Tag Archives: RICO Remnant LOLsuit Appeal

Team Kimberlin Post of the Day

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Here’s another bit of fisking of The Dread Deadbeat Pro-Se Kimberlin’s informal opening brief in the Kimberlin v. Frey RICO Remnant LOLsuit appeal. He makes the following patently false assertion on p. 19—

There is no provision under law that allows a party to appeal under seal in normal civil matters such as the instant case.

Bullshit! Not only is filing an appeal under seal allowed, it is required in some cases. Here’s what Federal Rule of Appellate Procedure 25(a)(5) says—

Privacy Protection. An appeal in a case that is governed by … Federal Rule of Civil Procedure 5.2 … is governed by the same rule on appeal.

The relevant parts of Federal Rule of Civil Procedure 5.2 read as follows—

(d) Filings Made Under Seal. The court may order that a filing be made under seal without redaction. The court may later unseal the filing or order the person who made the filing to file a redacted version for the public record.

(e) Protective Orders. For good cause, the court may order in a case:
(1) require redaction of additional information; or
(2) limit or prohibit a nonparty’s remote electronic access to a document filed with the court.

It’s clear that Judge Hazel acted within the parameters of FRCP 5.2 in issuing a protective order and requiring certain filings to be sealed in the RICO Remnant LOLsuit. It’s also clear from FRAP 25(a)(5) that the Fourth Circuit has acted properly in maintaining the lower court’s seal.

But TDPK argues otherwise.

Stupid is as stupid does.

Team Kimberlin Post of the Day

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So The Dread Deadbeat Pro-Se Kimberlin has filed the redacted version of his informal opening brief. I’ve read through it a couple of times, and it seems more or less consistent with TDPK’s usual level of shoddiness. Over the next few days, I plan to use the TKPOTDs to fisk portions of his brief.

TDPK states his first issue for review as follows—

Whether the lower court erred in granting summary judgment for Appellee Frey when the issue of causation was highly contested and therefore should have been an issue for the jury to decide as this Court made clear in Love-Lane v. Martin, 355 F.3d 766 (4th Cir. 2004).

Of course, the issue of causation was contested between the parties. Let’s even grant that it was “highly contested.” So what? Summary judgment is appropriate when there are no disputed facts and one party is entitled to win as a matter of law. Judge Hazel examined the evidence provided in discovery by Patrick Frey and offered by Kimberlin in his summary judgment motion and in his opposition to Patterico’s summary judgment motion. From those undisputed facts offered by Kimberlin, the judge found that TPDK had failed to make his case, and he granted summary judgment for Patrick Frey as a matter of law. Let me put that another way: the court found that even if what Kimberlin alleged was true, the law said that he hadn’t established the element of causation in his case against Frey. Thus, even if the jury had also agreed with Kimberlin’s alleged facts, he still could not have won his LOLsuit.

The Gentle Reader will note that TDPK’s citation of the Love-Lane case does not include a page number pointing to something in that decision which supports his assertion that his case should have gone to a jury. IANAL, but I’ve read through the Love-Lane decision, and I can’t find anything that would help him. Indeed, the Fourth Circuit’s rationale in denying Love-Lane’s racial discrimination claim because the plaintiff’s alleged facts were such that “no rational jury” could find for the plaintiff “based on the evidence in the record” supports Judge Hazel’s ruling. (355 F.3d at 788.) The case law Kimberlin cites actually seems to support Patrick Frey’s position.

Kimberlin once told Pattrico “I’ve filed over a hundred lawsuits,” but he has hasn’t won very many.

RICO Remnant LOLsuit Appeal News

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The Dread Deadbeat Pro-Se Kimberlin did get his paperwork to the Fourth Circuit Court of Appeals yesterday. It appeared on PACER docket for Kimberlin v. Frey this morning.

I note with some amusement (but with no surprise) that TDPK screwed up the case number in the captions of his filings.

Team Kimberlin Post of the Day

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As of 9 pm ET last night, there had only been one filing yesterday in the Kimberlin v. Frey RICO Remnant LOLsuit appeal. It was Patrick Frey’s Disclosure of Corporate Affliations form. Those forms were due from both parties today.For now, there’s nothing on PACER indicating that The Dread Deadbeat Pro-Se Kimberlin complied with the court’s orders to file a redacted version of his informal opening brief, a certificate of confidentiality for the seal version, and his Disclosure of Corporate Affiliations form. He may have gotten them in on time, but the Clerk’s Office may not have completed scanning them for PACER yet. Or he may have blown it. We’ll see it anything appears on the docket tomorrow.

Meanwhile, here’s a look at another bit of court paperwork the TDPK screwed up in 2015. This was the TKPOTD two years ago today.

* * * * *

Well, we seem to have caught The Dread Pro-Se Kimberlin in yet another misrepresentation to a court. Here’s what the Certificate of Service filed with his opposition to several of the motions to dismiss his Kimberlin v. Team Themis, et al. RICO 2: Electric Boogaloo LOLsuit looks like:ECF 74 cert

When I filed my reply, I informed the court that I had not yet been served a copy of TDPK’s opposition but was filing based on what I found in PACER. I did eventually receive a copy of the opposition, but it was late in arriving. Inspection of the envelope and its postmark revealed why.ECF 74 EnvelopeECF 74 PostmarkpantsonfireThe package was not mailed to me on the day the opposition was filed with the court (also the day claimed in the Certificate of Service). It was mailed on the 17th instead of the 15th. You know, if the postmark were the next day, it could have been that he dropped in the mail late in the afternoon and that the mail in that box wasn’t collected until the next day. However, there’s a two-day lag. Also, the postage label is one from a counter sale, so the postage was paid for on the 17th. No, TDPK lied to the court.

BTW, I mail service to those receiving it by snail mail on my way to the courthouse. That way, I know the what I’m telling the court about service is true.

* * * * *

TDPK has already lost his appeal in the RICO 2: Electric Boogaloo LOLsuit and has been sanctioned by the Fourth Circuit Court of Appeals for frivolously including me as an appellee.

Everything proceeded as I foresaw.

Team Kimberlin Post of the Day

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The Fourth Circuit Court of Appeals has given The Dread Deadbeat Pro-Se Kimberlin until close of business today to straighten out the paperwork related to his informal opening brief for the Kimberlin v. Frey RICO Remnant LOLsuit appeal. While we wait to see exactly how that case will join all the other failed Team Kimberlin LOLsuits and their appeals, here’s a post called Game Over! from four years ago today. It deals with the final disposition of the Cabin Boy’s™ appeal of the first peace order issued against him.

* * * * *

Res ipsa loquitor.

* * * * *

Everything proceeded as I had foreseen.

Team Kimberlin Post of the Day

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While we wait to see if The Dread Deadbeat Pro-Se Kimberlin will get his paperwork sorted out in his appeal of the Kimberlin v. Frey RCIO Remnant LOLsuit and wait for news from other Team-Kimberlin-related cases, here’s a post called Another Faulty Service from four years ago that dealt with TDPK’s chronic failure to follow the rules.

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The Cabin Boy has published the Certified Mail receipt from the alleged service of the Maryland Kimberlin v. Walker, et al. lawsuit on Stacy McCain. The receipt proves that the service was not accomplished.LR201310240106ZThe explanation is simple. The Dread Pirate Kimberlin sent the mail to the wrong address.

Also, Maryland Rule 2-121 requires that service via mail be “by certified mail requesting: “Restricted Delivery — show to whom, date, address of delivery.” The Restricted Delivery box on Line 4 is not checked, so the letter carrier gave the mail to whomever would sign for it. The mail was signed for by someone named Ford, so it was not delivered to Stacy McCain.

One of the lawyers discussing Brett Kimberlin’s performance in the raft of frivolous suits he has filed against my codefendants and me used the phrase “amateur hour.”

Just so.

UPDATE—Stacy has more here.

* * * * *

I’ll add two comments.

First, Postal Service Forms 3811 (aka “green cards”) have been the bane of TDPK’s lawfare. He’s failed to use them when he should have. He’s failed to fill them out properly. But most tellingly, he’s been caught forging them.

Second, the Cabin Boy’s™ tweet is a good example of his lack of skill as an investigative reporter. He took the word and supporting “evidence” of an infamous perjurer and used it as the basis for his story. A two minute Google search (OK, maybe ten minutes for someone like Schmalfeldt.) would have shown him that Kimberlin’s green card did not meet the requirements for proof of service in the Maryland Rules.

Heh.

Team Kimberlin Post of the Day

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While we wait to see if The Dread Deadbeat Pro-Se Kimberlin will get his appeal paperwork together in the Kimberlin v. Frey RICO Remnant LOLsuit appeal and for news in the other pending Team-Kimberlin-related cases, here’s another recycled TKPOTD. It’s from three years ago today.

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Here’s an interesting bit of information from The Dread Pro-Se Kimberlin’s opposition to the motions to dismiss his Kimberlin v. Team Themis, et al. RICO 2: Electric Boogaloo LOLsuit.ECF 74-p21A loss in his earnings? Hmmmmm. That loss must have been relatively recent. The IRS Form 990s for Justice Through Music show him making $19,500 a year in 2010, 2011, 2012, and 2013. (2014’s form doesn’t appear to have been filed yet.) Of course, TDPK’s claim about lost earnings will be easily checked if the suit gets into discovery.

Stay tuned.

* * * * *

The 2014 and 2015 Form 990s for JTMP are now available. They show that TDPK’s compensation was also $19,500 for both years. While he hasn’t given himself a raise, his IRS filings show that he hasn’t had a decrease in earnings.

That leads to the following possible conclusions—

The Dread Deadbeat Pro-Se Kimberlin was lying in his opposition to the motion to dismiss, or he was lying on his IRS Form 990s.

Of course, there are other possible explanations. Possible but not necessary plausible. And one should always consider embracing the power of and.

Team Kimberlin Post of the Day

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Consider the following scenarios.

The Dread Deadbeat Pro-Se Kimberlin receives an order from a court of appeals saying that he needs to file a certificate of confidentiality, but he doesn’t know exactly what that means, so he screws up his paperwork. In that case, he will not have obeyed the court’s order, and his appeal is likely to be dismissed because he failed to perfect it.

Now, suppose someone tips him off to the actual requirements for a certificate of confidentiality with just enough time left to put in the extra effort to file a proper certificate. TDPK might decide to spend a day or two finding all the information needed and drafting a proper document.

In the first case, TDPK winds up losing. In the second case, TDPK puts in a lot more work and still winds up losing because his appeal lacks any merit. Both scenarios have the same ending, but one is more … um … entertaining. Once in a while, it’s useful to educate a midget or a monkey.

I need to check on that popcorn order.

Team Kimberlin Post of the Day

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The Fourth Circuit Court of Appeals has given The Dread Deadbeat Pro-Se Kimberlin until close of business next Tuesday to get the rest of the required pieces of his informal opening brief for his appeal of the Kimberlin v. Frey RICO Remnant LOLsuit. One of the things he owes the court is a certificate of confidentiality. Here’s how the court’s Local Rule 25(c) defines those certificates—

I’d better order some more popcorn.

Team Kimberlin Post of the Day

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I’m not making this up, you know.

After spending years trying to use the courts to suppress the First Amendment rights of people who have written truthful things about him, Brett Kimberlin included this sentence in his failed motion to unseal his informal opening brief in his appeal of the Kimberlin v. Frey RICO Remnant LOLsuit—

Appellant has a right under the First Amendment to appeal in public.

No. He doesn’t. His right to a public trial and, by extension, a public appeal is not secured under the First Amendment. IANAL, but the last time I checked the Bill of Rights, due process rights are secured by the Fifth Amendment.

Patrick Frey’s due process rights are also protected by the Fifth Amendment. His lawyers were able to convince a federal judge that certain information given to The Dread Pro-Se Kimberlin during discovery in the RICO Remnant LOLsuit should have been sealed in order to protect Frey’s rights (and possibly the rights of third parties). TDPK repeatedly asked the District Court to unseal that information, and he was never able to provide a reason why Patterico’s rights should not have been protected.

TDPK’s motion to unseal is timestamped as being received by the Fourth Circuit Court of Appeals at 10:06 Monday morning. The order denying his motion was docketed at 12:01:59 Tuesday afternoon. It didn’t take the court long to see through his frivolous argument.

Everything is proceeding as I have foreseen.

RICO Remnant LOLsuit Appeal News

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The Dread Pro-Se Kimberlin did file a sealed version of an informal opening brief in his appeal of the Kimberlin v. Frey RICO Remnant LOLsuit, and he filed a motion with the Fourth Circuit Court of Appeals to unseal his brief.

However, the court’s instructions required that he also file a redacted version for the public docket, and he failed to do so. He’s been given one week to fix his mistake.

The court has also denied his motion to unseal the sealed version of his brief.

Everything is proceeding as I have foreseen.

Team Kimberlin Post of the Day

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The Dread Pro-Se Kimberlin’s informal opening brief for his appeal of the Kimberlin v. Frey RICO Remnant LOLsuit was due at the Fourth Circuit Court of Appeals yesterday. As of 9:02:57 pm Monday night, nothing had been posted on the case docket on PACER since 29 September. Now, it’s possible that TDPK got his paperwork in on time but too late in the day for the Clerk’s Office to have scanned and posted it online. If he did get it submitted, it should show up on the docket tomorrow. We’ll see. Meanwhile, here’s the TKPOTD from three years ago today. It deals with the original RICO Madness LOLsuit.  The Kimberlin v. Frey RICO Remnant LOLsuit is the last surviving count of the original RICO Madness case.

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One of The Dread Pro-Se Kimberlin’s complaints against me in both the state Kimberlin v. Walker, et al. nuisance lawsuit and the Kimberlin v. The Universe, et al. RICO Madness is that I engage in my First Amendment right to comment on his past and present behavior. He wrote this in his second amended complaint in the state suit—

BKvAW2013SAC-31The Gentle Reader who has been following The Saga of the Dread Pirate Pro-Se Kimberlin for a while will remember that TDPK’s state nuisance lawsuit collapsed when he failed to provide even one “scintilla” (Judge Johnson’s word) of evidence of falsity in any statement made by any defendant in that case.

TDPK has tried to make a similar allegation in the RICO Madness.ECF 135-139

Since defamation is a state law claim, TDPK has to prove the elements of the tort as prescribed by Maryland law. That means he must show what was said about him was false. He can’t do that. That’s already been adjudicated in the state case in the favor of Aaron Walker, Stacy McCain, Ali Akbar, and me, and he is barred by collateral estoppel arguing otherwise in any further case, including the RICO Madness.

I’ve made it clear that I intend to keep writing about Brett Kimberlin until he is brought to justice. The Gentle Reader should not be surprised to learn that part of my definition of his being brought to justice includes his losing his vexatious lawsuits. By delaying the final resolution of any of them, he increases the amount of time and bandwidth I will spend on telling his story on the Internet. His delaying tactics have the effect of turing the Streisand Effect up to eleven.

collateral estoppel t-shirtOh, one more thing … Collateral Estoppel swag is available for purchase at The Hogewash Store. Stop by a spend some money on a t-shirt or drinkware. The profits go to support this blog and fund the expenses of defending against TDPK’s vexatious lawsuits. If you’d like to help my fellow defendants as well, go to Bomber Sues Bloggers to find out how.

* * * * *

Of course, we’re no longer taking donations through Bomber Sues Blogger now that Kimberlin’s lawfare has failed so miserably. The RICO Madness LOLsuit was dismissed, the follow up RICO Retread state LOLsuit was dismissed also, and dismissal of the state case was affirmed on appeal.

Everything proceeded as I had foreseen.

Team Kimberlin Post of the Day

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The Fourth Circuit Court of Appeals has given The Dread Pro-Se Kimberlin until close of business tomorrow to file his informal opening brief in the appeal of the Kimberlin v. Frey RICO Remnant LOLsuit, so we should be seeing something on PACER by tomorrow or early Tuesday at the latest—unless Kimberlin has decided to give up on the appeal and let it be dismissed for lack of prosecution.

Nah, he’s not that smart.

I’ll bet he’ll file something. I also be that it will be as incompetently drafted as the rest of the stuff he’s filed, his opposition to the motions to dismiss in the Kimberlin v. Team Themis, et al. RICO 2: Electric Boogaloo LOLsuit, for example. He filed it two years ago today, and I published a copy as More RICO 2: Electric Boogaloo that very day.

* * * * *

The Dread Pro-Se Kimberlin has filed what he calls his omnibus opposition to the motions to dismiss his Kimberlin v. Team Themis, et al. RICO 2: Electric Boogaloo LOLsuit.

This also includes an untimely opposition to my motion to dismiss for failure to state a claim and does not properly address my motion to dismiss for lack of subject matter jurisdiction.

* * * * *

My name only appears in a few places in the LOLsuit’s complaint, but it appears over 60 times in the opposition to the motion to dismiss. The increase was caused by Kimberlin’s failure to properly [redacted—I don’t intend to educate the midget, even at this late date] in the complaint and his attempt to improperly [redacted] in his opposition.

Kimberlin LOLsuit was dismissed by the U. S. District Court. The Fourth Circuit Court of Appeals denied his appeal and sanction him for frivolously including me as an appellee.

Everything proceeded as I had foreseen.

Team Kimberlin Post of the Day

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Day before yesterday, I published a copy of the Fourth Circuit Court of Appeal’s order denying The Dread Pro-Se Kimberlin’s motion to unseal discovery in the Kimberlin v. Frey RICO Remnant LOLsuit so that he could use it in public documents filed in his appeal of that case. TDPK had originally asked the District Court to unseal that discovery, and Patrick Frey’s lawyers opposed that motion.

Paragraphs 5 and 6 get to the heart of the matter. Kimberlin wants to use information that was sealed in the Frey case to try to smear his perceived enemies. He tried to do so in the recent Hoge v. Kimberlin, et al. trial but chickened out when Judge Hecker explained that if he offered sealed discovery from the Frey case, he could be subject to sanction by the federal court. (BTW, the email he wanted to introduce actually would have helped my case, but I couldn’t use it either because I’m also bound by the protective order sealing the Frey discovery.)

Everything is proceeding as I have foreseen.

Well, That Was Quick

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The Fourth Circuit Court of Appeals has denied The Dread Pro-Se Kimberlin’s motion to unseal discovery in the Kimberlin v. Frey RICO Remnant LOLsuit Appeal. The court has also told him to file his appeal in accordance with the Rules and has given him until 5 October to comply. That’s somewhat less time than the 30 day extension he asked for.

Everything is proceeding as I have foreseen.

Team Kimberlin Post of the Day

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After receiving an order from the Court of Appeals for the Fourth Circuit explaining how to file sealed documents relating to his appeal of the Kimberlin v. Frey RICO Remnant LOLsuit, The Dread Pro-Se Kimberlin has filed these turkeys—

The Court of Appeals gave him 21 days to file his informal brief, and his time is up on the 14th. Now, he’s asking for an extension to 30 days after they grant his motion to unseal.

<sarc>Yeah, that’ll work.</sarc>

The informal briefing order stressed that if TPDK did not file his brief on time that his appeal was subject to dismissal for lack of prosecution.

Tick, tock.

Qapla’

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The Court of Special Appeals has ruled in the appeal of the Kimberlin v. National Bloggers Club, et al. (II) RICO Remnant LOLsuit. The defendants win. Brett Kimberlin loses.

Everything proceeded as I foresaw.

UPDATE—I’d like to offer my thanks to Patrick Ostronic, my pro bono counsel, for his help in this case.

Team Kimberlin Post of the Day

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Almost two weeks ago, The Dread Pro-Se Kimberlin filed a notice of appeal in the Kimberlin v. Frey RICO Remnant LOLsuit. That suit is referred to as the RICO Remnant case because it is the sole count from the original Kimberlin v. The Universe, et al. RICO Madness LOLsuit which survived motions to dismiss. As one of the original defendants in the RICO Madness LOLsuit, I was concerned that I might be included as an appellee, so last Wednesday, Kimberlin was served with a letter warning him not to frivolously include me in his appeal. The Fourth Circuit Court of Appeals now has the case docketed, and it appears from PACER that I am not an appellee.

Good.

The Court of Appeals has also issued the Briefing Order for the case.

TDPK has filed a motion to unseal portions of the sealed record for use in his appeal. The Briefing Order contains explicit instructions on how to file the sealed portion of the District Court record in his appeal. Given that there is no factual or legal basis for Kimberlin’s motion to unseal, I expect that Judge Hazel will not even bother to deny it.

TDPK’s opening brief is due on 14 September.

Stay tuned.

Team Kimberlin Post of the Day

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One of the complaints that The Dread Pro-Se Kimberlin has against me is that I publish this daily feature devoted to him, his associates, and their activities. I started covering Brett Kimberlin and his associates during the week of Everybody Blog About Brett Kimberlin Day in late May, 2012. After learning of his use of a blatantly unconstitutional gag order to silence Aaron Walker and of the actions that caused Stacy McCain to leave Maryland to protect his family’s safety, I decided to keep covering Team Kimberlin every day until Kimberlin’s campaign of ant-First-Amendment lawfare was brought to an end. I’m not the only blogger who has a continuing series of posts focusing attention on some legal issue. For example, Paul Caron (TaxProf Blog) single-handedly has kept covering the ongoing scandal related to the IRS and its unfair treatment of conservative organizations seeking 501(c)(3) status for over four years now.

As Team Kimberlin’s campaign of lawfare continues, so will this feature. Brett Kimberlin has multiple appeals of the cases he’s lost in the works. I’m an appellee in at least one of them. He also has another LOLsuit filed in the U. S. District Court. The Cabin Boy™ still has LOLsuit VIII: Avoiding Contact going. If there were no lawfare to report on and no further attempts were being made to use the courts or false criminal charges to suppress free speech, then there would no longer be a reason for this series of posts to continue. But Team Kimberlin’s lawfare continues, and so will these posts.

Stay tuned.

Team Kimberlin Post of the Day

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The year is not starting well for The Dread Pro-Se Kimberlin.

On 4 January, Judge Hecker ordered him to answer several of the interrogatories that he tried to blow off in the Hoge v. Kimberlin, et al. lawsuit.

On 12 January, the Fourth Circuit Court of Appeals found that TDPK’s appeal against me in the RICO 2: Electric Boogaloo LOLsuit was frivolous and imposed a $600 dollar sanction on TDPK. On the same day, that court also denied his petition for a hearing because he was late filing his motion for rehearing.

13 January was the drop dead date for TDPK to refile his defective appeal paperwork in the RICO Retread LOLsuit with the Maryland Court of Special Appeals. He waited until the 17th to file.

The Kimberlins filed a motion for sanctions against me in the Hoge v. Kimberlin, et al. case because I informed one of their supposed witnesses, Judge Mason, that they had listed him as a potential witness. Judge Hecker denied their motion on 18 January at same time as he denied their motion for summary judgment.

19 January was the deadline for TDPK to obey the order Judge Hecker issued on the 4th (see above). It appears that he failed to comply with that order.

popcorn4bkThe month’s not over yet, and Kimberlin must be wondering what will go wrong for him next. There are multiple possibilities, and I plan to take steps to make a couple of items more likely to occur than some others.

Stay tuned.