Convicted Terrorist Brett Kimberlin’s RICO Suit is Dead... Long Live Brett Kimberlin’s RICO Suit!

"Can you believe how many times the judge said Brett failed?"

"I know, what a loser!"

This is the latest post in what I half-jokingly call The Kimberlin Saga^®.  If you are new to the story, that’s okay! Not everyone reads my blog.  The short version is that convicted terrorist Brett Kimberlin has been harassing me for over two years, his worst conduct being when he attempted to frame me for a crime.  I recognize that this might sound like an incredible claim, but I provide video and documentary evidence of that fact; in other words, you don’t have to believe my word.  You only have to believe your eyes.  And more recently when his wife came to us claiming that this convicted terrorist had threatened her harm, we tried to help her leave him, and for that, he is suing myself, John Hoge, Robert Stacy McCain and Ali Akbar for helping his wife and he is suing Hoge, McCain, Akbar, DB Capital Strategies, Michelle Malkin, Glenn Beck, Patrick “Patterico” Frey, Mandy Nagy, Lee Stranahan, Erick Erickson, Breitbart.com, the Blaze, Mercury Radio Arts, Red State, the National Bloggers Club, and  others alleging that we are all in organized crime for reporting factually about the spate of SWATtings committed against myself, Frey and Erickson.  So, if you are new to the story, go to this page and you’ll be able to catch up on what has been happening.

Well, dear readers, a whole lot happened yesterday and I wanted to get some sleep on it and reflect before I reported.

Let me set up how I found out the news, because I think it highlights the ridiculousness of recent events.

Yesterday just before 3:00 pm, John Hoge gave me a call opening with the words, “You are not going to believe this.”  He means that ironically, because I am beyond surprise anymore when it comes to Brett Kimberlin’s vexatious litigation and John knows it.  So I ask what it was and he tells me about the brand new RICO lawsuit that Brett Kimberlin filed against John and others.  You can read the complaint, here.  The short version is that Brett Kimberlin has long had this paranoid conspiracy theory involving HB Gary and their Team Themis plan that by the way, never went into effect.  Which is a huge problem for Brett because if it was only at the planning stage, then what exactly is the harm?

But in addition to suing various individuals for that, he also threw in two of his current critics: John Hoge and a man named Bill Nickless.  I admit I don’t know much about Bill, but he is one of various people who have been following the Kimberlin saga and has been critical of Kimberlin, so naturally he is being sued.

So I called up Ali Akbar to let him know what was going on, and he’s in an exited state telling me the RICO suit has been (mostly) dismissed, leading to a very confusing conversation.  He was talking about the lawsuit that up until yesterday, was proceeding against me.  You can read the order dismissing it, here.  But the headline is that everything has been dismissed except for one count alleging civil rights violation against Patrick “Patterico” Frey.

So literally the news that a new RICO suit had been filed hit PACER, the federal electronic docket database, at the same time that news that another RICO suit had been dismissed.  Oh, and who is getting this new RICO suit?  Judge Hazel, the same judge who just ruled against Brett.

Timing becomes an interesting question.  When and how would Judge Hazel learn that there is a new suit?  Would it be the moment the case is taken in and assigned to him, or only when it pops up on PACER?  I know for any lawyers already attached to a case, they would get an email alert when something new is on PACER in any of their case, but I don’t know if something similar happens with the judge himself.  So there is the not-so-unlikely possibility that literally as the judge thought he was wrapping up the majority of the first RICO case, when the next RICO case comes in, same plaintiff, and one identical defendant.  As I have said to friends and family, “to be a fly on the wall, when the judge saw that Kimberlin filed another RICO suit.”  I doubt that he was amused, except perhaps darkly.  Kimberlin’s timing literally couldn’t be worse.

One family member asked if it was possible that Hazel decided to kick things into gear on RICO I when RICO II came in and decided to write a quick dismissal overnight Monday night.  I would say that even if Judge Hazel started working on his opinion the moment Brett filed, which is unlikely, and overnight, it would have been hard to produce something this thorough and learned by the next day.  My guess, instead, is that it’s a case of rotten timing.  In fact I would guess that Judge Hazel took it with him to work on over the weekend, had a near-final draft by Monday and handed it off to his clerks for finishing touches, and had it ready to go by today.  Or, alternatively, one of his clerks took it home for the weekend, wrote a draft and then handed it to the judge for final approval on Monday.  Those are just educated guesses, obviously, but they fit the facts.  And the bottom line in either theory is that I don’t think one suit affected the other in terms of timing: I think that it was a case of bad timing.

Of course, the timing has everything to do with my theory that Brett is attempting to target John because his wife is very sick with cancer.  I won’t disclose all I know because I am not sure John has disclosed it, but I will say that any prayers for his wife are greatly appreciated.

As for the judge’s decision, winning is nice, but seeing clear evidence that the judge was listening to you and persuaded by you is really gratifying.  Any lawyer loves to be quoted by a judge and while Hazel didn’t quite go that far, here are some of the cases where the influence seemed strong.

First, I believe I was the only person who cited GE Inv. Private Placement Partners II, 247 F.3d 543 (4th Cir. 2001), although the judge cited it for a different proposition than I did.

Other parallels in language pop up now and then when we compare what I wrote with what the judge wrote.  For instance, in my motion to dismiss (red):

The Racketeer Influenced and Corrupt Organizations Act “is a unique cause of action that is concerned with eradicating organized, long-term, habitual criminal activity.”  US Airline Pilots Ass’n v. AWAPPA, LLC, 615 F. 3d 312, 317 (4^th Cir. 2010).

In Judge Hazel’s opinion (green):

RICO is “‘a unique cause of action that is concerned with eradicating organized, long-term, habitual criminal activity.’” U.S. Airline Pilots Ass’n v. Awappa, LLC, 615 F.3d 312, 317 (4th Cir. 2010) (citation omitted).

On one hand, there are only slight differences between those two passages.  On the other hand, the majority of that sentence is a quotation of another court opinion.

Again, from me:

The Plaintiff doesn’t specify “the time, place and contents of the false representations, as well as the identity of the person making the misrepresentation and what he obtained thereby.” Harrison, 176 F. 3d at 784.

That refers to Harrison v. Westinghouse Savannah River Co., 176 F. 3d 776 (4^th Cir. 1999).  From Judge Hazel:

Specifically, the complaint must allege the “time, place, and contents of the false representations, as well as the identity of the person making the misrepresentation and what he obtained thereby.” Harrison, 176 F.3d at 784.

The two are similar, much in the way that the use of the AWAPPA case was similar.  Also, in the same part of the opinion, Judge Hazel cites Bhari Info. Tech. Sys. Private Ltd. v. Sriram, 984 F. Supp. 2d 498, 505 (D. Md. 2013), a case I cited, but so did at least one other attorney—I believe Michael Smith, who ably represented Michelle Malkin and Twitchy.  I had purposefully avoided citing it in my original motion to dismiss, but had cited in my original reply, because at that point Judge Grimm was presiding and it’s always wise to cite a judge back to him- or herself.  On the other hand, this citation was less useful for Judge Hazel, but he evidently liked it anyway.

Likewise, I believe I was the only one talking about United States v. Aguilar, 515 U.S. 593 (1995), which is a case about what counts as obstruction of justice.

And then get any eyeful of the discussion of whether your typical lawsuit settlement offer would be considered extortion under 18 U.S.C. §1951 (the Hobbs Act):

However, §1951(b) defines extortion as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.”  The Plaintiff didn’t allege that there was any use of actual or threatened force, violence or fear as those terms are understood in the statute.  What we have here, from the Plaintiff’s allegations, is nothing more than a peaceable offer to settle a case, which is not only legal and common, but actively encouraged by public policy.[Footnote 1]

While there is no Fourth Circuit precedent on point, other circuits have concluded that a mere lawsuit settlement is not the kind of inducement that violates this statute.[Footnote 2]  Particularly persuasive on this point is this passage from Deck v. Engineered Laminates:

Extortion is the antithesis of litigation as a means of resolving disputes. To promote social stability, we encourage resort to the courts rather than resort to force and violence. Yet recognizing abusive litigation as a form of extortion would subject almost any unsuccessful lawsuit to a colorable extortion (and often a RICO) claim... Comfortable that the adjective “wrongful” in the extortion statute was not intended to apply to litigation, we hold that Plaintiff’s allegations of bad-faith litigation do not state the predicate act of extortion.

349 F. 3d 1253, 1258 (10th Cir. 2003).  A settlement offer of even frivolous litigation is not extortion.

And Footnote 1 reads as follows:

See e.g. Advisory Committee Notes on Fed. R. Evid. 408 (describing “the public policy favoring the compromise and settlement of disputes”).

And Footnote 2 reads as follows:

See, e.g. U.S. v. Pendergraft, 297 F. 3d 1198, 1206 (11^th Cir. 2002); I.S. Joseph Co., Inc. v. J. Lauritzen A/S, 751 F. 2d 265, 267 (8^th Cir. 1984) (“threat to sue [that] was groundless and made in bad faith” not extortion under §1951); Gabovitch v. Shear, 70 F. 3d 1252, 1252 (1^st Cir. 1995) (“the filing of litigation--no matter how lacking in merit—does not constitute a predicate racketeering act of extortion”); First Pacific Bancorp, Inc. v. Bro, 847 F. 2d 542, 547 (9^th Cir. 1988).

Now look at what the judge said on this point:

Section 1951(a) provides, in relevant part: “Whoever . . . obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion . . . shall be fined under this title or imprisoned not more than twenty years, or both.” 18 U.S.C. § 1951(a). Section 1951(b)(2), in turn, defines “extortion” as the “obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear . . . .” 18 U.S.C. § 1951(b)(2). A number of circuits have held that the mere act of filing a lawsuit and demanding a settlement agreement, however baseless the lawsuit or settlement demand may be, does not qualify as “extortion” under § 1951. See e.g., Raney v. Allstate Ins. Co., 370 F.3d 1086, 1088 (11th Cir. 2004) (holding that the filing of baseless litigation cannot constitute § 1951 extortion); Deck v. Engineered Laminates, 349 F.3d 1253, 1258 (10th Cir. 2003) (“recogniz[ing] that litigation can induce fear in a defendant” but electing to “join a multitude of other courts in holding that meritless litigation is not extortion under § 1951”); United States v. Pendergraft, 297 F. 3d 1198, 1208 (11th Cir. 2002) (holding threats to sue a public entity cannot constitute § 1951 extortion, even where supported by false testimony and fabricated evidence); I.S. Joseph Co. v. J. Lauritzen A/S, 751 F.2d 265, 267 (8th Cir. 1984) (holding threats of groundless litigation cannot constitute extortion under § 1951). Kimberlin has therefore failed to plead the predicate act of extortion and/or attempted extortion.

Aside from Raney v. Allstate, every single one of those citations came from by motion to dismiss, and I am pretty sure no one else’s.  And notice the use of the word “mere” in both my motion to dismiss and Judge Hazel’s opinion.

Likewise, when talking about money laundering, I highlight how vague and empty the allegations are as follows: “He doesn’t even specify who actually made the transactions.”  This is important because who did it is a critical element of the alleged crime.  Hazel wrote, on the same point:

but nowhere in the [complaint] does Kimberlin allege who funneled the donations to Defendant Akbar or how those funds were allegedly funneled to him.

Not identical but very similar.  But then again, any person reading the complaint would notice that this is a problem and there are only so many ways one can explain what the problem is.

From my motion, on the subject of not allowing ordinary civil suits to be transformed in RICO suits:

Therefore, this court should “not lightly permit ordinary business contract or fraud disputes to be transformed into federal RICO claims” but instead assure “that the heightened civil and criminal penalties of RICO are reserved for schemes whose scope and persistence set them above the routine.”  Flip Mortg. Corp. v. McElhone, 841 F. 2d 531, 538 (4^th Cir. 1988).

From Hazel’s opinion:

The thrust of Kimberlin’s SAC is that individual consumers were induced to give money to support a cause based upon false representations that were made to them. RICO, however “was never intended to be applied to commonplace commercial controversies” such as these. Baker, No. 07-212, 2007 WL 3124881, at *4; see also Flip Mortgage Corp. v. McElhone, 841 F.2d 531, 538 (4th Cir. 1988) (“[T]his circuit will not lightly permit ordinary business contract or fraud disputes to be transformed into federal RICO claims [because] . . . the heightened civil and criminal penalties of RICO are reserved for schemes whose scope and persistence set them above the routine.” (internal quotation omitted)).

Likewise, Brett tried to argue that there was a pattern of racketeering activity.  A “pattern” requires two or more from a list of predicate acts and so he argued that we repeatedly committed wire and mail fraud and thus if any two are real that is sufficient to form a pattern.”  Both the judge and I showed that he didn’t properly allege a single instance of mail fraud, but we both also pointed out that the Fourth Circuit (which ruled over the District of Maryland) has cautioned against basing a pattern of racketeering activity on mail and wire fraud alone.  Here’s what Judge Hazel said:

“Simply proving two related acts of mail or wire fraud does not necessarily plead an actual violation of RICO.” Baker v. Sturdy Built Mfg., Inc., No. 07-212, 2007 WL 3124881, at *4 (E.D. Va. Oct. 23, 2007). In fact, “courts are cautious about basing a RICO claim on predicate acts of mail and wire fraud because it will be the unusual fraud that does not enlist the mails and wires in its service at least twice.” Al-Abood v. El-Shamari, 217 F.3d 225, 238 (4th Cir. 2000). The caution exists to prevent application of the RICO statute to “garden-variety fraud claims better prosecuted under state law.” Id.

Now I did cite Al-Abood in my current motion to dismiss, but that exact language was cited in my original reply to Brett’s response to my original motion to dismiss.  So it is a little obscure in the 260 some odd documents in the docket, which means that for the judge to have been influenced by it, he would have had to read that whole docket, including the stuff before Brett’s amended complaint (which contradicts prior analysis, but oh well).  Here is what I said in that document:

Third, he cites this court’s decision in Wang Laboratories for the proposition that “NBC received scores if not hundreds of donations [by alleged fraud], and each donation constitutes a separate predicate act under RICO.”  However, this is directly contradicted by the later decision by the Fourth Circuit in Al-Abood v. El-Shamari, which stated:

[W]e are cautious about basing a RICO claim on predicate acts of mail and wire fraud because “’[i]t will be the unusual fraud that does not enlist the mails and wires in its service at least twice.’”... This caution is designed to preserve a distinction between ordinary or garden-variety fraud claims better prosecuted under state law and cases involving a more serious scope of activity.... We have reserved RICO liability for “ongoing unlawful activities whose scope and persistence pose a special threat to social well-being.”

217 F.3d 225, 238 (4^th Cir. 2000) (citations omitted).

And the judge likewise cited Carpenters v. Scott, 463 U.S. 825 (1983), a case I cited in my original motion to dismiss although for a different, albeit related, proposition, discussing how the KKK act applies (or doesn’t in this case).

So one uniquely gratifying element to yesterday’s ruling is how much the judge seemed to take my points to heart.  I don’t want to say it was all me—Mike Smith, for instance, focused more on the subject of proximate causation and is likely to have influenced the judge on that point.  But there were lawyers working for much more than I have ever earned, working on the case, and I seem to have held my own.  Yeah, sue me for feeling a bit of professional pride and vindication.

Of course the fly in the ointment is that Patrick Frey was not entirely let out of the case, and part of it was due to is an irritating example of influence, where Judge Hazel cited something I brought up against my friend Patrick Frey.  Brett Kimberlin kept claiming that the mere existence of an investigation allegedly motived by a desire to suppress speech was sufficient to make out a cause of action under 42 U.S.C. §1983, which prohibits the deprivation of constitutional rights under color of law.

Of course the truth is that Brett Kimberlin was being investigated by authorities in Los Angeles because he was suspected of being involved in the SWATtings, given that he was a man with a criminal record that involved acts demonstrating indifference to human life, and that he had a grudge against Frey.  And further, Mr. Frey is literally doing nothing more than any other citizen in that investigation: speaking to the investigators and offering what he can to help them.  Is it now a tort for a prosecutor, when he has a crime committed against him, to say, “I think you should look at X as a suspect?”  Apparently, Judge Hazel says “maybe” and I respectfully think he is wrong on this point.

So this is what I said on the subject:

This is insufficient as a matter of law.  As the Fourth Circuit said in Suarez Corp. Industries v. McGraw, 202 F.3d 676, 687 (4^th Cir. 2000), another §1983 case:

The nature of the alleged retaliatory acts has particular significance where the public official's acts are in the form of speech. Not only is there an interest in having public officials fulfill their duties, a public official’s own First Amendment speech rights are implicated. Thus, where a public official’s alleged retaliation is in the nature of speech, in the absence of a threat, coercion, or intimidation intimating that punishment, sanction, or adverse regulatory action will imminently follow, such speech does not adversely affect a citizen's First Amendment rights, even if defamatory.

Further, the same court relied significantly on Colson v. Grohman, 174 F.3d 498 (5^th Cir. 1999), the Fourth Circuit describing the holding in Colson as follows:

[A] citizen's First Amendment rights were not adversely affected because she had “alleged only that she was the victim of criticism, an investigation (or an attempt to start one), and false accusations: all harms that, while they may chill speech, are not actionable under our First Amendment retaliation jurisprudence”

Colson involved allegations that a chief of police falsely accused that plaintiff of crimes, started an official investigation into said non-crimes, and even publicized those false accusations against her in retaliation for protected speech, all in his official capacity.  But that was insufficient to make out a violation of §1983 in Colson and was cited with approval by the Fourth Circuit in McGraw.

Nor can the Plaintiff claim that an alleged “threat” of investigation alone satisfy the exception set in McGraw for threats because the Plaintiff doesn’t allege that Mr. Frey “intimat[ed] that punishment, sanction, or adverse regulatory action will imminently follow.”  None of the Plaintiff’s new, particular allegations amount to a coercive threat at all.  They are private discussions with Mr. Walker and others about the fact that there is an ongoing investigation and his hope they will result in the Plaintiff being returned to prison.  The Plaintiff cannot credibly claim that these statements were made in order to coerce him into silence.  Even assuming arguendo that any of these statements amounted to a threat—and they do not—it is not enough to simply threaten to do some wrong at some time in the future.  Such a threat is not coercive.  In order for a threat to be coercive it must be 1) conditional by words or implication and 2) it must be made under circumstances where the target of that coercion is likely to learn of that threat....  The Plaintiff has not alleged that Mr. Frey “intimat[ed] that punishment, sanction, or adverse regulatory action will imminently follow,” and he doesn’t allege that Mr. Frey made this so-called threat with the knowledge that it would ever get back to the Plaintiff.  Without such allegations, it is not plausible that Mr. Frey made those statements with the intent of chilling the Plaintiff’s speech.

On the other hand, the judge took my citation on Suarez and went literally the opposite direction:

It is well settled that “[t]he First Amendment right to free speech includes not only the affirmative right to speak, but also the right to be free from retaliation by a public official for the exercise of that right.” Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 685 (4th Cir. 2000). “However, not every reaction made in response to an individual’s exercise of his First Amendment right to free speech is actionable retaliation.” Id. Accordingly, the Fourth Circuit has held that a First Amendment retaliation claim brought under 42 U.S.C. § 1983 must include three elements.

First, the plaintiff must demonstrate that his or her speech was protected. Second, the plaintiff must demonstrate that the defendant’s alleged retaliatory action adversely affected the plaintiff’s constitutionally protected speech. Third, the plaintiff must demonstrate that a causal relationship exists between [the] speech and the defendant’s retaliatory action. Id. (internal citations omitted)....

When the Court considers the Suarez factors, particularly Frey’s status as an Assistant District Attorney and Kimberlin’s status as a private citizen, the Court concludes that Kimberlin’s allegations plausibly suggest that a similarly situated person of “ordinary firmness” would be chilled by Frey’s conduct and the consequences thereof. Specifically, by galvanizing law enforcement to open criminal investigations into Kimberlin, Frey created a realistic threat of arrest that would likely instill fear in an individual of ordinary firmness.

He goes on, and I think wrongly so.  I mean, respectfully so, but I think he is wrong enough that Frey should appeal.  But I think Judge Hazel was concerned about saying it could never be a cause of action, when I think he could have left open the door for a case with stronger facts than these.

Another element to his decision to letting the case go forward against Patrick claim that someone in the Sheriff’s office allegedly threatened Brett Kimberlin, by sending a comment to his company’s website that said “LEAVE HIM ALONE. DON’T GO THERE.”

Oh, except it didn’t.  According to Brett’s own exhibits it actually simply said, “don’t go there.”  This is what I said on the subject in the motion to dismiss:

First, the Plaintiff has misquoted his own exhibit.  In SAC ¶116, he claims the message said “LEAVE HIM ALONE. DON’T GO THERE.”  And yet, in ¶48 of his opposition to Mr. Walker’s previous motion to dismiss, ECF 29, he cites to an attached Exhibit Y.  If the court examines Exhibit Y, the entirety of the alleged message is “Don’t go there.”  The phrase “leave him alone,” was wholly made up by the Plaintiff.  This court can consider this document because it constitutes a judicial admission,... and, as noted by the Fourth Circuit, this court is not obligated to “accept as true allegations that contradict matters properly subject to judicial notice or by exhibit.”  Veney, 293 F. 3d at 730.  In Abcarian v. McDonald, 617 F. 3d 931, 933 (7^th Cir. 2010) the court held that “[w]here those allegations are contradicted by written exhibits... the exhibits trump the allegations.”  This court should not allow the Plaintiff to misstate the contents of his own exhibit.

The judge didn’t say anything about that, but evidently rejected my argument.  What I think is happening here is this.  Normally all well-pled allegations in a complaint are normally accepted as true.  That seems like a crazy rule, but at this stage all we are trying to figure out is if Brett is telling a story that might add up to a case.

Let me give you an example.  A guy files a complaint that says that he gave 10 pounds of a product to the defendant and the defendant refused to pay for it.  And then as the complaint goes on, he explains that the product is cocaine.  Well, the court would say to him, “even if that is true, cocaine is not a legal product and the courts do not enforce illegal contracts.  So if you got ripped off, we don’t care.”  That is the sort of thing that a motion to dismiss is supposed to wipe out.  The court doesn’t care that the defendant might claim that he paid a fair price for the cocaine.  The court is simply saying, to the Plaintiff, even if everything you said is true, you still lose.  Which is the same thing the court said to Brett about the majority of the claims.

But the rule that you must accept allegations as automatically true have exceptions.  One of them is when you provide exhibits that contradict what you say about them.  So I brought to the court’s attention that exception to the rule, but it is a controversial way to do it that might have opened up the possibility of an appeal.

Now, let me back up and establish my bona fides on what I am about to say.  I have been saying for months that it was a possibility that the judge was just giving Brett every break not because he was biased in Brett’s favor, but because he didn’t want to set up any possibility for an appeal, because he already knew he was likely to rule against him.  I think that view has been vindicated.  The judge seemed to be borrowing language not just from my second set of motions to dismiss, but from my first, which suggests that he probably read all the motions to dismiss filed before Brett was allowed to amend the complaint, which means he must have seen, as we did, that when Brett amended the complaint he solved literally none of the problems in his previous two complaints.  In fact, he largely just added to the crazy.  So the judge was indulgent on Brett because he could already see his case was doomed.

And let’s highlight something else, here.  What judge did here was overkill.  He said over an over, “you lose because of this.  But even if you were right on this, you lose because of this, and this, too.”  For instance, a failure to allege an injury, causation, or that an enterprise existed was sufficient to justify dismissal.  He pointed out Brett failed all three.  He went through every part of the claim of a pattern of racketeering activity, and destroyed every claim for every cause of action.  He even could have shortened his the issue of money laundering by pointing out that Brett hadn’t successfully alleged any unlawful proceeds, but he went on to say, in essence, “even if you showed any unlawful proceeds, you failed these additional elements, too.”  The judge also not only knocked down every single claim of mail or wire fraud, he pointed out that even if he proved a few of them it wouldn’t be enough.  The point is the judge didn’t just knock out key points.  To use a military metaphor, he didn’t just reduce the enemy airfield to rubble, but bombed it until the rubble bounced.

(And for the record, I am probably the only defendant who did the same thing in my motion to dismiss, another similarity between my analysis and the judge’s.  And I promise this is the last time I show too much professional pride.)

So in short the judge almost certainly knew from the day he allowed Brett’s amendment that he was doomed and simply avoided creating an issue for appeal.

And with that perspective, what he has done with Frey’s claim also makes sense.  Contrary to what Kimberlin’s spokespersons have said, the case is not yet going to trial.  What is happening next is discovery and then one can almost guarantee Frey will a motion for summary judgment.  I say that literally never having discussed it with Frey: I can just see it coming.  I will be cagey about what it all means, but here’s the key thing to get: it is a test of the sufficiency of the evidence.  And in that test, Brett is going to have problems.  Brett will not be judged, for instance, by what he claims was said in that message from the Sheriff’s Office.  He will be judged by what it actually says.  Brett is going to need proof and I would say more, but I don’t want to educate the midget.

Brett does clean up pretty good, when
he wants to

The point is that Brett doesn’t do very well whenever he has contact with the rules of evidence and so Judge Hazel might think, “so we go through discovery?  Then I can consider the evidence and I can kill off this part of the suit then.”  I am not saying that Judge Hazel is not giving Brett a chance, just that he has a suspicion of how it will turn out.  Experienced litigators can often see how things will work out ahead of time.  So it isn’t the victory that I think Frey deserves, but I do think Hazel sees Brett’s case as being on life support and he is close to pulling the plug completely.

And that was before a second RICO suit was filed.

I will note with some amusement that over at Breitbart Unmasked, Brett Kimberlin’s PR department (which I am not giving a link to, because they have been known to have viruses) that Matt Osborne has more or less confessed that Brett has been abusing the legal process.  As I noted in a tweet:

In which Osborne admits #BrettKimberlin is engaged in lawfare cc @Patterico @rsmccain @wjjhoge @ali pic.twitter.com/ySHZhJHPIK
— Aaron Worthing (@AaronWorthing) March 18, 2015

The quoted passage also indicates that are pretending that they have captured “the biggest fish in the lake.”  Oh, they let go all of those small fish, and they got the one they wanted most: Patrick Frey.

Really?  Let’s review the list of defendants at that point, shall we?  They include Michelle Malkin, Twitchy, Glenn Beck, The Blaze, Eric Erickson, Red State...  from there the bloggers get smaller than that including myself, but (with no respect), Patrick isn’t even close to biggest fish on the list.  He is about medium sized in the full list of defendants.  Seriously, Brett wouldn’t rather dig into the presumably deep pockets of Glenn Beck?  Of course he would.

Also, I will note that his spokespersons are saying that this means Patrick Frey was adjudicated to be acting as a state actor and even speculating that Brett can sue California, now.  Well, first, Brett cannot amend the complaint, so the taxpayers of California are safe.  And Patrick has been adjudicated nothing.  The judge said, “if what Brett said is true, Patrick might have acted as a state actor.”  Anyone see the flaw in that logic?

Well, duh, the flaw is the assumption that anything Brett Kimberlin says is true.  Indeed, I just showed you that much of what Brett said was demonstrably false and the judge was just assuming it was true for the sake of the motion to dismiss.  That ends now.

And likewise, unlike many other times, I am not going to claim that anything has been adjudicated in regards to my disputes with Brett.  I cannot call Brett an adjudicated SWATer or anything like that, because it was not a contest about the evidence.  If I was unfair, I might say that, but just because I don’t like Brett Kimberlin and believe he has committed crimes against me, doesn’t license me to lie about him.  As of today I can say that the following have been adjudicated:

1)         that Brett Kimberlin is a pedophile who seduced his wife at the age of 14,

2)         that Brett Kimberlin cost my wife and I our jobs,

3)         that Brett Kimberlin personally stalked my wife and put photos of her on the internet, and

4)         that Brett Kimberlin tried to frame me for a crime.

There might be other items that belong on that list, and I am not including the crimes for which he was convicted, but those are the highlights.

So their declarations that they got the “big fish,” or that Patrick has been adjudicated to have done anything is just rationalizing away a massive defeat yesterday, which is surely going to be followed with a further defeat at the motion for summary judgment stage.  And at that point, Patrick is likely to be able to say he has an adjudication in his favor.

Anyway, so that is it, for now, in the old RICO suit, which now I am going to call from now on “the Civil Rights suit,” because that is all that is left.  Meanwhile, we have the new RICO suit.  As you can see over at Hogewash, John has already filed a motion to dismiss himself from the case, his obvious logic being “why not strike while the iron is hot?”

The problem Brett has, here, is under the supplemental jurisdiction statute, he’s got to establish a nexus between John’s (and Bill Nickless’) conduct, and the rest of the Defendants.  But the only way to do so is to allege that John and Bill were in on that Team Themis madness.  But if he did that, then the entire suit would be barred by principles of res judicata because it would be clear that he was alleging that the Team Themis madness was part of the RICO conspiracy that was part of that dismissed suit.  So if Brett made that connection, he would lose on everything, instantly.  He has been waiting for years to sue over the conspiracies he half-hallucinated with Team Themis, and he ain’t stopping, now.  So he will necessarily claim that John and Bill were simply doing things like the “Team Themis” defendants and the court will then likely be persuaded by John’s motion to dismiss.  Bill might not even have to file anything, although he very well might.

And it is telling that he includes allegations against me, but doesn’t dare include me on the list of Defendants.  Every now and then Brett does recognize when something just isn’t working anymore.  Here, he has recognized that bringing me into a lawsuit is typically a fundamentally bad idea, probably driven home by his poor performance at the peace order hearing last Friday.  For all their insults about my professional ability, their conduct tells the real story: they have a grudging respect for my ability to litigate against them.

And there are more shoes that are going to drop.  Stay tuned, keep purchasing popcorn, and stay happy warriors, folks.

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My wife and I have lost our jobs due to the harassment of convicted terrorist (and adjudicated pedophile) Brett Kimberlin, including an attempt to get us killed and to frame me for a crime carrying a sentence of up to ten years.  I know that claim sounds fantastic, but if you read starting here, you will see absolute proof of these claims using documentary and video evidence.  If you would like to help in the fight to hold Mr. Kimberlin accountable, please hit the donation link on the right.  And thank you.

Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.

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Disclaimer:

I have accused some people, particularly Brett Kimberlin, of reprehensible conduct.  In some cases, the conduct is even criminal.  In all cases, the only justice I want is through the appropriate legal process—such as the criminal justice system.  I do not want to see vigilante violence against any person or any threat of such violence.  This kind of conduct is not only morally wrong, but it is counter-productive.

In the particular case of Brett Kimberlin, I do not want you to even contact him.  Do not call him.  Do not write him a letter.  Do not write him an email.  Do not text-message him.  Do not engage in any kind of directed communication.  I say this in part because under Maryland law, that can quickly become harassment and I don’t want that to happen to him.

And for that matter, don’t go on his property.  Don’t sneak around and try to photograph him.  Frankly try not to even be within his field of vision.  Your behavior could quickly cross the line into harassment in that way too (not to mention trespass and other concerns).

And do not contact his organizations, either.  And most of all, leave his family alone.

The only exception to all that is that if you are reporting on this, there is of course nothing wrong with contacting him for things like his official response to any stories you might report.  And even then if he tells you to stop contacting him, obey that request.  That this is a key element in making out a harassment claim under Maryland law—that a person asks you to stop and you refuse.

And let me say something else.  In my heart of hearts, I don’t believe that any person supporting me has done any of the above.  But if any of you have, stop it, and if you haven’t don’t start.