A defendant in a lawsuit has no obligation to cooperate with initial service of the suit, but once served, he is is obliged to keep the court informed of his contact information. Members of Team Kimberlin have tried to avoid being served with suits. That wasn’t illegal. However, once served, they have tried to disappear. The TKPOTD from five years ago today dealt with one attempted disappearance.
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On 23 January, I filed a motion in the Hoge v. Kimberlin, et al. lawsuit asking the court to order The Dread Pro-Se Kimberlin to show cause why he should not be found in contempt for his failure to obey the court’s order regarding discovery. That motion was granted, and the show cause hearing is scheduled for 17 March.
I served copies of my motion on the Kimberlins and The Dreadful Pro-Se Schmalfeldt by mail on the 23rd. The mail sent to Schmalfeldt at his Wisconsin address was returned.
Brett Kimberlin tried to use the discovery phase of the two cases that got past motions to dismiss (Kimberlin v. Walker, et al. and Kimberlin v. Frey) as fishing expeditions to dig up dirt on his adversaries. He pretty much failed in both cases. Of course, he was very uncooperative with discovery in the cases brought agains him. The TKPOTD for five years ago today dealt with his answers to interrogatories in the Hoge v. Kimberlin, et al. suit.
Because I believe that discovery is best kept confidential to the greatest extent possible, I’ve redacted the answers to interrogatories which The Dread Pro-Se Kimberlin attached. I don’t intend to make any further public statement concerning this matter prior to the court’s ruling on the contempt hearing that has been ordered—except to note that the answers provided are still incomplete.
Murum aries attigit.
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Now that case is several years old, I might as well publish the questions the court ordered Kimberlin to answer and his answers. As noted above, they are incomplete. They are also deceptive.
Interrogatory 5. There are no written documents authorizing the use of the assets of a 501(c)3 to pay for the personal legal expenses of one of its officers. Really? Hmmmm.
Interrogatory 6. No mention is made of the use of a Justice Though Music Project check to pay a filing fee in the RICO Madness civil case in which I was a defendant. I have a copy of the receipt which is also available on PACER.
Interrogatory 7. A fair answer.
Interrogatory 8. I have evidence which suggest the answer is incomplete. I will also note that as a result of contacts made with NASA, a criminal investigation was opened of which I was not the target.
Interrogatory 9. I have evidence suggesting that this answer is false.
The support I’ve received from the Gentle Readers during the lawfare with Team Kimberlin has been most gratifying. Four years ago today, there was a show cause hearing for Bill Schmalfeldt which he did not attend (a very unwise move) but which was attended by several of the Gentle Readers. The crowd was sufficiently large that I had to post this Logistical Note.
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The after-court luncheon is at the steak place. If you need directions, ask Roy.
Brett Kimberlin is a liar. Telling lies is how he wound up being convicted of perjury before he turned 20. One would think that with so many decades of practice, he’d get better at it, but the lies he tells are easily seen through. The TKPOD for four years ago today dealt with such a lie, one he told in a filing in the Hoge v. Kimberlin, et al. lawsuit.
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One of the few interrogatories that The Dread Pro-Se Kimberlin has answered (but not completely) was my request for this list of witnesses for the Hoge v. Kimberlin, et al. lawsuit. One of his prospective witnesses is Judge Mason. Because I had information leading me to believe that Judge Mason was unaware that TDPK was proposing to call him as a witness, I sent the judge a letter informing him of the possibly that he might be called to testify.
I don’t plan to have any substantive public comment on this motion other than court filings until after the court has ruled on it.
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Here’s the TL/DR for the Gentle Readers who don’t want to wade through Kimberlin’s filing and the exhibits. Kimberlin claimed that I has asked Judge Mason “to take some kind of judicial action agains the Defendants,” i.e., Brett and Tetyana Kimberlin, but he made the mistake of attaching my letter to the judge. In the letter I state,
I know better than to think that this suggests any kind of cooperation between you and Mr. Kimberlin. I simply inform you so that you may determine for yourself what steps, if any, you need to take to address this.
I didn’t suggest that he take any action, judicial or otherwise, and my letter proves that Kimberlin’s claim was false.
BTW, that wasn’t the only lie Kimberlin told in the filing. He stated that Judge Mason had found me to be an incredible witness in the Walker v. Kimberlin, et al. case. Judge Mason made no such finding. He did, however, state in the record that because Kimberlin had lied during his testimony, he would allow Aaron Walker to present evidence that had be previously excluded from that case.
In any event, Kimberlin’s motion to sanction me was denied.
I’m so old, I remember when journalists were still generally called reporters and the good ones at least pretended to take a “just the facts” approach to the news. OTOH, I’m older than any of the alleged journalists associated with Team Kimberlin, so it may be they never really were exposed to good reporting. That may explain the situation discussed in the Prevarication Du Jour from seven years ago today.
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Bill Schmalfeldt tweeted this in the context of comments about his using a threat to cause a woman to lose her children unless she gave him him information.
Here’s what Schmalfeldt actually wrote to the woman.Schmalfeldt maintains that he was behaving in an ethical manner as a journalist when he sent that message. The Cabin Boy also touts the Code of Ethics of the Society of Professional Journalists. Let’s examine how the tactic he used with this potential source fits within that Code. This item seem applicable.
— Show compassion for those who may be affected adversely by news coverage. Use special sensitivity when dealing with children and inexperienced sources or subjects.
As near as I can tell, nothing in the story he was “investigating” had anything to do with the woman’s children or whether or not they should be taken from her. It seems that he was simply using the threat as a bludgeon to get her to “play smart” and give him the information he wanted. It’s unclear that she was even a direct part of the story. IANAL, but that message seems very close to blackmail or extortion, and since it was sent via interstate communications, a violation of federal law.
And what compassion was he showing the children who would have been affected by his threats?
But the Cabin Boy says he’s ethical … because JOURNALIST!
UPDATE—Stacy McCain appears to question Schmalfeldt’s journalistic ethics also.
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The alleged desire of Cabin Boy™ (Schmalfeldt) and Bunny Boy (aka Matt Osborne) to have access to sealed documents was the reason that Brett Kimberlin cited to a court filing seeking to unseal discovery in the Kimberlin v. Frey RICO Remnant LOLsuit. The court didn’t relax its protective order, so Kimberlin’s fishing expedition failed.
BTW, when Brett Kimberlin tried to use sealed discovery from Frey during the Hoge v. Kimberlin, et al. trial, Judge Hecker said that the federal court’s order wasn’t his to enforce and that Kimberlin could try to introduce the documents. Then, the judge also noted Kimberlin should consider the possible consequences of disobeying the federal court. Kimberlin chickened out.
I don’t plan to make any substantive public statement about this motion in any form other than a court paper until after the court has ruled on it.
Everything is proceeding as I have foreseen.
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One the most transparent lies in the motion was the claim that I didn’t allege damages until over a year after I filed the lawsuit.
After enumerating losses I suffered and costs I incurred, paragraph 33 of my complaint states, “Thus, Mr. Hoge suffered actual damages.” Similarly, paragraph 62 damages suffered and ends with, “Thus, Mr. Hoge suffered actual damages,” as does paragraph 71.
The Gentle Reader should not be surprised that the court denied The Dread Deadbeat Pro-Se Kimberlin’s motion.
Being in the crosshairs of Team Kimberlin’s campaign of lawfare has had its ups and downs. The TKPOTD from four years ago today chronicled one of the better weeks, the first week of May, 2016.
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O. K., let’s review this past week.
On Monday, we found out that The Dread Pro-Se Kimberlin had filed a notice of appeal with the Fourth Circuit Court of Appeals in the Kimberlin v. Team Themis, et al. RICO 2: Electric Boogaloo LOLsuit and that he had filed a RICO 2 Retread LOLsuit for his federally dismissed state law claims in the Circuit Court for Montgomery County. Also, the MoCo Circuit Court sent TDPK a Rule 2-507 letter informing him that he had 30 days to explain why the first RICO Retread case shouldn’t be dismissed against the National Bloggers Club, Ali Akbar, and Patrick Frey for failure to serve them with a summons and complaint. And Judge Hazel denied Kimberlin’s motions for relief from judgment and stay of judgment in the RICO 2 LOLsuit. The week was off to a good start, and to top Monday off, I filed a request for fresh summonses for Brett and Tetyana Kimberlin and Matt Osborne who have been evading service of process in the Hoge v. Kimberlin, et al. lawsuit.
Tuesday was a quiet day, but I did retain counsel to represent me in the Fourth Circuit just in case TDPK includes me in his appeal of the RICO 2 LOLsuit.
Wednesday, the joint reply from the defendants to the Cabin Boy’s™ opposition to their motion to dismiss his LOLsuit VI: The Undiscovered Krender was filed, pointing out how Schmalfeldt utterly failed to address the points made in their motion. Also, the Cabin Boy’s™ reply to my opposition to his motion to dismiss appeared on the docket in the Hoge v. Kimberlin, et al. case. It concludes with a stunning run on sentence—which leads me to offer the following prize. I will send a Murum Aries Attigit coffee cup to the first person who sends me a graph showing that sentence properly diagrammed. Use the email address on the DMCA Contact page. Void where prohibited. Your mileage may vary.
Thursday … ah, Thursday, a day to be savored! There was a hearing before Judge Mason on a couple of motions in the Walker v. Kimberlin, et al. lawsuit. The first was the Kimberlins motion for summary judgment. Of course, it failed. There were material facts in dispute, so a summary judgment was not appropriate. The second was Aaron Walker’s motion for a default judgment because the Kimberlins had failed to answer his complaint in a timely manner. That motion was granted—mostly. The judge has stayed issuing his order until close of business next Friday. It may be that there’s nothing left for this case except for a hearing on damages. Also, the Kimberlins were personally served with the summons and complaint for the Hoge v. Kimberlin, et al. suit. Finally, I confirmed that I am not named as a defendant in the RICO 2 Retread LOLsuit, but I did receive notice from the Fourth Circuit of TDPK’s appeal. We shall see if he’s stupid enough to name me as an appellee.
On Friday, these were filed with the Circuit Court for Carroll County—
The Dread Deadbeat Pro-Se/Protector Kimberlin was so sure that he would be successful protecting our 2016 presidential election that he filed a RICO LOLsuit against an group of defendants at the end of October, 2016. Breitbart Holdings was named as the lead defendant in the suit, and Steve Bannon was one of the codefendants. A few days later, TDPK had failed protect our election, and he then was in a LOLsuit with someone who was about to become a key presidential advisor.
The “evidence” that Kimberlin sought to use in the RICO 3 LOLsuit had been obtained as discovery in the Kimberlin v. Frey RICO Remnant LOLsuit, and it was subject to a protective order issued by Judge Hazel forbidding it’s being disclosed to third parties or used in any other case. Three years ago today, I published this post titled Breitbart Pushes Back.
Because I had been sucked into the Frey discovery process, I was also bound by the protective order relating to that case. When Kimberlin began trying to use discovery from Frey in the Hoge v. Kimberlin, et al. lawsuit in state court, I informed Judge Hazel. He directed me to inform the state court of his order. Judge Hecker, who was presiding in the state case, took the position that he wouldn’t directly enforce the federal court order, but that he reminded Kimberlin of the possible consequences of violating the order, Kimberlin got the message and stopped trying to use the Frey discovery in my case.
Oh, and the RICO 3 LOLsuit wound up being dismissed because the use of the Frey discovery violated the protective order.
One the obvious purposes of Team Kimberlin’s lawfare has been to try to use the discovery process in civil suits to dig up dirt to use against their perceived enemies. This Acme Legal Citation Du Jour ran five years ago today.
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The Cabin Boy™ will not get any IP information from Hogewash! without either a valid subpoena or discovery interrogatory.
In order to get a subpoena prior to discovery, he will have to comply with the requirements in Independent Newspapers, Inc. v. Brodie, 407 Md. 415 (2009). He will have to make a prima facie case of defamation for each individual about whom he seeks information. Because he is suing in a federal court with tighter pleading standards than a Maryland state court, he will have to plead with particularity, and I will only provide information that the court specifically orders given. He won’t get thousands of IP address unless he specifically asks for that many one by one.
Of course, that presumes that his case survives. If the court takes note of the fact that he has admitted in his Application for pauper status that he has more income (almost 2X the federal poverty level for a family of two) than is allowed, the case will be kicked out. If he’s allowed to proceed in forma pauperis, the LOLsuit must then be screened for frivolousness, maliciousness, and failure to state a claim. Let’s pretend that it gets past that screening; there will still be motions to dismiss. If the LOLsuit makes it over that hurdle, the Cabin Boy™ can then file a discovery interrogatory. He will then find that discovery may not be as open-ended as he thinks. He will also find that it’s a two-way street.
BTW, if the LOLsuit makes it past the motions to dismiss, no one should be surprised if one or more defendants make counterclaims and/or adds counterclaim defendants.
The Gentle Reader should not worry about any of this. I only log the IP addresses of the Insightful Commenters who contribute to Hogewash!—and the Ill-mannered Harassers who attempt to troll the blog.
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That post was written in the context of LOLsuit III: The Search for Schlock, and that particular bit of nonsense was killed off after only two weeks when the presiding judge realized that the court had no jurisdiction over the case. Schmalfeldt has never been successful using discovery.
The Dread Deadbeat Pro-se Kimberlin did manage to get his hands on a large number of emails during discovery in the Kimberlin v. Frey RICO Remnant LOLsuit, but he never was able to use any of them effectively. He did try to use some of them in the Hoge v. Kimberlin, et al. case, but when he tried during the trial, the state court judge said that he wouldn’t prevent TDPK from introducing them, but that Kimberlin would be on his own explaining to the federal judge why the protective order was violated. Kimberlin chickened out, which is a shame because I would have introduced the same emails myself if I hadn’t been bound by the protective order as well.
It’s safe to say that Neal Rauhauser’s theory of pro se lawfare has been a spectacular failure—at least as far as implemented by Team Kimberlin.
Now that my motion to amend the verdict in the Hoge v. Kimberlin, et al. lawsuit has been denied, I have a bit more than three weeks to file an notice of appeal the case. I’ve consulted with my legal counsel and decided on the general outline of a plan for dealing with the matters involved. On the advice of my counsel, I will not be discussing any steps I plan to take in advance.
This appeared this morning in the online docket for Hoge v. Kimberlin, et al.I do not have a copy of the order yet. I will withhold any comment until after I have reviewed it and my options going forward with counsel.
I will make one brief comment about the Cabin Boy’s™ opposition to my motion for an amended verdict in the Hoge v. Kimberlin, et al. lawsuit. He tries to improperly introduce new evidence in the form of links to copies of the posts he infringed that can be found at archive dot org. He tries to claim that because the posts were archived there, he could have lifted them from the archived version and that somehow that excuses his breaches of the 2014 Settlement Agreement. However, at least 9 of the 11 posts were archived after he ripped them off from Hogewash!—So in the course trying to improperly introduce new evidence, the Cabin Boy™ is trying to claim that he could have used archive dot org copies of my posts as the sources for his infringement even though those archives did not exist when he published his infringements.
I filed a motion to amend the verdict with respect to Count XII in the Hoge v. Kimberlin, et al. lawsuit. That’s the count dealing with the Cabin Boy’s™ breach of the Settlement Agreement that ended the 2014 Hoge v. Schmalfeldt copyright lawsuit. Filing that motion tolls the deadline for filing an appeal. After the court rules on my motion, the deadline clock for a notice of appeal will begin running again. For now, it’s stopped at t-minus 26 days.
I’m in no hurry. IIRC, The Dreadful Pro-Se Schmalfeldt has until 15 September to oppose my motion. After that, the motion would be ripe for the court to rule. (I don’t believe that the other defendants have standing to oppose the motion because they are not being sued in Count XII.)
So the Gentle Reader may have quite a while to wait before there is any further news related to the Hoge v. Kimberlin, et al. lawsuit.
The Gentle Reader may wonder what part of the evidence and testimony offered during the Hoge v. Kimberlin, et al. trial caused Judge Hecker to find that the Kimberlins had made statements in their Applications for Statement of Charges that they could not have reasonably believed. One particular incident comes to mind.
During my direct examination of Tetyana Kimberlin, she began denying the contents of various documents she had filed against her husband, claiming that they had been written by Aaron Walker who had exerted some form of undue influence on her. Then I asked her about a protective order petition she filed several days before she met me and more than a week before she met Aaron. When she started to claim that parts of it were untrue, the Judge stopped her. He reminded her that the petition had be signed under penalty of perjury, and then he advised her of her right to remain silent under the Fifth Amendment.
That was the end of that line of questioning.
UPDATE—A question has been raised in the comments about the propriety of the judge’s warning to Tetyana Kimberlin. I believe that is was proper because she was proceeding pro se, and it was obvious that she was unaware of the potential consequences of her testimony. In fact, his warning resulted in her petition for a protective order being admitted into evidence with the presumption that it was truthful—which contradicted Brett Kimberlin’s testimony. That helped my case.
Brett Kimberlin was wearing his lucky white socks today. All of the counts in the Hoge v. Kimberlin, et al. were either dismissed or verdicts were rendered for the defendants. For now, I will state that believe that Judge Hecker conducted a fair trial. I also believe that he made some errors in his verdicts, but I do believe that several of his findings are absolutely correct.
First, Judge Hecker found that both Brett Kimberlin and Tetyana Kimberlin made false statements that they themselves could not have reasonably believed in their Applications for Statement of Charges.
Second, Judge Hecker found that the Settlement Agreement from the Hoge v. Schmalfeldt was a valid contract and that Schmalfeldt had breached it.
However, the judge also found that there was enough left of the Kimberlins’ Applications that might have been true to establish probable cause. He also found that I had not properly shown that I damaged by Schmalfeldt’s breach.
I am reviewing my options.
UPDATE—I understand the disappointment, but please knock off the comments that could be construed as questioning Judge Hecker’s fairness, integrity, or competence. He did a good job with a complex case. He may have made errors, and I may ask for reconsideration or file an appeal, but he did a good job of running a fair trial.
Tetyana Kimber was found to be in contempt of court for her failures to appear. She will be allowed to purge her contempt by obeying all further order of the court.
Bill Schmalfeldt was found not to be in contempt for his recording of the court audio because of what the judge views as a hole in the law. He said that he has learned a lesson and will tighten up future orders allowing remote testimony.
The Kimberlins and I have finished our closing statements. Judge Hecker has taken the case under advisement and has said he will issue his ruling at 1:30 pm tomorrow.
UPDATE—Apparently, a copy of the “written testimony” the Cabin Boy™ published made its way to the Clerk’s Office, was docketed, and was forwarded to Judge Hecker. I asked that it be admitted into evidence as a statement against interest by Schmalfeldt.
There are show cause hearings and a trial scheduled for today in the Hoge v. Kimberlin, et al. lawsuit beginning at 8:45 this morning in the Circuit Court for Carroll County. My ability to foresee how things will go ends at 8:45 am today. After that, the results depend on the findings made by Judge Hecker.