Team Kimberlin Post of the Day

One of the problems Team Kimberlin never overcame in any of their pro se lawfare cases was that pro se litigants may be allowed a bit of procedural slack, but in the end, they still have follow the rules of civil procedure and the rules of evidence. Nine years ago today, I put up a post pointing out some of Bill Schmalfeldt’s misunderstandings about the first peace order case filed against him. The post was titled Uh, No, That’s Not What Happens.

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Bill Schmalfeldt seems woefully misinformed about what goes on in either a motion hearing or an appeal.frr201310060107Z

First of all, let’s consider a hearing on a motion, specifically a motion to modify a standing order of a court, a peace order in this case. Since there has been a final judgment in the case, the legal doctrine of res judicata prevents either side from relitigating the court’s previous findings. Those findings must be taken as a given, so, no, neither side gets to tell the judge that he got the facts wrong. The court may permit either side to introduce new evidence that bears on whether or not the order should be changed because of new circumstances, but the initial findings of fact stand. The court may listen to oral argument about how the law bears on any new circumstances.

Now, let’s look at what happens in an appeal. Since my appeal was from the District Court to the Circuit Court, I was entitled to a trial de novo. That meant that I was able to introduce new evidence, and I did. I showed the court how Schmalfeldt’s harassing behavior had gone on and on in order demonstrate that he was likely to continue. My appeal was to a higher trial court; any further appeal is to an appellate court.

Except in the few cases where they have original jurisdiction and function as trial courts, appellate courts don’t try the facts. They deal strictly with questions of law. If the Court of Appeals takes his case, Schmalfeldt will be stuck with the facts as they are shown in the trial court record. No new evidence is admissible. Schmalfeldt must argue that given the facts of the case—including the fact that he engaged in harassing me—the law was misapplied in issuing a peace order.

I believe Schmalfeldt’s part in the upcoming hearing on his motion to modify the peace order is that of a pro se litigant. While the judge will probably cut him some slack, Schmalfeldt will still be held to the court’s rules. I suspect he will fill that role as a bumbling incompetent who becomes frustrated when the court doesn’t want to play by the Cabin Boy’s rules.

I believe my part in the hearing will be as a party represented by counsel. I expect that the hardest thing for me to do will be to maintain a decent level of decorum rather that laughing at the show.


… and the Judge wasn’t going to look at the twenty seven eight-by-ten color glossy pictures twenty-four alleged perjuries in the answer with the circles and arrows and a paragraph on the back of each one explaining what each one was to be used as evidence against us.

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Of course, he didn’t pay attention.

And of course, nothing proceeded as the Cabin Boy™ had hallucinated.

Prevarication Du Jour

The Dread Pro-Se Kimberlin is seeking a preliminary injunction in the Maryland Kimberlin v. Walker, et al. nuisance lawsuit which would require us defendants to take down every post since 7 July, 2013, that mentions him. We defendants have filed oppositions to his motion, and TDPK has filed his reply to our oppositions. In his reply he cites comments on this blog as proof that the defendants are inciting violence against him.BKvAW2013Reply2PIOpp-3So there you have it. Comments on this blog are as intimidating as burning a cross on someone’s front lawn.

Acme Law at its finest.

BTW, you can help my codefendants and me fight TDPK’s attack on our First Amendment rights. Go to Bomber Sues Blogger to find out how.

Mystery Author

One of the great legal victories about which Bill Schmalfeldt brags is the denial of Aaron Walker’s petition for a peace order back in March, 2013. The petition was filed on Friday, 1 March, and a temporary order was issued. Early the next week, a motion to dismiss was filed. The hearing for final order was scheduled on 8 March, but because of death of Schmalfeldt’s mother, the case was continued for two weeks. During the brief hearing on the 8th, the judge mentioned the motion to dismiss which came as surprise to Aaron Walker, who had not been served a copy, and to Schmalfeldt’s lawyer Tae Kim, who had no knowledge of it.

So who wrote that motion? The Cabin Boy? Or someone else?

I’m Not Making This Up, You Know

The Gentle Readers who have been following The Saga of the Dread Pirate Kimberlin know that he has been filing frivolous and vexatious lawsuits of late. I’m a defendant in a couple of them. Today, the postman brought me a certified mail package with the amended complaint in the Maryland Kimberlin v. Walker, et al. suit.

The package also contained a properly signed Notice of a Lawsuit and Request to Waive Service of a Summons in the federal RICO Kimberlin v. The Universe, et al. case which allows 60 days for a response. In addition, the package contained a document which purports to be a copy of the amended complaint but is not the same as the amended complaint shown as Item 2 in the case docket on PACER. The one shown on PACER bears the receipt stamp of the Clerk of the Court, so I assume that what I have received is not a true copy of the complaint.

I will have no further comment on this matter until I have consulted further with counsel.

Team Kimberlin Post of the Day

Last Wednesday, Brett Kimberlin handed me a copy of  the original complaint he filed in his Kimberlin v. The Universe, et al. RICO lawsuit. According to Rule 4 of the Federal Rules of Civil Procedure, that was not legal service of the complaint or the “summons” which came with it.

(c) Service.

(2) By Whom. Any person who is at least 18 years old and not a party may serve a summons and complaint.

Also, the “summons” that accompanied the complaint was defective on its face.

The first sheet is the notice of the suit. It does not have the case number on it. Neither does the summons. Also, Kimberlin had given me zero days out of a minimum of thirty to reply to the waiver for service, and it’s dated the day before he handed it to me.

The summons itself is not signed by the Clerk of the Court, so it’s not valid.

What this boils down to is that I haven’t been served with the suit because the wrong person handed me unfinished paperwork.

Durum hoc est sed ita lex scripta est.


Prevarication Du Jour

Bill Schmalfeldt has more of what seems to be terminal confusion about the difference between civil and criminal court cases on display.ftrrnews201310162253ZActually, I don’t think the “RICO charges” will vanish because I don’t think that any such charges will ever exist. Being named in a civil suit is not the same thing as being charged with a crime.

Brett Kimberlin has filed a complaint in a U. S. District Court which alleges that a group of individuals and organizations conspired against him in a way that constituted a racketeering enterprise as defined under 18 USC 1961, et seq. As Ken White has noted, being named in a RICO suit by a pro se litigant is generally about as damning as being accused of a RICO violation by a street person who is off his meds.

Gentle Reader, take a look at one of the consequences of my being named as a defendant in Brett Kimberlin’s lawsuit. Yesterday, the traffic here at Hogewash! went through the roof. It was the biggest day I’ve ever had other than a couple of Instalanches. OK, part of that had to do with Bill Schmalfeldt’s losing in court, but traffic was twice what I was expecting from that. My best guess is that new readers were clicking in to find out about this William Hoge guy who has been bundled with the likes of Glenn Beck, Erick Erickson, and Michelle Malkin.

Yes, I will have to spend some time and a trivial amount of money getting the suit thrown out, but I may charge those costs to the advertising budget. It may be the best shot of publicity this blog has ever had.

UPDATE—The Cabin Boy has been contacting defendants in the RICO nonsense to get “your side of the story.” Stacy McCain gives him an earful.