The Brett Kimberlin Saga:

Follow this link to my BLOCKBUSTER STORY of how Brett Kimberlin, a convicted terrorist and perjurer, attempted to frame me for a crime, and then got me arrested for blogging when I exposed that misconduct to the world. That sounds like an incredible claim, but I provide primary documents and video evidence proving that he did this. And if you are moved by this story to provide a little help to myself and other victims of Mr. Kimberlin’s intimidation, such as Robert Stacy McCain, you can donate at the PayPal buttons on the right. And I thank everyone who has done so, and will do so.

Friday, January 15, 2016

Convicted Terrorist Brett Kimberlin Loses His Latest Suit Against Me

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;; 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.



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.

1 comment:

  1. Glad to hear of your victory - the inside story was interesting.