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    BRETT KIMBERLIN,

    Plaintiff,

    v.

    NATIONAL BLOGGERS CLUB,

    et al.,

    Defendants

    UNITED STATES DISTRICT COURTtiD

    DISTRICT OF MARYLAND

    GREENBELT DIVISION

    Case No. 13-CV-03059-PWG

    DEFENDANT HOGE'S MOTION TO DISMISS PLAINTIFF'S SECOND A..'\1ENDED COMPLAINT

    COMESNow Defendant William Hoge, pursuant to Item LA.I. of the Case

    Management Order (ECF No. 97) for the above captioned matter, and moves that this

    Honorable Court dismiss the instant lawsuit pursuant to Fed. R. Civ. P. 12(b)(6) for failure

    to state a claim upon which relief can be granted or pursuant to Fed. R. Civ. P. 41(b) for

    Plaintiffs failure to obey the Federal Rules of Civil Procedure. In support of this motion

    Mr. Hoge states as follows:

    SUMMARY

    Plaintiff filed the instant lawsuit on 15 October, 2013, and his First Amended

    Complaint ("FAC") two days later. He filed his Second Amended Complaint ("SAC") on

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    7 March, 2014. Neither the FAC nor the SAC allege with particularity the elements of the

    crimes and torts Plaintiff tries to hang his case on. Both are worked examples of the sorts

    of "[tlhreadbare recitals of the elements of a cause of action, supported by conclusory

    statements" which the Supreme Court has said do not suffice to establish a claim upon

    which relief can be granted. SeeAshcroft v. Iqbal, 556 U.S. 662, 678 (2009).

    Defendant Hoge's Motion to Dismiss (ECF No.5) ("MTD1") filed with the Court in

    December, 2013, outlines the deficiencies of the FAC. MTD1 is hereby incorporated by

    reference in order to keep this motion as concise as possible. Defendant Hoge's Reply to

    Plaintiffs Oppositions (ECF No. 56) ("Reply") is similarly incorporated as well. To the

    extent that the allegations of the FAC are carried over to the SAC, the reasoning offered

    for dismissal in MTDI and Reply still apply.

    The Second, Sixth, and second Seventh IClaims for Relief in the SAC do not name

    Mr. Hoge and should be dismissed with respect to him.

    Plaintiff attempts to raise other allegations against Mr. Hoge in the SAC. These

    new allegations are discussed below.

    Finally, throughout the course of the instant lawsuit, Plaintiff has continued to

    disobey the Federal Rules of Civil Procedure. The violations have not been the occasional

    slip ups of an inexperienced pro se litigant, and they have had the effect of prejudicing the

    ability of Mr. Hoge to conduct his defense of this suit. Such purposeful violations of the

    1 There are two Seventh Claims for Relief in the SAC.

    2

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    Rules should be grounds for dismissal under Fed. R. Civ. P. 41(b).

    A. DISMISSAL UNDER FED. R. CIV. P. 12(b)(6)

    1. Plaintiff's Statement of "Facts"

    Paragraph 76 of the SAC contains allegations that are conclusory at best and

    simply false in some instances. Plaintiff states that Mr. Hoge "stalked him", but he does

    not allege a particular time when or place where such stalking might have occurred. In

    the same paragraph Plaintiff states that Mr. Hoge "constantly" publishes photos of "shots

    at the shooting range" and that Mr. Roge has stated that he will not hesitate to use a

    weapon against Plaintiff. Plaintiff does not cite any particular instance of such a

    statement by Mr. Hoge. Further, he claims that Mr. Hoge "attacks" anyone who questions

    his conduct and that a "reporter" has received death threats after writing about Mr. Hoge.

    Again, he does not point to a specific instance of Mr. Hoge making such a threat. Indeed,

    any connection between such a threat, if it actually were made, and Mr. Hoge is purely

    conclusory.

    In paragraph 77 of the SAC Plaintiff says that Mr. Hoge has continued to defame

    him "after the filing of this Complaint." However, he does not allege any particular

    statement by Mr. Hoge that was defamatory.

    3

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    In paragraph 1432 of the SAC Plaintiff claims that Mr. Hoge has used a "false

    narrative" based on SWATting to raise money via his website. Plaintiff fails to allege a

    single instance of such fund raising.

    In paragraph 156 of the SAC Plaintiff asserts that Mr. Hoge incites his readers "to

    engage in vigilante action directed at Plaintiff in Maryland." Plaintiff is at least

    consistent in that he fails to allege any particular instance of Mr. Hoge making any

    related statement, let alone one that would be consider an incitement to vigilante action

    under Brandeburg v. Ohio, 395 U.S. 444 (1969).

    2. First Claim for Relief-RICO

    Plaintiffs SAC is awash with conclusory statements but does not properly allege

    that he suffered actual damages to his business or property as a result of Mr. Hoge's (or

    any other Defendant's) actions. Thus, Plaintiff lacks standing to sue under 18 U.S.C.

    S 1964(c)which requires that (1) the plaintiff must be a "person" (2) who sustains injury

    (3) to his "business or property" (4) by reason of a defendant's violation ofS 1962. To the

    extent that Plaintiff tries to state a claim, the non-specific damages he says he suffered

    are personal injuries not injury to his business or property. Plaintiffs conclusory

    statements simply do not establish a claim upon which relief can be granted.

    2 Or paragraph 144 in the marked up version. Beginning with paragraph 88, paragraph

    numbers in the marked up version of the SAC are offset by one from the clean version.

    4

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    In paragraph 186 of the SAC Plaintiff alleges that Mr. Hoge engaged in Retaliation

    Against a Witness or Victim in violation of 18 U.S.C. 1512 or 1513 by "the filing of false

    criminal charges, peace orders and frivolous civil suits against Plaintiff." First, Plaintiff

    does not plead his case with any particularity. He does not allege what criminal charge,

    peace order, or civil suit filed by Mr. Hoge was "false." Second, even if a particular action

    were identified, Plaintiff does not say how would it have violated either statute. What

    elements of which offenses are alleged? Third, Plaintiff does not allege any damages that

    he suffered at the hands of the mythical RICO enterprise. Any RICO Claim for Relief

    should be dismissed.

    3. Third Claim for Relief.-18 U.S.C. ~ 1985

    Paragraph 215 of the SAC alleges that Mr. Hoge was part of a conspiracy to deprive

    Plaintiff of his fundamental right to liberty. He neither alleges what Mr. Hoge might have

    done to deprive him of that right nor when Mr. Hoge might have done so.

    Paragraph 217 of the SAC alleges that Mr. Hoge was part of a conspiracy to deprive

    Plaintiff of his right to redress by "online gang activity, threats, intimidation, cyber

    bullying, attacks against his family, false narratives, and battery." Again, Plaintiff does

    not specify when or how Mr. Hoge engaged in online gang activity (or what online gang

    activity might be) or when or how M1'.Hoge threatened, intimidated, or bullied him. He

    5

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    has not described any attack, verbal or physical, by Mr. Hoge on any member of his family.

    He does not identifY any false tale narrated by Mr Hoge. He makes no assertion that Mr.

    Hoge ever battered him. He does not offer even a conclusory allegation of any act by Mr.

    Hoge.

    Furthermore, Plaintiff does not allege that there was any invidious race- or class-

    based bigotry involved or that there was some nexus with a federal election or proceeding.

    See Carpenters v. Scott, 463 U.S. 825 (1985). Plaintiff does not seem to understand that

    state court proceedings are not covered by this statute. Plaintiff offers no basis for a claim

    upon which relief can be granted under 18 U.S.C. S 1985. The Third Claim for Relief

    should be dismissed.

    4. Fourth Claim for Relief-Defamation

    As noted in MTDl, the only allegations in the FAC touching on defamation of

    Plaintiff by Mr. Hoge were outside of Maryland's one-year statute of/imitations. In

    paragraph 231 of the SAC Plaintiff attempts to get around the statute of limitations by

    amending his complaint with the words "[olver the past year." However, even if Plaintiff

    is allowed to move the defamation goal posts, he still has not cited any particular

    statement by Mr. Hoge which he alleges to be defamatory. Furthermore, as noted in

    MTDI ('1'1 32 - 34), Plaintiffs previous convictions for infamous crimes and other

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    reputational baggage render him defamation proof. Thus, Plaintiff has again failed to

    properly allege the elements of the tort of defamation, and the Fourth Claim of Relief

    should be dismissed.

    5. Fifth Claim for Relief-False Light Invasion of Privacy

    Plaintiff has failed to allege with any particularity what Mr. Hoge might have said

    or written that injured Plaintiff. He does not allege any particular false statement Mr.

    Hoge has made about him. Additionally, Plaintiffs false light claim has the same statute

    of limitations issues as his defamation claim, and he has not shown the Court any reason

    to turn away from the precedent ofSmith v. Esquire, Inc., 494 F. Supp. 967, 970 (D. Md.,

    1980). Thus, he has failed to properly allege the elements of this tort, and Fifth Claim for

    Relief should be dismissed.3

    6. First Seventh Claim for Relief-Interference with Prospective Economic

    Advantage

    In paragraphs 274 - 278 Plaintiff attempts of add a new cause of action with a

    threadbare recital of the elements of the tort of interference with prospective economic

    3Although it has nothing to do with a false light claim, Plaintiff has also attempted to

    allege that Mr. Hoge stalked him but does not specify when or where such stalking

    occurred.

    7

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    advantage. The elements are (1) intentional and willful acts; (2) calculated to cause

    damage to the plaintiffs in their lawful business; (3) that were done with the unlawful

    purpose to cause such damage and loss, without right or justifiable cause on the part of

    the defendants (which constitutes malice); and (4) with actual damage and loss resulting.

    Natural Design, Inc. v. The Rouse Co., 302 Md. 47,71 (lVId.1984). Plaintiff does not say

    what intentional and willful acts were done by Mr. Hoge or any other Defendant. He does

    not show that that any act was done with the intent to cause damage to Plaintiffs lawful

    business. He does not make any showing of malice. He does not specify what damages he

    suffered. Given that Plaintiff does not properly allege a single element of this tort, the

    First Seventh Claim for Relief should be dismissed.

    7. Eighth Claim for Relief-Intentional Inflection of Emotional Distress

    As with the FAC, the SAC does not allege any particular statement or writing by

    Mr. Hoge that might have caused such distress and anguish. Further, Plaintiff alleges no

    details of any treatment or counseling sought, expense incurred, or other economic loss

    caused by any alleged distress or anguish. Thus, Plaintiff has failed to properly allege any

    specific damages related to emotional distress or suffering, and the Eight Claim for Relief

    should be dismissed.

    8

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    8. Ninth Claim for Relief-Conspiracy to Commit State Law Torts

    Plaintiff attempts to allege civil conspiracy as a separate cause of action. This is

    contrary to law.

    Consistent with this principle, it was sometimes said that a conspiracy

    claim was not an independent cause of action, but was only the

    mechanism for subjecting co-conspirators to liability when one of their

    member committed a tortious act. Royster v. Baher, 365 S.W.2d 496, 499,

    500 (Mo. 1963) ("[A]nalleged conspiracy by or agreement between thedefendants is not of itself actionable. Some wrongful act to the plaintiffs

    damage must have been done by one or more of the defendants, and the

    fact of a conspiracy merely bears on the liability of the various defendants

    as joint tortfeasors"). SeeHalberstam v. Welch,705 F.2d 472, 479 (CADC

    1983) ("Since liability for civil conspiracy depends on performance of some

    underlying tortious act, the conspiracy is not independently actionable;

    rather, it is a means for establishing vicarious liability for the underlying

    tort").

    Bech v. Prupis, et al., 529 U.S. 494, 503 (2000). Given that Plaintiff has not successfully

    alleged any underlying tort, the Ninth Claim for Relief should be dismissed.

    9. Punitive Damages

    Plaintiff has not properly alleged any claim for which compensatory damages might

    be awarded. Therefore, he is not entitled to any award of punitive damages.

    9

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    B. DISMISSAL UNDER FED. R. CIV. P. 41(b)

    Throughout his prosecution of the instant lawsuit, Plaintiff has violated the Federal

    Rules of Civil Procedure. While it is true that Plaintiff is apro se litigant and is not a

    lawyer, he is not inexperienced. As Judge Titus recently noted in a copyright case filed by

    Plaintiff against one of the Defendants in the instant lawsuit4, "The Plaintiff is no

    stranger to the processes of this Court." Plaintiffs continuing violations are not occasional

    stumbles. Rather, they are the calculated actions of a knowledgable litigant who has tried

    to game the system.

    Plaintiff has not denied either of the following allegations:

    1. The copies of the purported FAC which Plaintiff served on Defendants

    Hoge, Walker, and Twitchy were not the same as the FAC filed with the Court.

    2. Plaintiff served a forged summons on Twitchy.

    Those are just two of the many bad faith violations of the Rules committed by Plaintiff.

    In fact, Plaintiff has actually admitted forging the summons sent to Twitchy",

    claiming that he was merely trying to replace one of the "21 summons" sent to Plaintiff by

    the Clerk of the Court. However, ECF No. 1-2 shows that Plaintiff only submitted 19

    4 Judge Titus references numerous civil and criminal matters, all involving and many

    instigated by Plaintiff ,in his Memorandum Order (ECF No. 12) inKimberlin v.

    KimberlinunmGslled, Case No. 8:13.CV.02580-RWT (D. Md. 2014).

    5 See Plaintiffs Response to February 21, 2014 Order to Show Cause Re Twitchy

    Summons, (ECF No. 102),'1 3.

    10

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    proposed summonses to the Court. ECF NO.4 shows that the 18 of the 19 were issued in

    October, 2013. The unissued summons was addressed to Twitchy in Colorado Springs,

    Colorado. It was not addressed clo Salem Communications in California as the forged

    summons was. It could not have been. Salem did not buy Twitchy until December, 2013,

    and there was no public announcement of the purchase until the deal was consummated.

    Plaintiffs explanation of the forged summons is not consistent with the rest of the record

    in the instant lawsuit. The Court might do well to be skeptical of a convicted perjurer and

    document forger's explanation of yet another forgery.

    Items 1 and 2 above may present the Court with a novel challenge. Mr. Hoge's

    research has not found any precedent in the case law of any jurisdiction dealing with

    forged versions of court documents being sent through the U. S. Mail for the purpose of

    deceiving other parties. However, the Court should consider such behavior as serious

    violations of Fed R. Civ. P. 4 and 5, and a severe sanction-at least dismissal with

    prejudice-is surely warranted.

    Nor are those the only issues with respect to Rule 5. For example, Plaintiff has also

    not denied that he failed to serve Mr. Hoge with a copy of a motion, prejudicing Mr. Hoge's

    ability to be heard in opposition before the Court ruled.

    Furthermore, the record of the instant lawsuit is full of Plaintiffs violations of Fed.

    R. Civ. P. 10 (Forms of Pleadings), 11 (Signature and Representations to the Court), and

    15 (Amendment of Pleadings). In the case of Plaintiffs Motion for Second Amended

    11

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    Complaint (ECF No. 100), Plaintiff also ignored the requirements of L.R. 103.6 by failing

    to place the name of an added defendant (Twitchy) in boldface. This lack of proper

    markup continues throughout the SAC, from the caption to the prayer for relief with its

    unflagged increase from $1,000,000 to $2,000,000 in damages and other new relief sought.

    The certificate of service filed with the motion says that Mr. Hoge was served with a copy

    by mail on 7 March, but the envelope he received was postmarked "MAR 10, 14." Also,

    while the envelope contained unsigned clean and "marked up" copies of the SAC, no copy

    of the motion was enclosed.

    The instant lawsuit should be dismissed because of Plaintiffs multiple bad faith

    failures to obey the Federal Rules of Civil Procedure.

    CONCLUSION

    WHEREFORE, Defendant Hoge asks this Honorable Court to dismiss with prejudice

    the instant lawsuit for Plaintiffs failure to state a claim upon which relief can be granted

    or, alternatively, for Plaintiffs failure to obey the Federal Rules of Civil Procedure and to

    order the following relief:

    1. That Mr. Hoge shall have his reasonable expenses as determined by the Court,

    2. That Plaintiff shall pay said expenses to the Clerk of the Court for disbursement

    to Mr. Hoge,

    12

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    3. That Plaintiff shall have nothing,

    4. That Plaintiff shall be enjoined from filing any pro se civil litigation in any court

    of The United States without prior approval from a Magistrate Judge or Special Master,

    and

    5. That Mr. Hoge shall have such other relief as the Court may deem just and

    proper.

    Date: 13 March, 2014 Respectfully submitted,

    William John Joseph Hoge, III, pro se

    20 Ridge Road

    Westminster, Maryland 21157

    (410) 596-2854

    [email protected]

    Verification

    \\\\\11 1111""",\\\\ 'f\E. W ~ 111,.1.

    ",~",\ "'!'1.L>.~/~

    ~~~ ..~~~'{PU6?:.~\.! ./~MY "'\ ~

    ~ ( COMMISSION i E~ \ EXPIRES ! ;;~ ... MAV25,2015/ ~

    ~ 0...... ..,~fY~"", 0' ~:~ ,,'1"''A O ",

    "'1: or. 0 C",'''111 lL \\\\

    11""""11\1\\\'

    /t-utu t a~j(print name of notary public)

    NOTARY PUBLIC

    My Commission expires on:

    I, William John Joseph Hoge, III, state under penalty of perjury that the foregoing

    information is true and correct.

    13

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    Certificate of Service

    Icertify that on the 13th day of March, 2014, I served copies of this Motion to Dismiss on

    the following parties via U. S. Mail or by email as noted:

    Brett Kimberlin at 8100 Beech Tree Road, Bethesda, Maryland 20817

    The American Spectator at 1611 North Kent Street, Suite 901, Arlington, Virginia 22209

    Michael Smith, Esq., for Michelle Malkin and Twitchy at [email protected]

    Mark Bailen, Esq., for Erick Erickson, RedState, Simon & Schuster, Glen Beck,

    Mercury Radio Arts, The Blaze, and James O'Keefe at [email protected]

    Caitlin Parry Contestable, Esq., for DB Capitol Strategies and Dan Backer at

    [email protected]

    Linda S. Mericle, Esq., for The Franklin Center at [email protected]

    Ron Coleman, Esq., for John Patrick Frey and Mandy Nagy at [email protected]

    Paul Alan Levy, Esq., for Ace of Spades at [email protected]

    Aaron Walker, Esq., at [email protected]

    Breitbart.com at [email protected] and [email protected]

    Robert Stacy McCain at [email protected]

    Ali Akbar for himself and the National Bloggers Club at [email protected]g

    Kimberlin Unmasked at [email protected]

    Iam unable to serve Lynn Thomas because that person's address is not yet known to me.

    WillI ohn J seph Hoge, III,pro se

    20 Ridge Road

    Westminster, Maryland 21157

    (410) 596.2854

    [email protected]

    14

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