ECF 125 Redacted

BRETT KIMBERLIN,Plaintiff,

v.

FiLEDUS. DIS ff:/CT COUHT

UNITED STATES DISTRICT COORlj1RI~: =:~;~,:\r-:YLMmDISTRICT OF MARYLANDGREENBELT DIVISION zn! ::\Y - PI: 1+ 3

C!.i-i~."

NATIONALBLOGGERSCLUB,etal,Defendants.

PLAINTIFFS RESPONSE TO DEFENDANT TWITCHYS MEMORANDUM

Defendant Brett Kimberlin submits this motion in opposition to Defendant

Twitchy's Memorandum and stealth Motion to Dismiss.

Facts

Mr. Smith filed a motion/memorandum seeking dismissal of the Complaint

on the ground that Plaintiff made a check mark on a certified green card and

submitted it in a case pending in Montgomery County Circuit Court Mr. Smith

asserts falsely that Plaintiff did so in order to mislead the court in that case. Mr.

Smith attached a transcript from a state court hearing on April 9, 2014, which has no

bearing on this case and does not support his argument in the least. He asks the

Court to cherry pick a few statements of Plaintiff and the judge at the hearing and to

then dismiss the instant case. This is a malicious and meritless allegation that has

been made to this Court in order to portray Plaintiff in a false light to prejudice this

Court against Plaintiff and make him appear to flaunt the rules of the court.

Mr. Smith received this false narrative from unrepresented Defendants Walker

and Hoge who breathlessly raced down to the Montgomery County Court Reporter

the day of the hearing to get a recording of the hearing so they could publish their

Case 8:13-cv-03059-PWG Document 125 Filed 05/09/14 Page 1 of 5

false narrative on their blogs. Mr.Smith bought the transcript and then filed his

meritless pleading. This Court has repeatedly admonished Defendants Walker and

Hoge for their conduct in this case, and now Mr.Smith is relying on and cooperating

with them to harass Plaintiff in this case. This improper purpose for filing the

pleading is anothe'r reason for denying the pleading.

THE PLEADING IS FACTUALLY FRIVOLOUS, LEGALLY GROUNDLESS, ANDBROUGHT FOR AN IMPROPER PURPOSE

Mr. Smith is not an attorney in the state case and his Twitchy client is not a

defendant Hewas not present at the hearing on April 9, 2014 and has no idea of the

facts and context of the issue, yet he has asked this Court to dismiss the Complaint in

the instant case because of the false narrative provided to him by Defendants

Walker and Hoge.

Here are the facts in brief: Plaintiff is suing Defendant AliAkbar in that state case

for matters distinct from those alleged in the instant case. Kimberlin v.Walker, et al,

No 380966-V. Defendant Akbar, as in this case, avoided service for months on end.

Therefore, Plaintiff filed a Motion for Alternate Service and when doing so noticed

that the postal official had not checked the restricted delivery box on the green card

as Plaintiff had requested. Therefore, Plaintiff checked it. At a hearing on January

13,2014, Defendant Akbar's attorney objected to the motion and complained to the

judge that she should dismiss the case because of the check mark. Judge Burrell

denied the motion to dismiss and simply asked Plaintiff to resend the complaint and

summons again with the restricted box checked properly. See Exhibit A.


Plaintiff received a new summons and complaint from the Clerk and again sent

them to Defendant Akbar with the properly checked box. Undeterred, Defendant

Akbar's attorney filed a motion for sanctions again asking that the complaint be

dismissed on the basis of the prior check mark. When the Complaint was returned

as undeliverable, Plaintiff filed a second Motion for Alternate Service. Defendant

Akbar's counsel objected and again asked that the case be dismissed but Judge

Burrell again denied the motion and granted Plaintiffs Motion for Alternate Service.

ld.

StilI undeterred, Plaintiffs counsel asked for reconsideration, which was also

denied and Judge Burrell ordered Defendant Akbar to answer the Complaint. Id.

Then on April 9,2014, Judge Ryon held a hearing on Defendant Akbar's Motion to

Sanctions and again counsel asked for dismissal of the Complaint. During the

hearing, Judge Ryon attempted to find Judge Burrell's prior oral ruling at the January

13,2014 hearing but was unable to do so. Following the hearing, the judge denied

the motion to dismiss and for sanctions. ld.

Despite all of this, Mr. Smith has asked this Court to do something that two state

judges on multiple occasions refused to do in the state case - i.e., order dismissal.

He has asked this Court to sanction Plaintiff with attorney fees even though the state

court denied all requests to sanction Plaintiff. He has falsely accused Plaintiff of

nefarious conduct when he has no first hand knowledge of the issues or facts or

hearings, and he has done so in order to poison this case and make Plaintiff appear

odious.


Mr, Smithsconduct is reprehensible,unethical and unbecomingof a member of

the bar. Hehasbought into the falsenarratives of DefendantsWalker and Hogewho

do not let a daygo by without falselyaccusingPlaintiff of somecrime or malfeasance

online or in court filings. Mr. Smithhasjettisoned his role asan advocateand has

becomea harasserof Plaintiff using falsenarratives just as the Defendantshave

done for the pastseveralyears. Mr. Smithhasusedhis "quote" Memorandumto

violate the CourtsManagementOrder,which prohibits motions without permission

andad hominem attacks. Hehasusedhis Memorandumto sneakin falseand

prejudicial information under the guiseof informing the Court of relevant

information. Relevantto what? All Motions to Dismissand for Sanctionswere

denied in the state court so the only things that are relevant are that (1) Defendant

Ali Akbar hasbeenfound to beavoidingservice,and (2) DefendantAkbars multiple

Motions to Dismisswere denied. In what legalworld doesthe denial of a motion

provide the basisfor the granting of an unrelated motion in an unrelated case

involving an unrelated defendant???That is not precedent,its Alice in Wonderland.

This is not relevant, its irrelevant.

Thestatecourt on January13,2014 deniedall of the state DefendantsMotions to

Dismissfor failure to statea claim. Soif Plaintiff addeda twist to Mr. Smiths

illogical argument,he could askthis Court to denyall of the DefendantsMotions to

Dismissfiled in the instant casesimply becausethe state judge on January13,2014,

deniedall their similar motions in the statecase.At leastPlaintiff would havesome

rational basis for that argumentbut of courseit would be improper for this Court to

considersuch information in deciding the Motions to Dismissin the instant case.


Conclusion

When experienced lawyers such as Mr. Smith assert meritless and malicious

claims, "a strong inference arises that their bringing of an action ... was for an

improper purpose." Huettig & Schromm, Inc. v. Lanscape Contractors, 790 F.2d

1421, 1427 (9th Cir. 1986). Mr. Smith who promotes himself as an expert in

appellate law and civil procedure, filed his pleading containing outright false and

malicious allegations for an improper purpose. The pleading should be denied and

stricken.

Respectfully submitt ,

Brett Kimbe~'~8100 Beech reeBethesda, M 817(301) 3205921justi [email protected]

Certificate OfService

I certify that I emaileda copy of this motion to MichaelSmith,Caitlin

Constestable, Ron Coleman, Paul Levy, James Skyles, Mark Bailen and Lee

Stranahan, and mailed copies to Defendants Walker, Hoge and McCain,this 7th day

of May 2014, pursuant to Rule 11(c)(2) prior to filing with the Court.

mailto:[email protected] HogeWJJ HogeWJJ Hoge

Docket Description:

Docket Type:

Ruling Judge:

Reference Docket(s):

Docket Text:

Audio Media:

Docket Date:

Docket Description:

Docket Type:

Docket Text:

Docket Date:

Docket Description:

Docket Type:

Ruling Judge:


Docket Text:

Docket Description:

Docket Type:


Docket Text:

Docket Date:

Docket Description:

Docket Type:

Ruling Judge:

Reference Docket( s):

Docket Text:

Docket Date:

01/13/2014 Docket Number: 62

HEARING

Ruling Filed By: Court Status: Denied

BURRELL, SHARON V

Motion: 38 Opposition: 58

HEARING (BURRELL, J.) ON PLAINTIFF'S MOTION TO FINDDEFENDANT ALI AKBAR SERVED UNDER RULE 2-121 (B) (#38) -DENIED. ORDER SIGNED. PLAINTIFF APPEARED WITHOUTCOUNSEL. DEFENDANT, AARON WALKER'S COUNSEL, MR.OSTRONIC. DEFENDANT, ANONYMOUS BLOGGER'S COUNSEL, MR.OSTRONIC. INTERESTED PARTY, GOOGLE INC. COUNSEL, MR.REINGOLD.

02-011314 Start: 11:20:25 Stop: 11:55:40


MOTION, DISMISS (PARTIAL - CASE NOT CLOSED)

Motion Filed By: Defendant Status: Denied

DEFENDANT, ALI AKBAR'S ORAL MOTION TO DISMISS (BURRELL,J.) - DENIED.


ORDER, ALTERNATIVE SERVICE

Ruling Filed BV: Court Status: Granted

BURRELL, SHARON V


ORDER OF COURT (BURRELL, J.) COURT FINDS THAT PLAINTIFFHAS SERVED DEFENDANT AKBAR AS OF JANUARY 25, 2014 WHENHE SENT THE COMPLAINT BY CERTIFIFIED MAIL TO DEFENDANTAKBAR'S LAST KNOWN ADDRESS. THEREFORE THAT AN ANSWERIS DUE FROM DEFENDANT AKBAR ON OR BEFORE MARCH 26, 2014,ENTERED. (COPIES MAILED)


MOTION, VACATE ORDER

Motion Filed BV: Defendant Status: Denied

Opposition: 115 Ruling: 139

DEFENDANT, ALI AKBAR'S MOTION TO SET ASIDE AND RESCINDTHE ORDER GRANTING ALTERNATIVE SERVICE AND REQUEST FORHEARING, FILED. (LP)


ORDER, PLACE CASE ON STAY DOCKET

Ruling Filed BV: Court Status: Granted

BURRELL, SHARON V

Motion: 118

AMENDED ORDER OF COURT (BURRELL, J.) THAT INCONSIDERATION DEFENDANT AKBAR'S MOTION THIS COURT'SORDER GRANTING ALTERNATIVE SERVICE, ORIGINALLY ENTEREDON MARCH 14, 2014; AND THAT THE ORDER IS AMENDED TOREQUIRE DEFENDANT AKBAR TO FILE AN ANSWER ON OR BEFOREAPRIL 4, 2014, ENTERED. (COPIES MAILED)


!"#$%&()*+,*-)-./*012%%%34+56$78%(9.*(%%%:;-/>(?%%%0"@$%(%4A%9

.

Docket Description:

Docket Type:

Ruling Judge:

Reference Docket( s):

Docket Text:

Audio Media:

HEARING, DISCOVERY

Ruling Filed By: Court Status: Denied

RYON, JOAN ELIZABETH


HEARING (RYON, J.) ON DEFENDANT, ALI AKBARS MOTION TOSANCTION PLAINTIFF AND PLAINTIFFS CASE AGAINST MR.AKBAR BE DISMISSED WITH PREJUDICE (DE #81) - DENIED.

20-040914 Start: 12:07:53 Stop: 12:51:45

EXHIBIT A

!"#$%&()*+,*-)-./*012%%%34+56$78%(9.*(%%%:;-/>(?%%%0"@$%9%4A%9
0000000100000002000000030000000400000005

ECF 125 Redacted

Documents

Transcript of ECF 125 Redacted