Team Kimberlin Post of the Day

One of the things that would have been more amusing if I hadn’t been a defendant in The Dread Deadbeat Pro Se Kimberlin’s LOLsuit were the crackpot legal theories advanced in support of his cases. The TKPOTD from seven years ago dealt with one of his wacko legal ideas.

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In their latest attempt to find a legal theory that might save The Dread Pro-Se Kimberlin’s frivolous and vexatious lawsuits, Team Kimberlin has sent the Cabin Boy™ out to float the idea that res judicata applies as to whether or not TDPK is a public figure. Schmalfeldt has posted a clip (No, I won’t link to it.) from the docket of the Kimberlin v. Allen suit which shows that Judge Quirk ruled against Seth Allen’s motion to declare Kimberlin a public figure. Res judicata to the rescue!

Au contraire. Take a look at this more complete bit of the record.BK v Allen 119:140Docket Number 140 is the record of the judge’s ruling on Docket Number 119. Docket Number 119 was Seth Allen’s motion.

Here’s why that’s important: Res judicata applies when the same matter is brought up a second time in litigation between the same parties. Thus, Seth Allen is no longer allowed to argue in court that Brett Kimberlin was public figure before February, 2012. Anyone else can, and Mr. Allen can still argue that TDPK may have become one since then.

There’s a long string of case law supporting the principle that someone who is convicted of an infamous crime becomes a public figure. I argue that Brett Kimberlin, who is, after all, a convicted serial bomber with dozens of other felony convictions, is a public figure just like other convicted serial bombers—like Ted Kaczynski (“The Unibomber”), for instance.

They must be working overtime at Acme Law.

res_judicata_long_sleeve_tshirtUPDATE—Res Judicata t-shirts, coffee mugs, and other goodies are available at The Hogewash Store.

Stop by today and spend some of your hard earned cash in support of Team Lickspittle.

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It turned out that res judicata did matter in most of TDPK’s LOLsuits. It wound up being one of the bases for dismissal for failure to state a claim upon which relief could be granted in most of them.

Team Kimberlin Post of the Day

Four years ago today, I published The RICO Retread LOLsuit Complaint. That case was The Dread Deadbeat Pro-Se Kimberlin’s attempt to salvage the Kimberlin v. Team Themis, et al. RICO 2: Electric Boogaloo LOLsuits after it had been dismissed from federal court.

After losing two other state cases against me (res judicata being one of the reasons he lost the second time), TDPK dropped my from his list of defendants. He had kept me in the second federal RCIO nonsense in an attempt to skirt the statute of limitations which had otherwise run out on most of the other defendants.

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Here’s what The Dread Pro-Se Kimberlin filed—

Since I’m not a party, I’ll be fisking some of this in some follow up posts.

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One of the obvious problems with that LOLsuit was that he was seeking relief not only for himself but also for third parties not in the case. Which third parties? Why, Justice Through Music Project and Velvet Revolution US, corporate entities that required representation by a lawyer.

BTW, Res Judicata coffee mugs, t-shirts, and other goodies are available at The Hogewash Store.

Team Kimberlin Post of the Day

All of Team Kimberlin’s pro se LOLsuits that have been filed since the beginning of 2012 failed. The first bunch were so shoddy that I started joking that they must buying their legal advice from the same Acme that supplies a certain coyote. Four years ago today, I ran this post about More Acme Law from the Cabin Boy™.

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TheMerryWidower201511160513ZTheMerryWidower201511160520Z

res_judicata_mugsThe Cabin Boy™ seems to think that he is entitled to a second bite at the apple with “Roy Schmalfeldt.” IANAL, but I don’t believe he is. Rereading his amended complaint in the Schmalfeldt v. Grady, et al. LOLsuit, it is obvious that he sued the person using the name “Roy Schmalfeldt” who made the claim in a comment over at TMZ that the Cabin Boy™ was a rapist. He includes a copy of the offending comment as an exhibit to his amended complaint. The Cabin Boy™ also dismissed his complaint with prejudice. As I understand things, such a dismissal counts as a finding on the merits in favor of the defendants. That would seem to mean that res judicata prevents the Cabin Boy™ ever again suing the person who made the rape comment about that comment. The matter is settled, and no court in the United States, state or federal, can take it up again.

Game over.

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One of the false narratives The Dread Deadbeat Pro-Se Kimberlin tried to peddle in his LOLsuits against me is that I wrote about him in order to generate revenue for this site. He made that claim before I had a Tip Jar or an Amazon shopping link or The Hogewash Store or any other revenue source for this blog. In fact, I was (and still am) using paid hosting at wordpress dot com in order to keep third-party advertising off of the site at the time he started telling that lie. I put up the Tip Jar and other money makers as low key ways to help defray the cost of defending his LOLsuits, and they didn’t actually generate more revenue than my legal expenses until after I had already won several of the suits.

But back to the post about Acme and the Cabin Boy™—The post above was about Schmalfeldt’s LOLsuit V. IANAL, but I believe that the legal doctrine of res judicata would have killed LOLsuits VI through VIII if they had ever got far enough along for that to be considered. They didn’t because they were dismissed on other grounds first.

Now, for some shameless commerce—Res judicata goodies and other Hogewash! related swag are available at The Hogewash Store.

Team Kimberlin Post of the Day

Yesterday’s TKPOTD dealt with how The Dread Deadbeat Pro-Se Kimberlin’s initial losses in his LOLsuit set up later one for dismissal under the legal doctrine of res judicata. The TKPOTD from five years ago today celebrates Res Judicata.

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While Stacy McCain is contemplating a Res Judicata tattoo [partially broken link caused by Twitter suspending the @rsmccain account], those of you looking for a less personal comment should stop by The Hogewash Store and check out the selection of Res Judicata, The Grand Hog, Johnny Atsign, and Team Lickspittle merchandise.res_judicata_stuffMy Res Judicata travel mug full of coffee helped keep me awake during the drives from Westminster to Rockville last Monday and Tuesday.

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IMHO, the Cafe Press model looks so much nicer in a Res Judicata t-shirt than she does in a Team Kimberlin nightie.

Team Kimberlin Post of the Day

Not only is The Dread Pro-Se Kimberlin a bad liar, he’s a stupid one. He included this whopper in his appeal in the Maryland Court of Special Appeals of the Kimberlin v. National Bloggers Club, et al. (II) RICO Retread LOLsuit.

It’s trivially easy to show that he misrepresented what happened in the Kimberlin v. National Bloggers Club, et al. (I) RICO Madness LOLsuit in federal court. A quick check of the online docket of that case in PACER shows that I filed a reply to TDPK’s “Omnibus Opposition” to the motions to dismiss from the multiple defendants. The following appears near the bottom of page 2 of my reply (ECF No. 236)—The Gentle Reader can click here to read my reply and see that I spent three pages dealing with TDPK’s failure to respond to the points related to res judicata I raised in my motion to dismiss. Not only did I raise res judicata in the federal case, I pounded the point heavily.

Why did Kimberlin make such a transparently false claim? Did he think that I wouldn’t remember raising res judicata in the federal case? Did he think that I wouldn’t provide copies of my federal filings to my counsel and the other appellees in the case? Did he think he wouldn’t get called out in one or more of our reply briefs? Has he never seen a picture of one those coffee mugs?

Moreover, he’s wrong on the law. Some defenses are waived if they are not raised in the answer to a lawsuit. However, neither the RICO Madness LOLsuit nor any of TDPK’s subsequent lawfare made it past motions to dismiss, so none of them had to be answered. None of the cases progressed far enough for a defense to have been waived, so it doesn’t matter whether any defendant raised res judicata in the federal case at the motion to dismiss stage. Thus, Kimberlin has been caught telling a needless lie that wouldn’t have supported his appeal if it had been true.

#StupidIsAsStupidDoes

Team Kimberlin Post of the Day

Here’s another fun factoid from the results of The Dread Pro-Se Kimberlin’s campaign of lawfare against Aaron Walker. For four years now, TDPK’s has been lying about what happened during his confrontation with Aaron outside of Judge Rupp’s courtroom on 9 January, 2012. His claim that he was assaulted has been rejected by every judge that has examined it. When he sought his first peace order against Aaron, the judge found that harassment could be a basis for the order but not assault. (Note that the order was overturned on appeal because there was no evidence of harassment either.) Most recently, he sued Aaron in the RICO Retread LOLsuit alleging battery during the 2012 courthouse incident, and he lost, so now TDPK has both the doctrines collateral estoppel and res judicata preventing him from being able to sue again about the assault that never happened.Shirts

Brett Kimberlin’s campaign of lawfare has not only failed to silence his critics, it is having the additional effect of vindicating them. The Streisand Effect merely results in boomeranged publicity. The Kimberlin Effect is turning out to be even more disastrous.

It’s gonna take a while for the whole story to play out, but I’ll be covering it here.

Stay tuned.

Legal LULZ Du Jour

JWR smallThe Cabin Boy™ has been hitting the … um … the books … yeah, that’s it … hitting the books over at the Acme Legal Law Library and has come up with another couple of cockamamie theories. He really doesn’t understand the doctrine of res judicata.

YGNQ201601121918Z

I’ve never claimed that Roy Schmalfeldt’s allegations against the Cabin Boy™ are true. What I have noted is that by dismissing his lawsuit against Roy with prejudice, it now a settled matter that the Cabin Boy™ could not prove that what was said was false. I’ve also noted that the legal doctrine of res judicata prohibits The Dreadful Pro-Se Schmalfeldt from ever suing his distant cousin Roy over those statements again. By extension, if it wasn’t defamatory for Roy to make those statements before 19 August, 2015, it still shouldn’t be defamatory now.

Should someone else say the same thing about Bill Schmalfeldt? I wouldn’t advise it. However, it is not defamation to report the factual outcome of a court case or to offer an opinion about the future consequences of that case.

YGNQ201601121920Zpopcorn4bkThe Cabin Boy™ sued “Roy Schmalfeldt” and lost. The fact that the Cabin Boy™ didn’t know for sure exactly who he was suing doesn’t affect whether res judicata applies. The Cabin Boy™ is suing an unknown Roy in his LOLsuit VI: The Undiscovered Krendler, and res judicata shields that Roy from any thing that the Cabin Boy™ sued or could have sued about prior to 19 August, 2015. If TDPS decides to ID a particular person as “Roy Schmalfeldt,” that should have the affect of transferring the res judicata shield to that defendant.

The Cabin Boy™ should ask The Dread Pro-Se Kimberlin about res judicata and it’s bite.

Team Kimberlin Post of the Day

Here’s another whopper from one of The Dread Pro-Se Kimberlin’s filings in the Kimberlin v. The Universe, et al. RiCO Madness, in this case, his opposition to Lee Stranahan’s motion to dismiss.ECF 249-7

That deserves some fisking.

As best I can tell, the only one of the defendants named in the suit who took Kimberlin’s photograph and photoshopped into to any Nazi-related imagery was Kimberlin Unmasked. What KU did was clearly within the bounds of parody and commentary. It was certainly no more extreme that Kimberlin’s superimposing the words of Adolph Hitler over the faces of George W. Bush, Dick Cheney, and John McCain in the opening sequence of the Op-Critical Fear Not video. In any event, TDPK dismissed KU from the suit, and the dismissal was with prejudice. Since he has not pleaded and cannot factually plead that behavior by any other defendant, it’s a dead issue.

Pedophile? That was settled last August. Kimberlin lost that case. Res judicata and all that.

Supporter of Terrorism? I’m not sure who called him that, and he hasn’t pleaded that anyone actually did. OTOH, if the Gentle Reader were to feel justified in referring to either Ted Kaczynski (The Unabomber) or Timothy McVeigh as a “terrorist,” I can understand why he would feel that designation also fit a convicted serial bomber such as Brett Kimberlin.

SWATter? I don’t know which of the defendants might have called him a “SWATter.” Again, he doesn’t say who actually did. But I understand why the circumstances surrounding several of the SWATtings raise questions about cause and effect for some people. I’ve heard recordings of the SWATting calls related to the RICO case. It isn’t Kimberlin’s voice, but that doesn’t mean he might not have been involved. If he were connected, I doubt that he would have made the calls himself. He strikes me as the kind of person who hires a hit man.

#Loser

Team Kimberlin Post of the Day

RICOMadnessSo now my motion to dismiss, The Dread Pro-Se Kimberlin’s opposition to my motion, and my reply to his opposition are all before the court. We’ll see how the judge rules.

res_judicata_mugsFWIW, I believe the most import part of my reply deals with the implications of res judicata. TDPK sued me in a related case in state court and lost. Under Maryland law, he could have included every single one of the claims in the RICO Madness in the state lawsuit, but he chose not to. It’s also the law in Maryland that res judicata applies to TDPK and me  not only for the claims he made in that state case but also for the claims he could have made. That means that res judicata barres all of his claims against me in the RICO Madness. The same doctrine obviously applies to my codefendants in the state suit, Aaron Walker, Stacy McCain, and Ali Akbar.

popcorn4bkThere’s another twist to this. When a conspiracy is alleged among defendants and res judicata applies for one, it applies to all. TDPK alleged that every single defendant was a member of his mythical RICO conspiracy. That means the res judicata also should apply to his claims against National Bloggers Club, Patrick Frey, Erick Erickson, Michelle Malkin, Glenn Beck, Lee Stranahan, Mandy Nagy, Breitbart,com, DB Capitol Strategies, Dan Backer, Mercury Radio Arts, The Blaze, Ace of Spades, RedState, and Twitchy.

Stay tuned.

Team Kimberlin Post of the Day

During the Kimberlin v. Walker, et al. trial last year, Brett Kimberlin accused Aaron Walker, Stacy McCain, Ali Akbar, and me of defaming him by calling him a “murder,” a “terrorist,” and a “pedophile.” He lost that case because he could not prove that anything we said about him was false.

2015 should bring more legal findings related to The Dread Pro-Se Kimberlin.

Stay tuned.

Team Kimberlin Post of the Day

Here’s another bit of nonsense from The Dread Pro-Se Kimberlin’s omnibus opposition to the motions to dismiss his Kimberlin v. The Universe, et al. RICO Madness.ECF 231-97res_judicata_mugsIn noting that TDPK has not demonstrated that he had been subject to any infliction of emotional distress by me, I’m not merely expressing my opinion. I’m reporting the finding of the Circuit Court for Montgomery County. At the end of TDPK’s presentation of his case in the Kimberlin v. Walker, et al. nuisance suit, Judge Johnson found that TDPK had not presented a “scintilla” of evidence to support his claims of defamation and intentional infliction of emotional distress.

The fact that Brett Kimberlin did not suffer any emotional distress because of anything I did is now a settled matter. It isn’t subject to being litigated again. And so I invoke the legal doctrine of res judicata.

TDPK says that I do so “callously.”

callous adj. \ˈka-ləs\ : not feeling or showing any concern about the problems or suffering of other people.

Hmmmm. TDPK may be right there. I really don’t care how much of a problem he’s made for himself by suing me. In any case, given his expertise with callousness, perhaps I should defer to his judgment just this once.

UPDATE—A correction: Actually, Judge Johnson never ruled on whether TDPK had any evidence of emotional distress. He didn’t have to. Judge McGann had already thrown that claim out for lack of evidence at the summary judgment stage.

Team Kimberlin Post of the Day

The Dread Pro-Se Kimberlin has tried to claim that he isn’t a public figure. That’s rubbish. He became an infamous public figure as a result of his convictions for drug smuggling, bombings, etc. Since then, he’s sought publicity by means of the “music” he has inflicted on the public. Still, he included this in his second amended complaint for the Kimberlin v. The Universe, et al. RICO Madness—ECF 135-39

This is yet another “so what?” TDPK’s status as a public figure is only important insofar as it bears on his defamation claim. Since he’s suing under Maryland law, that means that it has no bearing on the case. You see, in Maryland the standards for proving defamation are the same for private individuals and public figures.

collateral estoppel t-shirtAs of now, we have a final judgment in the Kimberlin v. Walker, et al. nuisance lawsuit that Kimberlin didn’t present a “scintilla” of evidence that he had been defamed. That’s a settled matter now. Res judicata and all that. Moreover, there is case law saying that collateral estoppel applies not only to the points he tried to raise in that suit but also to all the matters available for him to raise in support of that claim of defamation. His defamation claim is not only merely dead, it’s really, most sincerely dead.

popcorn4bkWhich brings us to the Contest. No one has caught the fatal error that Aaron Walker found in TPDK’s motion for a new trial in the Kimberlin v. Walker, et al. case. There’s a Hogewash! Res Judicata coffee mug waiting for the winner.

Meanwhile, the timer is ticking down on the due date for TDPK’s omnibus opposition to the motion to dismiss the RICO Madness.

Stay tuned.

UPDATE—A bit of clarification … TDPK is trying to make a damage claim based on defamation per se. Under Jacron Sales Co. v. Sindorf, 277 Md. 165, 352 A.2d 810 (1976), a private individual seeking such damages must meet the same standard of proving actual malice as a public person would under NYT v. Sullivan.

Team Kimberlin Post of the Day

The Dread Pro-Se Kimberlin has filed a motion for a new trial in the Kimberlin v. Walker, et al. nuisance lawsuit that he lost back in August. After TPDK rested his case, the judge found that he had not presented any evidence that he had been defamed or that he had suffered any false light invasion of privacy. Therefore, the judge entered a directed verdict in the favor of us defendants. TDPK’s new motion is not only frivolous, it contains material that Aaron Walker noticed which further weakens Kimberlin’s case.

Our lawyer will reply to the motion, so I won’t be commenting on it directly. However, while we’re waiting for the court to rule on the motion, we might as well have some fun with it. I’ve decided to run a contest to see if the Gentle Readers can pick up on the worst error in the motion.

res_judicata_mugsI don’t want to tip off TDPK to his amazing blunder. That means I don’t want to publish a list of all the deficiencies in his motion. Please don’t comment publicly on what you find. Instead, send your comments to me at hogewash@wjjhoge.com. Put the phrase “TDPK Contest” in the subject line. I’ll collect the entries and post the best ones after the judge rules. The first person to spot the same error Aaron found will win a Hogewash! Res Judicata coffee cup. The winner will be determined by the timestamp on his email.

Team Kimberlin Bonus Post of the Day

After two days of trial and enough words to consume over 400 pages of transcript, The Dread Pro-Se Kimberlin’s vexatious Kimberlin v. Walker, et al. lawsuit boiled down to this one sentence finding by Judge Johnson:

There’s not one scintilla of evidence in this case that the statements that were made by these individuals were false.

Res judicata. Collateral estoppel. They should both apply to the Kimberlin v. The Universe, et al. RCIO Madness.

Team Kimberlin Post of the Day

The Dread Pro-Se Kimberlin may be in for a rough time with his RICO claim in his vexatious Kimberlin v. The Universe, et al. lawsuit. He has made allegations of online fundraising by the defendants the underpinning of his claim.ECF 135-165He made a similar claim in his Kimberlin v. Walker, et al. nuisance suit in state court. When he tried to get evidence concerning such fundraising into the record, he wound up with these exchanges. This—

MR. KIMBERLIN: Uh-huh. So you’ve raised a lot of money on that site.

MR. AKBAR: No.

MR. KIMBERLIN: You haven’t?

MR. AKBAR: Nope.

MR. KIMBERLIN: Bomber Sues Bloggers has never raised any money?

MR. AKBAR: No. I do a lot of fund raising for charitable activities, homeless people, the hungry, free speech —

MR. KIMBERLIN: I’m asking you a simple question. Have —

MR. AKBAR: Well, what —

MR. KIMBERLIN: — you ever raised any money on —

MR. AKBAR: In the context of what I do for a living, no.

—and this—

MR. KIMBERLIN: Have you ever received any money, any funds at all, from the National Blogger’s Club?

MR. HOGE: No.

Thus, there is nothing in the record of that trial concerning online fundraising by my codefendants or me that supports TDPK’s similar allegations in the state case. BKvAW2013SAC-8That lack of evidence is part of what led Judge Johnson to render a directed verdict in our favor. That verdict is a final judicial finding that TDPK’s allegations are false. As such, they are not subject to relitigation under the doctrine of res judicata. That means that the RICO claim in the federal lawsuit should be dismissed.

orvilleredenbacherIt will be interesting to see what crackpot legal theory TDPK will try to use to save his foundering lawsuit when he files his omnibus answer to all the motions to dismiss in the RICO Madness. His opposition is due on 15 October. There should be plenty of time to stock up on popcorn.

Stay tuned.

Team Kimberlin Post of the Day

Ah, yes! The legal doctrine of res judicata. Dan Backer’s motion to dismiss in the Kimberlin v. The Universe, et al. RICO Madness discusses the applicability of res judicata to the case.

The doctrine of res judicata bars a subsequent lawsuit when there was: (1) a final judgment on the merits in a prior suit; (2) an identity of the cause of action in both the earlier and the later suit; and (3) an identity of parties or their privies in the two suits. Pueschel v. United States, 369 F.3d 345, 354- 55 (4th Cir. 2004). Res judicata bars not only claims that were raised and fully litigated but also bars all grounds for recovery previously available to the plaintiff regardless of whether they were raised or litigated in the prior suit. Peugeot Motors of Am. v. E. Auto Distribs., Inc., 892 F.2d 355, 359 (4th Cir. 1989); See also Nevada v. United States, 463 U.S. 110, 129-30 (U.S. 1983) (holding res judicata not only bars the matters litigated also bars claims for any other admissible matter which might have been offered). The Fourth Circuit has upheld res judicata in a motion to dismiss a court may take judicial notice of facts from a prior judicial proceeding when the res judicata defense raises no disputed issue of fact as to the factual accuracy of the record of the prior suit. Andrews v. Daw, 201 F.3d 521, 524 n.1 (4th Cir. 2000) (citing Thomas v. Consolidation Coal Co., 380 F.2d 69, 75 (4th Cir. 1967)).

Plaintiff sued numerous Defendants in this case in his concurrent Maryland state case, Kimberlin v. Walker, et al., No. 380966V (Md. Mont. Co. Cir. Ct. 2013), on substantially similar claims yet failed to include Backer or DB Capitol Strategies PLLC as a party to such case. Plaintiff admits that he filed the case the judgments or orders in the case will help him “decide whether to file the motion [for preliminary injunction] in this case or withdraw the request to file as moot. (ECF No. 175). All state claims have been litigated and that court was so unpersuaded by them that it directed judgment, after earlier dismissing several of Plaintiffs other colorful claims. Kimberlin v. Walker, et al., No. 380966V (Md. Mont. Co. Cir. Ct. 2013). Because the laundry list of predicate acts claimed by Plaintiff to gin up his RICO claim have been deemed not actionable by the state court, Plaintiff cannot continue to rely on these debunked claims. Consequently, the same claims made here, and the fantastical conspiracy to commit these acts found not to be unlawful, cannot be sustained against the defendants who allegedly made them or those in the alleged conspiracy to further them. Accordingly, Plaintiff’s Second Amended Complaint in its entirety as to Backer should be dismissed in accordance with the doctrine of res judicata.

The Dread Pro-Se Kimberlin shouldn’t be allowed to relitigate his losing case that failed in state court.

res_judicata_mugsOf course, one of TDPK’s claims is that I’ve been using my reporting on his activities to raise money by defrauding the Gentle Readers who hit my Tip Jar. He has yet to explain how that injures him. In any event, I’m always thankful for  reader support.

You can also support the blog by shopping at The Hogewash Store or shopping via the Amazon link on the Home page.

Whichever means you chose, your support helps keep this blog on the air.

If you want to offer broader support to the bloggers, go to Bomber Sues Bloggers to find out how.

Team Kimberlin Post of the Day

I mentioned a few days ago that The Dread Pro-Se Kimberlin’s response to our discovery requests in the Kimberlin v. Walker, et al. nuisance lawsuit was underwhelming. Based on the staggering lack of evidence, the lawyer representing Aaron Walker, Stacy McCain, Ali Akbar, and me has filed a second set of motions for summary judgment on the two counts that survived the 1 July hearing. Of course, TDPK has filed an opposition to our motions.BK v AW 2013 Op2MSJ-1TDPK is dead wrong about res judicata being applicable. Res judicata only applies to final dispositions of matters. There has been no final disposition of the surviving defamation and false light counts in the lawsuit. There won’t be until either they are dismissed with prejudice or one side wins at trial. Judge McGann denied our first motions on those counts in order to give TDPK one last chance to allege a set of facts to support his case. The judge told him that if he didn’t do so, it was likely that he’d face another motion for summary judgment.

Now it might just be … that the defense then will re-file another motion for summary judgment on the remaining two counts, depending on what he gets.

Kimberlin v. Walker, et al., 380966 V, 1 July, 2014, Transcript at 52.

res_judicata_mugsThe hearing on our motions is scheduled for 7 August. If things go well, that will be the end of the case. Otherwise, we will go to trial on 11 August.

BTW, all sorts of nifty Res Judicata stuff is for sale over at The Hogewash Store.

Team Kimberlin Post of the Day

In their latest attempt to find a legal theory that might save The Dread Pro-Se Kimberlin’s frivolous and vexatious lawsuits, Team Kimberlin has sent the Cabin Boy™ out to float the idea that res judicata applies as to whether or not TDPK is a public figure. Schmalfeldt has posted a clip (No, I won’t link to it.) from the docket of the Kimberlin v. Allen suit which shows that Judge Quirk ruled against Seth Allen’s motion to declare Kimberlin a public figure. Res judicata to the rescue!

Au contraire. Take a look at this more complete bit of the record.BK v Allen 119:140Docket Number 140 is the record of the judge’s ruling on Docket Number 119. Docket Number 119 was Seth Allen’s motion.

Here’s why that’s important: Res judicata applies when the same matter is brought up a second time in litigation between the same parties. Thus, Seth Allen is no longer allowed to argue in court that Brett Kimberlin was public figure before February, 2012. Anyone else can, and Mr. Allen can still argue that TDPK may have become one since then.

There’s a long string of case law supporting the principle that someone who is convicted of an infamous crime becomes a public figure. I argue that Brett Kimberlin, who is, after all, a convicted serial bomber with dozens of other felony convictions, is a public figure just like other convicted serial bombers—like Ted Kaczynski (“The Unibomber”), for instance.

They must be working overtime at Acme Law.

If you’d like to help my codefendants (Aaron Walker, Stacy McCain, Ali Akbar, and Kimberlin Unmasked) and me defend ourselves from Brett Kimberlin’s anti-First-Amendment lawfare in the Kimberlin v. Walker, et al. lawsuit, go to Bomber Sues Blogger to find out how.

res_judicata_long_sleeve_tshirtUPDATE—Res Judicata t-shirts, coffee mugs, and other goodies are available at The Hogewash Store.

Stop by today and spend some of your hard earned cash in support of Team Lickspittle.

Shameless Commerce

While scanning through Breitbart Unmasked, I found an extremely silly post trying to pin the identity of Kimberlin Unmasked on Dustyn Hughes (aka Monitor 2112). Apparently, the BU crew thinks that they have evidence that Mr. Hughes participated in some online event and that his participation proves something or other.BU20131204

During a Twitter exchange between Monitor and one of the Team Kimberlin thugs, I popped in to plug the Res Judicata iPad covers recently added to The Hogewash Store. It was an inside joke between Monitor and me. I had added them to The Hogewash Store at his request.

It’s really quite pathetic to see the way Team Kimberlin is grasping at straws.

Another Latin Lesson

During the run up to the hearing on Bill Schmalfeldt’s failed motion to modify the peace order issued against him, he kept ranting about how he was going to relitigate the Hoge v. Schmalfeldt peace order case during the hearing on the motion. My response to him was to offer a lesson in the meaning of the Latin phrase res judicata (“the thing decided”). As a legal principle, it means that a final judgment is just that; it’s final and not to be relitigated.

The Cabin Boy has committed an absurd number of violations of that peace order, so he is now facing an absurd number of criminal counts of failure to comply with a peace order. He’s taken to the Interwebz to lecture what few readers he can muster on his crackpot legal theory of why he really hasn’t done what the judge told him not to do. It may be time for him to learn a new Latin phrase.

Stare decisis.

Those word come from the legal maxim stare decisis et non quieta movere which means “to stand by decisions and not disturb the undisturbed.” As a legal principle, this means that courts abide by precedent and don’t disturb settled matters.

So what are the precedents and settled matters with respect to the Hoge v. Schmalfeldt peace order?

First, it is a settled matter of fact that Bill Schmalfeldt engaged in a course of conduct to harass me.

Second, it is a settled matter of fact that he used @mentions and @replies to do so. The only evidence offered in the trial in the Circuit Court was from Twitter, so if the judge found that harassment occurred, it must have been via Twitter.

Third, it is a settled matter of fact that the Circuit Court issued a peace order requiring that Schmalfeldt should not contact, attempt to contact, or harass me and that the order is effective until 14 December, 2013.

Fourth, it is a settled matter of law as far as the Circuit Court is concerned that Schmalfeldt’s use of @mentions and @replies on Twitter is within the scope of the Maryland harassment statue. The Court of Appeals refused to review the Circuit Court’s ruling.

Fifth, it is a settled matter of law as far as the Circuit Court is concerned that neither the ruling nor the dicta in U.S v. Cassidy are applicable to the Maryland harassment or peace order statutes. Cassidy turns on speech about someone. The harassment statute involves speech to someone. The Court of Appeals refused to review the Circuit Court’s ruling.

Sixth, it is a settled matter of law that one must obey a court order, even an unconstitutional one, until it is either rescinded or overturned on appeal. The Supreme Court said so in Walker v. City of Birmingham.

When the four cases (for now) dealing with the 351 counts (for now) of failure to comply with a peace order go before the District Court, the principles of res judicata and stare decisis should require the District Court to take the first three points above as a given. Also, since the Circuit Court is a higher court, the District Court should also be bound by higher court’s determination of the meaning of the law in points four and five. It will certainly be bound by Walker.

So the questions to be decided by the District Court should boil down to these:

1. What did the peace order forbid?
2. Did Bill Schmalfeldt commit a forbidden act?

Nothing that the Cabin Boy has been going on about should be relevant.

UPDATE—Some people will only learn Latin the hard way …

UPDATE 2—Minor correction for clarity.