Catching up with Kimberlin v. National Bloggers Club (II))
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 three 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. Indeed, he sued me for saying this and lost
on the issue of truth. 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 sued myself, John
Hoge, Robert Stacy McCain and Ali Akbar for helping his wife and for calling
him a pedophile. He lost on the issue of
truth. He is also suing Hoge, Akbar, Dan
Backer, DB Capital Strategies, Patrick “Patterico” Frey, Mandy Nagy (who is
significantly incapacitated by a stroke), Lee Stranahan, the National Bloggers
Club, and others alleging that we are
all in conspiracy to defame him because we reported factually about the spate
of SWATtings committed against myself, Frey, Erickson and others. 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.
In my last
post, I promised to start updating you, dear reader, on what is going on in the
many legal cases involving Brett Kimberlin.
I am not quite ready to do that, completely, but I can give you this
week’s big news: I won Brett Kimberlin’s latest suit against me. As of today, I am no longer being sued by
Brett Kimberlin (although I am still waiting on an outcome from the Court of
Special Appeals—something I will explain to you another time).
So that’s the
lede: I won completely, in that case. And
the purpose of today’s post is to talk about what got me there.
As a little
background, this case was a continuation of a case filed previously against me and
many others in Federal Court, which I refer to as Kimberlin v. National Bloggers Club. Basically I and several other people have
been SWATted. You can read my account of
that event, here. Anyway, having been SWATed, I was sued as a
result.
Yes, you are
reading it right. I was sued for being
SWATted. Basically Brett Kimberlin claimed
that we implied or said he was involved in various SWATtings and he was not,
and therefore sued us on a number of theories.
Of course the answer is that a true and accurate statement of the facts
makes you suspicious as hell about whether Kimberlin was involved, especially
in my SWATting. In other words, reality implies Brett might be
responsible. But we all know that reality is anti-Brett-Kimberlin conspiracy, so...
You can read the
Court’s order dismissing that case here,
but let me give you a quick and dirty summary of what Brett claimed. He claimed first that I and a large number of
people ranging from L.A. Prosecutor Patrick Frey to Michelle Malkin, to Simon
and Schuster, were all in a RICO “mafia” out to make money by destroying his
reputation. He claimed that we had made
other false statements, but that’s the main issue. He also claimed that Mr. Frey had run a
retaliatory investigation to punish him for complaining to his public employer in
violation of Mr. Kimberlin’s civil rights, and that the whole “gang” were in a
conspiracy to deprive him of his civil rights under the KKK act. Those were the federal claims and they were
all dismissed in the order linked above.
In the same
case, Brett alleged that we committed a number of state torts: defamation,
false light (basically lying about him, but its got subtle differences from a
defamation claim), tortious interference with an existing contract, tortious interference
with business expectations, battery (yes, he is still claiming I assaulted him even
though I proved it was a frame up), intentional infliction of emotional
distress and conspiracy. That last one
might be about to bite him in the behind in ways I am not going to explain here. (Sorry, dear reader, but as I always say, “case
first, blog second.”) As you can see in
the same opinion I linked, Judge Hazel dismissed for jurisdictional reasons
that are more complicated than they are interesting to lay people. So let me have a sidebar explaining the
jurisdictional issue and if you don’t care about all that legal nerd stuff, you
can skip over that.
---------------------------------------
Sidebar: Still with me, legal
nerds? Well, here’s the basics. This case was filed in federal court. Federal courts typically have jurisdiction
over two kinds of cases: federal questions and diversity of citizenship. When it comes to federal question
jurisdiction, that means the application of federal law, etc.
As for
diversity of citizenship, basically the founders were worried that if a
Virginia sued a Marylander in Virginia—to pick an example—the Virginia court
and the Virginia jury would be completely unfair to the out-of-stater so. So they decided that in that situation, you
should be able to take it to federal court, which will still be in the same state
and the jury will still be locals, but being a federal court might mitigate the
situation, hopefully. I think in all
frankness the rule has outlived its usefulness, but it continues to exist.
Obviously
there were federal questions in the case and the court could hear those. But there wasn’t diversity of citizenship
because the rule requires that every defendant be from a different state than
every plaintiff. So given that Brett
Kimberlin and co-defendant John Hoge were both Marylanders, there was no
diversity for federal jurisdictional purposes.
So, ordinarily, there was no jurisdiction for those state law claims. That is, the court could ordinarily hear the
claims based on federal law, but not on state law.
But there is
an exception to that rule, called the Supplemental Jurisdiction rule. Under that rule, federal courts could hear
cases technically outside their jurisdiction, but related to claims that are
properly before the court. But the rule
is ultimately discretionary—the judge doesn’t have to take such a case. And in this case Judge Hazel decided to
decline supplemental jurisdiction.
As I said,
complicated but I suspect not sufficiently interesting. We hereby end the sidebar.
---------------------------------------
Okay, still
with me? So every part of the case was
dismissed against us, except for that civil rights claim against Patrick Frey,
which is ongoing. And going. And going.
We’ll talk more about that case in another post. And since the state law claims were only
being dismissed on jurisdictional grounds, this means Brett was free to re-file
them, although Hazel did caution that they might be limited by res judicata or
collateral estoppel. And, spoiler alert,
that last bit will be important really soon.
So that takes us
to the case at issue in this post. I call
the federal case Kimberlin v. National
Bloggers Club (I), and I call this current case Kimberlin v. National Bloggers Club (II). Basically it is all those state law torts
that were dismissed being re-filed in Montgomery County (Maryland) Circuit
Court. Seriously, if you had his last
complaint in the federal case and held it side-by-side with the state case, you
see that the statement of facts are virtually the same, except for deletions of
some parties. You would see that the
causes of action are pretty much the same, except all the federal stuff is
deleted, and he added a new Count III which inserted three different privacy
torts. In that last case, you can tell
it was just tacked on—the numbering of those paragraphs are not even in line
with the numbering in the rest of the complaint.
Now,
previously, I had filed a motion to dismiss in April or early May. And the judge set a motions hearing for September
3 for my motion and the motions to dismiss for three other sets of defendants:
Michelle Malkin and her company Twitchy; Breitbart.com; and Glenn Beck, The
Blaze and Mercury Radio Arts. I generally
refer to these three groupings as Malkin, Brietbart, and the Blaze
defendants. There was also a motion to
dismiss filed by my friend John Hoge through my former counsel Patrick
Ostronic, and another former lawyer of mine, Bruce Godfrey wanted to be
appointed to protect my friend Mandy Nagy, who was probably incompetent to be
sued due to the after-effects of a stroke.
Yeah, Brett is exactly that scummy.
And I was
ready to go that day. To say I was
prepared was an understatement. I had to
buy a rolling file crate to carry all my papers, because my catalog case was
too small. And then I get to the hearing
and Judge Mason tells me that my whole motion to dismiss had been stricken for
length. You see, there was a rule I had
overlooked that limited motions to 15 pages and mine was only three times that length and, well, sigh.
Still, on that
date Malkin/Twitchy, Breitbart, and the Blaze Defendants were all dismissed. And for the first time, ever, I am going to
share the transcript of that hearing, here:
Now, I won’t
say I wasn’t disappointed that I wasn’t allowed to speak as well. But at the same time, it did give me a chance
to observe Judge Mason in action and learn a little more about how he thinks.
One thing that
marks him as a judge is he is not very adventurous, on legal theories. He is what we call a judicial conservative,
which should not be confused with political
conservatism. It wholly fails to relate
to the political spectrum. He doesn’t
contradict the courts above him, even when they are wrong. Even when he thinks that maybe the precedent is
bad and ripe to be overturned, he sees it as the job of the court above. Like many things, it can be a double edged
sword, useful to our side on some issues, and detrimental on others. Like on one hand, he will apply a three year
statute of limitations to false light even if I suspect he had misgivings about
the precedent on that subject; on the other hand, he will never say anything as
unfortunate as saying in relation to a controlling Supreme Court precedent
protecting freedom of speech: “Forget Brandenburg.
Let’s go by Mason right now, and common sense out in the world.” So there’s that. In other words, there’s nothing inherently
right or wrong about it, it’s just how he is.
Another
observation is that Judge Mason is extremely reluctant to find any facts at the
motion to dismiss stage of a case. To
legal neophytes, the best way to describe a motion to dismiss is a party
saying, “even if everything you say is true, so what?” It’s not about the facts. If John Doe sues you claiming you breached a
contract to purchase cocaine, it is not a useful answer to say “I didn’t” in a motion
to dismiss. You will get the chance to
deny it is factually true later on but at that point, the correct answer is to
say “even if I did everything he said I did, it’s not something you can sue a
person for.” (In most states, a contract
to purchase illegal drugs will not be enforced.) Since a motion to dismiss is about testing
the sufficiency of a complaint, it is also proper to say that the person didn’t
allege what you did in a proper fashion, particularly to ensure you have actual
notice of what specifically you are going to have to defend against.
Another thing
Mason likes to do—I have seen him do it in other cases—is rather than write an
opinion, he simply adopts the briefs of the winning side as the opinion of the
court. That’s what he did, here. For instance, here’s his ruling on the
motions to dismiss:
First
with respect to the motions at Docket Entry 44 by the defendants Malkin and
Twitchy, at 46 with respect to the motion by Breitbart; at 48 I've already
basically well 48 and 49 the motion by the defendants Blaze, Inc., first based
upon the authority of the Fourth Circuit case Young, I find that there is no
personal jurisdiction in this case over those defendants. I think the Supreme
Case the National Enquirer case is very distinguishable where you have a
subscription service and in that particular case to the extent they had a lot
of subscribers in California, they're obviously deriving substantial revenues
from California, but that's not here. None of these are running subscription
services, so I find the arguments that defendants make with respect to the
issue of personal jurisdiction in each instance are persuasive and the Court
has no personal jurisdiction over any of those defendants.
In
the alternative to the extent that the Court did have personal jurisdiction I
will adopt the arguments of the defendants on their motion to dismiss that the
claim should be dismissed except as follows: I do not believe that this Court should
apply a one year statute limitations because the law of the State of Maryland
in my view until the Court of Special Appeals has overruled is that the statute
of limitations for false light is three years. There is substantial language in
the Court of Appeals that suggest that maybe the Court of Special Appeals
should revisit their opinion, but it's not up to me to reverse the Court of
Special Appeals. And so until such time as that case is reversed I agree to be
bound by it.
To
the extent that any of their arguments are predicated upon the finding that
you're a public figure, I don't believe that that is an issue that the Court
could decide on this motion to dismiss. So I don't find that you are a public
figure for purposes of these motions to dismiss. And to the extent that the
Court is asked to grant relief under the [SLAPP] suit statute, I find with
respect to that statute that there's no evidence based upon these motions that
I could find at this time that he's acting in bad faith which I would be required
to apply the [SLAPP] suit statute. However, given the fact that this is
basically a reiteration of what has been filed in the federal courts because
basically the enterprise under RICO is almost identical to the concept of a
civil conspiracy and since the motions to dismiss were pending in federal court
I think somebody said since October of last year that you've had a long time to
know what they are alleging in terms of the absence of any conspiracy among
them and the failure of the complaint to set that forth that the dismissal is
granted without leave to amend as to these defendants. So, the dismissal as to
those defendants is final.
So, and this
is key, the motions to dismiss filed by those defendants are effectively the
opinion of the court, except the judge disagreed with them about the statute of
limitations, the application of the SLAPP suit, and refused to find Brett is a
public figure at this time. And of
course, Mason carefully limited his ruling on the latter two issues as saying
he couldn’t find Brett was acting in bad faith at that time, and he couldn’t find Brett was or wasn’t a public
figure at that time. Those rulings aren’t technically binding on
me, but you’d be stupid to think you could make the exact same argument that
they made and get a different result, which is why I didn’t try.
---------------------------------------
Sidebar: You might be wondering what the
court was talking about in terms of personal jurisdiction. What that gets into is the right of a court
to judge your conduct. If you are going
to be tried in a certain state for an act or omission, there has to be some
reasonable relationship between you or the act to the state trying you. In other words, if a Tennessean and New
Yorker get into a knife fight in bar in New Mexico, and you can’t be tried in
Alaska for it, barring extraordinary circumstances. It’s a complicated doctrine I am not going to
fully try to summarize here, but here is the upshot. If Brett wants to sue Michelle Malkin for
allegedly defaming him while sitting in her house in Colorado, he has to come
to Colorado to do it.
---------------------------------------
Now at the end
of the hearing, the Court did give Brett a chance to amend his complaint—although
not including the people dismissed above (Brett ignored that part). So Brett submitted an amended complaint on September
14, and we were off to the races writing our response. I will focus on what I did, mainly.
But first, his
First Amended Complaint (which we legal types call the “FAC” and he called his
Second Amended Complaint):
So then came
my responses. First, I filed this Motion
to Dismiss:
Now, you will
notice that I went exactly one page over the limitation imposed in that
court. I did file simultaneously leave
to exceed the page limit and it was granted.
Bluntly, I had to address more claims in those pages than anyone else in
the case. I won’t bore you by sharing
that: it is written in a workaday fashion and these are typically granted as a
matter of course if you don’t get too greedy.
That was
response number 1. Next I filed for a
motion for partial summary judgment. That
is here:
Of course with
these documents personal information is redacted, there is no signature and the
attachments are not included. You will
have to trust that the attachments showed what I say they showed.
But do you remember
how I said that Judge Mason didn’t want to decide any evidentiary issue on a
motion to dismiss basis. Well, a motion
for summary judgment is an
evidentiary motion. It basically says “based
on these undisputed facts, I should win.”
The key is that there is no reasonable dispute on those relevant facts,
but if there isn’t and your argument about what those undisputed facts mean in
terms of your defense or claim are correct, you win.
Moving on, then
I dropped the next “bomb” (or is that an unfortunate metaphor with Brett?),
with my SLAPP motion. I’ll let it speak
for itself, primarily because Brett has literally never understood what it is
saying, but I think it is clear enough for you if you read it, dear reader.
His response
to all of that was to file a motion to strike.
You can read that, here:
Here is my
response to that:
And on the
same day, I filed this:
After all, he
had filed no opposition. Here’s Brett’s
response to that:
To Brett’s
credit, he was allowed to be seen as opposing my motion to dismiss, albeit futilely. So a win for Brett!
Then the judge
started ruling on some of this. The judge
ruled on my motion to strike. What did
he say? Well, you know the proposed
order at the end of my motion? He signed
it, as is. And then they set a hearing
date for my motion to dismiss. Speaking
on the phone with one of Judge Mason’s clerks as we tried to find a mutually
agreeable date, I asked if any other Defendant was going to be there—after all,
several other Defendants had filed motions to dismiss. The clerk replied that this hearing was
specifically in response to my anti-SLAPP motion, and since I am the only one
who filed something like that, I would be the only person getting a
hearing. It always feels gratifying to
see a judge give you exactly what you asked for—and were legally entitled
to. And the order? The exact proposed order I sent to Judge
Mason, only he added a time for the hearing in addition to filling in the date:
December 8, 2015.
Again I brought
my crate and we had our hearing. I have
not ordered the transcript, but I wrote down my thoughts close to the time,
aided by notes, my written plan for my presentation and the courtroom audio. So none of this is verbatim, but it is a
pretty good representation.
(Of course,
the problem of bias is unavoidable. So
take my account of how it went with a grain of salt.)
Judge Mason started
off by saying that he just arrived from out of the country and he hadn’t read
our papers with the level of depth that he would like. He said after argument he would do that and he
hoped to rule by the end of the week. Later
he amended it to say early next week at the latest. That told me at the time that this hearing
really was given as soon as “practicable” as required by the anti-SLAPP statute—so
quick the judge was not as prepared as he would like. And, bluntly, ordinarily Judge Mason has a mastery
of the material. He is one of the
smarter judges—something I promise I thought before he ruled in my favor.
Of course, Judge
Mason didn’t the opinion out in that time frame. I mean we are about a month past that time
frame. I recall on about Friday of the
week after, I called chambers to ask in all frankness if the Court was needing something
from me or what? I was using that as a
polite way of saying, “what’s going on?”
They explained that Judge Mason had gotten sick and it sounded like he
was pretty miserable and wasn’t able to do much more than attend hearings. And naturally, that took me into the
Christmas Holiday. I have no idea what
Mason’s faith is, but I wouldn’t begrudge him taking a real holiday at that
time. And of course the reason for subsequent
delay after the holiday is obvious now: he was writing an opinion. No one wants to wait too long for a judgment,
but I always felt that the more time he took, the more likely he would be to
get it right, so I wasn’t about to try to rush him.
And I will add
that the hearing was sandwiched in between a violation of probation hearing
(the guy left in cuffs), and a full blown trial expected to take into the next
day. We had almost exactly 30 minutes and the judge clearly watched the clock
like a hawk. This is probably why there
were no other defendants in our case being heard that day: they really didn’t
have time.
I started out
saying that if I was going to have any hope of finishing in 15 minutes, I would
focus only on my res judicata argument from my motion for summary judgment and
Count III in relation to my motion to dismiss.
The logic for doing that was as follows: if the judge accepted my argument
regarding res judicata, then every claim but Count III would be wiped out,
because res judicata is always a time-bound rule. As a practical matter, it means that pretty
much every claim Brett could have brought
before August of 2014 should be dismissed on summary judgment. And the only claim where he asserted any
activity after that date, in relation to me, was Count III. So then all I had to do was knock that count
out, and the case would be over.
And by way of review,
Count III was really three claims in one: 1) publication of private facts, 2)
intrusion into seclusion, and 3) misappropriation of name or likeness.
I also pointed
out early on that Brett has filed no timely opposition, so this Court could
rule on that basis alone. I didn’t think it was likely to work (and it didn’t),
but it was worth a try.
And
alternatively, this Court shouldn’t consider any new arguments presented for
the first time today because of that lack of opposition. And that lined up with
what the judge said at one point, that the purpose of this hearing wasn’t to
bring up new arguments, but to enhance what we already said. I remember the judge very specifically using
the term “enhance.”
So then I
dived into res judicata. I gave my big picture view of it, which was really
close to this:
“I have given
it some thought in the last month and I think the big picture is that it is a
rule about judicial efficiency. If you have multiple disputes with a person or
a group of people, you have to bring all the people and all the issues at once.
And if you don’t, we punish you by saying you have waived whatever you didn’t
bring up. All these rules should be interpreted in that light.”
So then we
have a three prong test under Cochran v.
Griffith Energy. You, dear reader,
saw this in my motion. But I went on to cover each prong one at a time. So
first up:
“(1) the parties in the present litigation
are the same or in privity with the parties to the earlier litigation;” the
prior litigation is Kimberlin v. Walker, et
al., I explained, which was primarily about whether he was a pedophile and
whether we defamed him by calling him one.
Dear reader, it’s
always helpful to talk about Brett being a pedophile.
I said
something like “this prong is easy when talking about myself, John Hoge who is
observing today [he was in the audience], and Mr. Akbar, who Mr. Kimberlin
can’t seem to serve.” That is because
all three of us were defendants in the prior case. But I also briefly touched on how I found
precedent that said that the mere fact he alleged there was a conspiracy meant
that this Court could apply this to all of the defendants and that was in my
motion. I was pretty explicit in saying
pretty much the Court could kill just about the whole case on its own on res
judicata. I wish I was successful in
that effort, but apparently Mason will not dismiss the rest on his own. They each have to ask, even if they might be
saying “what he said.”
Then I hit the
third prong of the test, going out of order: “(3) there was a final judgment on the merits in the prior litigation”
and case law in the Maryland Court of Special Appeals which said that res
judicata is not suspended by an appeal. And I said that just as this Court felt
bound by the court of special appeals on the issue of the statute of
limitations on September 3, this ruling should bind it as well.
And then I
roll around to the second prong: “(2)
the claim presented in the current action is identical to that determined or that which could have been raised and determined
in the prior litigation” (emphasis added). As I said to the court, the last part is what
does the heavy lifting. I quoted from Brett’s opposition to my original motion
to dismiss where he indicated that thought he couldn’t have brought this case
in state court, because he included federal claims. I pointed out that this is doctrinally wrong,
that Maryland has concurrent jurisdiction over all three federal statutes and
even cited cases where Maryland courts considered them.
And on that I
ended the issue of res judicata.
So then I
shifted over to Count III, saying that the last day he could have amended the
complaint in Kimberlin v. Walker et al
was July 12, 2014 (30 days before trial). He asserted that these three privacy
torts were committed from July 1, 2014 to the present. So looking from July 13,
2014 to the present, that is not touched by res judicata, and it is the only
part of this case that is alleged to occur after that day in even the most
conclusory manner—as least in reference to me.
I made the
point that all of the allegations are conclusory. I talked about how it was
really just tacked on in a very clear way to this case, and the only
allegations that I did these things is found in section describing Count III. There was nothing in the statement of facts
supporting it. I said these weren’t even
skeletal allegations, because it was not a complete skeleton, or something
close to that.
Then I briefly
covered the problems with each claim.
For publication
of private facts: he has to allege it is a fact and it is not private. I mention that to say it is factual, is to say
it is true. So is this a confession? And
the only facts we allegedly discussed were things like SWATting, losing my job,
his attempt to frame me for a crime, and those are not private to him. Maybe once upon a time I could argue losing my
job was a matter of privacy for me, but he can’t.
---------------------------------------
Sidebar: Brett seems to think that the
tort for invasion of privacy by giving unreasonable publicity of private facts is
a bar on saying anything he doesn’t like.
He’s wrong. It really has to be
about something that is true, but also private.
The classic example I use to explain it come from the movie Groundhog Day. At one point, when Bill Murray’s character
says “this is Nancy Taylor. She makes
sounds like a chipmunk when she gets really excited.” Telling the whole world what you sound like
during sex is typically a private fact.
---------------------------------------
Next I discussed
intrusion into seclusion, explaining that he has to allege some kind of
wrongful method of intrusion. The precedents
I cited showed that he had to allege a method of intrusion akin to a trespass.
Not necessarily a literal trespass. A hotel owner setting up cameras in his
rooms to video his guests in various states of undress might not be literally
trespassing (check your local laws, however), but that is probably intrusion
into seclusion. But it has to be a trespass-like intrusion. Brett hadn’t
alleged any wrongful method of intrusion; he had only alleged ordinary
journalistic techniques.
And again,
none of these things are a matter of privacy.
And finally I got
to misappropriation of name or likeness. Brett had to allege we were taking advantage
of his good name and he spent forty pages claiming we trashed it. He had to allege his name had commercial
value. And he had to allege more than
incidental use, like in news and commentary.
---------------------------------------
Sidebar: the best way to describe
incidental use is this. Ordinarily, you
own the rights to your name. For
instance, a Chicago pizza place tried to use Michael Jordan’s name to promote their
company. Jordan sued them and got over
$8 million dollars in damages. That misappropriation
of name or likeness.
But one major
exception is that you can use a person’s name in relation to news and commentary. For instance, Michael Jordan would have no
cause of action against me for using his name right now in discussing his
travails with that pizza place.
Seriously, Brett was making the exact same
mistake that Kirby
Delauter made.
---------------------------------------
And for all of
these privacy torts, there are no proper allegations of damages or how we
proximately caused such damage.
And then I
stopped, reserving five minutes to respond.
So next it was
Brett’s turn. Capturing how he rambled isn’t
easy, but here’s what I could garnish from my different sources of info.
He claimed
that every allegation he made in the complaint had to be taken as true in
relation to the motion to dismiss.
He claimed
that material facts were still in contention for the motion for summary
judgment. “I say he assaulted me. He denies it,” and so on. (We’ll talk about what is wrong with these assertions
in a moment.)
He went on and
on about SLAPP and how this Court found he didn’t act in bad faith, supposedly
(even though the judge clearly was saying he couldn’t find bad faith at that
time).
He went on a
few minutes about personal jurisdiction arguing the mundane point that if you
are dealing with events that allegedly happened in Maryland (namely the alleged
battery) then you have jurisdiction. It was one of those things where he says,
“he talks about jurisdiction” and I wonder what hearing he was at, because I
didn’t. In the past I have seen that happen with people when using prepared
remarks, but Brett was winging it as far as I could tell.
He argued that
he filed an opposition.
In regard to
res judicata, he said he never heard of those federal statutes being tried in
state court. He talked about how the federal court had jurisdiction over those
questions, and dismissed the state causes of action after dealing with most of
the federal questions. He gave many reasons why he wanted to bring it in
federal court.
He tried to
say that the appeal is really serious and he will probably win.
For false
light, he went on and on about a campaign to portray him as a SWATter. He pulled out statements allegedly by NBC and
claimed some kind of guilt by association.
He whined that we went after his corporation’s funding. He also showed a tweet purporting to show that
I had gone after his funding with the State Dept (I had, but that is not
tortious), but the tweet in question was after he lost his funding with the
state dept. I know that because it had a
“pedoBrett” image on it, and that only appeared long after the funding
allegedly stopped from the state department.
He suggested I
called him over and over and sent people to his house. (None of that is true.)
He went on and
on about special statutes related to debt collection, saying we were like
“moral debt collectors” saying he will go to jail if he doesn’t pay his moral
debt to us. I very visibly gave him a really weird “are you kidding me?” look
at that moment.
He alleged we
called his neighbors. Around here I stood up and objected on the basis of the
fact that none of this was in the complaint. I said something like “your honor,
he is testifying. None of this is in the complaint. So I have to object.”
Now as a
little background, we also had a very contentious hearing on his motion to
dismiss my case against him and his wife (if you are not aware of that suit,
the basic idea is to stop them from continuing to abuse Maryland’s court against
me). Judge Mason ended up being so
frustrated that after Tetyana Kimberlin had an outburst, Mason said that the
next person who interrupted would be arrested for contempt.
So I think
Mason had been giving some thought to how to deal with this. His first response was to say in response to
my objection, “I’ll let him argue.”
I will say, I
understood the Mason as meaning “he can say it, but I don’t have to consider
it” and I was satisfied. Then as Brett went on making up new things, he added
this (by John’s transcription):
THE COURT: Let
me stop you for a second. Just so you understand, when I said to Mr. Walker I’m
gonna let you argue, if you’re arguing anything that is not contained in your
pleading, I will not consider it. I don’t want the record to reflect that I’m
agreeing to consider anything that you haven’t filed. The limits of what I will
consider on these motions are the exhibits that are properly filed and
arguments that are properly filed.
MR. KIMBERLIN: I
understand. I’m just amplifying on what I said.
[Aaron: in what?]
THE COURT: Well,
but to extent that you argue outside the record, I’m not gonna — I will not
consider it when I rule on the motion. I’m not gonna take time now to sit and
decide whether there is or isn’t something covered in the record.
In other
words, “if you want to piss away your remaining time and talk about things I
can’t consider, knock yourself out. I don’t feel like getting into a pissing
contest on what was in the complaint and what wasn’t. So police yourself or
risk wasting what little time you have to argue on something I won’t consider.”
And bluntly, that is eloquent in its efficiency, if that is what the judge was
thinking.
Back to
Brett’s argument, he came up with a case, which I have since looked up and does
seem to decide that battery is subject to a 3 year statute of limitations. So, points for him. But then again, it is also very clearly
subject to res judicata and collateral estoppel (twice).
He tried to
say he sufficiently alleged conspiracy. Further, he claimed that no one in a
position of power buys our version of events.
So it was my
turn again, and I had five minutes. I couldn’t hit most of my rebuttal points
but I did as best I could.
I pointed out
that while proper allegations must be considered by this Court, they had to be
non-conclusory allegations. I cited cased law and I quoted the judge back to
himself saying something like “as you said on September 3, ‘you can’t allege a
conclusion.’” (I don’t think this quote
shows up in the transcript, but I clearly remember him saying it and it’s true.)
On res
judicata I said something like, “he says that there are material facts in
dispute. And on the underlying controversy he is right. But this is a motion
for summary judgment for res judicata and collateral estoppel and he has not
disputed any of the facts related to that.”
I briefly said
more or less, I don’t know why he is talking about personal jurisdiction or anti-SLAPP.
I haven’t disputed jurisdiction. In relation to SLAPP, I already got what I
asked for, which is this hearing on my motion to dismiss.
I pointed out
something like “he did not file an opposition, and that at best he only
incorporated what he said the first time. And that opposition failed with respect to Malkin, Breitbart,
and the Blaze defendants as you just reaffirmed. [Judge Mason had just turned
down a motion to reconsider.] This Court
said that it adopted their reasoning, with three exceptions. You said you
couldn’t find he was a public figure at that time, clearly reserving the issue.
You said you couldn’t find bad faith at that time. And you determined that the
statute of limitations for false light was three years. Otherwise, you said you
were adopting their motions to dismiss and that makes those motions the law of
the case, which in turn applies to his allegations against me, and I point out
over and over in my MTD that the principles of that ruling apply to the
allegations against me supporting dismissal. For instance, I pointed out that false light
is measured by the offense of a reasonable person in the Plaintiff’s position
and the Blaze argued that an ordinary person in the plaintiff’s position would
not be offended to be called a SWATter.
“As for res
judicata, he has not refuted that he could have brought every cause of action
in Kimberlin v. NBC (I) in this Court
as part of Kimberlin v. Walker, et al.
He has given a lot of reasons why he didn’t want to do that, but he hasn’t
explained why he couldn’t, so all of
these causes of action could have been raised, and are now waived.” Somewhere I
mentioned that every party in Kimberlin
v. Walker, et al., were also a party in Kimberlin
v. NBC (I). And I reiterated that the case law is clear that res judicata
applies on appeal, quoting from one of the case I cited:
All
of the values served by res judicata are threatened or destroyed by the burdens
of retrial, the potential for inconsistent results, and the occasionally
bizarre problems of achieving repose and finality that may arise.
I also said
that even if he is successful on appeal, he can go back in that case and say,
“I want to amend my complaint to include these claims that were dismissed on
the basis of res judicata which is no longer viable.”
I pointed out
at some point that Brett keeps trying to hold me responsible for the actions of
third parties without explaining why I am liable for their behavior. I am not
responsible for what NBC says about him for the same reason that we don’t hold
members of the ACLU responsible for what the ACLU itself says. And I point out
that his allegations of people photographing him and threatening him and so on
are third parties and he hasn’t explained how I was responsible. And I brought
up the obvious point that the laws on debt collectors are specific to them and
don’t apply here.
Somewhere in
all of this, the court asked me about the status of Kimberlin v. NBC (I), which is now known as Kimberlin v. Frey. I told the Court that it was in discovery
against Frey only and alluded to it being contentious. The judge asked if a
trial date had been set. I said I didn’t know (I haven’t been watching it that closely), but I would be surprised
if it was wrapped up in 6 months. I wasn’t sure what the court was fishing for
with that question, honestly, but there you go.
And somewhere
in making those points we ran out of time. Brett asked the Court to say one thing and
Mason said “no.” I merely I thanked the Court
for giving me that hearing, and then started packing up my massive piles of
documents.
Anyway, as
suggested above, next I had to wait. And
wait. And wait. But it was very much worth it, because yesterday
this ruling came down.
You will
notice several things about it. First,
all it says is that I won, and no one else.
But the principles Judge Mason enunciated will have a serious impact on
this case and beyond.
I admit I felt
a lot of professional pride reading it.
After all, look at its structure.
It is nearly identical in form to my oral argument. First I addressed the motion for summary
judgment, knocking out everything but Count III... as Judge Mason did. Then I addressed Count III... just as Mason
did. And with each part of Count III he
was basically echoing at least one of the arguments I had made. More or less, the judge was saying it was
right, and for the reasons I articulated.
That is always a good feeling for a lawyer.
And there is a
real hidden jem in that ruling, something that could have a potentially huge
impact down the road. But we do not want
to educate the midget...
...which I am
sure is frustrating. Sorry, but as I say
“case first, blog second.”
In any case,
one person asked me if this means this is over.
Well, Brett has said he plans
to sue me for the rest of my life, but then again, at some point he might
finally start to learn. At some point he
has to look at the ruins of his life and realize that his efforts to shut
everyone up just isn’t working. In any
case, I have my own case going forward designed to put an end to this
silliness. Let’s pray that it has that effect.
---------------------------------------
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.
---------------------------------------
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.
Glad to hear of your victory - the inside story was interesting.
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