Mockery has been a significant part of this blog’s coverage of Team Kimberlin’s lawfare and cyberthuggery. The TKPOTD for six years ago today was a mundane report on the progress of one of the LOLsuits. A couple of commenters used it as an opportunity to laugh at Brett Kimberlin.
* * * * *
The online docket for the Kimberlin v. Frey RICO Remnant LOLsuit shows the Patterico’s lawyers filed their last bit of paperwork related motions for summary judgment in the case.The ball is now in Judge Hazel’s court. If he doesn’t grant summary judgment to either party, the case will go to trial.
As one of the defendants in four of Brett Kimberlin’s frivolous defamation LOLsuits, I could have raised truth as a defense. As far as I know, what I’ve written and said about him is true, and he’s never offered any contradictory evidence. I never had to offer that defense because my codefendants and I were granted a directed verdict in the first case when Kimberlin failed to show any of our statements were false and because none of his other cases survived motions to dismiss.
One of the grounds for dismissal that several of my codefendants and I raised was that Kimberlin’s reputation as the Speedway Bomber was so poor that it was impossible to lower the public’s opinion of him, and that was one of the bases for Judge Mason’s granting dismissal in the RICO Remnant (Kimberlin v. National Bloggers Club, et al II) suit.
Try as he might, Kimberlin has failed to rid himself of the Speedway Bombing convictions. The Supreme Court has denied his petition for a further review.
My podcasting partner and former fellow codefendant Stacy McCain refers to Brett Kimberlin as The World’s Worst Pro Se Plaintiff™. The TKPOTD for seven years ago today displayed one of The Deadbeat Pro-Se Kimberlin’s dumbest moves in any of the case he filed against me.
* * * * *
The Gentle Reader may remember that I have filed a motion for sanctions against The Dread Pro-Se Kimberlin for failure to properly serve court papers on me in the Kimberlin v. Team Themis, et al. RICO2: Electric Boogaloo LOLsuit. I received this in the mail on Saturday. It appears to be an opposition to my motion.
Note: This is the first court document published under the new Hogewash! policy of not usually redacting signature blocks on public court documents.
Comments are open, but please don’t educate the midget on his mind-bogglingly stupid error.
UPDATE—A further note about redaction: In general, home addresses and home telephone numbers will still be redacted. Business contact information will not be.
* * * * *
On 21 July, 2017, Judge Hazel filed his memorandum opinion granting summary judgment in Patrick Frey’s favor and bring the case Kimberlin filed in October, 2013, to an end. Of course, Kimberlin appealed, and of course, he lost in the Fourth Circuit as well.
Now that case has been dead for over five years, I suppose I can point out the worst of Kimberlin’s errors in that filing. It violated one of the requirements of the case management order it cites—
No motion, opposition, or reply may contain any redundant, immaterial, impertinent, or scandalous matter, or any ad hominem attack on any party, any Judge or employee of this or any Court, or any other person.
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.
* * * * *
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.
<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
* * * * *
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.
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.
* * * * *
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 purposes of Team Kimberlin’s campaign of pro se lawfare clearly was to use discovery in civil suits to try to dig up dirt on their enemies. Brett Kimberlin handed off sealed discovery from the Virginia Walker v. Kimberlin, et al. case to associates who published it at Breitbart Unmasked. He leaked some of the sealed discovery from the RICO Remnant LOLsuit in filings in the Maryland Hoge v. Walker, et al. case, but he was unable to get Judge Hazel to lift the protective order in the federal case. The TKPOTD for five years ago today dealt with Kimberlin’s failure to get the Fourth Circuit Court of Appeals to relax the RICO Remnant protective order.
* * * * *
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.
* * * * *
Kimberlin’s whole lawfare schtick came about as an attempt to shutdown a left-wing blogger who thought that having Kimberlin and his not-for-profits associated with Progressives was bad for that side’s brand identify.
Taking on the blogosphere was biting off more than he could chew.
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.
* * * * *
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.
Stay tuned.
* * * * *
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’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.
* * * * *
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.
Stay tuned.
* * * * *
Since I didn’t say it then, I’ll say it now: Qapla’
Brett Kimberlin does not like to take “No” for an answer. That has invariably meant that he’s pushed appeals through the system until a higher court says, “What part of ‘No’ do you not understand?” The Dread Deadbeat Pro-Se Kimberlin was particularly bothered by Judge Hazel’s refusals to modify a protective order that covered discovery materials in the Kimberlin v. Frey RICO Remnant LOLsuit. He went so far as to seek a writ of mandamus from the Fourth Circuit Court of Appeals that would have directed Judge Hazel to grant Kimberlin’s wishes. Kimberlin also filed a motion seeking an expedited ruling on his mandamus petition because of how important he imagined the case to be.
The TKPOTD for for six years ago today published a copy of that motion.
* * * * *
The Dread Pro-Se Kimberlin’s case is sooooo important that his petition for a writ of mandamus really, really, really needs to be acted on quickly. At least, that’s what TDPK says—
I wonder who that “close associate” of Frey who has been engaging in official corruption is?
* * * * *
Actually, I know who that “close associate” of Frey was because I’ve seen some of the discovery in the case. However, I can’t name him because I’m also bound by the protective order.
The list topics of “national importance” in paragraph 3 hasn’t aged well.
While David French has been a significant voice among the Never Trumpers, he has never be seriously consideedr for the Republican presidential nomination.
Conservatives have not been a significant source of attempted bullying or intimidation of judges.
It hasn’t been right wing media outlets that have been the principal source of false narratives for the past few years.
Of course, the petition was denied. While everything proceeded as I had foreseen, nothing conformed to Kimberlin’s hallucinations.
T. S. Eliot wrote that April is the cruelest month. Brett Kimberlin might reasonably disagree and nominate March instead. The TKPOTD for seven years ago today catalogs some of Kimberlin’s losses during March.
* * * * *
The Dread Pro-Se Kimberlin has had it rough the last few days. First, he lost his attempt at getting a peace order against me. Next, the false and misleading nature of the tweet he used as evidence during the peace order trial came out, gutting what little case he had. (This may explain why nothing about an appeal or perjury charges against me has appeared in the Maryland Case Search database yet).
The big whammy came day before yesterday when Judge Hazel put TDPK’s RICO Madness out of it’s misery, dismissing all the counts against all the defendants except for the civil rights claim against Patrick Frey. (Go hit Patterico’s tip jar.) That happened just as TDPK was filing RICO2 which I will call Kimberlin v. Team Themis, et al.
I’m the only defendant in common between the two RICO suits, and having me in RICO2 is going to be more problems for TDPK than he can imagine.
Stay tuned.
* * * * *
Two things—
First, feel free to keep hitting Patterico’s tip jar. He runs a blog that deserves support.
Second, I’ll stand by my statement that Kimberlin’s worst mistake during his lawfare campaign was tangling with me. And I’m not done with him yet.
Team Kimberlin’s lawfare peaked about six years ago. Of course that meant that their failure rated peaked as well. This was the TKPOTD for six years ago today.
* * * * *
Last week saw the scales in the blindfolded lady’s hand weigh down further against Team Kimberlin. I believe we will see more of the same this week.
BTW, the blindfolded lady with the scales in one hand and sword in the the other is often identified as the Greek titaness Themis.
* * * * *
Everything proceeded as I had foreseen.
And Team Themis never existed anyplace outside of Brett Kimberlin’s imagination.
Brett Kimberlin tried to use the discovery phase of the two cases that got past motions to dismiss (Kimberlin v. Walker, et al. and Kimberlin v. Frey) as fishing expeditions to dig up dirt on his adversaries. He pretty much failed in both cases. Of course, he was very uncooperative with discovery in the cases brought agains him. The TKPOTD for five years ago today dealt with his answers to interrogatories in the Hoge v. Kimberlin, et al. suit.
Because I believe that discovery is best kept confidential to the greatest extent possible, I’ve redacted the answers to interrogatories which The Dread Pro-Se Kimberlin attached. I don’t intend to make any further public statement concerning this matter prior to the court’s ruling on the contempt hearing that has been ordered—except to note that the answers provided are still incomplete.
Murum aries attigit.
* * * * *
Now that case is several years old, I might as well publish the questions the court ordered Kimberlin to answer and his answers. As noted above, they are incomplete. They are also deceptive.
Interrogatory 5. There are no written documents authorizing the use of the assets of a 501(c)3 to pay for the personal legal expenses of one of its officers. Really? Hmmmm.
Interrogatory 6. No mention is made of the use of a Justice Though Music Project check to pay a filing fee in the RICO Madness civil case in which I was a defendant. I have a copy of the receipt which is also available on PACER.
Interrogatory 7. A fair answer.
Interrogatory 8. I have evidence which suggest the answer is incomplete. I will also note that as a result of contacts made with NASA, a criminal investigation was opened of which I was not the target.
Interrogatory 9. I have evidence suggesting that this answer is false.
It appeared that the initial reason for Brett Kimberlin’s lawfare campaign against people truthfully report on him and his activities was to silence his critics. However, he quickly began trying to use discovery in the LOLsuits as fishing expeditions to dig up what he hoped would be dirt on his perceived enemies. The TKPOTD for six years ago today dealt with one of his failed attempts to use confidential discovery material improperly.
* * * * *
The Dread Pro-Se Kimberlin has filed yet another motion attempting to breach the confidentiality of the discovery material provide by Patterico in the Kimberlin v. Frey RICO Remnant LOLsuit. The most recent bit of nonsense was filed in the Kimberlin v. Team Themis, et al. RICO 2: Electric Boogaloo LOLsuit.
Judge Hazel never budged and continued to enforce the protective order he issued in the Frey case. I became tangled in the Frey discovery process and wound up being bound by the protective order also. Kimberlin tried to improperly use some of the Frey discovery against me in the Hoge v. Kimberlin, et al. suit. He didn’t, and even if he had, I doubt that it would have helped him. I can’t describe the material, but I can say that I would have used it myself if I hadn’t been subject to the protective order.
Brett Kimberlin sued me and various groups of codefendants in four lawsuits. I had over 40 codefendants across all the suits and as many as 23 at one point in the Kimberlin v. National Bloggers Club, et al (I) RICO Madness LOLsuit. When several of our codefendants settled the case with Kimberlin, Patrick Frey expressed his disagreement and disappointment on his blog and on Twitter. Kimberlin sent a letter to the judge asking for permission to file a motion against Frey. Seven years ago today, I posted this In Re RICO Madness.
* * * * *
I have not been served a copy of this letter, and it has not been posted to the Kimberlin v. The Universe, et al. RICO Madness case docket on PACER. (H/T @adamsteinbaugh) It’s a marvelous example of Brett Kimberlin’s gross misunderstanding of both the Case Management Order (on a point he has already been corrected by the judge) and the First Amendment. The idiocy it demonstrates is breathtaking.
It took another two-and-a-half years before Patterico finally won the last count in the case on summary judgement and another three or four months before that win was sustained on appeal. Although I had been dismissed from the case in 2015, I got roped back in again during the discovery phase and was involved all the way to the end in late 2017.
It was a pain in the neck (actually a couple of feet lower), but worth it. I’d rather stand up to a bully than cower. And I’m proud of those who stood beside me.
The TKPOTD for six years ago today references some of the best legal writing I’ve ever enjoyed reading.
* * * * *
As I mentioned in yesterday’s summary, there isn’t much left of The Dread Pro-Se Kimberlin’s RICO Madness LOLsuit that survives as the Kimberlin v. Frey RICO Remnant case. The one count remaining deals with his claim that Patrick Frey used his job as a prosecutor in the LA County District Attorney’s Office to deprive TDPK of his civil rights.
Patterico has answered TDPK’s complaint. For the most part he denied the allegations, generally with boilerplate denials, but there were a couple of paragraphs … well, see for yourself. Here are those paragraphs from the complaint, each followed by Frey’s answer.
Brett Kimberlin routinely lies. His first felony conviction was for perjury, and he has been caught making false statements in all the suits he filed against my codefendants and me. His current filings in his case before the Seventh Circuit Court of Appeals suggests he has not reformed. The TKPOTD from seven years ago today examined one of lies in a Kimberlin court paper.
* * * * *
The Dread Pro-Se Kimberlin make lots of assertions in his various filings in his Kimberlin v. The Universe, et al. RICO Madness that are equal parts falsehood and silliness. This is from his opposition to my motion to dismiss his first amended complaint.
Point (1) of that claim is simply false. Here is how I replied—Of course, I expect to win the RICO Madness lawsuit. It should be dismissed for multiple reasons, including TDPK’s failure to state a claim for which relief can be granted. Even if it makes its way to trial as the state Kimberlin v. Walker, et al. nuisance lawsuit did, TDPK can’t present evidence for all the elements of any of the torts he’s alleged.
The Team Kimberlin Theory of Lawfare as propounded by First Mate Neal Rauhauser relies on low-cost pro se lawsuits against defendant’s with little legal experience who can be intimidated into settlements. TDPK’s practical application of the theory in the RICO Madness has been rather inept. He’s sued a couple of lawyers, several media entities with counsel either on retainer or staff, and several other defendants deeply committed to defending their First Amendment rights. The other defendants who might have been intimidated have been encouraged by the vigorous defenses that some of us have made.
It’s disappointing to have to wait until next year to see this vexatious lawsuit go away. OTOH, the longer it lasts, the greater the potential blowback on Brett Kimberlin. I’ll bet that he doesn’t have enough good sense to cut his losses by seeking to dismiss the case rather than filing his omnibus opposition.
We will see.
Stay tuned.
* * * * *
No, he didn’t have the good sense to cut his losses after the RICO Madness LOLsuit. He sued me in state court (RICO Retread) over the state law claims, kept me involved in discovery for the single count against the one remaining defendant in the first RICO case (RICO Remnant), and named me as a defendant in the second RICO 2: Electric Boogaloo LOLsuit. It took beating him in all of those for him to finally figure out suing me was a whole lot more trouble than it was worth.
Throughout Brett Kimberlin’s career as a pro se litigant he has sought special treatment from the courts. His shenanigans finally caused a couple of courts to take notice. He got special treatment, but not the kind he was asking for. The usual practice in the Circuit Court for Montgomery County was to have whichever judge who was sitting on a particular day handle whatever pretrial motions were being considered that day. Thus, during the pretrial phase of the Kimberlin v. Walker, et al. nuisance LOLsuit, motions were heard by at least six different judges who were not able to hear the different tales Kimberlin was telling them. That changed with the RICO Retread LOLsuit, and all motions in that and all subsequent cases involving Kimberlin were heard by Judge Michael Mason. That judge also presided at the Walker v. Kimberlin, et al. trial.
The U. S. District Court for Maryland caught on the Kimberlin and began assigning all the case he filed to a single judge as well.
Having to appear before a judge who remembered Kimberlin’s previous statements in court really began to crimp Kimberlin’s style, so he tried to have Judge Mason removed from the RICO II Retread LOLsuit. Here’s the TKPOTD for five years ago today.
* * * * *
Last week, Judge Mason denied The Dread Pro-Se Kimberlin’s motion for a new judge in the RICO 2 Retread LOLsuit. Here’s the motion that TPDK filed and that the judge denied.
Neal Rauhauser was the actual architect of Team Kimberlin’s strategy of using frivolous pro se litigation to harass their perceived enemies. I was on the receiving end of two of The Dread Deadbeat Pro-Se Kimberlin’s RICO LOLsuits, and I wasn’t surprised by the first RICO claim because Rauhauser had tipped their hand over a year in advance. This post about RICO and Patterico is from nine years ago today.
* * * * *
Neal Rauhauser has a pattern of letting things slip through careless blogging, emails, or tweets. Patrick Frey believes he has picked up on plans for a RICO suit targeting him and other bloggers.
Mr. Rauhauser, once you sue, the discovery process will begin. It works both ways. Is that really what you want?
* * * * *
Indeed, only two of the many cases brought by TDPK made it to the discovery phase, and discovery did not go well for Kimberlin in either.
A big part of Brett Kimberlin’s litigation record as The Dread Deadbeat Pro-Se Kimberlin has been the filing of futile court motions. Just this week, his gimme-a-free-lawyer motion was rejected by the Seventh Circuit Court of Appeals. The INMTUYK for six years ago today was about another failed request to a court.
* * * * *
The Dread Pro-Se Kimberlin has sent this to the judge in the Kimberlin v. Frey remnant of the Kimberlin v. The Universe, et al. RICO Madness.
UPDATE—There are an amazing number of errors in this filing, but I’ll point out just two for now.
First, TDPK says he wants to add the Los Angeles DA’s Office and the FBI as defendants. Does he mean the City of LA or the County of LA? However, that question is moot, because, second, the court has ordered that TDPK may not make any further amendments to his LOLsuit.
* * * * *
It was an FBI Special Agent who busted Kimberlin in Indianapolis in the arrest that led to his car being impounded and searched and bomb making materials found in the trunk. Maybe he still got a grudge.
While I hold the record for being the most sued defendant during Kimberlin’s lawfare campaign, Patterico endured the longest single case. It took 18 months for most of the Kimberlin v. National Bloggers Club, et al. (i) [aka Kimberlin v. The Universe, et al.] RICO Madness LOLsuit for be dismissed, but the remaining Kimberlin v. Frye RICO Retread LOLsuit took more than another two years to get to a summary judgment in Patterico’s favor.
This post titled Electronic Harassment? ran six years ago today after Tetyana Kimberlin filed a false Application for Statement of Charges against me alleging that I had engaged in electronic harassment of her elder daughter. Brett Kimberlin has previously filed a bogus peace order petition against me on behalf of Tetyana’s daughter, but the petition had been denied in both the District and Circuit Courts. Kimberlin’s PR flack Bill Schmalfeldt announce the resulting criminal case.
* * * * *
I received a summons from the District Court in Rockville to appear on 2 July so that I can be served with a charging document and be advised of my rights. The summons states that there will be a preliminary inquiry and that I will be advised of a future date for a trial if probable cause is found that I may have committed whatever I’m charged with.
I do not plan to make any further substantive public comment on this matter until after I have seen the actual charging document(s) and reviewed them with counsel.
* * * * *
When the complaint for this was was filed, the appeal of the Kimberlin v. Walker, et al. case was still in process, the Kimberlin v. National Bloggers Club, et al. (I) RICO Madness case had devolved into the Kimberlin v. Frey RICO Remnant case, and the Kimberlin v. Hunton & Williams, et al. RICO 2: Electric Boogaloo and Kimberlin v. National Bloggers Club, et al. (II) RICO Retread LOLsuits were still hadn’t been dismissed or gone to summary judgment. However, all those civil case were clearly going poorly for The Dread Deadbeat Pro-Se Kimberlin, so the fake criminal complaint was a last gasp attack on me.
Of course, it failed as did all his LOLsuits. Indeed, I never had to respond to the summons because the charge was dropped for lack of evidence before the date of the hearing.
This TKPOTD from five years ago today analyzes one of the reason why Brett Kimberlin’s lawfare has been doomed for failure.
* * * * *
In yesterday’s TKPOTD, I pointed out how Team Kimberlin’s lack of understanding of the principles of warfare has rendered their lawfare campaign ineffective. Today, we’ll look at an example of a failure to properly apply the principle of maneuver.
Maneuver – Place the enemy in a position of disadvantage through the flexible application of combat power. Maneuver is the movement of forces in relation to the enemy to gain positional advantage. Effective maneuver keeps the enemy off balance and protects the force. It is used to exploit successes, to preserve freedom of action, and to reduce vulnerability. It continually poses new problems for the enemy by rendering his actions ineffective, eventually leading to defeat.
—U. S. Army FM 3-0
Let’s consider how The Dread Pro-Se Kimberlin failed to place his opponents in a position of disadvantage during the discovery process in the Kimberlin v. Frey RICO Remnant LOLsuit. He served requests for production of documents on Patrick Frey and tried to serve subpoenas for documents on Aaron Walker and me. It’s clear that he was fishing for discrepancies in order to play “gotcha” games. However, his service of the subpoenas was defective. Aaron elected to ignore his subpoena, and when TDPK filed a motion to compel, it was denied because of the defective service. (Judge Hazel’s Letter Order spelled out what was wrong: TDPK had served the subpoena himself in violation of Rule 45.) I let TDPK have the responsive documents I had, hoping to avoid the hassle of a motion to compel. I was rewarded with a motion for sanctions when Kimberlin didn’t like what I was able to give him.
Undeterred, TDPK decided that he would subpoena Aaron, Aaron’s wife, and me for depositions, and on 10 March, he personally handed the Walkers’ subpoenas to Aaron and my subpoena to me. Of course, that violated Rule 45 again, so the service was invalid. Moreover, the scheduled date for the depositions was yesterday, 11 April, and discovery ended on 1 April.
At no time did Kimberlin’s actions provide him with a positional advantage. Indeed, it was he who was thrown off balance. His wound up posing new problems for himself rather than Patrick Frey or Aaron Walker or me. His own actions were ineffective and led to his defeat on the motion to compel against Aaron and will likely lead to his overall defeat in the suit.
It seems clear to me that Brett Kimberlin desperately wanted to be able to use material he had received via discovery in his various lawsuits as fuel for smear campaigns against his enemies. He did leak sealed documents from a couple of cases. He became obviously frustrated when Judge Hazel would not relax the protective order granted in the Kimberlin v. Frey RICO Remnant LOLsuit. He also became peeved with me when I didn’t provide him with a bonanza of information when he tried to subpoena me in the Frey case.
He never properly served that subpoena on me, but I voluntarily gave him all the responsive documents I had. First, because nothing I had was useful to hm, and second, I figured letting him have them would avoid a round of filings in court. I was wrong. Five years ago today, I posted this Kimberlin v. Frey News.
* * * * *
The Dread Pro-Se Kimberlin filed a motion for contempt or sanctions against me in the Kimberlin v. Frey RICO Remnant LOLsuit. Last week, he finally got around to serving a copy of the motion on me. I have now filed a response. Because I had to discuss confidential discovery material from the case in my filing, I have filed it partially under seal.
The motions speak for themselves. I do not wish to make any further comment on the matter until the court has ruled.
* * * * *
As a result of bing sucked into that round of motions, I became privy to some of the discovery documents and now am bound by the terms of the protective order. I can’t discuss the contents of the documents related to Kimberlin’s sanctions motion. However, I will say that no reasonable person looking at them in the context of Kimberlin’s LOLsuit would believe they helped his case. Indeed, if I had unfettered access to them and hadn’t been bound by the Frey protective order, I would have used at least some of them in my lawsuit against Kimberlin.
Kimberlin loses in court because he never has either the facts or the law on his side, but even if he did, he’d still lose. He just doesn’t seem to understand how to tie a coherent argument together with facts and logic to make a case.
I’m so old, I remember when journalists were still generally called reporters and the good ones at least pretended to take a “just the facts” approach to the news. OTOH, I’m older than any of the alleged journalists associated with Team Kimberlin, so it may be they never really were exposed to good reporting. That may explain the situation discussed in the Prevarication Du Jour from seven years ago today.
* * * * *
Bill Schmalfeldt tweeted this in the context of comments about his using a threat to cause a woman to lose her children unless she gave him him information.
Here’s what Schmalfeldt actually wrote to the woman.Schmalfeldt maintains that he was behaving in an ethical manner as a journalist when he sent that message. The Cabin Boy also touts the Code of Ethics of the Society of Professional Journalists. Let’s examine how the tactic he used with this potential source fits within that Code. This item seem applicable.
Journalists should:
— Show compassion for those who may be affected adversely by news coverage. Use special sensitivity when dealing with children and inexperienced sources or subjects.
As near as I can tell, nothing in the story he was “investigating” had anything to do with the woman’s children or whether or not they should be taken from her. It seems that he was simply using the threat as a bludgeon to get her to “play smart” and give him the information he wanted. It’s unclear that she was even a direct part of the story. IANAL, but that message seems very close to blackmail or extortion, and since it was sent via interstate communications, a violation of federal law.
And what compassion was he showing the children who would have been affected by his threats?
But the Cabin Boy says he’s ethical … because JOURNALIST!
UPDATE—Stacy McCain appears to question Schmalfeldt’s journalistic ethics also.
* * * * *
The alleged desire of Cabin Boy™ (Schmalfeldt) and Bunny Boy (aka Matt Osborne) to have access to sealed documents was the reason that Brett Kimberlin cited to a court filing seeking to unseal discovery in the Kimberlin v. Frey RICO Remnant LOLsuit. The court didn’t relax its protective order, so Kimberlin’s fishing expedition failed.
BTW, when Brett Kimberlin tried to use sealed discovery from Frey during the Hoge v. Kimberlin, et al. trial, Judge Hecker said that the federal court’s order wasn’t his to enforce and that Kimberlin could try to introduce the documents. Then, the judge also noted Kimberlin should consider the possible consequences of disobeying the federal court. Kimberlin chickened out.
Even Gentle Readers who have closely followed The Saga of Team Kimberlin for the past 8+ years sometimes lose track of all the various LOLsuits and other legal shenanigans that Brett Kimberlin has tired to employ in his failed attempts at brass knuckles reputation management. Five years ago today, I ran the following post to help the Gentle Readers keep track of Who’s On First?.
* * * * *
I’ve had several requests to explain the various court cases that are referenced here on Hogewash!, so here’s a more or less complete list of the current cases relating to Brett Kimberlin.
Kimberlin v. Walker, et al. was filed by The Dread Pro-Se Kimberlin on 30 August, 2013, in the Circuit Court for Montgomery County against Aaron Walker, Stacy McCain, Ali Akbar, Kimberlin Unmasked, and me. It alleged all sorts of frivolous claims. The two persons TDPK claimed were Kimberlin Unmasked settled the case with him. Five of the seven claims against the rest of us were dismissed on summary judgment. We went to trial on his claims of defamation and false light invasion of privacy. After TDPK rested his case, the judge entered a directed verdict in the favor of the defendants because not a “scintilla” of evidence had been produced that we had defamed him or invaded his privacy. He has appealed the case to the Maryland Court of Special Appeals.
Kimberlin v. National Bloggers Club, et al. (I) was filed in U. S. District Court on 15 October, 2013, initially against 21 defendants, including me. It is also known around here as the Kimberlin v. The Universe, et al. RICO Madness. The second amended complaint added three more defendants. Four of the defendants settled with TDPK. On 17 March, 2015, all but one claim against one defendant were dismissed. The federal claims were dismissed with prejudice, meaning that they cannot be refiled. The state law claims were dismissed without prejudice, meaning that could be refiled in state court. The case is still alive and is now called Kimberlin v. Frey. I often refer to it as the RICO Remnant. Kimberlin tried to appeal the dismissal of the federal claims to the Fourth Circuit Court of Appeals. He appeal was dismissed.
TDPK did refile the state law claims from the RICO Madness in the Circuit Court for Montgomery County. It’s formally known as Kimberlin v. National Bloggers Club (II), but around here it’s called Kimberlin v. Most of the Universe, et al. RICO Retread—Most of the Universe because TDPK dropped several of the RICO Madness defendants.
The day before almost all of the RICO Madness case was dismissed, TDPK filed Kimberlin v. Hutton & Williams LLC, et al. which names me among the 19 defendants. I’ve taken to calling it Kimberlin v. Team Themis, et al. RICO 2: Electric Boogaloo.
Earlier this year, Kimberlin also filed a peace order petition against me. The petition was denied by the District Court. He appealed, and it was denied again by the Circuit Court. Acting through his wife, a criminal charge was filed for alleged online harassment of a minor child. The charges were dropped for lack of evidence. This was the second time he had tried to bring a false criminal charge against me. He filed a harassment charge in 2013 that was dismiss and expunged before I could even be served.
The serious pushback against Kimberlin’s lawfare is beginning. Aaron Walker as filed a suit know as Walker v. Brett Kimberlin, et al. The et al. is Tetyana Kimberlin. More consequences are in the pipeline.
* * * * *
I can sum up the results of Kimberlin’s lawfare by simply saying he’s maintained a perfect record—of striking out.
The ball is now in Judge Hazel’s court. If he doesn’t grant summary judgment to either party, the case will go to trial.
Heh.
