ECF 176 Redacted

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    UNITEDSTATESDISTRICTCOURT

    FORTHE DISTRICTOF MARYLAND

    GREENBELTDIVISION

    BRETTKIMBERLIN,

    Plaintiff,

    No. GLH13 3059v.t" ...,l l":::;

    ~~

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    .

    In order to evade service from United States courts. In other words, what

    counsel knows but fails to tell the Court is that a straight up Brodie motion

    would be an exercise in futility and a total waste oftime because a Brodie

    Order could not be served on the .nu provider. By failing to dislose this

    information to the Court, counsel is clearly attempting to mislead the Court

    to stall and spin everyone's wheels.

    4. It is for this reason that Plaintiff did not file such a frivolous motion. Instead,

    Plaintiff focused his service efforts on Ace of Spades' ties to United States

    based entities. Plaintiff learned that Ace of Spades uses Intermarkets Inc., to

    drive traffic to his website and Intermarkets is located in Reston, Virginia.

    Therefore, Intermarkets would likely have records as to the identity of Ace of

    Spades. Plaintiff also located the name ofthe registrant of his blog, who lives

    in California.

    5. Plaintiff made every proper attempt to learn the identity of Ace of Spades so

    he could serve him. He contacted the registrant of his website, Michelle Kerr,

    by phone and email but got no response. He sent her certified mail with.

    copies of the summons and complaint, but it was returned unclaimed. He

    then contacted Intermarkets and talked to the senior staff there but was told

    to get a subpoena. He then filed for a subpoena in the Alexandria, Virginia US

    District Court but was told by the judge there to get a subpoena from the

    Clerk of the instant Court. He then requested a subpoena with the clerk but

    was told to file a motion for subpoena with this Court, which he did. He

    served that motion on Ace of Spades by email and Ace of Spades then

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    retained Mr. Levy to represent him. These are all "good faith" efforts to serve

    Ace of Spades. In fact, Plaintiff cannot think of anything else he could have

    done to serve Ace of Spades.

    6. Plaintiff, in his Motion for Subpoena, cited Brodie for the proposition that

    Brodie requires notice to Ace of Spades and an opportunity to contest any

    subpoena. Plaintiff sent that motion to Ace of Spades by email and advised

    him of his right to respond.

    7. Counsel attempts to mislead the Court through use of the pronoun "her"

    throughout his pleadings. Ace of Spades is a male. Plaintiff has provided

    photos to the Court of Ace speaking at a conservative conference attended by

    thousands of people, and on Fox News, viewed by millions of people. These

    public appearances make crystal clear that Ace of Spades does not worry

    about remaining anonymous in front of friendly audiences.

    8. Maryland rules for alternative service allow the Court to use its discretion to

    fashion substituted service: "the court may order any other means of service

    that it deems appropriate in the circumstances and reasonably calculated to

    give actual notice." Rule 1-121(b). Substituted service on Mr. Levy

    constitutes "any other means" and gives "actual notice" to Ace of Spades.

    9. Plaintiff has another case pending in the Montgomery County Circuit Court

    where two defendants engaged in conduct similar to Ace of Spades. Plaintiff

    filed subpoenas and motions attempting to identify them. The defendants

    retained an attorney to fight the subpoenas and the Court held several

    hearings, each time finding that Plaintiff demonstrated a prima facie case of

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    defamation and met the Brodie standards. Despite this, counsel would not

    accept service and eventually withdrew from the case. Plaintiff then filed for

    alternative service and, on July 28, 2014, the Circuit Court Judge found that

    Plaintiff "made reasonable effort to serve the defendants and that service ...

    by electronic mail shall be considered effective service." See attached order.

    10. If this Court accepts Mr. Levy's argument that he cannot be ordered to accept

    service, this Court can order service by electronic mail, which Mr. Levy

    admits is read and received by Ace of Spades.

    11. Ace of Spades argues that the sky will fall ifhe is identified. This is without

    merit Allof the other Defendants in this case have been identified and

    hopefully served but the sky did not fall.(** Plaintiff sent all the other

    unserved Defendants the Complaint and Summons last week). Why should

    Ace of Spades, a United States citizen who uses a USbased company to drive

    traffic to his "obscene conservative blog." be granted immunity from service

    and suit simply because he hosted his defamatory blog on a foreign server?

    Clearly, he anticipated that his defamatory posts would generate legal action

    to redress defamation and false light, and that is why he hides and evades

    and argues that it is dangerous for him to come into court and defend his

    conduct like all the other defendants.

    12. Ace of Spades' argument about the First Amendment is specious and wholly

    without merit The First Amendment does not protect defamation or

    cyberbullying. Defamation is an actionable tort under Maryland law.

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    Anonymous bloggers do not get a grant of civil immunity simply by virtue of

    their anonymity.

    13.Ace of Spades is not indigent He spends literally thousands of dollars a year

    on Intermarkets to drive traffic to his website, and his website is considered

    one of the top conservative blogs in the country. In fact, Ace of Spades "has

    won 'Webbies' for 'Best Conservative Blog' (2005 and 2007), Blog of the Year

    at the 2013 CPAC,and has also won accolades as the 'Most Obscene

    Conservative Blog.'''http://en.wikipedia.org/wiki/Ace_oCSpades_HQ

    14. Ace of Spades chose to create his "obscene" blog and defame people, and

    therefore he can come into court and defend himself through paid or pro

    bono counsel, or he can represent himself as several other defendants are

    currently doing.

    15. Contrary to counsel's argument, Ace of Spades engaged in wholesale and per

    se defamation against Plaintiff, not once, but multiple times. See Complaint

    at 30-32. For example, he falsely stated, imputed and published in five

    articles that Plaintiff committed the crime of "swattings," that he was

    involved with "terrorism" and "murder," that he was trying to "kill" people,

    that he is a "thug" and "nefarious," that he is running "scams," that he is

    engaged in "lawless viglilantism," that he is involved with "ongoing crimes,"

    that he is engaged in "alarming harassments," that he is a "menace," that he is

    a "one-man crime wave," that he is "escalating" his criminal activities, that he

    is engaged in a "crime in progress," that he is "abusing and corrupting" the

    justice system, that his life is one of"escalat[ingJ risk taking," that he is "a

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    http://en.wikipedia.org/wiki/Ace_oCSpades_HQhttp://en.wikipedia.org/wiki/Ace_oCSpades_HQ
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    dangerous man," that he is engaged in "digital" and "real life terrorism," that

    he is a "malicious threat to society," and that he is engaged in "lawfare." Not

    only did Ace of Spades make these defamatory statements and publications,

    he demanded action by others, including Congress, to stop Plaintiff through

    various actions including passing a bill of attainder. His publications were a

    call to arms against Plaintiff based on defamatory hysteria-either stop

    Plaintiff or terrible things will happen. Ace of Spades was using his

    defamatory statements to destroy Plaintiff by any means.

    16. And yet, with all of the above per se defamation falsely accusing Plaintiff of

    the most heinous crimes, Ace of Spades has the audacity, with a straight face

    no less, to file pleadings in this Court arguing that the Ace has immunity

    under the First AmendmenUo defame Plaintiff. Fortunately, Maryland law

    protects its citizens from such defamatory publications.

    Wherefore, for all the above reasons, this Court should deny Ace of Spades'

    motion in opposition and uphold its order for substituted service.

    Respectfully submi

    Brett Kimberlin8100 Beech Tree Rd

    Bethesda, [email protected]

    (301) 320 5921

    Certification of Service

    Plaintiff certifies that he has served this motion on the defendants

    their attorneys by email and/or regular mail this 4th d Y

    Brett Kimberlin

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    mailto:[email protected]:[email protected]
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    " .

    IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY, MARYLAND

    BRETTKIMBERLIN,

    Plaintiff

    v.

    AARON WALKER, et ai,

    Defendants

    CASE NUMBER: 380966-V

    ORDER GRANTING ALTERNATIVE SERVICE FOR DEFENDANTS

    lYNN THOMAS AND PETERMALONE

    In co.nsideration of Plaintiff's Motion for Alternative Service, i t is this ~ of

    2014, hereby

    ORDERED, that pursuant to Maryland Rule2-121(c), Plaintiff has made reasonable efforts to

    serve Defendants Lynn Thomas and Peter Malone by certified mail, restricted delivery to their last

    known address, that service pursuant to Maryland Rule 2-121(b) is impracticable. It is further

    ORDERED, that pursuant to Maryland Rule 2-121(d), service made as to Defendants Lynn

    Thomas and Peter Malone by electronic mail shall be considered effective service.

    ounty, Maryland

    .ENTERED"

    JUL 282014

    Clerk of the Circuit CourtMontgomery County, Md.

    '....':.. '

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