This post On Libel from eight years ago today dealt with one on of the more bizarre twists of The Saga of the Dread Deadbeat Pirate Pro-Se Kimberlin and his crew.
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Libel is the publication in print (including pictures); writing; or broadcast through radio, television, or film; of an untruth about someone which will do harm to that person or his reputation by tending to bring the target into ridicule, hatred, scorn, or contempt from others.
Just as there are persons whose reputation is so bad that they can’t be defamed (Charles Manson, for example), there are people whose credibility is so poor that no one in his right mind really believes what they say (a real world Joe Isuzu); such people can’t actually defame anyone.
It’s really quite sad to be dealing with someone who reputation and credibility are so poor that he fits both categories.
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No one affiliated with Team Kimberlin has come out ahead as a result of their campaign of lawfare and cyberthuggery.
Brett Kimberlin wound up including me as a defendant in four of his bogus defamation LOLsuits. Only one, the first, Kimberlin v. Walker, et al., got some of its claims as far as a trial, and that trial was stopped with a directed verdict in the defendants’ favor before we had to put on a defense. You see, The Dread Deadbeat Pro-Se Kimberlin failed to offer evidence that we had defamed him. With no evidence he had no case.
The Dread Pro-Se Kimberlin wants a second bite at the apple. He’s filed a motion for a new trial in the Kimberlin v. Walker, et al. nuisance lawsuit. The Gentle Reader may remember that the judge stopped the trial and directed a verdict in favor of us defendants after TDPK rested his case.
Our lawyer will file our reply to this motion. For now, all I have to say is that I consider it to be frivolous.
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The motion wasn’t granted, and Kimberlin’s appeal failed when the Court of Special Appeals upheld the Circuit Court’s verdict.
The elements of the tort of defamation are:
1. That a false statement was made to
2. One or more third parties;
3. That the statement was made negligently; and
4. That the defamed person suffered damage.
We defendants admitted to some (but not all) of the things Kimberlin claimed we said or wrote about him and that the statements were made to third parties. He never offered any evidence that anything we said or wrote was false. With no evidence of falsity there was no possibility of a viable defamation claim. The judge ended the trial without ever reaching the question of negligence (even if it’s negligent, a true statement can’t be defamatory) or damages.
Kimberlin should have taken his loss and been done with his LOLsuits. He didn’t, and it cost him. The lawfare eventually did get around to the question of damages in a later case, and the fact his reputation as Speedway Bomber was so bad that he couldn’t be defamed was one ground for dismissal of that suit for failure to state a claim upon which relief could be granted. So now a court has found Kimberlin defamation proof.
I’m going to leave the comments enabled for this post, but I ask that the Insightful Commenters please refrain from educating the midget. Let the good guys’ lawyers do that at the hearing on 3 September.
I noted yesterday that TDPK claimed to have served this opposition on the 6th when it appears that he actually sent it to my lawyer on the 8th. If he really did have this opposition finished on the 6th, that may explain why he felt able to take the 7th off to haul The Dreadful Pro-Se Schmalfeldt to the peace order hearing in Westminster. Or perhaps one of the reasons this opposition is such a slapdash bit of nonsense was that he was hurrying to get it done.
Whatever. It wasn’t due to the court until 1 September, but TDPK has left the defendants’ lawyers plenty of time to get over their laughter and formulate our replies.
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That hearing in September didn’t go well for The Dread Deadbeat Pro-Se Kimberlin. While he was given permission to amend his complaint against me in order to make an viable claim, several of the defendants’ motions to dismiss were granted—and one of the grounds for dismissal was the court finding that Kimberlin’s reputation was so bad that it was not possible to defame him, that he was defamation proof.
Brett Kimberlin’s campaign of brass knuckles reputation management began with a defamation lawsuit against a progressive blogger who wrote about the potential damage someone with Kimberlin’s reputation might have on the progressive cause. Pro free speech lawyers from all across the political spectrum provided support for that blogger, and Kimberlin made the mistake of trying to dox one to them. The resulting fallout from that doxing led to Everybody Blog About Brett Kimberlin Day and further legal wrangling.
Kimberlin didn’t have the good sense to cut his losses. He filed multiple defamation suits, and I was named as a defendant in four of them. One of my defenses was a claim that Kimberlin’s reputation was so bad because of his criminal record that he was defamation-proof, and I was not the only defendant to raise that claim. The TKPOTD from seven years ago today quoted from a motion to dismiss filed by other defendants.
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The motion to dismiss filed by Michael Smith on behalf of Defendant Michelle Malkin and Non-Party Twitchy in the Kimberlin v. The Universe, et al. RICO Madness is a nice bit of legal writing. Here are a couple of excerpts.
In Cardillo v. Doubleday, Inc., 518 F.2d 638 (2d Cir. 1975), plaintiff sued for libel the authors and publisher of a book, My Life in the Mafia. Affirming the grant of summary judgment in defendants’ favor, the Second Circuit recounted plaintiff’s extensive background of securities fraud, bail jumping, receiving stolen property, and other wrongdoing, and found as a matter of law that he was libel-proof, i.e. “so unlikely by virtue of his life as a habitual criminal to be able to recover anything other than nominal damages as to warrant dismissal of the case, involving as it does First Amendment considerations.” 518 F.3d at 639-640 (citations omitted). …
The libel-proof plaintiff doctrine warrants dismissal of the defamation count, since Mr. Kimberlin’s lengthy record renders him even less reputable than the plaintiffs in the above cases. As lengthy as Cardillo’s record was, he doesn’t appear ever to have conspired with intent to distribute 10,000 pounds of marijuana loaded onto a Colombian airplane, or illegally possessed and/or used the seal of the President of the United States or Department of Defense insignia, or impersonated a federal officer, or received explosives as a convicted felon. Kimberlin v. Dewalt, 12 F. Supp. 2d 487, 489-490 (D. Md. 1998). Cardillo was not a convicted perjurer. United States v. Kimberlin, 483 F. Supp. 350 (S.D. Ind. 1979). He never conducted a bombing spree in which an innocent couple leaving a high- school football game were permanently injured and maimed, and then, after one victim eventually committed suicide, sued the surviving widow. Kimberlin, 12 F. Supp. 2d at 490 (citation omitted). Simply put, even if Mr. Kimberlin’s complaint allegations were true, and even disregarding his failure to describe with particularity the defamatory statements he attributes to Mrs. Malkin, FAC [First Amended Complaint] ¶¶ 80-81, 99, nothing she (or any defendant) wrote could possibly lower his public standing further than the subterranean level to which his own depraved conduct has taken it.
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And eventually, one judge agreed. A court has now found that Kimberlin is defamation-proof.
One of the most easily falsifiable claims made by Brett Kimberlin in the Kimberlin v. Most of the Rest of the Universe, et al. RICO Remnant LOLsuit was … oh, here’s the TKPOTD from five years ago today.
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One of the the things The Dread Pro-Se Kimberlin whines about in his Kimberlin v. Most of the Universe, et al. LOLsuit is how he feels defamed because he’s been called a terrorist. He would have the court believe that being called a terrorist after 15 October, 2010, portrayed him in a false light.
If the Gentle Reader does a Google search on >”brett kimberlin” + terrorist< that is time limited to before 2010, the top results will look something like this—
That first result is the Wikipedia “Kimberlin” page which contains a link to the article about Brett Kimberlin. While the “Kimberlin” page was created in 2008, the article about TDPK wasn’t created until 2012. Gasp! Wikipedia refers to Kimberlin as a terrorist! <sarc>It must be part of the conspiracy!</sarc>
The next hit is a Baltimore Sun article from 1996 reviewing Mark Singer’s book Citizen K. It refers to Kimberlin as a terrorist. The third hit is a piece from Daily Kos that refers to Kimberlin as a bomber “who terrorized the city of Speedway, Indiana …” Neither the BS nor Daily Kos qualify as rightwing nut job publications.
And there are plenty more references to Kimberlin’s history as a bomber/terrorist/criminal. His reputation was out there on the Internet well before 2010 and, certainly, well before I began blogging in 2011.
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If The Dread Deadbeat Pro-Se Kimberlin had never sued me, I would never have argued that he was failing to state a claim for defamation because his reputation as a serial bomber was so bad that there was no way to lower the public’s opinion of him; other defendants wouldn’t have echoed that argument in their motions to dismiss; and no court would have dismissed one of Kimberlin’s LOLsuits on that basis. Now, a court has found that his reputation is so bad that he’s defamation proof.
His worst mistake in all of his litigation was to sue me.
Meanwhile, his latest attempt at relevance seems to be foundering. itstime2020 dot org has essentially no traffic, and the@ itstime_2020 Twitter account still only has two followers.
As the TKPOTD from four years ago today noted, one of the defenses raised in The Dread Deadbeat Pro-Se Kimberlin’s LOLsuits was the fact that his reputation as a convicted serial bomber is so bad that he can’t be defamed.
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The Dread Pro-Se Kimberlin haz sad because people have said mean things about him. His sad got so big that he up and sued Aaron Walker, Stacy McCain, Ali Akbar, Kimberlin Unmasked and me for a million bucks (Kimberlin v. Walker, et al.). When the five of us didn’t roll over, TDPK’s sad got sooooooo big that sued the five of us plus a bunch of other folk too—National Bloggers Club, Patrick Frey, Erick Erickson, Michelle Malkin, Glenn Beck, Lee Stranahan, James O’Keefe, Mandy Nagy, DB Capitol Strategies, The Franklin Center, Simon & Shuster, Mercury Radio Arts, The Blaze, Ace of Spades, RedState, and something he called “Breitbart.com”—for another million dollars (Kimberlin v. The Universe, et al., aka RICO Madness). Now, TDPK’s sad has swelled to the point that he wants to add even more defendants—Twitchy, Dan Backer, and The American Spectator—and up the ante changed his money demand to $2,000.000!!!!!!!111!!
However, TDPK has a problem suing for defamation, and that’s his existing reputation. Mark Bailen, the lawyer for James O’Keefe, Simon & Shuster, Erick Erickson, and RedState put it this way …
Reputation, reputation, reputation! Oh, I have lost my reputation! I have lost the immortal part of myself, and what remains is bestial.
—Cassio in Othello II, iii, 265
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Judge Hazel dismissed TDPK’s state law defamation claim in the federal RICO Madness LOLsuit for lack of jurisdiction, and Judge Johnson granted judgment for the defendants at the state Kimberlin v. Walker, et al. trial because Kimberlin failed to offer any evidence that we had made any false statement, a required element of a defamation case. However, Judge Mason dismissed the RICO Retread LOLsuit in part because he found that Brett Kimberlin is, in fact, defamation proof.
And so, The Deadbeat Pro-Se Kimberlin’s attempt to use lawfare for brass knuckles reputation management backfired and resulted in a court finding that his reputation is sufficiently bad that there’s no way it can be lowered.
I’ve been reviewing the collected Interwebz oeuvre of Team Kimberlin for an upcoming project, and I’ve found some stunningly stupid blithering. One particularly outstanding bit of drivel is a post by Very Ordinary Seaman Ferguson on his The Mockery Continues blog (No, I won’t link to it) called Brett Kimberlin Is Not Adolph Hitler. The post is from early February, 2014, before he became completely fixated on me, and it is a ill-informed critique of the first motion to dismiss filed by Michael Smith on behalf of Michelle Malkin in the Kimberlin v. The Universe, et al. RICO Madness LOLsuit.
The Malkin motion argues, as did almost all the defendants’ motions to dismiss, that Brett Kimberlin is defamation proof, that is, his reputation is so bad that it can’t suffer further injury. VOSF thought (and may still think) that argument was bunk.
Your client isn’t being sued for telling the truth.
Expect your motion to be denied.
So far, the courts haven’t agreed with Ferguson. None of the motions to dismiss the defamation claim in the RICO Madness LOLsuit were denied. In fact, Judge Hazel dismissed that claim, albeit without prejudice. That allowed The Dread Pro-Se Kimberlin to refile the defamation claim in state court as part of his RICO Retread LOLsuit.
Of course, Michael Smith included the defamation proof argument in the motion he filed for Michelle Malkin and Twitchy in the state case, and Judge Mason found in their favor, ruling that
I will adopt the arguments of the defendants on their motion to dismiss[.]
IOW, he ruled that Kimberlin is defamation proof. Thus, we can add that to the list of things that have been adjudicated against Team Kimberlin, and we can record another failed legal prediction for VOSF.
As another blog has pointed out, The Mockery Continues but not how he thought. Indeed, VOSF is a master of unintentional self-mockery. He wrote this just a few days before the Kimberlin v. Walker, et al. trial.
P.S. I’ll just go ahead and prepare you for the eventuality of Brett Kimberlin’s past being wholly irrelevant in this case. Don’t be surprised it barely rates a mention in court next Monday.
(The bad link is in his original post.) TDPK sued my codefendants and me because we had, in part, written about his past. In the Walker, et al. LOLsuit he couldn’t prove that what we had written about him was false. In the RICO Retread LOLsuit the court has found that his past behavior renders him so odious that he can’t be defamed. TDPK’s past has been important in all the case that have come to court thus far.
Brett Kimberlin really needs to open a fresh can of PR flacks.
One of the things The Dread Pro-Se Kimberlin has sued me and many others about is defamation. In my defense, I have argued that TDPK’s reputation is so poor because of his past criminal convictions that he is defamation proof. TDPK keeps trying to deny that. For example, he wrote this in one of his filings in the Kimberlin v. The Universe, et al. RICO Madness LOLsuit—
Now, Aaron Walker and I aren’t the only defendants in TDPK’s lawfare nuisance suits who have argued his status as defamation proof. This is from Michelle Malkin’s and Twitchy’s recently granted motion to dismiss in the Kimberlin v. Most of the Universe, et al. RICO Retread LOLsuit—
Judge Mason agreed with Michelle Malkin and Twitchy. He adopted their argument in dismissing them from the case. Thus, we now have a ruling finding that Brett Kimberlin is defamation proof.
It would be interesting to know how TDPK evaluates the success and cost/benefit ratio of his brass knuckles reputation management now.