mtd sac redacted

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Brett Kimberlin,

Plaintiff,

v.

National Bloggers Club, et al.

Defendants.

DEFENDANTHOGESMOTIONTODISMISSPLAINTIFFS

SECONDAMENDEDCOMPLAINT(ECF NO. 135)

COMESNOWDefendant William Hoge and moves this Court to dismiss with

prejudice Plaintiffs Second Amended Complaint (ECF No. 135) pursuant to Fed. R. Civ. P.

12(b)(1) and 12(b)(6); Fed. R. Civ. P 41(b); Md. Cts. & Jud. P. Code Ann. 5-807 (Anti-

SLAPP Statute); and the Courts inherent authority. Mr. Hoge offers the attached

Memorandum in support of his motion.

WHEREFORE, Defendant Hoge asks this Honorable Court to dismiss with prejudice

the instant suit pursuant to its inherent authority and Fed. R. Civ. P. 12(b)(1), 12(b)(6),

and/or 41(b) or, alternatively, Md. Cts. & Jud. P. 5-807 and to enter an order

i.) That Plaintiff shall have nothing,

ii.) That Plaintiff shall be enjoined from filing any further lawsuits against any of

the Defendants in the instant lawsuit without pre-clearance by a Magistrate Judge,

1

UNITEDSTATESDISTRICTCOURT

FORTHEDISTRICTOFMARYLANDSOUTHERNDIVISION

Case No. GJH-13-CV-3059


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TABLEOFCONTENTS

INDEXOFAUTHORITIES... iii

THISMOTIONISTIMELYFILED... 1

THECOURTLACKSJURISDICTION.. 1

PLAINTIFFSSECONDAMENDEDCOMPLAINT(SAC) ISNOTWELL-PLEADED . 1

PLAINTIFFFAILSTOSTATEARICO CLAIMFORWHICHRELIEFCANBEGRANTED. 3

There is No RICO Enterprise . 4

Plaintiff Has Failed to Properly Allege Mail (18 U.S.C. 1341) or Wire Fraud

(18 U.S.C. 1343) . 5

Plaintiff Has Failed to Properly Allege Obstruction of Justice

(18 U.S.C. 1503) .... 6

Plaintiff Has Failed to Properly Allege Retaliation Against a Victim or

Witness (18 U.S.C. 1512 and 1513) . 7

Plaintiff Has Failed to Properly Allege Extortion (18 U.S.C. 1951) 11

Plaintiff Has Failed to Properly Allege Money Laundering (18 U.S.C. 1957) .. 12

Plaintiff Has Not Alleged Injury to Himself by the Mythical RICO

Enterprise . 13

Plaintiffs RICO-Base Claim Fails .. 15

PLAINTIFFFAILSTOSTATEACLAIMFORVIOLATIONOF42 U.S.C. 1983 . 15

PLAINTIFFFAILSTOSTATEACLAIMFORVIOLATIONOF42 U.S.C. 1985 . 17

PLAINTIFFFAILSTOSTATEACLAIMFORDEFAMATION... 18

PLAINTIFFFAILSTOSTATEACLAIMFORFALSELIGHTINVASIONOFPRIVACY.. 21

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PLAINTIFFDOESNOTALLEGEINTERFERENCEWITHBUSINESSRELATIONSBYMR. HOGE.. 22

PLAINTIFFFAILSTOSTATEACLAIMFORINTERFERENCEWITHECONOMICADVANTAGE . 22

PLAINTIFFDOESNOTALLEGEBATTERYBYMR. HOGE... 23

PLAINTIFFISESTOPPEDFROMANYCLAIMOFINTENTIONALINFLICTIONOFEMOTIONAL

DISTRESS 23

CONSPIRACYISNOTATORT.. 25

PLAINTIFFISNOTENTITLEDTOPUNITIVEDAMAGES...... 26

PLAINTIFFHASNOTSERVEDTHESAC ONMR. HOGE. 26

THESAC SHOULDBEDISMISSEDPURSUANTTOFEDR. CIV. P 41(b) .. 27

PLAINTIFFISAVEXATIOUSLITIGANT.. 28

DISMISSALSHOULDBEWITHPREJUDICE .. 30

INDEXOFEXHIBITS. 32

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INDEXOFAUTHORITIES

Cases Pertaining to Plaintiff Kimberlin

Kimberlin v. Allen,

Case No. 339254V, (Md. Cir.Ct. Montgomery Co. 2011) .. 9

Kimberlin v. Dewalt,

12 F.Supp.2d 487 (D.Md. 1998) .... 14, 19

Kimberlin v. Quinlan,

6 F.3d 789, 791 (D.C. Cir. 1999) .. 19

Kimberlin v. U.S. Dept. of Justice,

318 F.3d 228 (D.C. Cir. 2003) .. 19

Kimberlin v. Walker,

Case No. 0601SP005392012 (Md. D.Ct. 2012) ....... 9Kimberlin v. Walker, et al.,

Case No. 380966V (Md. Cir.Ct. Montgomery County) ..... 23, 24, 29

U.S. v. Kimberlin,483 F.Supp. 350 (S.D.Ind. 1979) ...... 17, 18

U.S. v. Kimberlin,

527 F.Supp. 1010 (S.D.Ind. 1981) . 18

U.S. v. Kimberlin,

805 F.2d 210 (7th Cir. 1986) .... 20, 27

Other Cases

Ashcroft v. Iqbal,

556 U.S. 662 (2009) .. 2, 3, 4

Bech v. Prupis, et al.,

529 U.S. 494 (2000) ... 25,26

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Cases (cont.)

Bell Atlantic Corp. v. Twombly,

550 U.S. 544 (2007) .. 2, 3, 8

Benavidez v. Gunnell,

722 F.2d 615 (10th Cir.1983 . 16Boyle v. U.S.,

556 U.S. 938,129 S.Ct. 2237 (2009) ..... 4, 5

Byington v. NBRS Fin. Bank,

903 F.Supp. 2d 342, 352-353 (D.Md. 2012) ... 21

Carpenters v. Scott,

463 U.S. 825 (1985) .... 17

C.B.H. Resources v. Mars Forging Co.,

98 F.R.D. 564, (W.D. Pa. 1983) 27

Chambers v. Nasco, Inc.,

501 U.S. 32 (1991) .. 28

Cromer v. Kraft Foods,390 F.3d 812 (4th Cir. 2004) .... 29

Dahlgren v. First Nat'l Bank of Holdrege,

533 F.3d 681 (8th Cir. 2008) .... 14

Daniel v. Ferguson,

839 F.2d 1124 (5th Cir.1988) 16

Deck v. Engineered Laminates,

349 F.3d 1253 (10th Cir., 2003) ... 12

Exxon Mobil Corp. v. Albright,

433 Md. 303, 71 A.3d 30 (2013) ... 25

Francis, et al. v. Giacomelli, et al.,

588 F.3d 186 (4th Cir. 2009) ..... 3

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Cases (cont.)

Grassick v. Holder,

Case No. 09-CV-587-PJB-LM, EFC No. 86 (D.R.I. 2012) ... 8

Hamilton v. Ford Motor Credit Co.,

66 Md. App. 46 (1986) ..... 24, 25

Harris v. Jones,

281 Md. 560 (1977) .... 24

Hosack v. Utopian Wireless Corp.,

Case No. 11-CV-00420-DKC, ECF No. 15 (D.Md. 2011) ..... 2Independent Towers of Washington v. Washington,

350 F.3d 925 (9th Cir. 2003) ... 2

Jackson v. Longscope,

394 Mass. 577 (1985) .. 20

Johnson v. Miller,

680 F.2d 39 (7th Cir.1982) .... 16

Leopold v. Levin,45 Ill. 2d 434 (1970) ... 20

Lord v. Riley,

921 F.2d 272 (4th Cir. 1991) . 16

Mixter v. Farmer,

81 A.3d 631, 638 (Md. Ct. Spec. App. 2013) .. 23

Naffe v. Frey,et al.,

Case No. 12-CV-08443-GW-MRW, ECF No. 67 (C.D.Cal. 2013) ... 15, 16

Natural Design, Inc. v. The Rouse Co.,

302 Md. 47 (Md. 1984) ... 22

NYT v. Sullivan,

376 U.S. 254 (1964) ... 19

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Cases (cont.)

Pelletier v. Zweifel,

921 F.2d 1465 (11th Cir. 1991) .. 6

Proctor v. Metropolitan Money Store Corp.,

645 F.Supp.2d 464 (D. Md. 2009) .. 6

Robinson v. Vitro Corp.,

620 F.Supp. 1066 (D. Md., 1985) . 21

Scheidler v. National Organization for Women, Inc.,

537 U.S. 393 (2003) ........ 12

Sears, Roebuck and Co. v. Ulman,

287 Md. 397 (1980) . 18

Sedima S.P.R.L. v. Imrex Co.,

473 U.S. 479 (1995) .. 14, 15

Sellner v. Panagoulis,

565 F. Supp. 238 (D.Md. 1982) 17

Seville Indus. Machinery v. Southmost Machinery,742 F. 2d 786 (3rd Cir. 1984) . 6

Smith v. Esquire, Inc.,

494 F.Supp. 967 (D.Md. 1980) ..... 21

U.S. v. Aragon,

983 F.2d 1306 (4th Cir. 1993) . 7

U.S. v. Ardito,

782 F.2d 358 (2d Cir. 1986) . 7

U.S. v. Hudson,

11 U.S. 32 (1812) ........ 27

U.S. v. Shively,

927 F. 2d 804 (5th Cir. 1991) .. 9

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Cases (cont.)

Virginia Society for Human Life, Inc. v. FEC,

263 F.3d 379 (4th Cir. 2001) . 29

Weller v. Dept. of Soc. Serv. for City of Baltimore,

901 F. 2d 387 (4th Cir. 1990) .. 2

Statutes

Md. Code Ann., Courts & Judicial Proceedings Article

5-105 .. 18

5-807 .. 30

9-104 .. 17

18 U.S.C. 1341 ..... 4, 5, 6

18 U.S.C. 1343 .. 4, 5, 6

18 U.S.C. 1503 .. 4, 6, 7

18 U.S.C. 1512 5, 7, 11

(d) .... 7, 8(k) .. 8

18 U.S.C. 1513 ... 4, 7, 9, 11

(b) .. 8

(e) ... 10

18 U.S.C. 1515(a)(1) ..... 9

18 U.S.C. 1951 .. 4, 11, 12

(b)(2) ... 11

18 U.S.C. 1957 .. 5, 13, 14

Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C.

1962 .. 3

1964(c) ... 3, 14

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Statutes (cont.)

28 U.S.C. 1331 ... 1

28 U.S.C. 1332 ... 1

28 U.S.C. 1367(a) .. 1

42 U.S.C. 1983 .. 15, 16

42 U.S.C. 1985 .... 17

(2) ... 17

(3) ... 17

Court Rules

Fed. R. Civ. P. 8(a)(2) .. 1

Fed. R. Civ. P 9(b) . 6

Fed. R. Civ. P. 12(b)

(1) ..... 1

(6) ...passim

Fed. R. Civ. P. 15 (a)(3) 1

Fed. R. Civ. P. 41(b) . 27, 28

4th Cir. L.R. 32 16

Other Authority

Singer, Mark, Citizen K: The Deeply Weird American Journey of Brett Kimberlin,

Knoff, New York (1996) ..... 19

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THISMOTIONISTIMELYFILED

1. Fed. R. Civ. P. 15(a)(3) allows 14 days after service of the amended pleading for

a response to Plaintiffs Second Amended Complaint (SAC). As of the date of this motion

is filed, Mr. Hoge has not yet been served a copy of the SAC by Plaintiff. Mr. Hoge is

relying on a copy of ECF No. 135 downloaded from PACER on 27 June, 2014. Because the

SAC has not been served on Mr. Hoge, the 14 days after service cannot have elapsed.

THECOURTLACKSJURISDICTION

2. As will be shown below, Plaintiffs fails to state a claim upon which relief can be

granted on any of his RICO or civil rights claims, leaving him with no federal questions

before the Court. He cannot rely on diversity of citizenship. Thus, the Court should not

have jurisdiction pursuant to 28 U.S.C. 1331 or 1332. Lacking that jurisdiction, the

Court should not assert jurisdiction over the state law claims pursuant to 1367(a).

Therefore, the Court should dismiss the instant lawsuit for lack of subject matter

jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1).

PLAINTIFFSSECONDAMENDEDCOMPLAINT(SAC) ISNOTWELL-PLEADED

3. Fed. R. Civ. P. 8(a)(2) requires that a complaint contain a short and plain

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statement of the claim showing that the pleader is entitled to relief. Plaintiff has offered

up over 80 pages of wild imaginings for the Court to sort through. Plaintiffs SAC is rife1

with conclusory statements but does not properly allege that he suffered actual damages

as a result of Defendant Hoges (or any other Defendants) actions. The Supreme Court

has said, Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice. Ashcroft v. Iqbal,129 S.Ct. 1937,556 U.S. 662, 678

(2009). The plaintiff must allege enough facts to state a claim to relief that is plausible

on its face. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 550 U.S. 544, 570 (2007). At

this point in the instant lawsuit, after over eight months and almost thirty often self-

contradictory filings by Plaintiff, the Court should ask if any claims made by Plaintiff are

plausible.

4. For example, in paragraphs 99 and 100 of the SAC Plaintiff alleges that one or

more of the Defendants made reports to law enforcement about him that resulted in a visit

from the FBI. Yet, in paragraphs 186-188 he alleges that Defendants retaliated against

him because of his contacts with law enforcement. Plaintiff would have the Court believe

that Defendants have simultaneously caused law enforcement to contact Plaintiff and

2

Although the legal theories within [the] pro se complaint are difficult to discern, courts1

traditionally view civil rights complaints, particularly those brought pro se, with special

judicial solicitude. In truth, even a solicitous examination of the allegations reveals

little on which federal subject matter jurisdiction may be based. Weller v. Dept. of Soc.

Serv. for City of Baltimore, 901 F. 2d 387, 390-391 (4th Cir. 1990).

Judges are not like pigs, hunting for truffles buried in the briefs. Independent Towers of

Washington v. Washington, 350 F.3d 925, 929 (9th Cir. 2003).


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sought to prevent his contact with law enforcement. [W]hen a complaint contains

inconsistent and self-contradictory statements, it fails to state a claim. Hosack v.

Utopian Wireless Corp., Case No. 11-CV-00420-DKC, ECF No. 15 (D.Md. 2011) at 12.

There are numerous other self-contradictions in the SAC.

5. As the Court of Appeals noted in Francis, et al. v. Giacomelli, et al., 588 F.3d 186

(4th Cir. 2009), determining whether a complaint states on its face a plausible claim for

relief and therefore can survive a Rule 12(b)(6) motion will be a context-specific task that

requires the reviewing court to draw on its judicial experience and common sense. Id. at

193, quoting Iqbal, 129 S.Ct. at 1950. Conclusory allegations require some factual

enhancement within a complaint to cross over the line between possibility and

plausibility of entitle[ment] to relief. Twombly, 127 S.Ct. at 1966. The allegations in the

SAC are insufficient to state a claim upon which relief can be grantedas is shown below.

PLAINTIFFFAILSTOSTATEARICO CLAIMFORWHICHRELIEFCANBEGRANTED

6. Plaintiff lacks standing to sue under 18 U.S.C. 1964(c) which requires that (1)

the plaintiff must be a person (2) who sustains injury (3) to its business or property (4)

by reason of a defendants violation of 1962. Under Iqbal, Plaintiffs conclusory

statements do not establish a claim upon which relief can be granted. In order to invoke

RICO Plaintiff is required to show that at least two predicate acts of racketeering activity

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have been committed. Plaintiff fails to allege the necessary elements of even one. He

attempts to allege the following crimes:

a. Mail Fraud (18 U.S.C. 1341)

b. Wire Fraud (18 U.S.C. 1343)

c. Obstruction of Justice (18 U.S.C. 1503)

d. Retaliation Against a Victim and Witness (18 U.S.C. 1512 and 1513)

e. Extortion (18 U.S.C. 1951)

f. Money Laundering (18 U.S.C. 1957)

He also fails to properly allege the existence of a RICO enterprise or any conspiracy.

There is No RICO Enterprise

7. Plaintiff is required to allege the existence of a group with a common purpose

and course of conduct-and the actual commission of a pattern of predicate offenses. Boyle

v. U.S., 556 U.S. 938,129 S.Ct. 2237, 2250 (2009). There is no rational demonstration of

the existence of such a RICO enterprise to be found among the smoke and mirrors of

Plaintiffs SAC.

8. Plaintiff makes the conclusory allegation that the named defendants, including

Mr. Hoge, engaged in the mythical RICO enterprise beginning in August 2010 and

continuing to the present time. SAC, 197. Specificity However, Mr. Hoge began

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blogging on 24 July, 2011, and could not have participated in the imagined scheme even if

it had existed in 2010.

9. A core idea supporting Plaintiffs allegation of a RICO enterprise is the imagined

existence of some sort of scheme related to an allegedly false claim concerning NBCs

501(c)(3) status with the IRS. The Court should take judicial notice that NBCs 501(c)(3)

status has been recognized by the IRS. SeeExhibit A. Plaintiffs implication that NBC

never filed an application with the IRS is clearly false. The IRS would not have made its

determination without an application being filed. Plaintiff offers nothing but conclusory

allegations unsupported by further factual enhancement.

10. While Plaintiff says that his SAC describes the framework of the mythical

RICO Enterprise, it simply does not. He fails to meet the specificity requirement ofBoyle,

and he fails to meet the plausibility requirement of Iqbal. Because Plaintiff has failed to

properly allege the existence of a RICO enterprise, his First Claim for Relief should be

dismissed for failure to state a claim upon which relief can be granted pursuant to Fed. R.

Civ. P. 12(b)(6).

Plaintiff Has Failed to Properly Allege Mail (18 U.S.C. 1341) or

Wire Fraud (18 U.S.C. 1343)

11. Mail or wire fraud occurs when a person (1) intentionally participates in a

scheme to defraud another of money or property and (2) uses the mails or wires in

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furtherance of the scheme. Pelletier v. Zweifel, 921 F.2d 1465, 1498 (11th Cir. 1991). The

elements of fraud are (1) a material, (2) false statement, (3) known by the defendant to be

untrue, (4) made with the intent of the defendant to deceive the alleged victim, (5) the

justifiable reliance of the victim on the statement, and (6) actual injury to the victim as a

result. When mail and wire fraud are asserted as predicate acts in a civil RICO claim,

each must be pled with particularity, pursuant to Rule 9(b). Proctor v. Metropolitan

Money Store Corp., 645 F.Supp.2d 464, 473 (D. Md. 2009). Seealso Seville Indus.

Machinery v. Southmost Machinery, 742 F. 2d 786, 789 (3rd Cir. 1984). However, Plaintiff

neither identifies a particular person reasonably deceived by any Defendant, nor does he

specify how any deception injured him in his business or property. At best, he offers a few

conclusory statements rather than properly alleging damages suffered. He shows no

knowingly false statement, no victim, no damages, and, therefore, no fraud.

12. Thus, Plaintiff has failed to properly allege either Mail Fraud ( 1341) or Wire

Fraud ( 1343) as predicate acts supporting a civil RICO claim.

Plaintiff Has Failed to Properly Allege Obstruction of Justice (18 U.S.C. 1503)

13. Obstruction of Justice under 18 U.S.C. 1503 is defined as endeavoring to

influence, intimidate, or impede any grand or petit juror, or officer in or of any court of the

the United States, or officer who may be serving at any examination or other proceeding

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before any United States magistrate judge or other committing magistrate Plaintiff

fails to allege that he or any other alleged victim were federal jurors, officers of a federal

court, or Article I or Article III judges or that any Defendant obstructed any federal

proceeding. The obstruction of justice statute, 18 U.S.C. 1503, requires proof that

proceeding obstructed was a federal proceeding. See, e.g., U.S. v. Ardito, 782 F.2d 358, 359

(2d Cir. 1986); cited with approval in U.S. v. Aragon, 983 F.2d 1306 (4th Cir. 1993).

14. Thus, Plaintiff has failed to properly allege any instance of Obstruction of

Justice ( 1503) as a predicate act supporting a civil RICO claim.

Plaintiff Has Failed to Properly Allege Retaliation Against a Victim and Witness

(18 U.S.C. 1512 and 1513)

15. Plaintiff makes conclusory allegations that the Defendants have violated 18

U.S.C. 1512(d). That portion of the statute says

(d) Whoever intentionally harasses another person and thereby hinders,

delays, prevents, or dissuades any person from

(1) attending or testifying in an official proceeding;

(2) reporting to a law enforcement officer or judge of the United States

the commission or possible commission of a Federal offense or a

violation of conditions of probation supervised release,, parole, or2 3

release pending judicial proceedings;(3) arresting or seeking the arrest of another person in connection with

a Federal offense; or

(4) causing a criminal prosecution, or a parole or probation revocation

7

Thus in the original.2

Thus in the original.3


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proceeding, to be sought or instituted, or assisting in such prosecution

or proceeding;

or attempts to do so, shall be fined under this title or imprisoned not more

than 3 years, or both.

Plaintiff fails to properly allege particular intentional acts by any Defendant that would

establish the mens rearequired by 1512(d). SeeGrassick v. Holder, Case No. 09-CV-587-

PJB-LM, EFC No. 86 (D.R.I. 2012) at 22.

16. Plaintiff alleges (SAC, 189) that [t]he Defendants also engaged in a

conspiracy to threaten, assault and intimidate Plaintiff and therefore their conduct is

prohibited by 18 USC 1512(k). 18 U.S.C. 1512(k) reads

(k) Whoever conspires to commit any offense under this section shall be

subject to the same penalties as those prescribed for the offense the

commission of which was the object of the conspiracy.

Plaintiff fails to allege the elements of a conspiracy. Plaintiff alleges, for example, that

several Defendants wrote similar things about him, but as Justice Souter writing for the

majority noted in Twombly, 127 S.Ct. at 1961, parallel actions do not necessarily imply a

conspiracy.

17. The Retaliation Against a Witness statute 18 U.S.C. 1513(b) which Plaintiff

cites deals with conduct which causes bodily injury to another person or damages the

tangible property of another person, or threatens to do so, with the intent to retaliate

against that person Plaintiff alleges that Mr. Hoge has written bad things about him

on the Internet. He has alleged that criminal charges, peace orders, and civil lawsuits

have been filed against him by various Defendants. He claims that he has been subjected

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to extortion by lawsuit. He alleges that some of the Defendants have advocated that he

should be sent back to prison. Even if any of that be true, none of those acts are

prohibited by 18 U.S.C. 1513.18. Plaintiffs allegation of battery by Defendant Walker at the Montgomery

County Circuit Courthouse on 9 January, 2012, might be covered by 18 U.S.C. 1513ifit were true. However, such an allegation against Mr. Walker is barred by collateral4

estoppel. Plaintiff attempted to use the alleged incident of assault as the basis of a peace

order against Mr. Walker in 2012, but the Maryland District Court ruled no assault

occurred. SeeKimberlin v. Walker, Case No. 0601SP005392012 (Md. D.Ct. 2012).

Furthermore, the alleged assault was related to a Maryland civil lawsuit,Kimberlin v.

Allen,Case No. 339254V, (Md. Cir.Ct. Montgomery Co. 2011), but not any federal case.

An official proceeding is defined by18 U.S.C. 1515(a)(1) as relating to federal cases

only. See U.S. v. Shively, 927 F. 2d 804, 810 (5th Cir. 1991). Finally, Plaintiff alleges the

battery occurred in retaliation for Mr. Walker losing his job. (SAC, 186) However,

Plaintiff states that the alleged battery occurred on 9 January, 2012, (SAC, 55, 56) and

that Mr. Walker lost his job on 12 January. (SAC, 57) This allegation that the

imagined battery was in retaliation for a future event is a prime example of Plaintiffs

9

Defendant Hoge has standing to challenge this cause of action (and any other based on4

federal law) because this Court can only have jurisdiction over the state law claims alleged

by the Plaintiff through supplemental jurisdiction under 28 U.S.C. 1367(a). Mr. Hoge

has a valid interest in seeing all federal claims dismissed so that the remaining state

claims should be dismissed for lack of jurisdiction.


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inability to keep his implausible stories straight.

19. Plaintiff alleges that unknown persons have been threatening his family. See,

e.g., SAC, 217, 222, and 247. However, no particular threat is alleged, certainly none

that would have affected any federal proceeding. He does not allege that any of the

Defendants made threats to his family, and he does not properly allege that they incited

others to make threats. Such conclusory allegations should be disregarded.

20. As to 1513(e), Plaintiff does not plausibly allege interference with his truthful

reporting any particular crime to a federal law enforcement officer or how he might have

been harmed thereby. Plaintiff alludes to his alleged reports to unspecified law

enforcement officials concerning four complaints.

Plaintiff contacted law enforcement officials about (1) an intestate (sic)

murder threat against Plaintiff by Seth Allen that was communicated to

Defendants Walker, Nagy, Frey and another person, since deceased, (2)

the assault and battery by Defendant Walker against Plaintiff in theMontgomery County Courthouse, (3) the false allegations of swatting, (4)

and the civil rights violations against Plaintiff by Defendant Frey.

SAC, 187. Furthermore, (1) the intestate (sic) murder threat was also passed along to

law enforcement by Defendant Nagy; why would Defendants retaliate against Plaintiff for

making the same report? (2) A state court has found that the alleged battery never

happened. (3) If Defendants had made accusations that Plaintiff was involved in

SWATting, they would have reasonably expected Plaintiff to deny any involvement when

interviewed by law enforcement. If their goal was to send Plaintiff back to prison, they

would be more likely to encourage law enforcement contact with Plaintiff than to retaliate

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against him because of such contact. Finally, (4) Defendant Freys lawful efforts to pursue

justice for crimes perpetrated against him and his family cannot be counted as civil rights

violations.

21. Plaintiff alleges that one or more of the Defendants (who he does not specify)

retaliated against him because he talked with the FBI during an interview initiated by5

the FBI and not Plaintiff. He offers no suggestion of how any Defendant might have

known of any such conversation. He doesnt allege when or how they found out about it, or

how they became aware of the substance of the conversation. His allegations are

insufficient of establish a reasonable possibility, let alone establish a plausible allegation

that he was retaliated against because of that conversation.

22. Thus, Plaintiff has failed to properly allege any instance of a violation of

1512 or 1513 as a predicate act supporting a civil RICO claim.

Plaintiff Has Failed to Properly Allege Extortion (18 U.S.C. 1951)

23. Extortion as defined by 18 U.S.C. 1951(b)(2) means the obtaining of property

from another, with his consent, induced by wrongful use of actual force, violence, or fear,

or under color of official right. Plaintiff does not allege that he consented to give up any

property because of actions by any of the defendants. Nor does he allege that any of the

11

The FBI is the only federal law enforcement agency Plaintiff ever mentions.5


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defendants made any extortionate threats. An ordinary settlement offer is not extortion.

SeeDeck v. Engineered Laminates, 349 F.3d 1253, 1258 (10th Cir., 2003).

24. 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 Supreme Court has ruled

that to be property under 1951, the thing obtained must be something tangible,

something that one could exercise, transfer or sell. Scheidler v. National Organization

for Women, Inc., 537 U.S. 393, 405 (2003). 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.

25. Thus, Plaintiff has failed to properly allege any instance of extortion (18 U.S.C.

1951) as a predicate act supporting a civil RICO claim.

Plaintiff Has Failed to Properly Allege Money Laundering (18 U.S.C. 1957)

26. The Money Laundering statute 18 U.S.C. 1957 punishes transactions dealing

with property derived from criminal activity and having a value greater than $10,000.

Plaintiff fails to properly allege any of the elements of this offense. He does not allege that

whoever made the transactions did so in the United States or within its maritime or

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territorial jurisdiction or that he was a United States person. Indeed, he admits in

paragraph 193 of the SAC that he is not privy to any accounting of the funds. Therefore,

his allegation of any transactions valued in excess of $10,000 is purely conclusory and not

entitled to be assumed to be true.

27. Finally, Plaintiff has failed to properly allege any illegal activity from which the

funds in question were derived. As demonstrated above, he has not properly alleged wire

or mail fraud, obstruction of justice, witness tampering/retaliation, or extortion by any

Defendant that would have provided money to be laundered.

28. Thus, Plaintiff has failed to properly allege any instance of Money Laundering

(18 U.S.C. 1957) as a predicate act supporting a civil RICO claim.

Plaintiff Has Not Alleged Economic Injury to His Business or Property by the

Mythical RICO Enterprise

29. In attempting to allege economic injury Plaintiff conflates his personal interests

with those of his employers, Justice Through Music Project and Velvet Revolution US.

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

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

injuries, they should sue, not Plaintiff. Any alleged injuries to his employer and other6

13

It may be that Plaintiff is reluctant to bring such a lawsuit on behalf of his non-profits6

because of the expense of hiring a lawyer and the ethical limitations constraining

arguments presented by a member of the bar.


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third parties are not injuries to Plaintiff himself.

30. 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

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 allegedlyincurred by third parties.

31. 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).

32. Plaintiff tries, in part, to base his claim on his personal well-being, (SAC,

223) but that is, of course, a personal injury. [T]he statute permits recovery only forinjury to business or property. It therefore excludes recovery for personal injuries.

Sedima S.P.R.L. v. Imrex Co., 473 U.S. 479, 509 (1995).

33. Given no showing of economic injury to his business or property, Plaintiffs

insufficient allegations of RICO predicate acts are further undermined, providing yet

another reason for dismissal pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim

upon which relief can be granted.

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Plaintiffs RICO-Based Claim Fails

34. Plaintiff does not establish a plausible case for civil damages under RICO

because he fails to allege the four necessary elements: (1) conduct, (2) of an enterprise,

(3) through a pattern, (4) of racketeering activity. Sedimaat 496 (1995). Plaintiff has

failed to state a RICO claim upon which relief can be granted, and First Claim for Relief

should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6).

PLAINTIFFFAILSTOSTATEACLAIMFORVIOLATIONOF42 U.S.C. 1983

35. Plaintiff makes no allegation against Defendant Hoge for violations of 42 U.S.C.

1983. Instead, Plaintiff attempts to use this statute against Defendant Frey because of7

his employment as a Deputy District Attorney for Los Angeles County, California.

However, Mr. Frey is not a state actor in connection with his blogging. In Naffe v. Frey,et

al., Case No. 12-CV-08443-GW-MRW, ECF No. 67 (C.D.Cal. 2013), a case involving the

same defendant and the same federal statute, Judge George Wu found that Freys

practice of simply (relatively frequently) mentioning the fact that he is a deputy district

attorney or prosecutor ... does not transform everything he says on his blog or on Twitter

into state action and also found that [q]uite simply, nothing Plaintiff has alleged

15

Seefootnote 7.7


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plausibly suggests that Frey acted, or purported or pretended to act, in performance of his

official duties. Id. at 2, 3. Plaintiff has not offered a single reason for this Court to find

otherwise.

36. Judge Wus ruling is consistent with the Fourth Circuits decision in Lord v.

Riley, 921 F.2d 272 (4th Cir. 1991). In that case the Court of Appeals ruled that a public

employee (a firefighter) acting in a private capacity was not a state actor in the sense of

1983. Other circuits have drawn similar conclusions concerning private acts and 1983.See, e.g.,Daniel v. Ferguson, 839 F.2d 1124 (5th Cir.1988),Benavidez v. Gunnell, 722 F.2d

615, 618 (10th Cir.1983), and Johnson v. Miller, 680 F.2d 39 (7th Cir.1982). 8 37. Plaintiff has failed to properly allege any instance of a violation of 42 U.S.C.

1983. Thus, he fails to state a claim upon which relief can be granted, and the SecondClaim for Relief should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6).

16

While Lord v. Rileyis designated an unpublished disposition, Fourth Circuit Local Rule8

32.1 states that while citation of such opinions are disfavored, they are not prohibited

and that:

If a party believes, nevertheless, that an unpublished disposition of this Court

issued prior to January 1, 2007, has precedential value in relation to a materialissue in a case and that there is no published opinion that would serve as well,

such disposition may be cited.

Mr. Hoge knows of no other precedent in either the District of Maryland or the

Fourth Circuit more on point and, therefore, this citation falls squarely within the

rule. Mr. Hoge has also provided precedents from other circuits to back up this

point of law.


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PLAINTIFFFAILSTOSTATEACLAIMFORVIOLATIONOF42 U.S.C. 1985

38. Plaintiff makes apro forma recitation of the elements of a violation 42 U.S.C.

1985(2) or, perhaps, 1985(3) in alleging that the defendants conspired to deny him the

equal protection of the laws. He does so with no particularity. He does not even suggest

which defendant might have taken what action on what date or in connection with which

matter. On information and belief, the only times that Plaintiff has been prevented from

offering testimony have been in Maryland state courts where he is barred from testifying

(Md. Cts. & Jud. P. 9-104) because of his prior conviction for perjury. See U.S. v.

Kimberlin, 483 F.Supp. 350 (S.D.Ind. 1979), 3.

39. Nothing 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 show that there was some form of invidious race- or class-basedbigotry involved or that there was some nexus with a federal election or proceeding. See

Sellner v. Panagoulis, 565 F. Supp. 238, 245-46 (D.Md. 1982) and Carpenters v. Scott, 463

U.S. 825, 839, n 1 (1985), Justice Blackmun, dissenting. Plaintiff has made no such

showing with respect to any Defendant in his SAC. Plaintiff fails to state a claim based on

42 U.S.C. 1985 upon which relief can be granted, and Third Claim for Relief should bedismissed pursuant to Fed. R. Civ. P.

12(b)(6).

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PLAINTIFFFAILSTOSTATEACLAIMFORDEFAMATION

40. Plaintiff has not pleaded with particularity any defamatory statement by any

Defendant. Nothing in his SAC allows the Court to determine how such statements might

have defamed Plaintiff. Further, Plaintiff has not alleged any actual damages or expenses

incurred because of any alleged defamation.

41. Plaintiff makes reference to certain statements by Mr. Hoge but does not

specify what parts of them might be defamatory. Even if the alleged statements be

defamatory, any claim by Plaintiff is barred by the statute of limitations (Md. Cts. & Jud.

P. 5-105.) because all alleged statements by Mr. Hoge were made more than one year

before the filing of the instant suit. See Sears, Roebuck and Co. v. Ulman, 287 Md. 397,9

400 (1980).

42. Plaintiff is a public figure. He became the object of public attention when he

was tried and convicted as the Speedway Bomber. SeeU.S. v. Kimberlin, 527 F.Supp.

1010 (S.D.Ind. 1981) and U.S. v. Kimberlin, 483 F.Supp. 350 (S.D.Ind. 1979). He

broadened his fame when, while still in prison on bombing and drug smuggling charges,

he claimed to have sold marijuana to then-Vice-Presidential-candidate Dan Quayle. See

18

Plaintiff alleges that Mr. Hoge posted an open letter to a congressman on 8 June, 2012.9

(SAC, 138). The instant lawsuit was filed in October, 2013. More than a year had

elapsed.


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Kimberlin v. Quinlan, 6 F.3d 789, 791 (D.C. Cir. 1999). Further public interest was

generated when his parole for the bombing and drug charges was revoked. SeeKimberlin

v. Dewalt, 12 F.Supp.2d 487 (D.Md. 1998). It was revoked, in part, because of failure to

make restitution to the widow of a bombing victim (herself a wounded victim) which was a

condition of his parole. He achieved another measure of fame when he sued the Bureau of

Prisons because he was not allowed to possess an electric guitar in prison. SeeKimberlin

v. U.S. Dept. of Justice, 318 F.3d 228 (D.C. Cir. 2003). As a public figure, he has not

alleged any instance demonstrating actual malice or a reckless disregard for the truth by

any of the defendants. SeeNYT v. Sullivan, 376 U.S. 254 (1964).

43. As can be seen by the partial listing of Plaintiffs history in the paragraph

above, Plaintiff has considerable reputational baggage. Citizen K: The Deeply Weird

American Journey of Brett Kimberlin (Singer, Mark, Knoff, New York, 1996.) is an

authorized biography of Kimberlin. It insinuates that Plaintiff had an improper

relationship with a ten year old girl (Id. at 78), that he was suspected of having arranged

the murder-for-hire of the girls grandmother. (Id. at 82, 83), and that the subsequent

Speedway Bombings were an attempt to distract the murder investigation (Id. at 89). The

book tells of other unsavory actions, including Plaintiffs bragging about sabotaging

military equipment while working in a prison industry (Id. at 184). Plaintiffs status as a

public figure is not unlike Nathan Leopolds (of Leopold and Loeb); when one commits a

sufficiently infamous crime, one becomes a public figure from that day onward. See

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Leopold v. Levin, 45 Ill. 2d 434 (1970). Like Ted Kaczynski (The Unabomber), Plaintiff is

an infamous convicted serial bomber.

44. In paragraph 225 of the SAC Plaintiff alleges that statements by the Defendants

concerning his behavior make him appear odious, infamous, and/or frightening without,

as noted above, specifying which particular statements by which particular Defendant(s)

were defamatory. However, Plaintiff in the past has tacitly acknowledged his reputation

(as a perjurer, drug smuggler/wholesaler/dealer, murder suspect, etc.) is bad. For

example, during one of his bombing trials, he sought a change in venue, in part, because of

his reputation. See e.g., U.S. v. Kimberlin, 805 F. 2d 210, 223-24 (7th Cir. 1986). Indeed,

his reputation has been so bad for so long (decades) as to render him defamation proof.

SeeJackson v. Longscope, 394 Mass. 577 (1985). It is ridiculous for the Speedway Bomber

to assert that his reputation has been diminished by comments concerning his past and

present activities.

45. Plaintiff has failed to properly allege any instance of defamation committed

against him or to specify any damages suffered because of such defamation. Therefore, his

Fourth Claim for Relief should be dismissed for failure to state a claim upon which relief

can be granted pursuant to Fed. R. Civ. P. 12(b)(6).

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PLAINTIFFFAILSTOSTATEACLAIMFORFALSELIGHTINVASIONOFPRIVACY

46. As noted in paragraph 41 above, even if Plaintiffs allegations with respect to

false light and misrepresentation be true, any claim against Defendant Hoge is barred by

the statute of limitations. SeeSmith v. Esquire, Inc., 494 F.Supp. 967, 970 (D.Md. 1980)

and Robinson v. Vitro Corp., 620 F.Supp. 1066, 1071 (D. Md., 1985).

47. Under Maryland law, a false-light plaintiff must show 1) defendant gave

publicity to a matter concerning the plaintiff that placed him before the public in a false

light; 2) the false light would be highly offensive to a reasonable person, and 3) defendant

acted with knowledge of or reckless disregard for the falsity of the publicized matter and

the false light in which plaintiff would be placed. See Byington v. NBRS Fin. Bank, 903

F.Supp. 2d 342, 352-353 (D.Md. 2012). Plaintiff has not alleged with particularity which

statements made by which Defendant(s) placed him in a false light. Additionally, he has

not alleged any actual damages or expenses incurred because of any alleged portrayal in a

false light.

48. As noted in paragraph 42 above, Plaintiff is a public figure. He has not alleged

any instance demonstrating actual malice or a reckless disregard for the truth by any of

the Defendants.

49. Because Plaintiff has failed to properly allege any instance of his being

portrayed in a false light or to specify any damages caused by portrayal in a false light, his

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Fifth Claim for Relief should be dismissed for failure to state a claim upon which relief can

be granted pursuant to Fed. R. Civ. P. 12(b)(6).

PLAINTIFFDOESNOTALLEGEINTERFERENCEWITHBUSINESSRELATIONSBY

MR. HOGE

50. Plaintiff attempts to allege interference with business relation by specified

individuals but not by Mr. Hoge. Therefore, his Sixth Claim for Relief should be dismissed

with respect to Mr. Hoge for failure to state a claim upon which relief can be granted

pursuant to Fed. R. Civ. P. 12(b)(6).

PLAINTIFFFAILSTOSTATEACLAIMFORINTERFERENCEWITHPROSPECTIVE

ECONOMICADVANTAGE

51. In order to properly allege the elements of tortious interference with

prospective advantage under Maryland law Plaintiff must establish (1) intentional or

willful acts (2) calculated to cause damage to his lawful business (3) that were done with

malice and (4) with actual damage or loss resulting. SeeNatural Design, Inc. v. The Rouse

Co., 302 Md. 47, 71 (Md. 1984). Plaintiff does not state with particularity which, if any,

Defendants committed such acts. Further, he makes no specific allegations describing any

actual damage to or losses suffered by his lawfulbusiness. He does not describe how any

22


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specific prospective business relationships might have been affected. See Mixter v.

Farmer, 81 A.3d 631, 638 (Md. Ct. Spec. App. 2013). He does not make any showing of

malice. His vague conclusory allegations do not establish a single element of the tort.

52. Therefore, Plaintiffs first Seventh Claim for Relief should be dismissed for

failure to state a claim upon which relief can be based pursuant to Fed. R. Civ. P 12(b)(6).

PLAINTIFFDOESNOTALLEGEBATTERYBYMR. HOGE

53. Plaintiff attempts to allege battery by Defendant Walker but not by Mr. Hoge.

Therefore, his second Seventh Claim for Relief should be dismissed with respect to Mr.

Hoge for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ.

P. 12(b)(6).

PLAINTIFFISESTOPPEDFROMANYCLAIMOFINTENTIONALINFLICTIONOF

EMOTIONALDISTRESS

54. Plaintiff has filed a parallel lawsuit in the Circuit Court for Montgomery

County, Maryland, against Defendants Walker, McCain, Akbar, Thomas, and Hoge.

Count VI of the second amended complaint of that suit alleges intentional infliction of

emotional distress. SeeKimberlin v. Walker, et al., Case No. 380966V, (Md. Cir.Ct.

Montgomery Co.), Docket No. 123, 110-115. In Count VI of the state case Plaintiff

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alleges Defendants, by engaging in a multi-year course of conduct of malicious

prosecution, stalking, harassment, defamation, invasion of privacy, and conspiracy, have

caused Plaintiff infliction of emotional distress. Id., 111. This mirrors Plaintiffs

allegations in the instant lawsuit.

55. On 1 July, 2014, Judge Terrence McGann granted summary judgment for

Defendants Walker, McCain, Akbar, and Hoge with respect to Count VI. SeeWalker, et

al., Docket Nos. 193/194. The finding was based on the determine that Plaintiff had felt

no emotional distress. Logically, if Plaintiff showed no signs of emotional distress during

the overlapping period of the state suit with the instant suit, he could not have had any

such distress arising from action.10

56. Even if his claim were not barred by collateral estoppel, Plaintiff simply does

not allege the elements of intentional infliction of emotional distress. Nothing in the SAC

alleges intentional or reckless behavior by Mr. Hoge that was extreme or outrageous.

Plaintiff has not alleged, except in the most conclusory manner, any causal connection

between Mr. Hoges actions and any distress he may have suffered. Nor has he

established that any of his alleged distress was severe. SeeHarris v. Jones, 281 Md. 560

(1977). More fundamentally, Plaintiff has not properly alleged that Mr. Hoge has

committed any other tortuous conduct. Under Maryland law, intentional infliction of

24

Exhibit C is Judge McGanns Order. A certified hearing transcript will be provided to10

the Court when it is available. An extract of Kimberlins Second Amended Complaint for

the state suit containing his state intentional infliction of emotional distress claim is

attached as Exhibit B.


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emotional distress is an element of damage, not an independent tort. Hamilton v. Ford

Motor Credit Co., 66 Md. App. 46 (1986). The Maryland Court of Appeals adds, In

Maryland, recovery of damages for emotional distress must arise out of tortious conduct.

Exxon Mobil Corp. v. Albright, 433 Md. 303, 71 A.3d 30, 58 (2013). Since all of Plaintiffs

other alleged torts fail, he cannot recover for intentional infliction of emotional distress.

57. Given the summary judgment in the parallel state case, Plaintiff is estopped

from making essentially the same claim in the instant lawsuit, and, even if he werent

barred, he fails to properly state a claim. The Eight Claim for Relief should be dismissed

for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P.

12(b)(6).

CONSPIRACYISNOTATORT

58. Plaintiff attempts to allege civil conspiracy as a separate cause of action. This

is contrary to law.

Consistent with this principle, it was sometimes said that a conspiracy

claim was not an independent cause of action, but was only the

mechanism for subjecting co-conspirators to liability when one of their

member committed a tortious act. Royster v. Baher, 365 S.W.2d 496, 499,500 (Mo. 1963) ([A]n alleged conspiracy by or agreement between the

defendants is not of itself actionable. Some wrongful act to the plaintiffs

damage must have been done by one or more of the defendants, and the

fact of a conspiracy merely bears on the liability of the various defendants

as joint tortfeasors). See Halberstam v. Welch, 705 F.2d 472, 479 (CADC

1983) (Since liability for civil conspiracy depends on performance of some

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underlying tortious act, the conspiracy is not independently actionable;

rather, it is a means for establishing vicarious liability for the underlying

tort).

Bech v. Prupis, et al., 529 U.S. 494, 503 (2000). Given that Plaintiff has not successfully

alleged any underlying tort, the Ninth Claim for Relief should be dismissed for failure to

state a claim upon which relief may be granted pursuant to Fed. R. Civ. P. 12(b)(6).

PLAINTIFFISNOTENTITLEDTOPUNITIVEDAMAGES

59. Because Plaintiff has not properly alleged any claim for which compensatory

damages might be awarded, he is not entitled to any award of punitive damages.

PLAINTIFFHASNOTSERVEDTHESAC ONMR. HOGE

60. Throughout the course of the instant lawsuit, Plaintiff has played fast and loose

with service of court papers. See, e.g., ECF No. 5 at 1, ECF No. 26, ECF No. 41 at 2-5, and

ECF No. 124. The Court specifically instructed Plaintiff to serve his SAC on the

Defendants. Plaintiff is directed to serve all Defendants with the Second Amended

Complaint in accordance with the applicable Local Rules and Federal Rules of Civil

Procedure. ECF No. 133 at 1. As noted in paragraph 1 above, Mr. Hoge has not been

served.

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THESAC SHOULDBEDISMISSEDPURSUANTTOFED. R. CIV. P. 41(b)

61. Plaintiffs failure to comply with the Courts order in ECF No. 133 concerning

service of the SAC is but one of many instances of his failure to comply with Fed. R. Civ.

P., the Local Rules, or this Courts orders. See, e.g., ECF No. 88 and ECF No. 132.

62. A U. S. District Court has the inherent power necessary to exercise all its other

powers.

To fine for contemptimprison for contumacyenforce the observance of

order, &c., are powers which cannot be dispensed with in a court, because

they are necessary to the exercise of all others, and so far our courts no

doubt possess powers not immediately derived from statute[.]

U.S. v. Hudson, 11 U.S. 32, 34 (1812). Additionally, Fed. R. Civ. P. 41(b) provides a basis

for dismissing with prejudice, where a plaintiff engages in misconduct constituting a

violation of the court rules or a court orderas had repeatedly been the case with

Plaintiff. SeeC.B.H. Resources v. Mars Forging Co., 98 F.R.D. 564, 569 (W.D. Pa. 1983).

63. Plaintiff is a convicted perjurer. He has admitted attempting to defraud this11

Court in the instant lawsuit by forging a summons, and he has denied making that12

27

SeeU.S. v. Kimberlin, 805 F.2d 210, 234 (7th Cir. 1986).11

SeeECF No. 102.12


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admission to a Maryland state court. He has admitted to spoliation of evidence related13

to the instant lawsuit. Given the bad faith Plaintiff has demonstrated to date and the14

fraud he has attempted to perpetrate on the Court, dismissal with prejudice of the instant

lawsuit under Rule 41(b) is fully justified. SeeChambers v. Nasco, Inc., 501 U.S. 32, 50-51

(1991).

64. Plaintiffs continuing violations, taken with his forging of a summons and

spoliation of evidence, are sufficient grounds for dismissal. Accordingly, the Court should

dismiss the SAC with prejudice pursuant to Fed. R. Civ. P. 41(b).

PLAINTIFFISAVEXATIOUSLITIGANT

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

purpose of harassment. There is no merit to his allegations. 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.

Plaintiff wrote an email to Defendant Frey in which he stated, I have filed over a hundred

28

SeeExhibits D, D-1, and D-2. Plaintiff is suing Mr. Hoge and Messrs. Walker, McCain,13

and Akbar and Ms. Thomas in a related case in the Circuit Court for Montgomery County(Case No. 380966V). Plaintiff denied making the admission found in ECF No. 102 in his

response to a Request for Admissions during discovery in that matter (Item 22 in

Admissions).

SeeECF No. 124. A full transcript of the state court hearing is attached to that14

memorandum. Plaintiff has sought to use the same altered Certified Mail green card at

issue in the state suit as proof of service in the instant lawsuit.


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lawsuits and another one will be no sweat for me. On the other hand, it will cost you a lot

of time and money[.] http://www.patterico.com/20 10/10/11/brett- kimber lin-threatens-to-

sue-me/, viewed 3 July, 2014. Sure enough, the instant nuisance suit and the parallel

frivolous lawsuit filed in a Maryland courthave cost Defendant Hoge time and money.

66. The Court of Appeals has laid out the conditions under which a vexatious

litigant can be enjoined from further mischief.

In determining whether a prefiling injunction is substantively warranted,a court must weigh all the relevant circumstances, including (1) the

partys history of litigation, in particular whether he has filed vexatious,

harassing, or duplicative lawsuits; (2) whether the party had a good faith

basis for pursuing the litigation, or simply intended to harass; (3) the

extent of the burden on the courts and other parties resulting from the

party's filings; and (4) the adequacy of alternative sanctions.

Cromer v. Kraft Foods, 390 F.3d 812, 818 (4th Cir. 2004). Plaintiff has such a history of

filing vexatious litigation. Indeed, the instant lawsuit is duplicative of theKimberlin v.

Walker, et al. action discussed above. Comments by the Plaintiff such as in the email to

Mr. Frey cited above demonstrate his intention to use nuisance lawsuits to harass and to

burden both the courts and his victims. Plaintiffs bad faith in his prosecution of the

instant lawsuit has been manifest.

67. A narrowly tailored sanction such as an order requiring Plaintiff to pre-clear

future lawsuits against any of the Defendants in the instant lawsuit with a Magistrate

Judge would not be an overly-broad remedy. See, e.g., Virginia Society for Human Life,

Inc. v. FEC, 263 F.3d 379, 393 (4th Cir. 2001).

29


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INDEXOFEXHIBITS

32


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Exhibit A

National Bloggers Club 501(c)(3) listing downloaded on 5 July, 2014, from http://apps.irs.gov/app/eos/pub78Search.do?ein1=45-4415151&names=National+Bloggers+Club

+Inc&city=Fort +Worth&state=TX&country=US&deductibility=NONE&dispatchMethod=searchCharities&submitName=Search


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Exhibit C

Summary Judgment Order on Count VI,Kimberlin v. Walker, et al., Case No. 380966V,

(Md. Cir.Ct. Montgomery Co.), Docket Nos. 193/194.


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D-2


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Exhibit D-1

Brett Kimberlins Email Exchange with F. Patrick Ostronic.


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Exhibit D-2

Kimberlins Admissions to Mr. Hoge from Discovery inKimberlin v. Walker, et al., Case

No. 380966V (Md. Cir.Ct. Montgomery Co.).


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mtd sac redacted

Documents