Team Kimberlin Post of the Day


Brett Kimberlin foolishly thought that he could file bogus LOLsuits that would silence truthful reporting about him and his past and present activities, but his attempt at brass knuckles reputation management were a disaster. And of course, the “reporting” by incompetent PR flacks he recruited only compounded his failure. The TKPOTD from five years ago today dealt with some of the problems with brietbartunmasked dot com.

* * * * *

I’ve been going over the backups of post that Breitbart Unmasked Bunny Boy Unread has memory-holed in preparation for … well, let’s leave it at I’ve been doing some research.

Here’s another post that has been flushed from the site:BU20130713LawAs the Gentle Reader can see from the date and byline, this was a rant by the Cabin Boy™ from when he was trying to overturn the first peace order issued against him. It’s a marvelous bit of vintage Acme legal “reasoning.” He deftly explains why the court should reverse itself, and he only has two minor problems with his story—the facts and the law. The Gentle Reader who has been following the Cabin Boy™ for the past couple of years may remember that Schmalfeldt’s motion to modify the peace order and his petition for a writ of certiorari for an appeal were both denied in October, 2013, and that my petition for an extension of the peace order was granted in December, 2013.

popcorn4bkThe Gentle Reader may also remember that 57F Osborne has repeatedly promised to follow stories only to drop covering them and memory-hole posts when Team Kimberlin loses at their lawfare. But that’s one of the reasons why this daily feature exists here at Hogewash!.

Stay tuned.

* * * * *

The BU website hasn’t had any new material posted for almost two years.

Team Kimberlin Post of the Day


Through the years, there’s be an obvious similarity between The Dread Deadbeat Pro-Se Kimberlin and a certain coyote. The TKPOTD from four years ago today took notice.

* * * * *

ACME LEGALOne of the running gags used to make fun of Team Kimberlin’s incompetence at lawfare is referring to them and/or their source of legal advice as “Acme Legal”—meaning a part of the same company that supplies those fine products to Wile. E. Coyote.

Given the amazingly complex theories that underpin some of the claims in The Dread Pro-Se Kimberlin’s allegations, both civil and criminal, against his perceived enemies, there are certain similarities to the Coyote’s plans and contraptions. Certainly, the success rates have been equivalent. And people have fallen into the Cabin Boy’s™ forgery traps at the same rate as the Roadrunner has been caught.

It’s really a very descriptive analogy.

Meep. Meep.

* * * * *

Heh.

Team Kimberlin Post of the Day


When I first wrote that Team Kimberlin was buying their legal advice from the same Acme that supplied those fine products to a certain coyote, I was joking. As the various legal entanglements have played out, it come to look as if that really is the source of the legal theories behind their LOLsuits. Here’s the TKPOTD from three years ago today,

* * * * *

WMSBroad201311101815ZThat deserves an updated answer. Here’s a partial listing—

Hoge v. Schmalfeldt (I), Case No. 06-C-13-063359 (Md. Cir.Ct. Carroll Co. 2013), cert. denied.
Hoge v. Schmalfeldt (II), Case No. 06-C-14-067023 (Md. Cir.Ct. Carroll Co. 2014), cert. denied
Kimberlin v. Walker, et al., Case No. 380966V (Md. Cir.Ct. Mont. Co. 2014), affirmed Md. CoSA, cert. denied.
Schmalfeldt v. Johnson, et al., Case No. 15-CV-0315-RDB (D.Md. 2015).
Kimberlin v. National Bloggers Club, et al. (I), Case No. 13-CV-03059-GJH (D.Md. 2015).
Kimberlin v. Hoge, Case No. 9148D (Md. Cir.Ct. Mont. Co. 2015).
Schmalfeldt v. Hoge, et al., Case No. 13-C-15-102498 (Md. Cir.Ct. Howard Co. 2015).
Kimberlin v. Hunton & Williams, et al., Case No. 13-CV-0723-GJH (D.Md. 2016).
Kimberlin v. National Bloggers Club, et al. (II), Case No. 403868V (Md. Cir.Ct. Mont. Co. 2016).

That should do.

* * * * *

I should update that scorecard with the following—

Kimberlin v. Hunton & Williams, et al., Case No. 13-CV-0723-GJH (D.Md. 2016), affirmed Md. C0SA, cert. denied.
Kimberlin v. Hunton & Williams, et al., Case No. 13-CV-0723-GJH (D.Md. 2016), affirmed 4th Cir.
Kimberlin v. National Bloggers Club, et al. (II), Case No. 403868V (Md. Cir.Ct. Mont. Co. 2016), affirmed Md. CoSA, cert. denied.
Schmalfeldt v. Grady, et al. (IV), Case No. 13-CV-01310-RBH-KDW (DSC 2017).

Team Kimberlin Post of the Day


One of the running gags about Team Kimberlin’s incompetence in their LOLsuits is the idea that they buy their legal advice from the same Acme Company that sells goods to Wile E. Coyote. The TKPOTD from four years ago took a look at Another Fine Acme Legal Theory.

* * * * *

vbr201402210202Z47 U.S.C § 230(c) says that the person providing content is responsible for what he provides. In the case of a comment posted here at Hogewash!, that’s the author of the comment. The law says that

[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

Furthermore, 47 U.S.C § 230(e)(2) says in part that

No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.

Now, Acme will probably point to the recent Hare v. Richie case where discovery was allowed to continue in spite of a website’s contention that is was protected by § 230. There are three things to consider. First, discovery was allowed in that case to determine if the site operator was involved in producing any of the offending content. Second, the plaintiff wound up losing the case. It was dismissed.

Third, discovery in a similar lawsuit involving Hogewash! would lead to the same result.

* * * * *

So far that theory has failed against this blog and me in four LOLsuits and a peace order petition from The Dread Deadbeat Pro-Se Kimberlin and four LOLsuits from The Dreadful Pro-Se Schmalfeldt.

Apparently, when they read the thing about “satisfaction guaranteed,” they didn’t understand that Acme meant mine.

Team Kimberlin Post of the Day


While we’re waiting for further news in the ongoing Team Kimberlin court cases, I’ve been reposting interesting items from the past. The following ran as the TKPOTD four years ago today. It deals with the Cabin Boy’s™ attempt to wriggle out of the first peace order issued against him—

* * * * *

Bill Schmalfeldt has been whining over the past few days about the terse filings my lawyer Zoa Barnes has made in answer to his motion to stay the peace order issued against him pending appeal and his petition for a writ of certiorari to the Court of Appeals. This isn’t surprising behavior from a pro se litigant who is apparently being advised by a jailhouse lawyer.

All that is required in those answers are denials of the “facts” or interpretations of law that the Cabin Boy offered.

If the Court of Appeals takes the case and, given the shakiness of Schmalfeldt’s arguments, my lawyer and I consider that a pretty big if, the Court may ask for briefs. In the normal course of events mine would be filed in response to the Cabin Boy’s and then he would have an opportunity to file one more brief before the Court heard oral arguments. If briefs are called for, mine will be filed as the Court directs. Until then, I don’t plan to give Schmalfeldt any further information that might be used to his advantage.

Also, the Circuit Court will soon hold a hearing on Schmalfeldt’s motion to modify the peace order. Ms. Barnes will present our side of the case at that hearing, and I don’t plan to comment any further about it other than to say that I believe we will prevail in that hearing. Why would I tip the Cabin Boy off to our arguments so that he can be better prepared against me?

Until the two courts take their decisions, I do not wish to discuss the merits of the cases beyond saying that I expect to win.

Stay tuned.

* * * * *

Everything proceeded as I foresaw.

Team Kimberlin Post of the Day


ACME LEGALOne of the running gags used to make fun of Team Kimberlin’s incompetence at lawfare is referring to them and/or their source of legal advice as “Acme Legal”—meaning a part of the same company that supplies those fine products to Wile. E. Coyote.

Given the amazingly complex theories that underpin some of the claims in The Dread Pro-Se Kimberlin’s allegations, both civil and criminal, against his perceived enemies, there are certain similarities to the Coyote’s plans and contraptions. Certainly, the success rates have been equivalent. And people have fallen into the Cabin Boy’s™ forgery traps at the same rate as the Roadrunner has been caught.

It’s really a very descriptive analogy.

Meep. Meep.

Legal LULZ Du Jour


The Cabin Boy™ has a DOOM CLOCK running over at his Derp Brain Radio website (No, I won’t link to it.) that shows 32 days remaining for the return of waiver of service forms he says he’s sent to the defendants in LOLsuit VI: The Undiscovered Krendler.

Fed. R. Civ. P. 4(d)(3) says—

A defendant who, before being served with process, timely returns a waiver need not serve an answer to the complaint until 60 days after the request was sent[.]

Even if the waiver request forms had been sent the day the LOLsuit was filed, there would still be 54 days remaining for the defendants to respond. But I suppose following the Rules is hypertechnical. And math is hard.

UPDATE—Or perhaps it means that the Cabin Boy™ is exercising his option to allow at least 30 days but less than 60 days for the return of the waiver forms. Whatever. Setting the minimum time for return of the waiver forms won’t change when any answers or dispositive motions are due.

popcorn4bkUPDATE 2—The Cabin Boy™ has a post up “correcting” this one. I checked his “correction” with a lawyer, and I’ll wait for Schmalfeldt to find out the hard way how wrong he is.

Oh, and I see from his post that he’s still too afraid to include me in his LOLsuit.

Legal LULZ du Jour


The Dreadful Pro-Se Schmalfeldt is threatening Paul Krendler with a Brodie motion.TheMerryWidower201511282145Z

Apparently, the Cabin Boy™ is planning on bring suit in Maryland, the only state where so-called Brodie Motions are filed. A Brodie Motion asks a court for a John Doe subpoena to an ISP seeking a user’s identity pursuant to the case law in Independent Newspapers, Inc. v. Brodie, 407 Md. 415 (2009).

IANAL, but I’m unaware of any similar case law applicable in the Eastern District of Wisconsin or the Seventh Circuit.

Team Kimberlin Post of the Day


The Cabin Boy™ was full of threats and bluster yesterday. He sent me this email—

There’s so much craziness … where to begin?

The first thing that stuck me was the utter hypocrisy shown in the email. Pingbacks are not contact, but auto-generated notices of comments are. And how would the Cabin Boy™ square his previous defense of Roger Shuler with the positions he takes in this email?

Of course, his understanding of the law of defamation is utterly faulty. Under Maryland law, there can be no recovery for defamation unless the plaintiff can prove that the allegedly defamatory statement was false. A defendant has no obligation to prove that what he said was true. The Cabin Boy’s™ provably true riff has no basis in law. Indeed, it is provably false itself.

Furthermore, it makes no difference whether the Cabin Boy™ is a private person or not. In Maryland, every defamation plaintiff is held to the New York Times v. Sullivan standard of proving legal malice. Bill Schmalfeldt should to read Telnikoff v. Matusevitch, 702 A. 2d 230, 347 Md. 561 (1997) and the cases it cites before he runs off at the keyboard again.

Also, under 47 U.S.C. § 230, Hogewash! is an internet service provider because of the interactive nature of the comment system. I’ll let The Dreadful Pro-Se Schmalfeldt try to find the case law on that himself. (Hint: One such case is a Maryland Court of Appeals case that Team Kimberlin has relied on in the past.)

Meanwhile, because of the threats he has made to persons who reply to the comments he makes on blogs, I would wield the ban hammer on him if the Cabin Boy™ had not already been told to cease communicating with me, including comments to this blog.

Oh, one more thing … The Cabin Boy™ should also review Lawrence v. AS Abell Co.,
475 A. 2d 448, 299 Md. 697 (1984) before making any further threats about use of his likeness.

Acme Legal Citation Du Jour


@weltschmerz2015|201502091346ZThe Maryland Court of Appeals disagrees.

We observe that by reason of Jacron Sales Co. v. Sindorf, 276 Md. 580, 350 A.2d 688 (1976), much of the distinction or difference between libel per se and libel per quod has in fact disappeared. Under Maryland principles of pleading the same rules continue to apply as to the nature of the libel. That is, if the libel is readily apparent as in the situation where one is called a thief, no explanation is necessary, but in the instances which previously would have been a libel per quod, the nature of the libel must be pleaded with the same particularity as formerly. Since nominal or presumed damages no longer exist, in all libel actions Maryland pleading principles require the same type of pleading as to damages as was formerly necessary in libel per quod.

Metromedia, Inc., etc. v. Hillman, et al., 285 Md. 161, 162-3 (1979). As a result,

it is obvious that it is no longer possible in Maryland to recover damages by simply alleging a libel per se.

Id., 169.

UPDATE—Hillman was a case certified to the Court of Appeals by the U. S. District Court seeking guidance on how to handle a defamation case under Maryland law.

Acme Legal’s New Client: Lena Dunham


Lena Dunham is threatening to sue Truth Revolt because she finds their truthful reporting of what she wrote in her book to be revolting. Speaking for myself only, I find Miss Dunham to be revolting. She strikes me as a spoiled brat. She’s ugly, spiritually and emotionally. She’s not much to look at either.

Miss Dunham may not like what some folks say or write about her, but she made herself a public person. She published a book about her weird life. The excerpts I’ve read are appalling, and I’ve made a point of not writing about her, her TV program, or her book. However, now that she’s threatening to engage in the same kind of lawfare that I’ve dealt with for the past couple years, she has outed herself as an enemy of the First Amendment. I will write about that.

Butthurt, especially self-inflicted butthurt, is not grounds for a lawsuit.

Team Kimberlin Post of the Day


The Dread Pro-Se Kimberlin has apparently had the record of the third degree sexual offense charges filed by his wife and that were nolle prossed by the Montgomery State’s Attorney’s Office sealed or expunged. However, before that happened, I obtained a certified copy of the charging document from the court and published it. While it can’t be used in court, it is still available on the Internet. That was straightforward reporting of a crime story. TDPK tried to spin that truthful reporting into defamation as part of his Kimberlin v. Walker, et al. nuisance lawsuit.

MR. KIMBERLIN: After those charges were nolle pros, did you take a trip down to this courthouse and get a certified copy of those charges, and post them on your Scribd account?

MR. HOGE: No. Not this courthouse. They’re not kept here.

MR. KIMBERLIN: Well, whatever courthouse?

MR. HOGE: Across the street. District Court —

MR. KIMBERLIN: But — so the charges are dismissed, you come down and get a certified copy, and post them on Scribd.

MR. HOGE: Yes.

MR. KIMBERLIN: And are those charges — do you know whether those charges were not only nolle pros, but expunged and sealed by the court?

MR. HOGE: The charges are not on the Maryland Judiciary Case Search right now, so I can’t tell you what the court may have done with them.

MR. KIMBERLIN: Well —

MR. HOGE: I can’t tell you what the court did.

It wasn’t very smart of TDPK to bring up those charges. A prosecutor entering a nolle prosequi on a charge does not mean that the accused is innocent. Here’s how, first, Judge Johnson, and, second, Stacy McCain, explained nolle prosequi at various points during the trial.

The objection was sustained to that question. How is it relevant if the State entered a nolle prosequi? All that means is that the State elected not to go forward. It doesn’t mean anything to do with the substance of the charges.

Nolle pros does not mean you were falsely accused. I’ve had traffic tickets that were nolle pros. That didn’t mean I wasn’t going 85 miles an hour.

However, it did bring up the question of why, if they were bogus charges, wasn’t his wife in court to support him by testifying that we had suborned perjury and that he had not had sex with her when she was 15—was he innocent, or did he simply get away with something? That was not a good question for him to plant in the minds of the jurors.

In Re ELH-14-CV-1683


This afternoon, I received three sets of court papers in the mail from The Dreadful Pro-Se Schmalfeldt™. rnusa201408051707Z

I did enjoy that mail. My reaction might best be described with the Interwebz acronym ROFLMAO.

TDPS™ has posted all three filings over at his website, but they need to be someplace that actually has traffic. Here are two of them. I’d post the third, but since it reveals TDPS™ settlement position, I’m forbidden from publishing it by the Court’s Local Rule 607.4.

This is Acme Legal at its finest.

UPDATE—Redactions in the body of TDPS’s™ reply to my opposition to his motion for summary judgment relate to his settlement position.

Stale Law


Acme Legal really should open a fresh box of law books. They seem to be specializing in stale law, especially in the use of citations to old court cases that have been overturned or that rely on a law or rule that has since been changed.

For example, The Dread Pro-Se Kimberlin kept relying on Conley v. Gibson, a 1957 case, in his oppositions to various motions to dismiss in the Kimberlin v. The Universe, et al. RICO Madness. Every motion to dismiss has cited Ashcroft v. Iqbal, a 2009 case that effectively overturned Conley.

As I read through the various Acme advised filings from Team Kimberlin, I see a consistent pattern of citing cases that seem to support Acme’s legal theories without regard to whether the case has been superseded in some way.

#StupidOrLazyOrBoth

Team Kimberlin Bonus Post of the Day


The Gentle Reader who has been following the Saga of The Dread Pro-Se Kimberlin’s RICO Madness (aka Kimberlin v. The Universe, et al.) all along may remember that last December he informed the court that he was seeking legal representation.ECF 18-top

ACME LEGALAlthough TDPK appears to have been unsuccessful in retaining counsel, the Vast Hogewash! Research Organization did find this business card among some discarded papers.

Hmmmm.

Another Fine Acme Legal Theory


vbr201402210202Z47 U.S.C § 230(c) says that the person providing content is responsible for what he provides. In the case of a comment posted here at Hogewash!, that’s the author of the comment. The law says that

[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

Furthermore, 47 U.S.C § 230(e)(2) says in part that

No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.

Now, Acme will probably point to the recent Hare v. Richie case where discovery was allowed to continue in spite of a website’s contention that is was protected by § 230. There are three things to consider. First, discovery was allowed in that case to determine if the site operator was involved in producing any of the offending content. Second, the plaintiff wound up losing the case. It was dismissed.

Third, discovery in a similar lawsuit involving Hogewash! would lead to the same result.

Bonus Prevarication Du Jour


Bill Schmalfeldt keeps saying that the Maryland Legislature has exempted Twitter from the misuse of electronic communication statute.WMSBroad201311132252ZOnly in the fevered imagination of a screwball like the Cabin Boy could Md Criminal Law § 3-805 be construed as providing a safe harbor for harassment via Twitter. So where does Schmalfeldt get such an idea?

The Maryland Legislature meets for 90 days each year, and it publishes a public report of its activities called The 90 Day Report. In 2012, the email harassment law was tweaked, and that change was discussed in the 2012 issue of The 90 Day Report. The Cabin Boy has seized on one paragraph to try to support his idea of a safe harbor for harassment. Here it is, complete with his colorful highlighting.90DayReport2012Note that this paragraph does not set forth the Legislature’s intent for the law. It gives an opinion of what the Attorney General thought the law might mean and what it “… may not include …” Now, consider what the Attorney General thought: that the law wouldn’t apply to social media messages unless they arrive on the page of the person the poster intended to harass. Thus, a harassing tweet about John Doe that contains his @johndoe account address and winds up on his @johndoe Mentions page on Twitter would be covered by the law under the Attorney General’s preliminary opinion cited in the report.

The best measure of what the Legislature intended is the actual text of the law. It was tweaked again in 2013, and the version effective as of 1 October is shown below. There is no mention, “explicit” or otherwise, of Twitter or any other social media. Read it for yourself.

There is no safe harbor for what Bill Schmalfeldt has been doing.

§ 3-805. Misuse of electronic communication or interactive computer service.

(a) Definitions. —
(1) In this section the following words have the meanings indicated.
(2) “Electronic communication” means the transmission of information, data, or a communication by the use of a computer or any other electronic means that is sent to a person and that is received by the person.
(3) “Interactive computer service” means an information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including a system that provides access to the Internet and cellular phones.

(b) Prohibited. —
(1) A person may not maliciously engage in a course of conduct, through the use of electronic communication, that alarms or seriously annoys another:
(i) with the intent to harass, alarm, or annoy the other;
(ii) after receiving a reasonable warning or request to stop by or on behalf of the other; and
(iii) without a legal purpose.
(2) A person may not use an interactive computer service to maliciously engage in a course of conduct that inflicts serious emotional distress on a minor or places a minor in reasonable fear of death or serious bodily injury with the intent:
(i) to kill, injure, harass, or cause serious emotional distress to the minor; or
(ii) to place the minor in reasonable fear of death or serious bodily injury.

(c) Construction of section. — It is not a violation of this section for any of the following persons to provide information, facilities, or technical assistance to another who is authorized by federal or State law to intercept or provide electronic communication or to conduct surveillance of electronic communication, if a court order directs the person to provide the information, facilities, or technical assistance:
(1) a provider of electronic communication;
(2) an officer, employee, agent, landlord, or custodian of a provider of electronic communication; or
(3) a person specified in a court order directing the provision of information, facilities, or technical assistance to another who is authorized by federal or State law to intercept or provide electronic communication or to conduct surveillance of electronic communication.

(d) Exception. — Subsection (b)(1) of this section does not apply to a peaceable activity intended to express a political view or provide information to others.

(e) Penalty. — A person who violates this section is guilty of a misdemeanor and on conviction is subject to imprisonment not exceeding 1 year or a fine not exceeding $ 500 or both.

#BillSchmalfeldt, Ace Legal Scholar


WMSBroad201311091607ZU.S. v. Sullivan? I wonder which of the U.S. v. Sullivan cases the Cabin Boy thinks is applicable to his situation.

In U.S. v. Sullivan, 274 U.S. 259 (1927), the Supreme Court ruled that profits from the sale of illegal liquor were subject to income tax.

U.S. v. Sullivan, 332 U.S. 689 (68 S.Ct. 331, 92 L.Ed. 297), deals with provisions of Federal Food, Drug, and Cosmetic Act of 1938.

I wonder if he’s going try to base his defense on being drunk or on drugs?

AFTERWORD—If the Cabin Boy meant New York Times Co. v. Sullivan, 376 U.S. 254 (1964), that deals with defamation, not harassment or failure to comply with a peace order. The appropriate Supreme Court case dealing with obeying court orders is most likely Walker v. City of Birmingham, 388 U.S. 307 (1967).

#BillSchmalfeldt and Acme Law


Several of us have had a running gag going about the Cabin Boy buying his legal advice from Acme Law, a subsidiary of the company who provided all those great products to Wile E. Coyote. I’m beginning to wonder if that really is where he’s getting his legal support. Consider this bit of legal scholarship that Schmalfeldt produced today:

The Liberal Grouch We rely on http://www.justia.com/criminal/docs/calcrim/1300/1300.html … for our information in the following series of tweets on what is (or is not) a threat.
3:35 PM – 10 Aug 13 GMT

The Liberal Grouch ‏Criminal Law 1300. Criminal Threat The defendant is charged [in Count ______] with having made a criminal threat.
3:37 PM – 10 Aug 13 GMT

And he continues on a riff based on California jury instructions for the crime of Criminal Threat. There is no such crime on the books in Maryland.

This may come as a shock to Bill Schmalfeldt, but he and I both live in Maryland. Maryland law controls the terms of the peace order issued against him. Maryland law controls the interpretation of the underlying criminal activity the judge found he was engaging in causing the peace order to be justified.

Bill Schmalfeldt has been adjudicated a harasser and told to knock it off for six months. He has modified but not terminated his harassing behavior, and he now faces the probability of being held to account for violations of the order. Neither the State’s Attorney nor the judge are likely to be moved by his rantings on Twitter. Well, not moved in a direction in his favor.

Pwned.