Tag Archives: RICO 3 Kimberlin v. Breitbart et al

Team Kimberlin Post of the Day

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TeaTeam Kimberlin The TKPOTD for eight years ago today provided a summary of why Brett Kimberlin would lose the federal claims in the RICO Madness LOLsuit and why he would lose the state claims he tried to keep alive in his RICO Retread LOLsuit.

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The Dread Pro-Se Kimberlin wrote in one of his filings that Ace of Spades lawyer was being “hyper technical” by insisting that Kimberlin was suing the entity actually called out in his Kimberlin v. The Universe,et al. RICO Madness complaint rather than a third party. In his omnibus opposition to the motions to dismiss the RICO Madness he claims that we defendants are relying on technicalities rather than facts.ECF 231-2This is ripe for fisking.

<fisking>

Because there is no truth to their defamatory statements …

The reason TDPK lost his state Kimberlin v. Walker, et al. lawsuit was because he couldn’t show that anything we said and wrote about him was false. The doctrine of res judicata prohibits him from retrying those issues related to defamation. He can now longer use any of the evidence that he raised in that trial against Aaron Walker, Stacy McCain, Ali Akbar, or me. Not only that, but he can’t use any of evidence that was available to him at the time that he could have raised but failed to do so.

… they instead ask the Court to dismiss the case for many technical reasons, …

“Technical reasons” means points of law.

… such as, 1) the three year statute of limitations should not apply to the false light claim, …

Yep. It should. The Smith v. Esquire decision that says so is a binding precedent in the District of Maryland. Kimberlin has misrepresented the Allen v. Bethlehem Steel case as being a ruling of the Maryland Court of Appeals which would be a binding interpretation of state law. In fact, it is a decision from a lower court and isn’t binding on the U. S. District Court. Also, TDPK has provided a false citation to the case.

… 2)  defamation and false light cannot apply to Plaintiff because he is a public figure and 3) defamation proof, …

I don’t recall any of the defendant arguing that a public figure can’t sue for defamation or false light, but several of us have pointed out that Brett Kimberlin’s reputation was so bad before we ever wrote or said one word about him that it was impossible to take it any lower. Brett Kimberlin is a convicted serial bomber like Ted Kaczynski (the Unabomber), and convicted serial bombers are notorious public figures with bad reputations.

… 4) the Defendants did not engage in a RICO Enterprise, …

As a matter of fact, we didn’t, and simply say that we did without saying who did what to whom on which day is not a well-plead allegation as required by Federal Rule of Civil Procedure 8.

… 5) the First Amendment allows fair comment …

Yes, it does.

… 6) Defendant Frey did not act under color of law, …

Well, he didn’t, and the U. S. District Court for the District of Southern California ruled that he didn’t in the very similar Naffe v. Frey case. Given that the facts of that case are so similar to the half-baked allegations in the RICO Madness, given that TDPK has not explained why that court got anything wrong, and given the rulings in similar cases by the Fourth Circuit (the next higher federal court to the District of Maryland), Kimberlin doesn’t have much of a case here.

… and 7) the SAC violates the Maryland Anti-SLAPP statute.

SAC stands for “second amended complaint,” and, yes, it does. It has the effect of chilling discussion of a topic of public interest.

Each of these and other arguments is without merit and belied by the facts and law.

Uh, huh.</fisking>

#SMH

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And his follow on cases, RICO Remnant; RICO 2: Electric Boogaloo; RICO 3; and Kimberlin v. McConnell, et al. were even more shoddily crafted—and losers every one.

Team Kimberlin Post of the Day

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As the Kimberlin v. Walker, et al. nuisance LOLsuit was coming to an end in state court, Brett Kimberlin began trying to get a temporary restraining order in the federal RICO Madness LOLsut against the state court defendants who common to both cases. However, the federal suit was under a case management order, so Kimberlin had to ask for permission to file for the TRO, and he asked for an unusually long schedule for the filing. Judge Hazel said, “No,” point out that if the matter is important enough for a TRO, Kimberlin needed to get his paperwork in promptly. He set a drop dead date for filing.

The reason Kimberlin wanted more time than usual was that he had planned to take a vacation in Hawaii with his wife and her two daughters. BTW, he lists his salary on the Justice Through Music Project IRS Form 990 as $19,500 a year, and he told the Seventh Circuit Court of Appeals last year that he should be given a pro bono lawyer because he has to makes do on his JTMP pay and a small bit of Social Security.

The TKPOTD for eight years ago today was about Kimberlin’s response to the judge’s instructions.

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Thursday, 28 August, 2014, was the drop dead date for The Dread Pro-Se Kimberlin to either file his motion for a preliminary injunction in his Kimberlin v. The Universe, et al. RICO Madness or to inform Judge Hazel that he was withdrawing his request to file such a motion. Failure to do one or the other was not an option, but it seems that was the course TDPK chose.

No new filings showed up in the case docket on PACER on Thursday, but if something had been filed at the last minute or put in the after-hours drop box, it would not have made it into the system until Friday. There was nothing new on Friday either.

I was informed by my lawyer in the state Kimberlin v. Walker, et al. nuisance lawsuit that TDPK had threatened to file an additional federal lawsuit against me and my state codefendants for some unspecified cause of action. (Mopery with intent to lurk?) That suit was also supposed to come on Thursday as well, but no new case had appeared in PACER as of Friday.

I’m beginning to wonder if Brett Kimberlin has caught on to the fact that his associate Neal Rauhauser’s theory of lawfare has several fatal flaws. First, it won’t work when it is used to attack someone or some organization with a combination of deep pockets and deep principles. Second, it won’t work against a pro se defendant with the time, intellectual resources, and stamina to engage in the kind of legal judo necessary to turn the lawfare back on the plaintiff. Third, it won’t work when it is used to attack so many defendants at once that they can overwhelm the plaintiff with their filings in reply to his complaints and motions.

TDPK hit the trifecta with his RICO Madness. Maybe he’s learned his lesson.

popcorn4bkAnd maybe not.

He is making noises about appealing his loss in the state lawsuit.

Stay tuned.

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Losing that first state case wasn’t enough. It took losing the RICO Madness, RICO Retread, and RICO 2:Electric Boogaloo LOLsuits for Kimberlin to learn to stop messing with me, and he had to lose the RICO Remnant and RICO 3 LOLsuits as well before he finally gave up on trying to use lawfare for reputation management.

Team Kimberlin Post of the Day

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Brett Kimberlin’s attempts to use lawfare to silence and/or punish his perceived enemies became more unsuccessful as he went along. Most of the first defamation case was disposed of at summary judgment (explained below), and the rest of it failed when the judge stopped the trial after Kimberlin had rested his case because he hadn’t shown any evidence to support his case. The most of the second case failed to survive motions to dismiss, and the last defendant won at summary judgment. The third and fourth defamation cases didn’t survive motions to dismiss, and the fifth case was dismissed by the court on its own motion before any summons were issued to the defendants.

The TKPOTD for eight years ago today dealt with the summary judgment in the first case.

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Judge McGann threw out five of the seven claims for relief in the Kimberlin v. Walker, et al. nuisance lawsuit on Tuesday morning. He also denied The Dread Pro-Se Kimberlin’s motion for summary judgment against the defendants.

I have held off publishing either sides filings related to yesterday’s hearing until after the judge ruled. Now that TDPK’s motion for summary judgment has been denied, I’ll comment on it.

But first let me explain to those of you with your hands raised about what a summary judgment is.

A summary judgment is one entered by a court for one party and against another party without a full trial. It’s a determination on the merits based upon the court’s finding that there are no disputes of material fact requiring a trial to resolve and that in applying the law to the undisputed facts, one party is clearly entitled to judgment. In plain English that means that yesterday the judge found that there was no question that both the facts and the law were against Kimberlin’s claims for relief related to abuse of process and malicious prosecution, conspiracy to abuse process, intentional infliction of emotional distress, harassment, and stalking.

In order to establish the elements of malicious prosecution, TPDK needed to allege that the criminal complaints filed against him were without probable cause and were filed with malicious intent. He did not allege either with sufficient particularity for the judge or the defendants to know what acts the defendants might have committed that resulted in his claimed tort.

He had a similar problem with his allegation of conspiracy to abuse process. He also could not overcome the fact that conspiracy is not, itself, a tort.

He did not allege the elements of intentional infliction of emotional distress with sufficient particularity for the court understand the nature of his distress or what damages he might have suffered. Pleading severe butthurt was a non-starter.

The claims for stalking and harassment were thrown out very early in the hearing after it was pointed out that there are no such torts and after TDPK admitted he could cite no case law supporting his claim.

popcorn4bkThe counts related to defamation and false light invasion of privacy still survive. For. Now. TDPK hasn’t provided any of the discovery related to those claims, and the sanctions imposed by the court will prohibit him from introducing any related evidence if he has not complied with discovery by 10 July.

Stay tuned.

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Since I didn’t say it then, I’ll say it now: Qapla’

Team Kimberlin Post of the Day

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Brett Kimberlin never should have gone after bloggers who were writing truthful things about him. He never should have sued any blogger, especially me, for defamation. The TKPOTD for six years ago today outlines what he lost when the court threw out the Walker v. Kimberlin, et al. nuisance LOLsuit.

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Most of The Dread Pro-Se Kimberlin’s vexatious Kimberlin v. Walker, et al. lawsuit died before the trial stated when Judge McGann threw out five of the seven counts in his complaint on summary judgment. During the trial, Judge Johnson found that TDPK hadn’t presented a “scintilla” of evidence to support the remaining defamation and false light counts and granted a directed verdict in favor of us defendants.

As a matter of law, we defendants now have findings on the merits that we did not engage in malicious prosecution against Brett Kimberlin, that we did not conspire to abuse process against Brett Kimberlin, that we did not defame Brett Kimberlin, that we did not engage in false light invasion of Brett Kimberlin’s privacy, that we did not harass Brett Kimberlin, that we did not intentional inflict emotional distress on Brett Kimberlin, and that that we did not stalk Brett Kimberlin. The claims made by Brett Kimberlin were found to have no basis in fact. That includes the following allegations specifically made in his second amended complaint:

• There is no evidence for his claim that he was assaulted by Aaron Walker.
• There is no evidence for his claim that Aaron Walker or I suborned perjury from Tetyana Kimberlin.
• There is no evidence for his claim that Tetyana Kimberlin’s accusation against him of third degree sexual offense was false.

Furthermore, the court ruled that we did not defame TDPK or place him in a false light when we said or wrote the following things about which he complained in his suit:

• That he caused Aaron Walker to be fired from his job.
• That any of us believe he is a pedophile.
• That he has used mentally abusive tactics against his wife.
• That he is evil.
• That he is a misogynist.
• And all the other things he cited in his second amended complaint.

TDPK’s very own false narrative has been gutted. It’s now roadkill, lying open for all to see. It isn’t pretty. But lies never are when you see them for what they are.

Meanwhile, TDPK has his omnibus answer to all the motions to dismiss in the Kimberlin v. The Universe, et al. RICO Madness due on 15 October.

Everything is proceeding as I have foreseen.

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Kimberlin is a slow learner. He kept suing bloggers, including me. I argued in subsequent suits that his reputation was so poor because of his history as a serial bomber that it was impossible to defame him, so he had no grounds to sue for defamation. Eventually, one of the courts agreed with me. It granted defendants dismissal for Kimberlin’ failure to state a claim upon which relief could be granted because his reputation made him defamation proof.

It appears that Kimberlin has refrained from further litigation since his Kimberlin v. Breitbart Holdings, et al. RIOC 3 LOLsuit was dismissed, but he’s found other project to fail at. He failed in his election protection activities in 2016. He got scammed out of $9,000 when the dirt he thought he was buying on the Trump administration turned out to be bogus. And it’s been over a week since his @itstime_2020 account had a fresh tweet or picked up a follower. It still only has 2.

Failing failures gotta fail.

Team Kimberlin Post of the Day

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As the TKPOTD from three years ago reminds us, some people have less credibility than others.

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The unsworn statements of a convicted perjurer don’t seem to count for much with some judges. These are from yesterday’s Memorandum Order that ended The Dread Pro-Se Kimberlin’s RICO Retread LOLsuit with summary judgment in Patrick Frey’s favor.

Kimberlin states that he was interviewed twice by FBI agents with respect to the swattings, once on or about July 1, 2012 and again in 2016. The FBI agents told him that Frey accused him of involvement in the crime. Kimberlin also states that his wife was interviewed by agents on or about August 20, 2013. These statements are included in Plaintiff’s Motion for Summary Judgment but Plaintiff does not submit a sworn affidavit regarding these claims and provides no additional evidence to support these statements.

Memorandum Order at 10, citations omitted.

Because the Court holds that Kimberlin has failed to establish his prima facie case …

Memorandum Order, n. 20.

TDPK managed to win his first shutuppery lawsuit against Seth Allen, but ever since he made the mistake of going after Aaron Walker, he’s lost the bulk of the civil action he’s filed: both 2012 peace orders against Aaron Walker; the peace order against John Norton; the Kimberlin v. Walker, et al. nuisance suit; the Kimberlin v. National Bloggers Club, et al. (I) RICO Madness/Kimberln v. Frey RICO Remnant LOLsuit; the 2015 peace order against me; the Kimberlin v. Hunton & Williams LLP, et al. (I) RICO 2: Electric Boogaloo LOLsuit; the Kimberlin v. National Bloggers Club, et al. (II) RICO Retread LOLsuit; and the Kimberlin v. Hunton & William LLP, et al. (II) RICO 2 Retread LOLsuit. He settled with Kimberlin Unmasked, but he wound up effectively losing to a cockroach. His RICO 3 LOLsuit was filed 9 months ago, and the court still hasn’t issued any summonses.

TDPK may want to reevaluate the usefulness of “lawsuits for the rest of their lives.”

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TDPK had the RICO 3 case die on the vine as well.

Losing losers gotta lose.

Say, I just realized that Kimberlin was convicted of perjury (one), and pleaded guilt to the drug smuggling rap (two), and then was convicted on the bombing charges (three). Maryland has a three-strikes law. Noted.

Team Kimberlin Post of the Day

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This TKPOTD is from four years ago today. It provides a succinct summary of Brett Kimberlin’s lawfare campaign attempting to use the courts to suppress the First Amendment rights of his critics.

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One of the subjects of interest at this blog is the First Amendment. I got interested in Brett Kimberlin back in 2012 because of the unconstitutional gag order he was granted against Aaron Walker as part of a peace order. That struck me as an attack on Aaron’s First Amendment rights, and I wound up participating in the Everyone Blog About Brett Kimberlin Day blogburst. Because the hearings involved in the Kimberlin cases were within commuting distance of my home, I began attending them and writing about the various Kimberlin-related peace order petitions and lawsuits.

As a result, I became part of the story.

In late July, 2013, Brett Kimberlin filed a false criminal complaint against me accusing me of harassment. The charge was dropped by the Montgomery County State’s Attorney.

In late August, 2013, Brett Kimberlin sued Aaron Walker, Stacy McCain, Ali Akbar, Kimberlin Unmasked, and me in Montgomery County Circuit Court alleging a wide array of torts, including defamation and false light invasion of privacy. In July, 2014, most of that case was dismissed on summary judgment. The next month, Aaron, Stacy, Ali, and I received a directed verdict in our favor when Kimberlin was unable to put on enough evidence to allow the remaining case to go to the jury. Kimberlin appealed to the Court of Special Appeals, and a three-judge panel upheld the Circuit Court’s finding in January, 2016. Kimberlin has asked an rehearing en banc by the entire Court of Special Appeals.

In October, 2013, Brett Kimberlin sued over twenty defendants, including me, in federal court alleging a RICO conspiracy and civil rights claims as well as a laundry list of state law torts. On 17 March, 2015, the federal claims were throw out, except for one claim against Patrick Frey. Kimberlin tried to appeal to the Fourth Circuit Court of Appeals, but he was turned away because the case was still ongoing in the lower court. The remnant portion of the case has been limping along, and discovery finally ended last Friday. Kimberlin has sought to subpoena information from me, but I was not properly served. However, I voluntarily let him have the responsive information that I had. Because he was disappointed with what he received, he filed a motion to have me sanctioned. That motion is still pending.

In March, 2015, Kimberlin filed a false peace order petition against me that alleged I had harassed Mrs. Kimberlin’s elder daughter. On 13 March, 2015, that petition was denied.

The following Monday, 16 March, 2015, Kimberlin filed his second RICO lawsuit, the so-called Team Themis suit, against almost twenty defendants. My name was tacked on the end. (This was great timing; the first RICO suit was dismissed the next day.) That lawsuit was dismissed last week.

On 15 April, 2015, Kimberlin filed another lawsuit in Montgomery County Circuit Court which essentially was the state law claims from his first federal RICO suit alleged against most of the same defendants. Michelle Malkin, Twitchy, Breitbart, Glenn Beck, Mercury Radio Arts, and The Blaze were dismissed from the suit in September, 2015. Aaron Walker was dismissed in January, 2016. Dan Backer, DB Capitol Services, Lee Stranahan, and I were dismissed yesterday. Of the four remaining defendants, Patrick Frey, Ali Akbar, and National Bloggers Club remain unserved, and Mandy Nagy is incompetent to defend herself following a devastating stroke.

Kimberlin appealed the denial of his bogus peace order petition, and his appeal was denied after a hearing in Montgomery County Circuit Court on 14 May, 2015.

A few days later, acting through his wife, Kimberlin filed a false criminal complaint based on the allegations in his peace order petition. In June, 2015, the Montgomery County State’s Attorney dropped the charge for lack of evidence.

So where are the cases now.

The peace orders and criminal charges are done.

The first state lawsuit has failed on appeal, and it’s unlikely that the Court of Special Appeals will bother with an en banc hearing and even more unlikely that the Court of Appeal (Maryland’s highest court) would grant a petition for certiorari and take the case.

The first RICO case isn’t over in the District Court and can’t be appealed until the claim against Patrick Frey is adjudicated there.

The second RICO is in now toast in the District Court. I expect that Kimberlin will file an appeal with the Fourth Circuit in a few days.

The second state lawsuit isn’t over yet either, and it can’t be appealed until the claims against the remaining four defendants are resolved.

So, for now, Patrick Ostronic, my pro bono attorney in the state cases, will be watching the Court of Special Appeals for a decision on an further hearing, and I’m lining up legal resources to deal with the expected appeal in RICO 2. And we shall see how Judge Hazel rules on that sanctions motion. Meanwhile, it’s become abundantly clear that the Rauhauser/Kimberlin strategy of on-the-cheap pro se litigation has backfired.

We’re dealing with people who have likely had no interaction with the court system beyond a traffic ticket; the potential for a pro se litigant to force them into expensive, long distance, lengthy, discovery laden litigation doesn’t seem to cross their minds.

—Neal Rauhauser, quoted by Stacy McCain.

Kimberlin now overlooks at his own risk the potential for a group of defendants, some with excellent legal resources, dedicated to the First Amendment to push back against his lawfare. Maybe, just maybe, he’ll begin to understand the potential costs of taking on dedicated pro se defendants with time and resources.

#Loser

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Loser indeed. Not only did The Dread Deadbeat Pro-Se Kimberlin wind up losing all those cases and their appeals, he wound up having appeals court costs taxed to himself and getting sanctioned for frivolously including me as an appellee in one of the appeals. Oh, and he lost his RICO 3 Lolsuit that he filed agains Breitbart Holdings, Steve Bannon, and a long list of other defendants when it was dismissed sua sponte by the District Court. His LOLsuit against Mitch McConnell and Chuck Grassley was also dismissed sua sponte, and he lost all the appeals related to those case.

Everything proceeded as I had foreseen.