Team Kimberlin Post of the Day


Team Kimberlin has waged most of its lawfare pro se, that is, without the assistance of a lawyer. There has been one exception, LOLsuit VII: Degenerations. In that case, the court assigned a lawyer to assist The Dreadful Pro-Se Schmalfeldt. Three years ago today, this Pro Bonehead Legal LULZ Du Jour dealt with some of the Cabin Boy’s™ whining after his loss in that LOLsuit.

* * * * *

By now, the Gentle Reader may have noticed that the Cabin Boy™ is prone to making outlandishly asinine statements, e.g.—BS201608250424ZThe Dreadful Pro-Se Freeloader Schmalfeldt’s lawyer was “recruited” by the U.S. District Court for the District of Northern Illinois to represent Bill Schmalfeldt. He is not doing so voluntarily, but under the order of the court.

Patrick Ostronic’s representation of me (and Ali Akbar, Stacy McCain, and Aaron Walker at various stages of the first case) in a couple of lawsuits filed by Brett Kimberlin was purely voluntary. He learned about the Popehat signal going up because of the Kimberlin v. Walker, et al. lawsuit while reading Instapundit, read Ken White’s post, and decided to represent me. I’m thankful that Ken White and Glenn Reynolds helped by publicizing the first Kimberlin case, and I’m especially grateful for Patrick Ostronic, his commitment to the First Amendment, and his pro bono representation of me in two of the four lawsuits The Dread Pro-Se Kimberlin has filed against me.

In one case, a lawyer read about a situation and volunteered his services to represent a defendant. In the other case, a lawyer was drafted by a court to represent a plaintiff who claimed pauper status while reporting a middle class income. The Gentle Reader may decide for himself if either case involves freeloading.

* * * * *

Losing losers gotta loose.

Team Kimberlin Post of the Day


One year ago today, I posted some LOLsuit VIII News.

* * * * *

I just received a phone call from Louis Nettles, the pro bono lawyer representing my codefendants and me in Schmalfeldt v. Grady, et al. LOLsuit VIII: Avoiding Contact. He informs me that the Magistrate Judge has recommended that the suit be dismissed. I haven’t read the recommendation yet, and I will not have any comment on it until I have read it and discussed it fully with our counsel.

I will post a copy of the recommendation later this evening.

UPDATE—Here’s the Magistrate’s Recommendation.

The Recommendation speaks for itself. I don’t intend to make any public comment about it except through counsel until the judge rules on our motion to dismiss.

* * * * *

And so The Dreadful Pro-Se Schmalfeldt has been out of the LOLsuit business for a year. He’s tried his hand an other pursuits and been equally successful with them.

Karma is a bitch.

Team Kimberlin Post of the Day


Our year’s end review of Team Kimberlin news has reached September, a month where several things were decided.

First, the Cabin Boy’s™ free lawyer voluntarily dismissed LOLsuit VII: Degenerations maintaining The Dreadful Freeloader Schmalfeldt’s perfect record of losing every suit he’s filed.

Next, Judge Mason granted several motions to dismiss in the Kimberlin v. Hunton & Williams LLP, et al. (II) RICO 2 Retread LOLsuit, leaving only a couple of remaining defendants. (Spoiler Alert: But not for long.)

Finally, there was a motions hearing in the Hoge v. Kimberlin, et al. lawsuit. Several of my motions were granted. William Ferguson was dismissed from the suit, but all of The Dreadful Pro-Se Schmalfeldt’s motions to dismiss were denied. Every single one of the Kimberlin’s pending motions were denied as well, but The Dread Pro-Se Kimberlin’s oral motion to delay discovery was granted when I agreed to it. Discovery was stayed until mid October.

We’ll take a look at October’s news tomorrow.

Stay tuned.

Team Kimberlin Post of the Day


August was a month full of paperwork and preparing to begin to commence for Team Kimberlin and the targets of its lawfare. The Dreadful Pro-Se Schmalfeldt had filed an In Forma Pauperis petition along with LOLsuit VII: Degenerations, and the court appointed a lawyer to review his case. Spoiler alert: The Dreadful Freeloader Schmalfeldt did not enjoy free representation for very long (and I’ll bet he didn’t enjoy the results of that representation either.)

September was a busy month. Stay tuned.

Team Kimberlin Post of the Day


So the Cabin Boy’s™ LOLsuit VII: Degenerations has been voluntarily dismissed without prejudice. I’ll bet that the Cabin Boy™ thinks that means that he can still file another LOLsuit against Patrick Grady and/or Sarah Palmer alleging the same butthurt again. I’ll also bet that he would be wrong.

IANAL, but I can read a law book. When I read Federal Rule of Civil Procedure 41(a)(1)(B), I find these words concerning the effect of a voluntary dismissal:

But if the plaintiff previously dismissed any federal- or state-court action based on or including the same claim, a notice of dismissal operates as a adjudication on the merits.

IIRC, LOLsuit VI: The Undiscovered Krendler targeted both Patrick Grady and Sarah Palmer with claims that overlapped with LOLsuit VII. If I’m understanding FRCP 41 correctly, my characterization of “really most sincerely dead” applies to LOLsuit VII. With an adjudication on the merits res judicata should now apply.

res_judicata_mugsActually, Patrick Grady probably could have relied on res judicata as a defense in LOLsuit VII, because he was targeted in LOLsuit V and LOLsuit VI. Other people are probably also covered to some extent: Eric Johnson (LOLsuits III, IV, and VI), Roy Schmalfeldt (LOLsuits V and VI), Paul Krendler (LOLsuits I and III), Nancy Gilly (LOLsuits I and VI), Howard Earl (LOLsuits III and IV), and me (LOLsuits I and III).

The Cabin Boy™ really is giving The Dread Pro-Se Kimberlin a real contest for the title of World’s Worst Pro-Se Litigant™.

Everything is proceeding as I have foreseen.

Team Kimberlin Post of the Day


All of these cases have some things in common:

Kimberlin v. Walker, et al.; Kimberlin v. National Bloggers Club, et al. (I) (aka RICO Madness); Kimberlin v. National Bloggers Club, et al. (II) (aka RICO Retread); Kimberlin v. Hunton & Williams LLP, et al. (I) (aka RICO 2: Electric Boogaloo); Kimberlin v. Hunton & Williams LLP, et al. (II) (aka RICO 2 Retread); Schmalfeldt v. Hoge, et al. (I) (aka LOLsuit I); Hoge v. Schmalfeldt counterclaims (aka LOLsuit II); Schmalfeldt v. Johnson, et al. (aka LOLsuit III); Schmalfeldt v. Hoge, et al. (II) (aka LOLsuit IV); Schmalfeldt v. Grady, et al. (I) (aka LOLsuit V); Schmalfeldt v. Grady, et al. (II) (aka LOLsuit VI); and Schmalfeldt v. Grady, et al. (III) (aka LOLsuit VII).

Each was accompanied by great forecasts of doom for the defendants. Every time any motion or ruling went in the favor of the plaintiff, there were expansive claims made concerning the expected victory by the plaintiff. And the defendants won every single one of ’em.

Everything is proceeding as I have foreseen.

LOLsuit VII: Degenerations News


The Dreadful Pro-Se Freeloader Schmalfeldt’s lawyer has refiled the Cabin Boy’s™ original complaint giving it a new filing date of 12 August, the day Schmalfeldt was granted pauper status. Summons were issued today for service by the U. S. Marshals.summons-issued-wms-v-pg-etal

Hmmmm.

UPDATE—I note that what was refiled was the Cabin Boy’s original pro se complaint. It does not bear the signature of his lawyer. Could there be Rule 11(b) issues with the complaint?

Team Kimberlin Post of the Day


BS201608281456ZBS201608281906ZIt’s seems that The Dreadful Pro-Se Freeloader Schmalfeldt simply doesn’t understand the meaning of the word spoliation as it relates to evidence. It’s the intentional, reckless, or negligent withholding, hiding, altering, fabricating, or destroying of evidence relevant to a legal proceeding. If someone so much as hides evidence sought by an adverse party in a lawsuit, he is has engaged in spoliation of that evidence. It doesn’t matter if someone else has a copy of the document. Spoliation occurs when the original is compromised.

It’s my understanding that the Rules of Evidence generally require that the original document or an authenticated copy is necessary for that document to be admissible as evidence, but an exception to the hearsay rule allows for an unauthenticated copy to admitted if the person who should have produced the document engaged in spoliation. IANAL, so YMMV.

popcorn4bkIt looks as if the Cabin Boy™ has painted himself into an corner. It’s obvious that he has deleted files from the Internet, in effect hiding them. If, as he says, spoliation hasn’t occurred because of the copies posted online, then he has authenticated the copies. (“Anything you say can be used in evidence against you.”) OTOH, if he fails to produce copies of his web postings during discovery or in response to a subpoena because he’s deleted them, a court may find that he’s engaged in spoliation. In that case, the court can make the adverse inference that TDFS was trying to hide something and that the online copies are true and correct. Neither possibility is favorable for the Cabin Boy™.

Team Kimberlin Post of the Day


When the Dread Pro-Se Kimberlin and The Dreadful Pro-Se Freeloader Schmalfeldt have been plaintiffs in their various LOLsuits, they have been the sole party on their side of those cases. Now, they are joint defendants along with other individuals.

popcorn4bkBefore, they didn’t have to consider anyone else’s interests. Now, they have co-defendants whose interests may conflict with theirs. Indeed, the interests TDPK and TDFS are in conflict on some issues. It will be interesting to see how they undercut each other as things go forward.

Everything is proceeding as I have foreseen.

Pro Bonehead LULZ Du Jour


By now, the Gentle Reader may have noticed that the Cabin Boy™ is prone to making outlandishly asinine statements, e.g.—BS201608250424ZThe Dreadful Pro-Se Freeloader Schmalfeldt’s lawyer was “recruited” by the U.S. District Court for the District of Northern Illinois to represent Bill Schmalfeldt. He is not doing so voluntarily, but under the order of the court.

Patrick Ostronic’s representation of me (and Ali Akbar, Stacy McCain, and Aaron Walker at various stages of the first case) in a couple of lawsuits filed by Brett Kimberlin was purely voluntary. He learned about the Popehat signal going up because of the Kimberlin v. Walker, et al. lawsuit while reading Instapundit, read Ken White’s post, and decided to represent me. I’m thankful that Ken White and Glenn Reynolds helped by publicizing the first Kimberlin case, and I’m especially grateful for Patrick Ostronic, his commitment to the First Amendment, and his pro bono representation of me in two of the four lawsuits The Dread Pro-Se Kimberlin has filed against me.

In one case, a lawyer read about a situation and volunteered his services to represent a defendant. In the other case, a lawyer was drafted by a court to represent a plaintiff who claimed pauper status while reporting a middle class income. The Gentle Reader may decide for himself if either case involves freeloading.

Team Kimberlin Post of the Day


So The Dreadful Pro-Se Freeloader Schmalfeldt says than his freebie lawyer has advised him to put a cork in it. That’s quite believable.

It also seems that TDFS has taken down some more of his blog postings, including stuff related to the case. I doubt that such spoliation was done pursuant to “advice of counsel.”

Everything is proceeding as I have foreseen.

Team Kimberlin Post of the Day


Today is The Dreadful Pro-Se Freeloader Schmalfeldt’s big day when he gets to meet with his freebie lawyer that the court has assigned to help him with his LOLsuit VII: Degenerations. That unfortunate lawyer has his work cut out for him. If the case is going to go forward, he’ll have to draft an amended complaint that actually alleges the elements of least one tort and that has admissible evidence to back up its allegations. There’s nothing like that in TDFS’s current complaint.

I haven’t got time to dissect his entire complaint, so I’ll just use his defamation claims as an example. He cites two quotes, one from Paul Krendler and one from Sarah Palmer to show how he was supposedly defamed. The quote from Sarah Palmer is a pure expression of personal opinion which clearly protected speech under the First Amendment—the inapposite bit of case law the Cabin Boy™ cites does not change that.

The Krendler quote is taken out of context, and the reference cited at The Thinking Man’s Zombie is false. I did manage to find the quote on a different website. The words quoted in the complaint are preceded by these—

Oh, and just an aside…by the above I do not mean to suggest in any way that

which means that the words TDFS claims are defamatory are not words that Krendler offers as being true.

I think it would be highly unlikely that any lawyer would be willing to risk Rule 11 sanctions by allowing a client to make such a false allegation.

The Cabin Boy™ should have an informative day today.

Team Kimberlin Post of the Day


The Dreadful Pro-Se Freeloader Schmalfeldt has posted some more of his yibble-bibble concerning his unique theory of spoliation of evidence. (No, I won’t link to it.) He seems to to think that an Illinois Supreme Court case is the controlling precedent for his theory. However, that case deals with a set of facts that have nothing to do with his situation, and, here’s the more important problem he faces, because he’s filed suit in a federal court, the Federal Rules of Civil Procedure and Federal Rules of Evidence apply.

res_judicata_mugsWhen he meets with his lawyer on Wednesday, he should ask about FRCP 37 and sanctions against any party who engages in spoliation of evidence. He should, but I doubt that he will.

He should also ask his lawyer about the effect of dismissing Schamfeldt v. Grady, et al. (I), Case No. 15-CV-1241-RDB (D.Md. 2015) with prejudice has on the claims in LOLsuit VII: Degenerations. For example, if Grady must be dismissed because of res judicata, on what grounds can Sarah Palmer be haled into the U.S. District Court of the District of Northern Illinois? He should ask what effect his application for copyright registration for Confession of an Undercover Internet Troll in which he swore he was the author of a book that identifies it’s author as Paul Krendler could have on LOLsuit VII.

He should divulge a great many things to his freebie lawyer, and he should ask a lot of important questions. I bet he won’t.