One of the claims that Brett Kimberlin tried to raise against a dozen of my codefendants and me in his RICO Madness LOLsuit was that we had conspired to deprive him of civil rights in violation of 42 USC §1985. The TKPOTD for eight years ago today, examined one of his attempt to keep that false claim alive.
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In his opposition to Lee Stranahan’s motion to dismiss the Kimberlin v. The Universe, et al. RICO Madness, The Dread Pro-Se Kimberlin tries to keep his Ku Klux Klan Act (42 U.S.C. § 1985) claim alive.
Actually, invidious discrimination is one of the element of a § 1985 offense. Here’s what the Supreme Court had to say:
The language requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.
Griffin v. Breckenridge, 403 U.S. 88, 102 (1971). There’s nothing in TDPK’s second amended complaint that alleges that any defendant discriminated against him because of his race. (As Stacy McCain noted while Kimberlin had him on the witness stand in the state lawsuit, “You’re white, by the way.”) The closest he’s ever come making a class-based claim was when he tried to sell the idea that he was being discriminated against because of his criminal record, but that isn’t in the second amended complaint. Even if it were, felons are not a protected class.
I expect to see some pretty wild stuff thrown out by TDPK as the we get closer to the end to the RICO Madness. Monday should bring some interesting things to PACER.
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Yes, Brett Kimberlin is a felon, and even if he had succeeded in getting the Supreme Court to erase his Speedway Bombing convictions, he’d still have felony convictions for perjury and drug smuggling.
Brett Kimberlin filed his RICO Madness LOLsuit against me and my codefendants (there were 24 defendants in the case at one point) in the middle of October, 2013. It took until January, 2105, to get all of the preliminary motions filed, oppositions filed, and relies filed. The TKPOTD for eight years ago today dealt with the beginning of the end of that LOLsuit.
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The replies to The Dread Pro-Se Kimberlin’s omnibus opposition to the motions to dismiss his Kimberlin v. The Universe, et al. RICO Madness are due by next Thursday. I have reason to believe that some will be filed earlier, and if they are, I’ll post them as they become available on PACER.
I hope that there will not be much delay between those replies being filed and the judge ruling on our motions.
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It wasn’t until the middle of March, 2015, that the case was finally dismissed, except for one count against Patrick Frey.
Speaking of staying tuned, Kimberlin’s petition to the Supreme Court for review of his Speedway Bombing conviction was circulated to the justices for their conference this Friday. We may know more about the fate of that case soon.
Stacy McCain refers to Brett Kimberlin as The World’s Worst Pro-Se Litigant™. The Dread Deadbeat Pro-Se Kimberlin is certainly a strong contender for that title. The TKPOTD for nine years ago today dealt with one oversight in his planning for the RICO Madness LOLsuit.
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Aaron Walker points out that The Dread Pros-Se Kimberlin must not have been looking at a calendar when he filed various legal paperwork.
So to keep a tally, Brett has to respond to 1) a motion to dismiss the RICO suit by John Hoge, 2) a motion to require verified filings in the RICO suit by John Hoge, 3) a motion to dismiss the RICO suit by me, 4) a motion to require verified filings in the RICO suit by me, 5) a memorandum in support of Kimberlin Unmasked’s right to remain anonymous in state court, 6) a motion to dismiss the RICO suit by DB Capital Strategies, and 7) a motion to dismiss the RICO suit by the Franklin Center. And he will have to work on all of it over Christmas—I mean, he doesn’t want to default on any of that, does he?
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.This is ripe for 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.
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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.
Did I mention that Brett Kimberlin is a liar? Oh, yeah. I did. The TKPOTD from nine years ago makes that very point.
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While doing research on The Dread Pro-se Kimberlin’s previous lawsuits, I found this interesting bit of testimony. It’s from the transcript of the damages hearing in his suit against Seth Allen.
Q Were you released and then sent back to prison for a parole violation, for failure to pay compensation to the, Ms. Delong (phonetic sp.), the wife of Carl Delong, who took his own life after those bombs —
Q — tore up half his body?
A No, I wasn’t.
Of course, TDPK did have the parole for his bombing and drug smuggling sentences revoked, and one of the reasons was his failure to make restitution to Mrs. DeLong.
In the same proceeding TDPK also testified as follows:
Q Okay. That, how many lawsuits have you filed over your lifetime?
A I have none.
Wow. Even after being reminded of the DeLongs, TDPK wasn’t able to remember suing the widow of Carl Delong, the victim of his eighth bomb, to keep her from attaching funds in his prison commissary account that were due to her as restitution. Of course, his memory isn’t always so faulty. From time to time, he brags of filing “over a hundred” lawsuits.
Speaking of judgments, Kimberlin didn’t win the Allen case on its merits. He secured a default judgment because Seth Allen didn’t respond in a timely manner. Kimberlin’s suit sought $2,250,000 in damages. After hearing about the “damages” TDPK had suffered after being “called a pedophile, a murderer, a fraudster, a con man, [and] a terrorist,” the judge awarded him a hundred bucks.
A default judgment is unlikely in TDPK’s Kimberlin v. The Universe, et al. RICO suit. I’m led to believe than none of the defendants who have been served are willing to settle and that they are busily filing or preparing to file Motions to Dismiss. If Kimberlin is lucky, the court will dismiss the case based on those motions. Otherwise, it is likely that several defendants will file counterclaims and be successful with Motions for Summary Judgment. That could be quite expensive for TDPK.
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He’s also a loser. The few organizations that made the mistake of settling the RICO Madness LOLsuit with him would have beaten him if they’d stuck with us.
It’s been nine years since I filed my first motion to dismiss against one of Brett Kimberlin’s vexatious lawsuits. Here’s the TKPOTD for nine years ago today.
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The Dread Pirate Pro-Se Kimberlin has filed a frivolous and vexatious RICO lawsuit against 20+ defendants, including me. I was given 60 days from 19 October to respond to his Amended Complaint. I have done so with a Motion to Dismiss. Under Local Rule 105, TDPK now has 14 days to file any opposition to my motion.
Here is a copy of my motion. I do not wish to make any further public comment on it until the judge has ruled on it.
IANAL, and I haven’t filed over a hundred lawsuits like Brett Kimberlin, but it didn’t take me long to see that his complaint in his RICO Madness LOLsuit was incompetently drafted. This post first ran nine years ago today.
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I’ve been going through The Dread Pirate Kimberlin’s Kimberlin v. The Universe, et al. RICO suit trying to figure out what case might actually be there. In order for a civil RICO complaint to stand up in court, the plaintiff has to properly allege two separate predicate criminal acts by the RICO enterprise. Here’s one of TDPK’s attempts at do so—Ooooooh! Obstruction of Justice! That’s sounds evil.
18 USC § 1503 deals with trying to interfere with or intimidate a federal juror, officer of a federal court, or a federal judge. TDPK fails to explain which defendant did that to any juror, officer of the court, or judge.
18 USC § 1510 deals with bribery. TDPK fails to accuse any defendant of bribing anyone.
18 USC § 1511 deals with facilitating an illegal gambling business. You can bet that he doesn’t mention gambling, legal or illegal, in his complaint.
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And indeed, all of the suits he’s filed during the past decade have failed.
It’s obvious that Brett Kimberlin projects his own motivations on to others, as can be seen in the TKPOTD for nine years ago today.
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This paragraph is from The Dread Pirate Kimberlin’s Kimberlin v. The Universe, et al. RICO lawsuit.I wonder where Brett Kimberlin got the idea of using a false narrative for money raising as a business model?
In March, 2015, my motion to dismiss was granted in the Kimberlin v. National Bloggers Club, et al. (II) federal suit (aka the RICO Madness LOLsuit). However, one count in the case remained alive against Patrick Frey. (Kimberlin v. Frey, aka the RICO Remnant LOLsuit). Brett Kimberlin kept me involved in the case via a subpoena seeking evidence during discovery. The TKPOTD for seven years ago today dealt with my response to that subpoena.
The redactions of the privilege log and one email are for the benefit of third parties not connect to the LOLsuit.
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Because the subpoena was improperly served on me, I could have blown it off. I chose to fully respond for two reasons. First, I had nothing that would help his case, and I enjoyed pointinh out one of the reasons I couldn’t give him everything he wished for was because his false reports of harassment to Twitter had limited my access. Second, I hoped that voluntarily responding would prevent any further involvement in the matter.
I was wrong on point two.
Because Kimberlin received copied of emails for other discovery which I had trashed as part of my routine account maintenance, he sought to have me sanctioned. Of course, I opposed his attempt, and the dueling motions kept me in the case until Kimberlin finally lost and his sanction motion became moot.
One of the things I’ve noticed about Brett Kimberlin’s court filings is that they usually read like easily disproved fiction. The TKPOTD for eight years ago today debunked one such claim in his RICO Madness LOLsuit.
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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.He 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.
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. That 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.
It 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.
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AFAIK, Kimberlin’s only currently active case is petition for a writ of certiorari seeking to have the Supreme Court review the Seventh Circuit’s denial of his attempt to have his Speedway Bombing convictions set aside. We’ll see how his narrative about those trials plays with the Supremes.
At this point in 2014, Brett Kimberlin has just lost the first of his LOLsuits that included me as a defendant, and only the first of his RICO LOLsuits was still pending. He had just told a reporter the Aaron Walker, Stacy McCain, Ali Alexander, and I could expect lawsuits for the rest of our lives. The TKPOTD fro eight years ago today considered that threat.
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The Dread Pro-Se Kimberlin is rattling his tail and threatening to strike out with yet another vexatious federal lawsuit against the original defendants in the state Kimberlin v. Walker, et al. nuisance lawsuit.
Before he does that, he might want to war-game the various responses that are possible from one or more of the potential defendants. There are some things that he may think are low-to-zero probability that … well, let’s just say that he really, really should consider the potential costs of such a lawsuit.
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The questions posed by this comment to the original post have never be properly answered..
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.
And maybe not.
He is making noises about appealing his loss in the state lawsuit.
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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.
Brett Kimberlin has made almost all of his false statements about me in court filings because statements made in that context are privileged and can’t form the basis of a claim for defamation. The TKPOTD for eight years ago today was a fishing of one set of claims he made in the first RICO LOLsuit that include me as a defendant.
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In the Second Amended Complaint of his Kimberlin v. The Universe, et al. RICO Madness, The Dread Pro-Se Kimberlin has accused me of the following:
From paragraph 76: Virtually every time Plaintiff appears in Court, Defendants Walker and Hoge have stalked him, and Plaintiff fears that Defendant Walker will assault him again. Both Defendants Walker and Hoge constantly write blog posts, some with photos of their shots at the shooting range, stating how they are armed and dangerous and will not hesitate to use their weapons against Plaintiff. Plaintiff has witnessed Defendants Walker, Akbar, McCain, Frey and Hoge attack anyone online who questions their conduct, and at least one reporter has received many death threats after writing about the Defendants.
<fisking>In July, 2013, TDPK tried to have Aaron Walker and me ejected from a courtroom where a set of peace order and protective order hearings to which he was a party were about to begin. Judge Mitchell informed him that we were entitled to be at an open court session.
I’ve never threatened violence to anyone on this blog. I don’t intend to.
If someone has received a death threat, TDPK should make sure that it has been reported to an appropriate law enforcement agency.</fisking>
From paragraph 77: Defendants Akbar, Hoge, Walker, Thomas aka KimberlinUnmasked and McCain have continued to defame and publicly attack Plaintiff after the filing of this Complaint with thousands of tweets and blog posts falsely calling Plaintiff a swatter and stating that he caused Defendant Walker’s termination.
<fisking>I have reviewed every reference to SWATing published here at Hogewash!, and I cannot find a single instance where I have called TDPK a SWATter. I have referred to his involvement in Aaron Walker’s losing his job. BTW, that came up as in the state case, and TDPK was not able to show that what Aaron’s claims is false. Collateral estoppel should apply to any RICO Madness claim relating to Aaron’s firing.</fisking>
From paragraph 80: Defendants Walker, Hoge, Frey and Stranahan condemned Judge Vaughey online which resulted in the judge being targeted by having his home phone number and address posted online, causing the head of courthouse security to provide special security for him. Defendants Walker and Hoge called on their followers to contact Montgomery County States Attorney John McCarthy and demand that he arrest and prosecute Plaintiff based on their false narratives. In March 2013, Defendants Hoge, Walker, McCain and Stranahan launched “Everyone Blog About Howard County (Maryland) State’s Attorney Day,” which resulted in threats by phone and email to the State’s Attorney over a period of several weeks.
<fisking>TDPK can show no causal relationship between my criticism of Judge Vaughey’s decision to ignore a Supreme Court precedent and grant an unconstitutional peace order and any alleged actions that might have been taken by third parties. I have never contacted State’s Attorney McCarthy demanding TDPK’s arrest. I have asked why the Montgomery County State’s Attorney’s Office has ignored Brett Kimberlin’s blatant perjury, but I have never received a reply. The Howard County State’s Attorney’s Office has never confirmed to me that they received any threats as a result of Everyone Blog About the Howard County State’s Attorney’s Office Day.</fisking>
From paragraph 138: On June 8, 2012, Defendant Hoge, who lives in Maryland, wrote a letter to a Congressman in Maryland and imputed that Plaintiff was involved with swattings, that he should be investigated by the FBI and sent to prison. Defendant Hoge published that letter along with a blog post.
<fisking>Yes, I wrote a letter to Congressman Van Hollen. It doesn’t say anything about the FBI, and it doesn’t accuse TDPK of SWATting. Even if the letter were defamatory, and it isn’t, the statute of limitations on defamation had run out by the time TDPK filed his lawsuit.</fisking>
From paragraph 139: Since the filing of the original complaint in this case, Defendant Hoge has published hundreds of blog posts and tweets defaming Plaintiff and accusing him of crime after crime. In fact, the majority of his Hogewash.com blog is dedicated to attacking, cyber stalking and harassing Plaintiff, his family and anyone who supports Plaintiff, including reporters, judges and prosecutors.
<fisking>This blog brings up Brett Kimberlin or one of his associates every day and will continue to do so until he has been brought to justice. Hogewash! has never attacked members of his family, legitimate reporters, judges, or prosecutors.</fisking>
From paragraph 143: Defendants McCain, Walker, Frey, Stranahan, Hoge, DB Capitol Strategies, and Akbar raised and continue to raise money on their websites based on their false narrative about the swattings.
<fisking>As mentioned above, Hogewash! has never accused TDPK of SWATting, but the Gentle Reader should feel free to hit the Tip Jar anyway.</fisking>
From paragraph 156: These Defendants, including Malkin, Hoge, Walker, Ace, Thomas, McCain, Akbar and Frey, egg on their commenters and ask them to get involved, post comments and tweets, demand that Plaintiff be investigated and incite their readers to engage in vigilante action directed at Plaintiff in Maryland.
<fisking>I do encourage the Gentle Readers to get involved. However, as I have said before, I am strictly opposed to any vigilante action directed toward Brett Kimberlin or any other member of Team Kimberlin.</fisking>
From paragraph 186: Other forms of retaliation were the battery of Plaintiff by Defendant Walker; the filing of false criminal charges, peace orders and frivolous civil suits against Plaintiff by Defendants Walker and Hoge; attempting to extort a settlement from Plaintiff in exchange for dismissing a malicious federal lawsuit by Defendants Walker, Backer and DBCapitol Strategies; publishing defamatory stories accusing Plaintiff of swatting; repeatedly threatening Plaintiff with imprisonment based on false narratives; and threatening Plaintiff’s family.
<fisking>TDPK’s allegation of battery was shown to be false over two years ago. He should give it a rest. His thing about false charges, peace orders, and civil suits was found to be meritless by Judge McGann during the 1 July hearing. Collateral estoppel strikes again.</fisking>
From paragraph 249: Defendants Walker, Hoge, McCain and Ali have stalked Plaintiff in public places. Defendants Walker, Hoge and DB Capitol Strategies have filed numerous false criminal and civil actions against Plaintiff over a two-year period, all which have been dismissed or denied. Defendants Hoge, Walker and some of the other Defendants publish daily taunts against Plaintiff and mock this suit with daily posts on their blogs, and continually assert that they are going to get Plaintiff imprisoned. They have attacked Plaintiffs employer and those who donate to that non-profit The Defendants have tried to get Plaintiff fired. They have attacked Plaintiffs wife and teenage daughter and even reporters who have written favorably about Plaintiff. They have even attacked prosecutors who have refused their frivolous charges, Defendant Walker has even imputed in a recent blog post that Plaintiffs teenage daughter is fair game for destruction because of “corruption of blood.”
<fisking>This blog has never attacked any member of Brett Kimberlin’s family. It does engage in mocking him.</fisking>
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That post was from 2014. In 2015, Tetyana Kimberlin filed the false Application for Statement of Charges alleging that I had harassed her older daughter. With that, Tetyana Kimberlin became an active member of Team Kimberlin, and I have written about her participation in her husband’s schemes.
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.
The 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.
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Since I didn’t say it then, I’ll say it now: Qapla’
The proof that Brett Kimberlin is an incompetent liar is found in the large number of mind-boggling transparent fibs he tells. The TKPOTD for eight years ago today dealt with one those false narratives.
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Here’s another whopper from one of The Dread Pro-Se Kimberlin’s court filings. This is from his opposition to my motion to dismiss his first amended complaint in the Kimberlin v. The Universe, et al. RICO Madness.TDPK asserts that I was in on his mythical fraudulent fund raising on behalf of National Bloggers Club in May, 2012. I was a newbie who hadn’t heard of NBC back them.
The real hoot is the “media report” he cites as Exhibit J. It’s supposed to show what we were seeing in the media back in May. The report is dated August.
Then there’s the question of the reliability of the report. It’s from Matt Osborne quoting Bill Schmalfeldt and Breitbart Unmasked as sources.
I couldn’t make this stuff up if I tried.
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One of the project I worked on at NASA was a navigation system for a constellation of satellites that used GPS to allow each of them to be aware of the others’ time and relative dimensions in space. However, I’ve never had access to a TARDIS of the sort required to make the claim allegedly supported by Exhibit J be true.
Brett Kimberlin’s reputation for trying to play games with service of court documents was well established long before he sued me. The TKPOTD for eight years ago today dealt with one of the precautions required to minimize the adverse effects of his dishonesty.
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Federal Rule of Civil Procedure 11(b)(3) requires that “factual contentions have evidentiary support.” Here’s an allegation that The Dread Pro-Se Kimberlin made in one of his filings in the Kimberlin v. The Universe, et al. RICO Madness that has no basis in fact and for which TDPK can not have any evidence.The only truthful part of that sentence is that I refuse to accept service via email from Brett Kimberlin. The precautions that I have taken securing the devices I use to access my email are very, very robust. Of course, nothing’s perfect, but I doubt that any the hacker wannabes in Team Kimberlin could breach those walls. The only undelivered mail from TDPK that I failed to pick up at the Post Office was addressed to and was being held for 29 Ridge Road. I live at 20 Ridge Road.
OK, why do I insist on service via mail? I do so because I want to be served a hard copy that was generated by TDPK. That way, if it doesn’t match what was sent to the court (and there have been multiple instances of altered documents in both the state and RICO cases), I can show the court what I received. This procedure strikes me as a reasonable method of dealing with a guy who has a long and apparently continuing history of perjury and forgery.
Speaking of lying forgers, I have adopted the same policy for service of court papers from The Dread Pro-Se Schmalfledt.™
The real underlying basis for Brett Kimberlin’s campaign of lawfare against people reporting truthful things about him and his activities was his butthurt over being exposed for who he is. The TKPOTD for eight years ago offered him some relief.
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Judge Grimm does not seem inclined to provide any temporary relief for The Dread Pro-Se Kimberlin’s butthurt. He has denied TDPK’s request for file a sanctions motion against the lawyer representing Twitchy. However, Amazon offers this remedy—
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Of course, butthurt is not a proper cause of action for a civil suit, so The Dread Deadbeat Pro-Se Kimberlin’s LOLsuits were doomed from the start.
Brett Kimberlin’s worst mistake in all of his lawfare over the past decade was suing me. I was the first defendant to raise the argument that his reputation as a violent felon so bad that it was impossible to degrade it. The TKPOTD for eight years ago today outlined my argument.
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Here is another selection from my reply to The Dread Pro-Se Kimberlin’s opposition to the motions to dismiss from Aaron Walker and me in the Kimberlin v. The Universe, et al. RICO Madness.
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In fact, another group of defendants’ motion to dismiss the subsequent RICO Retread LOLsuit in state court was granted in part because the judge in the case found that Kimberlin was defamation proof before my similar motion was granted. But a court has now found that Kimberlin’s reputation bars any viable claim for defamation.
Brett Kimberlin is a slow learner. Even after losing his first state LOLsuit against a group of defendants which included me and his first federal RICO LOLsuit against a larger group of defendants which included me, he refilled the state claims from that federal case against most of the us. Yet Another LOLsuit from seven years ago today was about that second state case.
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The Dread Pro-Se Kimberlin has filed state law claims from his Kimberlin v. The Universe, et al. RICO Madness in the Circuit Court for Montgomery County. He’s named the following defendants: National Bloggers Club, Ali Akbar, Patrick Frey, Erick Erickson, Michelle Malkin, Glenn Beck, Aaron Walker, Yours Truly, Lee Stranahan, Mandy Nagy, Breitbart.com (sic), DB Capitol Strategies, Dan Backer, Mercury Radio Arts, Blaze (sic), Ace of Spade (the blog), Ace of Spades (the blogger), RedState, and Twitchy.
The suit claims are for Defamation of Character, Invasion of Privacy (mentioned twice), Interference with Business Relations, Interference (with what is unspecified), Battery, Infliction of Emotional Distress, and Conspiracy.
That’s as much as I can gather from the Maryland Judiciary Case Search online database. I can’t make any further substantive comment about this LOLsuit until I’ve reviewed the complaint with counsel.
Comments are open, and suggestions for a working name for this LOLsuit are solicited. Please keep it clean.
UPDATE—TDPK forgot to add Mopery with Intent to Lurk again.
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He really screwed up by filing that second state case. As part of dismissing the suit for failure to state a claim upon which relief could be granted, the judge found that Kimberlin’s claims for defamation failed because his reputation as an infamous criminal was so poor that he was defamation proof.
One of the problems Brett Kimberlin has had with his pro se lawfare is that he’s routinely failed to address issue raised by the defendants in their court papers. The TKPOTD from seven years ago today cites an example.
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Apparently, The Dread Pro-Se Kimberlin has never read any of the motions to dismiss filed in hid vexatious Kimberlin v. The Universe, et al. RICO Madness.
Oh, yes we have. For example, here’s a brief selection from my motion to dismiss that deals with the lack of merit of his defamation claim.Here’s a sample from DB Capitol Strategies’s motion to dismiss dealing with problems in TDPK’s false light allegations.Here’s a part of what The Franklin Center had to say about the inadequacy of TDPK’s defamation claim.Among many other issues, The motion from Michelle Malkin and Twitchy noted this deficiency in TDPK’s allegations under the Ku Klux Klan Act.And so on and so on, through the motions from Aaron Walker; RedState, Erick Erickson, RedState, James O’Keefe, and Simon & Schuster; and Glenn Beck, Mercury Radio Arts, and The Blaze.
It’s not the case that we defendants failed to point out the lack of merit in TDPK case. Rather, Brett Kimberlin chose not to correct his errors.
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He’s continued this behavior in recent appeals in the Speedway Bombing case, and he’s lost one of those appeals so far.
RICO claims must deal with damage to a person’s business or property, and Brett Kimberlin’s RICO LOLsuits have failed because he’s never alleged to have suffered such an injury. This is the TKPOTD from seven years ago today.
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While rereading Judge Hazel’s Memorandum Opinion dismissing the Kimberlin v. The Universe, et al. RICO Madness, I was struck by this sentence.
It bears noting that Kimberlin’s § 1962(c) claim reflects more of an attempt to spin an alleged scheme to harm his reputation than it reflects a viable RICO claim.
Kimberlin v. National Bloggers Club, et al., Case No. 13-CV-03059-GJH, ECF No. 263 (D.Md. 2015) at 17.
The Dread Pro-Se Kimberlin’s brass knuckles reputation management is going to cause more trouble for him that he can imagine. Murum aries attigit.
Brett Kimberlin is a failure. The TKPOTD for seven years ago today dealt with his attempt to blame other for his failed attempts at a musical career.
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Here is one of the allegations The Dread Pro-Se Kimberlin made in his Kimberlin v. The Universe, et al. RICO Madness which was recently dismissed.
Personally, I believe that the implosion of his musical career was caused by his music videos being exposed to the public on the likes of YouTube, but, whatever the reason, it is true that his “appeal is becoming more selective.”
This TKPOTD from seven years ago today is one of my favorites.
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Here is what Judge Hazel has had to say about The Dread Pro-Se Kimberlin’s RICO Madness—
Kimberlin failed to plead … Kimberlin has failed to adequately plead … Kimberlin has failed to state a claim … Kimberlin has failed to allege … Kimberlin has therefore failed to plead … Kimberlin has failed to adequately plead … he has failed … he has failed … He has failed to do so … the SAC fails to allege … Kimberlin has therefore failed … Kimberlin has failed … Kimberlin has therefore failed to plead … Kimberlin has failed … his SAC failed to identify … attempt would also fail … Kimberlin has therefore failed … Kimberlin failed … necessarily must fail … he has failed … Kimberlin has failed to adequately plead … claim would still fail … Kimberlin has failed … Kimberlin has failed … would still fail … Kimberlin has failed … Kimberlin has failed to allege … Kimberlin has therefore failed … has failed to state a claim … because he has “fail[ed] to plead facts” … must be dismissed as he has failed to plead facts … Kimberlin has failed … dismissal of § 1985(2) claim for failure to allege … his failure … Kimberlin has failed to state claims …
One of the things that Brett Kimberlin seems to have learned during his past decade of lawfare is that he is an incompetent litigator. This is probably why he has kept asking the Court of Appeals for the Seventh Circuit to give him a freebie lawyer to help with his appeals.
Of course, mockery of the shoddiness of Kimberlin’s court fillings has been a part the coverage of Kimberlin’s lawfare here at Hogewash!, as can been seen in this TKPOTD from seven years ago today.
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Judge Grimm hasn’t yet granted The Dread Pro-Se Kimberlin’s Motion to File Second Amended Complaint in the Kimberlin v. The Universe, et al. RICO Madness. He may not. One reason he may not is that the complaint does not comply with Local Rule 103.6. That rule requires that a marked up version of the proposed amended filing be provided along with a clean copy. This allows ready comparison between the existing pleading and the proposed one.
The markup is supposed to identify all the new material with boldface type or underlining and show the deleted text enclosed in brackets or as strikethrough text. TDPK markup is full of errors.
For example, in the caption on the first page TDPK added Twitchy as a defendant, but did not put its name in boldface or underline it. He did use boldface for the other new defendants.
And then there’s the very first sentence …The marked up Second Amended Complaint is full of similar errors all the way to the end. One whole new section isn’t identified as a change. And in the prayer for relief at the end, TDPK changed the amount of damages sought without flagging it.
He changed “and amount exceeding $75,000” to “an amount exceeding $75,000, that is $2,000.000.” (sic) BTW, with that decimal point in place, the amount sought is two-thousand and not two-million dollars.