bk v nbc, et al reply to oppositions (redacted)

8/13/2019 BK v NBC, Et Al Reply to Oppositions (Redacted)

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BRETT KIMBERLIN,

Plaintiff,

v.

NATIONAL BLOGGERS CLUB,

et al .,

Defendants

D EFENDANT H OGE S R EPLY TO P LAINTIFF S O PPOSITIONS

COMES N OW Defendant William Hoge in Reply to Plaintiffs Oppositions to the

Motions to Dismiss from Defendants Hoge, Walker, DB Capitol Strategies, and The

Franklin Center (ECF Nos. 29, 30 and 31) and states the following:

S UMMARY

Plaintiffs filings in response to the Motions to Dismiss are rife with errors and

falsehoods. Plaintiff fails to address many of the points raised in Defendant Hoges Motion

to Dismiss (Hoges MtD), and his Responses are effectively second, third, and fourth

Amended Complaints filed without leave from this Court. Some parts of his Response to

1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

GREENBELT DIVISION

Case No. 13-CV-03059-PWG


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well-pleadedand they are notthey are not plausible as is shown below.

Plaintiffs Responses are further examples of how he abuses the courts to badger his

perceived enemies. Plaintiff wrote an email to Defendant Frey in which he stated,

I have filed over a hundred lawsuits and another one will be no sweat forme. On the other hand, it will cost you a lot of time and money [.]

http://www.patterico.com/2010/10/11/brett-kimberlin-threatens-to-sue-me, viewed 30

November, 2013. Sure enough, the instant nuisance suit and the parallel frivolous lawsuit

filed in a Maryland court 1 have cost Defendant Hoge time and money. Plaintiff, on the

other hand, seems to display a deliberate indifference to the law and the rulesand the

truthin his filings. Beyond such technical matters as failing to have a proper signature

block as required by Fed. R. Civ. P. 11(a) or neglecting to provide a table of contents for a

filing longer that 25 pages as required by L.R. 105(4), Plaintiff has not bothered to vet his

vast array of untabbed exhibits to make sure that they support his allegations. Even

further, his filing of altered documents (See Hoges Motion for Amended Report on Status

of Service, ECF No. 28) and his service of a forged summons on Non-Party Twitchy (See

Malkin/Twitchy Motion to Dismiss, Tab 1, ECF No. 41) are clear demonstrations of

Plaintiffs bad faith.

3

1 Kimberlin v. Walker, et al ., Case No. 380966V (Md. Cir.Ct. Mont. Co.).


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P OINTS P LAINTIFF H AS N OT A DDRESSED

Hoges MtD demonstrates that Plaintiffs Amended Complaint did not properly

allege that any of the Defendants engaged in Obstruction of Justice as defined by 18

U.S.C. 1510 or 1511. Plaintiffs Response H&W fails to address those points raised by

Mr. Hoge. Thus, the Court should grant Hoges MtD with respect to any RICO allegation

arising from 1510 or 1511. Such dismissal should be with prejudice and in favor of all

Defendants.

In paragraph 55 of Response H&W Plaintiff withdraws his allegations of fraud.

Even if Plaintiff is only referring to the common law fraud claim of Count Four of the

Amended Complaint, this guts his federal Mail and Wire Fraud and Money Laundering

allegations because Count Four is merely a recapitulation of the allegations of the federal

crimes. See Amended Complaint, 160 - 168. Also, nothing in Plaintiffs Amended

Complaint meets the requirement in Fed. R. Civ. P. 9(b) for an allegation of fraud to state

with particularity the circumstances constituting fraud[.] Therefore, the Court should

grant Hoges MtD with respect to any allegation based upon fraud. Such dismissal should

include any RICO allegations based on Mail or Wire Fraud (18 U.S.C. 1341 and 1343)

or the Money Laundering (18 U.S.C 1957) of the nonexistent proceeds of a nonexistent

fraud. In the name of judicial economy, such dismissal should be with prejudice and in

favor of all Defendants.

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Plaintiffs Response H&W does not address Defendant Hoges assertion that

Plaintiff has not demonstrated that punitive damages are proper. Thus, Court should

grant Hoges MtD with respect to any punitive damage claims. Such dismissal should be

with prejudice and in favor of all Defendants.

Plaintiffs Response H&W does not address Defendant Hoges assertion that the

instant suit is a exercise by Plaintiff in forum shopping to evade his inability under

Maryland law to offer testimony in Maryland state courts because he is a convicted

perjurer. Md. Courts & Judicial Proceedings 9-104. The Court should, in the interest of

justice, dismiss the instant suit against all Defendants rather than permit Plaintiff to

evade the Maryland statue.

P LAINTIFF S R ESPONSES ARE E FFECTIVELY A MENDED C OMPLAINTS

In what appears to be a vain attempt to deal with the deficiencies of his Amended

Complaint, Plaintiff introduces an expansive array of new facts and bizarre legal

theories, turning his Responses into second, third, and fourth amended complaints.

Because of the 25-page limit on this Reply (L.R. 105.3), only a partial list of deficiencies

follows.

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Plaintiff Fails in His Attempt to Resurrect His RICO Claims

In paragraph 3 of his Response H&W Plaintiff alleges that Defendants,

presumably Defendants Walker and Hoge, are members of the National Bloggers Club.

This is not found in the Amended Complaint. In paragraphs 6, 7, and 8 Plaintiff makes

conclusory allegations of actions by a conspiracy involving Defendants National Bloggers

Club, Akbar, Walker, and Hoge. Those actions are not alleged in the Amended Complaint

either. While writing about the National Bloggers Club in paragraphs 31 and 33, Plaintiff

finally outlines his imagined structure of the mythical RICO Enterprise. Once again, this

was not a part of the Amended Complaint. He offers an implausible allegation that

doesnt survive a laugh test: Plaintiff theorizes that a twenty-something political

operative (Ali Akbar) is the Mr. Big behind a conspiracy that employs major media

personalities and outlets (Glen Beck, Michelle Malkin, Simon & Schuster) as foot soldiers

in a lynch mob. That is nonsensical and conclusory. While Plaintiff says that his

Amended Complaint describes both the formal and informal framework of the mythical

RICO Enterprise in great detail, it simply does not. He fails to meet the specificity

requirement of Boyle v. U.S. , 129 S.Ct. 2237, 2250 (2009), and he miserably fails to meet

the plausibility requirement of Iqbal .

In the second paragraph numbered 37 2, in the first set of paragraphs numbered 38

6

2 Plaintiff has not numbered the paragraphs in his Response H&W sequentially, and someparagraphs share the same number.


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through 42, in paragraphs 43 through 46, and in paragraphs 48 through 52 of his

Response H&W, Plaintiff expands upon how he imagines Defendant Frey fits into the

RICO Enterprise. None of these conclusory allegations were a part of the original

complaint.

In paragraph 27 of his Response H&W Plaintiff makes new conclusory allegations,

including another one that cant pass a laugh test. He alleges that one of the goals of the

Defendants was to keep him from talking with law enforcement. This is inconsistent with

his allegation that the Defendants want him returned to prison. If any of the Defendants

were trying to send Plaintiff back to prison again, they would not be trying to keep him

away from law enforcement officials; they would want law enforcement breathing down

his neck. Such self-contradictory allegations are nonsensical.

In paragraph 28 of his Response H&W Plaintiff also tries to add violations of 18

U.S.C. 1512(k) to his list of RICO predicate acts. Defendant Hoge finds Plaintiffs new

appreciation for 1512 confusing. Given Plaintiffs behavior in the instant lawsuit as

exemplified by his attempted service of a forged summons (See Malkin/Twitch Motion to

Dismiss, Tab 1 ECF No. 41), it is simply amazing that he would direct attention to that

statute which reads in part:

(c) Whoever corruptly (1) alters, destroys, mutilates, or conceals a record, document, or otherobject, or attempts to do so, with the intent to impair the objectsintegrity or availability for use in an official proceeding; or(2) otherwise obstructs, influences, or impedes any official proceeding,or attempts to do so,

7


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state law or (2) a deprivation of a righthas been properly alleged, Plaintiffs count based

on 42 U.S.C. 1983 should be dismissed with prejudice against all Defendants.

Plaintiff Fails in His Attempt to Resurrect His 42 U.S.C 1985 Claims

In the second paragraph numbered 36 in his Response H&W Plaintiff makes an

imaginative attempt to save his claim under the Ku Klux Klan Act (42 U.S.C. 1985) by

citing case law relating to 42 U.S.C. 1983. Nothing the Plaintiff alleges has any

connection with the language of 1985 or any of the case law relating to it. In order to

demonstrate a violation of either (2) or (3) of 1985, Plaintiff must either show that there

was some form of invidious race- or class-based bigotry involved or that there was some

nexus with a federal election or proceeding. Carpenters v. Scott , 463 U.S. 825 (1985).

Plaintiff has made no such showing with respect to any Defendant in either the Amended

Complaint or the Response H&W. Thus, Plaintiffs count based in 42 U.S.C. 1985 should

be dismissed with prejudice against all Defendants.

Plaintiff Fails in His Attempt to Resurrect His Defamationand False Light Claims

In paragraph 2 of Response H&W Plaintiff misrepresents the case law cited to the

Court, asserting that Allen v. Bethlehem Steel Corp ., 314 Md. 458 (1998), is a decision of

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the Maryland Court of Appeals. It is not. It is a decision of the Court of Special Appeals,

and, as such, it is not binding on this Court. Smith v. Esquire, Inc ., 494 F.Supp. 967 (D.

Md. 1980) remains the controlling precedent this Court should follow. In paragraph 8

Plaintiff argues that Schessler v. Keck , 271 P.2d 588 (2d Dist. Cal. 1954) would lead the

Court to toll the statute of limitation on defamation because the conspiracy alleged by

Plaintiff is a continuing one that has not yet ceased. Even if that California case were

good law in Maryland, no such conspiracy is properly alleged in the Amended Complaint.

In paragraph 11 Plaintiff misapplies Murphy v. Merzbacher , 697 A.2d 861 (Md. Ct.App.

1997), by claiming that it would lead the Court to toll the statute of limitation on

defamation because of intimidating or threatening behavior. However, the Court of

Appeals ruled in that case that the statute of limitations did apply, the opposite of what

Plaintiff would have the Court believe. Id . at 861. Thus, Plaintiff has failed to show that

his legal contentions with respect to his defamation or false light claims and the tolling of

the statute of limitations are warranted by existing law or by a nonfrivolous argument for

extending, modifying, or reversing existing law or for establishing new law.

In paragraph 14 of his Response H&W Plaintiff alleges that Defendants Hoge and

Walker argue that Plaintiff is defamation proof because (1) he was convicted of a crime

that occurred in 1979 ... That is a lie. Mr. Hoge has made no such argument. He has

argued that Plaintiff, a convicted serial bomber, has a record of multiple infamous crimes

(See Hoges MtD, 32 - 34.) and is, therefore, a public figure in the same sense as other

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convicted serial bombers such as Ted Kaczynski. Indeed, like Kaczynski (The

Unibomber), Plaintiff was sufficiently notorious to be given a criminal nickname (The

Speedway Bomber). See Kimberlin v. White , 7 F.3d 527, 528 (6th Cir. 1993). Plaintiff is

simply defamation proof. Plaintiffs chronic misrepresentation of the words and actions of

the Defendants is further evidence of his bad faith. Any defamation claims should be

dismissed against all Defendants.

Plaintiff Fails to Allege Economic Injury to Himself

In attempting to allege economic injury Plaintiff conflates his interests with those of

his employers, Justice Through Music Project and Velvet Revolution US. In paragraph 20

of his Response H&W Plaintiff cites Wang Laboratories v. Burt , 612 F.Supp. 441 (D. Md.

1984). Now, it is true that Plaintiff founded Justice Through Music Project and cofounded

Velvet Revolution US, but they are corporations with interests which may or may not be

the same as Plaintiffs 3. Similarly, An Wang founded Wang Laboratories. The case that

Plaintiff cites is styled Wang Laboratories v. Burt ; however, it is not An Wang v. Burt .

Plaintiff wishes to treat alleged injuries to his employer as personal injuries to himself.

They are not. If Justice Through Music Project or Velvet Revolution US have suffered

11

3 According to the most recently available IRS Form 990s for his employers, Plaintiff ispaid $19,500 per year by Justice Through Music Project. See Exhibit A. VelvetRevolution US report paying no Salaries, other compensation, or employee benefits. SeeExhibit B.


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injuries, they should sue, not Plaintiff. 4

In the first paragraphs numbered 36 and 37 in his Response H&W Plaintiff asserts

that he has a property interest in continuing his employment. He has no such property

interest under 18 U.S.C. 1951. The Third Circuit case law he cites was overturned in

Scheidler v. National Organization for Women, Inc. , 537 U.S. 393 (2003). 5 The Supreme

Court ruled that to be property under 1951 the thing obtained must be something

tangible, something that one could exercise, transfer or sell. Id . at 405. Because

Plaintiff fails to explain what thing any of the Defendants could have acquired as result of

Plaintiffs being discharged, seeking to have Plaintiff fired cannot be construed as

extortion. In any event, Plaintiff never shows any particular writing or speech by Mr.

Hoge advocating that Plaintiff be fired.

In paragraph 6 of his Response TFC Plaintiff alleges new facts not found in his

Amended Complaint. He alleges injuries to his employer and other third parties which,

even if they had been part of his Amended Complaint, are not injuries to Plaintiff himself.

The RICO statutes were [e]nacted to strengthen criminal and civil remedies

against organized crime. RICO provides a private right of action for any person injured in

12

4 It may be that Plaintiff is reluctant to bring such a lawsuit on behalf of his non-profitsbecause of the expense of hiring a lawyer and the ethical limitations constrainingarguments presented by a member of the bar.

5 This is not the only stale law Plaintiff cites. In all three of his Responses Plaintiff citesConley v. Gibson , 355 U.S. 41 (1957), as providing grounds for denying the motions todismiss. As this Court has noted in its Memorandum Order in Sterling v. OurismanChevrolet of Bowie , Case No. 12-CV-03193, EFC No.16 (D. Md. 2013), Twombly and Iqbal are now the guiding Supreme Court decisions.


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his business or property by reason of a violation of its substantive prohibitions. Dahlgren

v. First Nat'l Bank of Holdrege, 533 F.3d 681, 689 (8th Cir. 2008) (quoting 18 U.S.C.

1964(c)). Emphasis added. RICO does not allow Plaintiff to sue for damages allegedly

incurred by third parties.

Plaintiff knows better. In a previous lawsuit he claimed that the assets and

interests of a closely-held corporation which he controlled were separate from his own

when he tried to avoid paying a judgment owed to a victim of his bombing spree. See

Kimberlin v. Dewalt , 12 F.Supp.2d 487, 491-492 (D. Md. 1998).

Given no showing of economic injury, Plaintiffs insufficient allegations of RICO

predicate acts are further undermined, providing yet another reason for dismissal with

prejudice.

Plaintiff Alleges Other Facts Not Found in His Amended Complaint

In paragraph 10 and in the second paragraph numbered 41 of his Response H&W

Plaintiff alleges actions occurring after the Amended Complaint was filed. Clearly, it is

impossible for those to have been mentioned in the Amended Complaint. The Court

should disregard such new allegations.

In paragraph 12 of Response DBCS, Plaintiff notes that the parallel state lawsuit

has survived Motions to Dismiss. None of the federal issues alleged in the instant lawsuit

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Plaintiff would likely make such allegations whether they are true or not. Plaintiff has

had the Amended Complaint he is allowed under Fed. R. Civ P. 15. Enough is enough.

P LAINTIFF S R ESPONSE TO D EFENDANTS H OGE AND W ALKERC ONTRADICTS H IS A MENDED C OMPLAINT

In paragraph 115 of the Amended Complaint Plaintiff alleges that [a]t all times

since November 2011 through the present day, the RICO Enterprise was an ongoing

relationship, business and criminal, among all Defendants ... However, in paragraphs 19

through 34 and the first paragraphs numbered 35 and 36 in his Response H&W, Plaintiff

equates the mythical RICO Enterprise with the National Bloggers Club. According to

paragraph 48 of the Amended Complaint, the National Bloggers Club was founded in

February, 2012. Given his theory, Plaintiff cannot claim the RICO Enterprise existed in

the gap between November, 2011, and February, 2012.

Defendant Walker allegedly assaulted the Plaintiff in January, 2012 (Amended

Complaint at 43 and passim ). How could that have been done in the context of a RICO

Enterprise that did not yet exist?

Plaintiffs attempt to use the National Bloggers Club as a skeleton upon which to

flesh out his mythical RICO Enterprise contradicts allegations made in his Amended

Complaint. Such contradictions demonstrate why Plaintiff did not plead and could not

have pleaded any supporting facts consistent with Rule 11(b) with particularity in his

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There is simply no way that can be construed as Plaintiff alleges.

In paragraph 48 of his Response H&W Plaintiff makes a new allegation that he

received an email from someone at the Los Angeles County Sheriffs Department, at IP

Address 146.233.0.202 in Whittier, California. Exhibit Y. He misquotes the message as

saying, LEAVE HIM ALONE. DONT GO THERE. The actual text of message

contained in Exhibit Y reads, Dont go there.

In paragraph 10 of his Response Plaintiff alleges that Defendants Walker and Hoge

raise money based on their exploitation of their false narratives. He complains that

[a]ll of these are accompanied by a donate button to help them raise money to target

Plaintiff. See eg., Exhibits D and E. While Plaintiffs Exhibit E appears to be blog post

from Mr. Walkers Allergic to Bull blog, it does not mention Mr. Hoge. Indeed, it is dated

May 17, 2012, several days before Mr. Hoge became aware of Plaintiff and his anti-First-

Amendment activities and over a month before Mr. Hoge had any contact with Mr.

Walker. Plaintiffs Exhibit D is not from Hogewash! , Mr. Hoges blog. Upon information

and belief, it is from a blog called Dead Citizens Rights Society , a political satire and

commentary blog published by Paul Lemmen. Mr. Lemmen appears to have a donation

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button for the Bomber Sues Bloggers legal defense fund 6 on his website. Hogewash! has

no such donation button.

In paragraph 17 of his Response H&W Plaintiff accuses Defendants Walker and

Hoge of organizing a campaign to threaten and harass the Howard County, Maryland,

States Attorneys Office. He offers Plaintiffs Exhibit G as evidence. Everyone Blog

About the Howard County States Attorneys Office Day was an attempt to publicize

apparent misfeasance by an elected official, i.e. , multiple failures to prosecute well

documented cases of harassment and stalking. The stalking case involved Plaintiff, and

there is photographic evidence of his actions. The Virginia family referred to in the blog

post is Defendant Walkers. 7 However, nothing in the blog post partially shown in

Plaintiffs Exhibit G contains any threat or asks anyone to do anything threatening or

harassing. Certainly, the post does not even come close to the standard for incitement

found in Brandenburg v. Ohio , 295 U.S. 444 (1969). For the record, Defendant Hoge avers

that he was the sole creator of Everyone Blog About the Howard County States

Attorneys Office Day. Plaintiff alleges that the Howard County States Attorneys Office

was harassed by bloggers seeking information about its policies. Defendant Hoges

18

6 The Bomber Sues Bloggers legal defense fund solicits donations to help pay the legalexpenses of the defendants in the parallel Maryland lawsuit. (Md. Cir.Ct. Mont.Co, CaseNo. 380966V.) The fund operates the website http://www.bombersuesbloggers.com. Thedefendants are relying on pro bono counsel in that lawsuit. The piddling amount of moneyraised thus far will probably be insufficient to cover the cost of transcripts, depositions,travel, etc., for persons other than the defendants.

7 Plaintiff does not deny stalking the Walkers in either the Amended Complaint orResponse H&W.


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inquiries to that office were ignored. Is it believable that a prosecutors office would

tolerate what it perceived as harassment without someone contacting the instigator of

the harassment, someone from law enforcement, at least? This is another allegation that

fails the laugh test.

Another facially erroneous allegation relating to Defendant Hoge is found in the

first paragraph numbered 37 in Plaintiffs Response H&W. Plaintiff would have the Court

believe that Defendant Hoge has stated many times that Hoge wants to destroy the

non-profits by stopping their funding and urged others to demand the same. See eg.,

Exhibits M and N. Neither exhibit relates to Mr. Hoge in any way. He is not their

author, nor is he mentioned in them. For the record, Plaintiff called Mr. Hoge as a witness

in a protective order case 8 in August, 2013, and, during direct examination, asked him if

he had every written that he wished to destroy Plaintiff and his business. Mr. Hoge

replied under oath that he had never written any such statement.

In the first paragraph numbered 38 in his Response H&W Plaintiff alleged that

Defendant Frey met with the FBI in Texas and elsewhere, and provided false information

about Plaintiff. Exhibit O. Exhibit O describes a meeting between Mr. Frey and FBI

special agents and an AUSA, but it does not say that Mr. Frey provided any false

information to them. In fact, it does not specify any information Mr. Frey told the FBI.

Rather, it reports what information and advice he received. While it is possible that Mr.

19

8 Kimberlin v. Kimberlin , Case No. 0601SP027212013 (Md. Cir.Ct. Mont.Co. 2013).


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Frey may have told the FBI something about Plaintiff during their meeting, no such

information is referenced in Exhibit O.

Also in the first paragraph numbered 38 in his Response H&W Plaintiff alleges that

Frey counseled Defendant Walker on how to file and prepare legal filings against Plaintiff

to make him appear odious ... He offers Exhibit Q as evidence. Exhibit Q is an email

exchange timestamped on the evening of Jan 8, 2012, the night before the hearing in the

Kimberlin v. Allen9

case during which Mr. Walker successfully intervened to have a

improper motion filed by Plaintiff containing Mr. Walkers personal information sealed.

The exchange is nothing more than a seasoned trial lawyer (Mr. Frey has years of

experience as a prosecutor) offering advice to a less experienced litigator. It merely

contains advice to stress the truth about Plaintiffs criminal history.

On information and belief, Exhibits O, Q, S, T, U, V, W, and X in Response H&W

are from sealed discovery obtained by Plaintiff in Walker v. Kimberlin, et al ., Case No.

CL12-631-00 (Va. Cir.Ct. P.W.Co. 2012). Those discovery papers are still under seal, so

their inclusion in Response H&W is improper.

In paragraph 43 and Exhibit F of his Response DBCS Plaintiff states that he has

not filed over a hundred lawsuits and that there are no million-dollar judgments against

him. He offers the lack of cases shown on PACER as proof of his contention. 10 Lack of

information in PACER proves nothing. First, PACER does not capture all federal

20

9 Kimbeline (sic) v. Allen, Case No. 339254 (Md. Cir.Ct. Mont. Co. 2011) .

10 See Exhibit C for a partial listing of cases filed by Plaintiff shown on PACER.


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proceedings from the time period before it began operating in 1988. Second, PACER does

not capture state cases. The various Defendants, including Mr. Hoge 11 , who have written

of Plaintiffs over a hundred lawsuits have been citing Plaintiffs own words sent in the

email to Defendant Frey quoted above. Furthermore, Plaintiff most assuredly has had a

million-dollar-plus judgment against him. The widow of his bombing victim was awarded

$360,000 for her own injuries and $1,250,000 for the wrongful death of her husband. See

Kimberlin v. DeLong , 637 N.E.2d 121 (Ind. 1994).

Other cases filed by Plaintiff, federal and state, can be found searching via other

tools such as Google Scholar as shown in paragraph 4 of Defendant Hoges Motion to

Require Verified Pleadings from Plaintiff (ECF No. 7) which is hereby incorporated by

reference. On information and belief, Plaintiff lost almost all of these lawsuits. These

facts support the granting of the relief of declaring Plaintiff a vexatious litigant sought by

DB Capitol Strategies and The Franklin Center.

Plaintiffs words, I have filed over a hundred lawsuits ... , may also refer to suits

that were filed with Plaintiff not listed as a party, for example, suits filed by Plaintiff

during his career as a jailhouse lawyer. According to his authorized biography, Citizen K:

The Deeply Weird American Journey of Brett Kimberlin (Mark Singer, Knoff, New York,

1996), Plaintiff had a thriving legal practice while in prison.

Then I branched into tort claims against the Bureau of Prisons and othercivil litigation. I filed a shitload of civil suits. I started suing everybody

21

11 Perhaps it was foolish of Mr. Hoge to trust the words of a perjurer.


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all the people who lied about me. I sued the agents who performed theillegal search and seizure of my home and property. Eventually,Kimberlin filed more than a hundred lawsuits and motions in the federalcourts on his own behalf, and nearly as many for other convicts.

Singer, p. 185. Note that Plaintiffs authorized biography credits him with more than a

hundred lawsuits and motions in federal court on his own behalf prior to his first

release 12 from his 51 year sentence in the early 1990s.

A F RIVOLOUS AND V EXATIOUS L AWSUIT

Plaintiff is engaging in lawfare, the filing of nuisance legal proceedings for the

purpose of harassment. There is no merit to his allegations. As noted above, many are so

implausible they cannot pass a laugh test. The instant lawsuit is another of Plaintiffs

attempts to suppress the First Amendment rights of his perceived enemies through brass

knuckles reputation management intended to silence criticism.

Nothing in Plaintiffs Response H&W shows how his Amended Complaint properly

alleges the elements of any predicate crime that would support a RICO claim. Moreover,

Plaintiff has made not made any showing other than fanciful arm waving that any RICO

22

12 Plaintiff has been incarcerated as a federal prisoner three times. He first served a shortsentence for perjury in the early 1970s. The aggregated sentence for his drug smuggling,bombing, and other charges was for slightly more than 51 years. He was paroled afterserving about 13 years, but his parole was revoked in 1997. See Kimberlin v. Dewalt , 12F.Supp.2d 487 (D. Md. 1998) . The revocation was initially for two years, but he was notreleased on parole again until 2001. His sentence expires in 2030. See Exhibit F.


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Enterprise ever existed. Thus, any claim for relief based on RICO fails.

Nothing in Plaintiffs Response H&W shows the Court how the Amended Complaint

properly alleges a violation by any Defendant of 42 U.S.C 1983. Similarly, there is

nothing in Plaintiffs Response demonstrating how the Amended Complaint properly

alleges any violation of 42 U.S.C. 1985. Thus, any claim for relief based on either of

those federal statutes fails.

Given the failures noted above, there are no federal questions in the instant

lawsuit. Since Plaintiff and Defendant Hoge are both residents of Maryland, the Court

lacks jurisdiction under 28 U.S.C. 1367(a) in the instant lawsuit with no federal

questions properly alleged. If Plaintiff can make a valid case under state law, he can go

forward in the courts of Maryland where a related is already in progress.

Because of the stigma associated with a RICO suit 13 , it is in Mr. Hoges best interest

for the instant lawsuit to be disposed of as quickly as possible. Therefore, he has

endeavored to file this reply within the normal scheduling window (in spite of the lack of

timely service by Plaintiff on Defendant Hoge) using documents downloaded from PACER.

Plaintiff claims to have mailed timely service to Mr. Hoge, but Mr. Hoge received nothing

prior to his filing of his Motion to Strike Multiple Filings by Plaintiff (ECF No 39).

Plaintiff has proffered what he says is an image of the returned envelope 14 which appears

23

13 In addition to the threat of treble damages, a defendant faces the stigma of beinglabeled a racketeer. Holmes v. Securities Investor Protection Corporation, et al., 503 U.S.258 (1992).

14 Plaintiffs Response to Defendant Hoges Two Latest Filings, Exhibit C (ECF No. 49).


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to be addressed to 29 Ridge Road. See Exhibit D. Mr. Hoges address is 20 Ridge Road.

The USPS tracking information shows that the Postal Service classified the mail as

Undeliverable as Addressed. See Exhibit E.

Finally, it has become patently obvious that Plaintiff has been acting in bad faith

throughout his conduct of the instant lawsuit. As noted in Defendant Hoges Motion for

Amended Report of Service of Status (ECF No. 28) and in Defendant Michelle Malkin and

Non-Party Twitchys Motion to Dismiss (ECF No. 41), Plaintiff has forged documents

submitted to the Court and attempted to trick a non-party into believing it was being sued

by means of a forged summons. Malkin/Twitchy, Tab 1 ECF No. 41.

C ONCLUSION

Plaintiff has attempted to remedy the deficiencies in his Amended Complaint by

alleging new facts and new bases for his claims in his Response H&W, Response DBCS,

and Response TFC, but that should be done in an Amended Complaint. If Plaintiff wishes

to amend his Complaint a second time, he should seek the Courts leave to do so. In the

meantime, the Court should disregard Plaintiffs new allegations until they are properly

presented in a new Amended Complaint. As noted above, Defendant Hoge opposes

allowing a second Amended Complaint. The various Defendants Motions and Replies

have pointed out facts not alleged and legal points improperly raised. Plaintiffs ongoing

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Index of Exhibits

Exhibit Title

A Extract from 2011 Justice Through Music IRS Form 990

B Extract from 2011 Velvet Revolution US IRS Form 990

C Partial Listing of Cases Filed by Plaintiff Found on PACER

D Alleged Envelope for Service to Defendant Hoge (on page 2 of 2)

Exhibit C from Plaintiffs Response to Defendant Hoges Two LatestFilings (ECF No. 49)

E USPS Tracking Information for Item 9114901159815532938543 Downloaded from http://https://tools.usps.com/go/ TrackConfirmAction.action?tRef=fullpage&tLc=1&tLabels= 9114901159815532938543 on 29 January, 2014

F Extract from Public Information Inmate Data Kimberlin, Brett C.

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E XHIBIT

A

Extract from 2011 Justice Through Music IRS Form 990

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30


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E XHIBIT B

Extract from 2011 Velvet Revolution US IRS Form 990

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E XHIBIT C

Partial Listing of Cases Filed by Plaintiff Found on PACER

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Kimberlin, Brett C (pla) mddce 1:1987-cv-01449 540 06/04/1987 12/03/1987 Kimberlin, Brett C (pla) dcdce 1:1990-cv-01549 440 07/02/1990 07/02/2003 Kimberlin, Brett C (pla) ilndce 1:1990-cv-05913 290 10/11/1990 03/19/1992 Kimberlin, Brett C (pla) cacdce 2:1991-mc-27442 999 07/12/1991 02/28/1992 Kimberlin, Brett (pla) lawdce 2:1992-cv-00612 890 04/06/1992 04/18/1994 Kimberlin, Brett C (pla) dcdce 1:1995-cv-01328 895 07/19/1995 04/12/1996 Kimberlin, Brett C (pla) dcdce 1:1995-cv-01329 895 07/19/1995 04/12/1996 Kimberlin, Brett C (pla) mddce 8:1997-cv-00431 890 02/11/1997 02/26/1997 Kimberlin, Brett C (pet) mddce 8:1997-cv-01687 530 05/23/1997 06/06/1997 Kimberlin, Brett C (pet) mddce 8:1997-cv-02066 530 06/24/1997 07/30/1997 Kimberlin, Brett C (pla) dcdce 1:1997-cv-01798 550 08/08/1997 01/16/1998 Kimberlin, Brett C (pla) mddce 8:1997-cv-02574 890 08/11/1997 08/27/1997

Kimberlin, Brett C (pla) dcdce 1:1997-cv-02633 550 11/07/1997 06/12/2001 Kimberlin, Brett C (pet) mddce 8:1997-cv-03829 530 11/10/1997 05/22/1998 Kimberlin, Brett C (pla) dcdce 1:1998-cv-00071 895 01/09/1998 04/10/2001 Kimberlin, Brett C (pla) mddce 8:1998-cv-00730 550 03/10/1998 04/30/1998 Kimberlin, Brett C (pet) vaedce 2:1998-cv-00957 530 08/19/1998 03/29/1999 Kimberlin, Brett C (pla) vaedce 2:1998-cv-01484 550 12/29/1998 04/28/1999 Kimberlin, Brett C (pla) dcdce 1:1999-cv-01514 550 06/11/1999 09/29/2000 Kimberlin, Brett C (pla) dcdce 1:1999-cv-01515 550 06/11/1999 09/30/2002 Kimberlin, Brett C (pla) dcdce 1:1999-cv-01590 550 06/18/1999 10/31/2001 Kimberlin, Brett C (pet) vaedce 2:1999-cv-00979 530 06/21/1999 04/03/2000 Kimberlin, Brett C (pet) vaedce 2:1999-cv-01547 530 09/20/1999 05/22/2000

Kimberlin, Brett C (pla) dcdce 1:1999-cv-03156 555 11/30/1999 01/27/2000 Kimberlin, Brett C (pla) vaedce 2:2000-cv-00307 550 05/01/2000 10/26/2000 Kimberlin, Brett C (pet) vaedce 2:2000-cv-00670 530 09/07/2000 12/05/2000 Kimberlin, Brett C (pet) vaedce 2:2000-cv-00798 530 10/20/2000 11/17/2000 Kimberlin, Brett C (pet) dcdce 1:2001-cv-01212 530 06/04/2001 09/30/2002 Kimberlin, Brett C (pla) dcdce 1:2001-cv-02100 320 10/05/2001 07/16/2004 Kimberlin, Brett C (pet) mddce 8:2004-cv-02881 530 09/02/2004 06/14/2005

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E XHIBIT D

Alleged Envelope for Service to Defendant Hoge (on page 2 of 2)Exhibit C from Plaintiffs Response to Defendant Hoges Two Latest Filings (ECF No. 49)

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36

Tracking Number: 9114901159815532938543

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37

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E XHIBIT E

USPS Tracking Information for Item 9114901159815532938543Downloaded from http://https://tools.usps.com/go/TrackConfirmAction.action?

tRef=fullpage&tLc=1&tLabels=9114901159815532938543 on 29 January, 2014

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E XHIBIT F

Extract from Public Information Inmate DataKimberlin, Brett C.

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PARA 0PAGE 3

PUBLIC INFORMATIONINT -1AT EATA

AS OF 06-05-2001

03-14-201312:43:34

REGNO ..: 01035-079 NAME: KIMBERLIN BRETT COLEMAN

RESP OF: CDC

PHONE ..: 301-317-3142 FAX: 301-317-3138---------------------------PRIOR COMPUTATION NO: 020 --------------------------

COMPUTATION 2 WAS LAST UPDATED ON 06-06-2001 AT CDC AUTOMATICALLY

THE FOLLOWING JUDGMENTS WARRANTS AND OBLIGATIONS ARE INCLUDED IN

PRIOR COMPUTATION 020: 5 1

DATE COMPUTATION BEGAN : 6 6 1997

TOTAL TERM IN EFFECT : 12142 DAYSTOTAL TERM IN EFFECT CONVERTED .. : 33 YEARS 2 MONTHS 28 DAYS

TOTAL JAIL CREDIT TIME : 0

TOTAL INOPERATIVE TIME : 0STATUTORY GOOD TIME RATE : 10TOTAL SGT POSSIBLE : 3989

PAROLE ELIGIBILITy COMMISSION S DISCRETION

STATUTORY RELEASE D TE 10-01-2019

TWO THIRDS DATE : 8 2 2 19

180 DAY DATE : 03-06-2030EXPIRATION FULL TERM DATE : 09-02-2030

PAROLE EFFECTIVE 6 5 2 1

PAROLE EFF VERIFICATION DATE : 06-05-2001

NE XT PA ROL E H EA RI NG D TE N/ATYPE OF HE RING PAROLE EFFECTIVE

ACTUAL SATISFACTION DATE : 06-05-2001ACTUAL SATISFACTION METHOD PAROLEACTUAL SATISFACTION FACILITY : CDC

A CT UAL SATIS FA CT ION K EY ED By JAF

DAYS REM INING 10681FINAL PUBLIC LAW D yS 0

G 2 MORE P GES TO FOLLOW

bk v nbc, et al reply to oppositions (redacted)

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