the defendant. As a result, we are supposed to believe that he is going to inconvenience and prejudice any number of defendants along the way so that it appears fair.

        I don’t understand how the judge can both be scrupulously fair and also have already made up his mind.

        I would say that the question of whether it is wrong to forge a summons matters to Twitchy whether the case is dismissed or not.

        You seem to be saying that the judge is sacrificing Twitchy’s time and money to provide a cover story for a decision that he has already made. I think that is more insulting to the judge than questioning why he does not follow FRCP or even the rules that he himself has set for this case.


      • So the judge is waiting and seeing whether it is actually wrong to fake up a summons from his court and sending it to a defendant not even named in the suit?

        Maybe he’s waiting to see just how much wrong Brett can rack up. I don’t have any experiance with judges, but I would guess not many would stop you from doing something that damages your own case. One might say that the judge rescuing one party from themselves might itself constitute bias.


      • another case filed against any defendants he dismisses prematurely

        Since BK is apparently determined to sue Twitchy regardless, and they had already begun to respond to the instant case, even if only with a MTD, the judge may see it as more economical [both judicially and fiscally] to let this turd run its course. I freely concede I may be completely wrong. I submit that the evidence is not particularly compelling either way, but I prefer the optimistic view that Aaron’s and WJJH’s perceptions [having actually been involved in the case] are more accurate than yours.


      • So I am definitely going to have to go with Earl here. Aaron, you are, as you legal types are wont to say, alluding to facts not in evidence. The defendants are playing by the rules, the plaintiff is not, and the judge is not stopping him. You are saying that this is a multi-stage, multi-step process, and when it gets to the end of this stage, after completing 300 steps, that because of a flaw in step 50, it’s done. Rather than correcting things or putting a stop to it at step 50 – let’s waste everybody’s time and money for 250 steps. What would you say to your mechanic, after he replaced the entire engine in your car, when he tells you it was just your S belt, he saw it right away, but he had to try everything else to be sure?


      • Aj, so what you are saying is that the judge is actually doing Twitchy a favor by going ahead and considering them a defendant, and letting them spend what is no doubt tens of thousands on a case that he already knows he is going to dismiss?


      • I’m not saying he is…I’m saying he might well think he is, or that many not be a factor at all. I’m displeased by the way Hazel has managed the case. I think it would have been proper to rule immediately on Twitchy’s MTD and sanction BK. But I’m not a federal judge. I’m not an attorney. I’m not a party to the case. I’m just an interested observer, with an incomplete at best understanding of what drives Hazel’s behavior. I think the defendants are in a better position to gauge that behavior than I am, so I’m unwilling to condemn Hazel based on my preferred outcomes in the case so far.

        Twitchy was already spending money before the forgery came to light. Letting this case run out in a way that ends it with a dull thud rather than a long, drawn out whine may well save Twitchy money in the long run. As I said…I freely concede the possibility that I’m wrong.


  7. [redacted] Hi, Neal!

    This is your Friendly Host taking over the comment.

    I have deleted an asinine comment about Judge Hazel being investigated. The person who wrote it either slept through his middle school Civics class or is someone making a comment he hopes would cause trouble for Hogewash! down the line. As you can see from the comment above, I’m betting on the second possibility.

    I’m going to say this exactly once, so listen up!

    While I don’t agree with everything Judge Hazel has done in managing the RICO case to date, he has not given me any reason to believe that he is not a fair impartial judge. He doesn’t have an easy job, and he deserves to be treated with respect not only because of his position as a U. S. District Judge but also for his prior record as a public servant.


  8. It would seem that BS has changed his profile/background pic on twitter in preparation for… another faildox?


    • You know… if I was from New York state I would screencap that twitter. Then I would get a hold of the copies of the other peace/restraining orders from the several states and also print off a copy of the most recent Maryland contempt summons (http://casesearch.courts.state.md.us/inquiry/inquiry-results.jsp?action=Search&d-16544-s=7&filingDate=&filingStart=&courtSystem=B&firstName=&filingEnd=&d-16544-o=1&lastName=SCHMALFELDT&company=N&site=00&partyType=&d-16544-p=1&countyName=&middleName=).

      Then I would find a middling lawyer… not too expensive but not starving either… and wargame with him just what it means when a person with multiple open restraining/peace orders (and contempt summons) for stalking and harassing online and across state lines is “trying to say” by posting a copyrighted picture of you and a picture of your house online.

      I’m sure it would be an interesting conversation with LOTS of possibilities.


      • “I am a former federal and State prosecutor and have been handling criminal defense and personal injury cases for over 18 years.” Hmm. Former federal and state prosecutor.


      • All this talk of RICO gets me think of who the law was aimed at originally — the mafia.

        And there were a number of cases against low level mafia goons in New York City, Newark, Trenton and Philadelphia in the 1970’s and 1980’s in which the goons had “dropped off” pictures taken of a guy, his family, his place of business and his home. Nothing written on the pictures…. nothing on the envelope. The images were the warning. The images were meant to convey fear and intimidation.

        Those same goons (not all of them but enough of them) were eventually arrested and convicted for intimidation, harassment and stalking (in addition to other crimes).

        Precedence, if you will.

        I would contact the Maryland prosecutor (make sure you site case #6S00064882), the Marlyand AG, your states police force and your states AG. The only reason those images are posted in his twitter profile and background is to send an intimidating message. No one should have to stand for that from someone with RO/PO’s in multiple states.


  9. Good to see our benevolent dictator has the comment section in line. Of course, just because he moderates, my comments are my own opinions.

    Oh and in my opinion, anyone who blew a guy’s leg off and then sued the widow is trash.


    • Huh. Well, it’s my opinion that forty year old dudes who write songs about having sex with under-age girls, detailing to a magazine that the lyrics mean exactly that, go on un-chaperoned vacations with young girls who’s grandmothers get assassinated after said grandmother tries to stop said un-chaperoned excursions, imports an underage Ukrainian girl to be his “wife” before she’s sixteen….

      Oh heck.

      I think Brett Kimberlin is a pedophile.


      • You forgot that he sued a camp counselor for stopping him from writing to a 17 year old girl when he was in his 30’s and in prison. A more vile sack of slime you won’t find. BS comes close, but he’s no pedo kimberlin.


  10. I note that now two actual defendants, you know, those who have something on the line, have expressed their satisfaction with the judge and how he is handling the case.

    That any defendant would feel it necessary to ask us to stop what they see as unfair and unjustified criticism makes me feel like I’ve contributed to their burden.

    I sincerely apologize to all of the defendants for my role in causing such comments to be made. From here on out, I will do my best to avoid discussions that may lead to such unfair criticisms.

    http://i266.photobucket.com/albums/ii269/theogrit/sign%20or%20English%20smilies/2sgn066sorry.gif

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