BRETT KIMBERLIN,

Plaintiff,
v.
NATIONAL BLOGGERS CLUB,

et al.,

Defendants
DEFENDANT HOGES REPLY TO PLAINTIFFS OPPOSITIONS

COMES NOW 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:
SUMMARY
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
Defendants Hoge and Walker (Response H&W) contradict allegations in his Amended
Complaint, and many of his own exhibits contradict rather than support his Response.
There are similar deficiencies and errors in Plaintiffs Responses to the Motions to Dismiss
from Defendants DB Capitol Strategies (Response DBCS) and The Franklin Center
(Response TFC).
Hoges MtD pointed out Plaintiffs failure to properly state the elements of any of
crimes or torts he alleged in the Amended Complaint. While it is true that a self-
represented litigant is generally due some leeway regarding minor errors, Plaintiffs pro se
status does not grant him a license to evade the requirement to properly plead his case.
Liberal construction does not mean that a court can ignore a clear failure in the pleading
to allege facts that set forth a claim cognizable in a federal district court. Solomon v.
Dawson, Case No. 13-CV-01951, ECF No. 5. (D. Md. 2013). What few facts Plaintiff has
alleged are almost all conclusory. In Ashcroft v. Iqbal, 566 U.S. 662, 678 (2009), the
Supreme Court clarified its earlier ruling in Bell Atlantic v. Twombly, 550 U.S. 544 (2007),
thus:
In keeping with these principles a court considering a Motion to Dismiss
can choose to begin by identifying pleadings that, because they are no
more than conclusions, are not entitled to the assumption of truth. While
legal conclusions can provide the framework of a complaint, they must be
supported by factual allegations. When there are well-pleaded factual
allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.
Even if Plaintiffs Amended Complaint or his Responses to the Motions to Dismiss were
2
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 for
me. 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.).
POINTS PLAINTIFF HAS NOT ADDRESSED
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.
4
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.
PLAINTIFFS RESPONSES ARE EFFECTIVELY AMENDED COMPLAINTS
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.
5
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 some
paragraphs share the same number.
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 other
object, or attempts to do so, with the intent to impair the objects
integrity or availability for use in an official proceeding; or
(2) otherwise obstructs, influences, or impedes any official proceeding,
or attempts to do so,
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shall be fined under this title or imprisoned not more than 20 years, or
both.
Even with his array of new and improper allegations, 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. Sedima S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1995). The Court should
dismiss with prejudice Plaintiffs RICO count against all Defendants.
Plaintiff Fails in His Attempt to Resurrect His 42 U.S.C 1983 Claims
As noted above, Plaintiff alleges a massive array of new facts concerning
Defendant Frey in his Response H&W not found in his Amended Complaint. Much of it is
an attempt to make a case similar to the one which failed last year against Mr. Frey in
Naffe v. Frey, et al., Case No. 2:12-CV-08443-GW-MRW (C.D. Cal. 2013). As noted in
Hoges MtD ( 21), Judge Wu found that Mr. Frey was acting in his capacity as a private
individual when he engaged in blogging and not as a public official. Plaintiff has still not
provided any reason for this Court to arrive at a different finding.
Plaintiff fails to allege with any particularity an act by any Defendant that violated
Plaintiffs (or any third partys) civil rights guaranteed under the Constitution or any
federal statute. Given that neither of the elements(1) a person acting under color of
8
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 Defamation
and 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
9
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 is
paid $19,500 per year by Justice Through Music Project. See Exhibit A. Velvet
Revolution US report paying no Salaries, other compensation, or employee benefits. See
Exhibit B.
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-profits
because of the expense of hiring a lawyer and the ethical limitations constraining
arguments presented by a member of the bar.
5
This is not the only stale law Plaintiff cites. In all three of his Responses Plaintiff cites
Conley v. Gibson, 355 U.S. 41 (1957), as providing grounds for denying the motions to
dismiss. As this Court has noted in its Memorandum Order in Sterling v. Ourisman
Chevrolet of Bowie, Case No. 12-CV-03193, EFC No.16 (D. Md. 2013), Twombly and Iqbal
are now the guiding Supreme Court decisions.
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
13
are alleged in the state case. Also, the state law issues are not exactly the same in both
suits, so Judge Burrells ruling in the state lawsuit is not directly applicable to the instant
lawsuit. n.b.: Marylands standard for plausibility of claims is not as strict as required
under Iqbal. Thus, Judge Burrells ruling has no bearing on the instant lawsuit.
In Exhibit F of Response DBCS Plaintiff includes the following notation: I Brett
Kimberlin declare, pursuant to the provisions of 28 USC 1746, that the following is true
and correct: The form prescribed by 28 U.S.C. 1746 reads, I declare (or certify, verify,
or state) under penalty of perjury that the foregoing is true and correct. Plaintiff should
be required to file his declaration under penalty of perjury in the manner prescribed by
the statute. Without such verification, Exhibit F should be disregarded if not stricken.
If Plaintiff wishes to rely upon these new allegations, he should seek leave from the
Court to file a formal second Amended Compliant. Until, such an additional Amended
Complaint is filed, the Court should disregard all new allegations.
If Plaintiff were to seek the Courts leave to file another Amended Complaint,
Defendant Hoge would oppose it. Plaintiffs continuing demonstrations of bad faith
suggest that allowing any further amendments would be unwise. The motions, replies,
etc., filed by the various Defendants all educate Plaintiff in the deficiencies of his filings.
An untrustworthy litigant who would send a forged summons to an non-party (See
Malkin/Twitchy Motion to Dismiss, Tab 1, ECF No. 41) could easily file an bogus
amendment. They said I didnt allege that A did B to C on D, but now Im alleging it!
14
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.
PLAINTIFFS RESPONSE TO DEFENDANTS HOGE AND WALKER
CONTRADICTS HIS AMENDED COMPLAINT
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
15
Amended Complaintbecause there are none. Here is yet another reason for dismissal
with prejudice of the RICO count against all Defendants.
PLAINTIFF HAS MADE FACIALLY ERRONEOUS ALLEGATIONS IN HIS RESPONSES
Plaintiff has submitted exhibits with his Response H&W which do not support his
allegations. Indeed, he even misstates the contents of some of his own exhibits by
misquoting them.
In the second paragraph numbered 41 in his Response H&W Plaintiff alleges that
Defendant Walker has even imputed in a recent blog post the Plaintiffs daughter is fair
game for destruction because of corruption of blood. Exhibit Z. One wonders if Plaintiff
read the exhibit before he included it. In the email purporting to quote a blog post by Mr.
Waker shown as Exhibit Z, the writer of the alleged post explicitly argues against
painting Plaintiffs children with the same brush as their father.
But if any person draws a negative conclusion about her [Plaintiffs
daughter] based on her father, they are not being charitable enough.
They are forgetting that even when we are talking about Benedict Arnold,
we do not hold the child responsible for the conduct of the father.
Anyway, I wish there was some way to bring Kimberlin to justice without
his elder daughter or any of his family being dragged into this. But Brett
has made that impossible. Still, I can limit the damage as much as
possible, hence why I will be keeping her name off my blog as well as her
younger sister.. (sic) Other people feel like what Brett has done makes
her name newsworthy, and I will respect that view, but I will not follow
their approach.
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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
17
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
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6
The Bomber Sues Bloggers legal defense fund solicits donations to help pay the legal
expenses of the defendants in the parallel Maryland lawsuit. (Md. Cir.Ct. Mont.Co, Case
No. 380966V.) The fund operates the website http://www.bombersuesbloggers.com. The
defendants are relying on pro bono counsel in that lawsuit. The piddling amount of money
raised 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 or
Response H&W.
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).
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. Allen
9
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.
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 other
civil 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.
all the people who lied about me. I sued the agents who performed the
illegal search and seizure of my home and property. Eventually,
Kimberlin filed more than a hundred lawsuits and motions in the federal
courts 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 FRIVOLOUS AND VEXATIOUS LAWSUIT
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 short
sentence 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 after
serving about 13 years, but his parole was revoked in 1997. See Kimberlin v. Dewalt, 12
F.Supp.2d 487 (D. Md. 1998). The revocation was initially for two years, but he was not
released on parole again until 2001. His sentence expires in 2030. See Exhibit F.
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 being
labeled 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).
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.
CONCLUSION
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
24
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 Latest
Filings (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.
27
EXHIBIT A
Extract from 2011 Justice Through Music IRS Form 990
28
29
30
EXHIBIT B
Extract from 2011 Velvet Revolution US IRS Form 990
31
32
EXHIBIT C
Partial Listing of Cases Filed by Plaintiff Found on PACER
33
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
34
EXHIBIT 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)
35
36
Tracking Number: 9114901159815532938543
ExpeCled Delivery Dale: January 18, 2014
Your ilem was undeliverable as addressed al 9:36 am on January 24, 2014 in WESTMINSTEI
informalion is available.
Product & Tracking Information
POSIaI Product: Features:
Priomy Mail l-Day
~
$50 insurance inclUded USPS Tracl<ing
~
DATE & T1ME STATUS OF ITEM LOCATION
January 24, 2014 , 9:36 Undeliverable as
WESTMINSTER, MD 21157
am Addressed
January 18. 2014 . 9:55
Notice Left WESTMINSTER, MD 21157
am
January 18,2014,9:53
Sorting Complete WESTMINSTER. MD 21157
am
January 18, 2014 , 7:57 Arrival at Post
WESTMINSTER. MD 21157
am Office
January 18, 2014
Depan USPS SOrt LINTHICUM
Fadl,ty HEIGHTS, MD 21090
January 18. 2014 ,5:13 Processed at USPS LINTHICUM
am Ongin SOrt Fadfity HEIGHTS, MD 21090
January 18. 2014
Depan USPS SOrt
CAPITOL HEIGHTS. MD 20790
Facillry
January 17, 2014.11:11 Processed at USPS
CAPITOL HEIGHTS, MD 20790
pm Ongin Son Fad~ty
January 17. 2014.5:25 Dispalcl1ed to Son
CABIN JOHN. MD 20818
pm Fadhty
January 17. 2014 ,2:29
Acceptance CABIN JOHN. MD 20818
pm
Case 8:l3-cv-03059-PWG Document 49-3 Filed 0l/30/l4 Page l of 2
HOGES EXHIBIT D 1 of 2
37
www.usps.com
From:
TO:
~ UNITED STATES
~ POSTJ3L SERVICE.
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9114901159815532938543
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Case 8:l3-cv-03059-PWG Document 49-3 Filed 0l/30/l4 Page 2 of 2
HOGES EXHIBIT D 2 of 2
EXHIBIT 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
38
39
EXHIBIT F
Extract from Public Information Inmate Data
Kimberlin, Brett C.
40
41
PARA 0
PAGE 003
*'
PUBLIC INFORMATION
INT'-1ATE DATA
AS OF 06-05-2001
*
03-14-2013
12:43:34
* *
REGNO ..: 01035-079 NAME: KIMBERLIN, BRETT COLEMAN
RESP OF: CDC
PHONE ..: 301-317-3142 FAX: 301-317-3138
---------------------------PRIOR COMPUTATION NO: 020 --------------------------
COMPUTATION 020 WAS LAST UPDATED ON 06-06-2001 AT CDC AUTOMATICALLY
THE FOLLOWING JUDGMENTS, WARRANTS AND OBLIGATIONS ARE INCLUDED IN
PRIOR COMPUTATION 020: 050 010
DATE COMPUTATION BEGAN : 06-06-1997
TOTAL TERM IN EFFECT : 12142 DAYS
TOTAL TERM IN EFFECT CONVERTED ..: 33 YEARS 2 MONTHS 28 DAYS
TOTAL JAIL CREDIT TIME : 0
TOTAL INOPERATIVE TIME : 0
STATUTORY GOOD TIME RATE : 10
TOTAL SGT POSSIBLE : 3989
PAROLE ELIGIBILITy : COMMISSION'S DISCRETION
STATUTORY RELEASE DATE : 10-01-2019
TWO THIRDS DATE : 08-02-2019
180 DAY DATE : 03-06-2030
EXPIRATION FULL TERM DATE : 09-02-2030
PAROLE EFFECTIVE : 06-05-2001
PAROLE EFF VERIFICATION DATE : 06-05-2001
NEXT PAROLE HEARING DATE : N/A
TYPE OF HEARING : PAROLE EFFECTIVE
ACTUAL SATISFACTION DATE : 06-05-2001
ACTUAL SATISFACTION METHOD : PAROLE
ACTUAL SATISFACTION FACILITY : CDC
ACTUAL SATISFACTION KEYED By : JAF
DAYS REMAINING : 10681
FINAL PUBLIC LAW DAyS : 0
G0002 MORE PAGES TO FOLLOW . . .