ECF 254 Redacted

8/9/2019 ECF 254 Redacted

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"1\ EOD1Snill'\ COU:\T

IN THE UNITED STATES DISTRICT COU~JSf\\CT OF t-d\RYlAHDFOR THE DISTRICT OF MARYLAND 33

Southem Division zn \5JMl 23 PM 3:

C' (~."S OFFICE~T C,'p,:.Elm-LT ~

BY (JU DEPUTYBRETT KIMBERLIN,

Plaintiff

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v. CASE NO.: G.IH-I3-3059

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NATIONAL BLOGGERS CLUB, ET AL.

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DEFENDANT MCCAIN'S OPPOSITION TO I)LAINTIFF'S MOTION FOR DEFAULT

(ECF247)

COMES NOW Defendant Robert Stacy McCain for the sole purpose of filing this

opposition, without waiving any rights of jurisdiction, notice, process, service of process, or

venue, and prays that court deny Plaintiff's motion for default, and states the following:

I. DEFAULT SHOULD BE DENIED BECAUSE PLAINTIFF HAS NOT

SUBMITTED CREDIBLE PROOF OF SERVICE

I. A plaintiff bears the burden of proving, by a preponderance of credible evidence, that!

service is adequate. SeeAlmonte v. Suffolk County, 2012 U.S. Dis!. LEXIS 69465

(E.D.N.Y.2012).

2. Plaintiff has falsely stated in a letter motion for default (ECF 247) that "it was served on

[me] on or about June 25, 2014."

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3. As I informed this court on Aug. 7,2014, Plaintiff had not properly served me with the

Second Amended Complaint: "So far as I can tell, this [i.e., proper service, in compliance

with this court's Letter Order ECF 133] hasn't happened yet and, as I understand the

rules, my response is due two weeks after he obeys this court's order to serve me." (ECF

179) Unlike in his Report on Service (ECF 27), Plaintiff hasn't even bothered to provide

a bad forgery of such alleged service. He simply wants this court to take him at his word.

4. Plaintiff is not trustworthy. Among the several crimes of which he has been convicted,

the first was for perjury. See United States v. Kimberlin, 805 F. 2d 210,232 (7th Cir.

1986). He also has convictions for forging documents bearing insignia of the U.S.

Government; he attempted to eat the evidence when caught. /d. at 228. Plaintiff altered

certified mail "green cards" provided as proof of service in the related case of Kimberlin

v. Walker. et a/.. No. 380966V (Md. Mont. Co. Cir. Ct. 2013), in which I was a co-

defendant. See Twitchy/Malkin's "Supplemental Memorandum," ECF 124. In this casc,

{

Plaintiffforged a summons to Twitchy and only at length admitted he had done so,

absurdly claiming he didn't know he wasn't supposed to alter court documents. (See

Plaintiffs "Verified Response," ECF 102.1) This court has itself said Plaintiffs forgery

was "clearly improper" (ECF 122, at 3); that Plaintiff had taken the language of the Case

Management Order (CMO) "out of context" and "in violation of the CMO," (ECF 168, at

3-4); and that Plaintiff has a "checkered past with representations to the Court," (id. at fn.

2).

I

1 Recently, Virginia Delegate Joseph Morrissey was charged with a similar forgery of court

documents. See, Jenna Portman and Rachel Weiner,"Virginia Lawmaker Joseph D. Morrissey

Faces New Criminal Charges," Washington Post, January 21, 2015.

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5. As alluded to above, Mr. Kimberlin has also forged documents related to service on me.. I

On December 30, 2013, this court required Plaintiff to provide a detailed report on

service of process. ECF 21. On, January 9, 2014, Plaintiff filed his "Plaintiff's Status

Report Re Service of Complaint" purporting to provide proof of service. ECF 27. Page 3

of Exhibit E to that filing was a document that shouldn't exist. Plaintiff claimed it was

the image of a letter he attempted to send by certified mail, restricted delivery, but the

postage on it was only $1.25. In 2013, it cost $5.65, in addition to the normal cost of first

class postage, in order to mail a package certified mail. Given Plaintiffs prior

misconduct, the likely explanation is that this "proof' of service was another forgery

Plaintiff is attempting to impose on this court.

6. Even Plaintiff's sworn statement in ECF 247 does not make out a proper allegation of

1

service. He does not state how he allegedly served me. He simply asserts this without any

details or extrinsic proof. The convicted forger and perjurer thus demands that this court

trust him. This court should not.

7. When 1moved from my West Virginia residence in 2014, [ ensured that any mail

addressed to me would be forwarded to my new address. No one has reported any

difficulty mailing me, and bills have arrived on time. My Aug. 7, 2014, letter to this court

(ECF 179) asked that further correspondence in this case be sent to me in care of my co-

defendant John Hoge. Because some Defendants in this case have allegedly been

!"SWATted," and because 1 have young children, 1 expect this court can understand why 1

would not wish to make my new address a matter of public record.

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8. To my knowledge and belief, I have never subsequently received proper service of the

Second Amended Complaint following this court's decision to allow Mr. Kimberlin's

amendment to be entered into the docket. The extreme irregularity of Mr. Kimberlin's

proceedings as a pro se Plaintiff(as noted by various co-defendants, e.g. ECF 140 and

ECF 184) has imposed an unjust burden on me, as apro se defendant. Plaintiffs conduct

would seem to be motivated by bad faith, although he pleads that he is merely ignorant

and/or incompetent. At any rate, Plaintiffs extraordinary misconduct has made it difficult

for me to understand what my own legal obligations are in this matter. Therefore I sought

this court's guidance in August 2014 (ECF 179), a request to which the court did not

respond, leaving me to surmise that (a) "the clock had not started ticking" on my

response to the Second Amended Complaint; (b) Plaintiff was duly notified of his failure

to effect service; and (c) the court would notify me in a timely manner if it determined

that I was under any obligation to further respond to Plaintiffs additional allegations in

the Second Amended complaint.

9. Now, more than five months after my letter to this court (ECF 179), Plaintiff dares assert

that he has properly served me, and requests that the court find me in default.

10. In evidence, I ask that this court consider Exhibits A and B, which are the Declarations of

my co-defendants Walker and Hoge. In each, they state that Plaintiff has not served them

with the Second Amended Complaint either and they note persistent irregularities with

Plaintiff when it comes to service.

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11. Since there is no credible evidence of service of process, I ask this court to deny

Plaintiffs motion for default. At this point, Plaintiff's word is not credible evidence of

anything.

12. It seems to me that this court would be correct to surmise that the purpose of

Plaintiffs improper request for default is part of Mr. Kimberlin's avowed intention to

employ abusive legal proceedings as a means to harass the defendants. Please see

attached Exhibit C ("Brett Kimberlin Threatens to Sue Me; UPDATED with Second E-

Mail from Kimberlin," Patterico.com, Oct. 11,2010) in which Mr. Kimberlin wrote in an

email to my co-defendant Frey: "I have filed over a hundred lawsuits and another one

will be no sweat for me. On the other hand, it will cost you a lot of time and money." His

fulfillment ofthat threat is now made evident in the present case, which has imposed

upon the several defendants the cost of attorneys, to say nothing of the waste of time, to

respond to a nuisance lawsuit that has been demonstrated to be defective as a matter of

law, and which I know to be based on false allegations as to the facts. In order to avoid

burdening this court with unnecessary filings (in compliance with the spirit of the Case

Management Order, ECF 97), I have made only two previous communications in this

case: A very brief and simple motion to dismiss the First Amended Complaint (ECF 50);

and my letter of Aug. 7, 2014 (ECF 179). Evidently, Plaintiff felt that he had not yet

wasted enough of my time and, in order to compel my further attention to his nuisance

litigation, he belatedly filed this improper motion for default.

13. As noted above, and also as mentioned in my letter of Aug. 7, 2014, my previous motion

i

to dismiss was brief and simple, and "merely adopted the arguments made by several co-

defendants in their separate Motions to Dismiss" (ECF 179). While 1 waive no rights in

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making this reply to Plaintiff's improper motion for default, and have no intention now toI

argue the numerous faults of Plaintiffs claims against me, I do ask that the court take

into consideration the extraordinarily improbable nature of the fundamental accusation in

Mr. Kimberlin's complaint. Plaintiff would have this court believe that I, an award.

winning journalist who has earned his living in the news business since 1986, suddenly

decided in 2012 to embark on a career of making false accusations against him,

conspiring with others in a racketeering enterprise, etc. Furthermore, Plaintiff asks this

court to believe that I, having never before been accused oflibel during a journalism

career spanning more than 25 years, would have chosen as the target of my new career in

defamation a convicted criminal of notorious repute. This court may draw its own

conclusions, but the reality of this case seems obvious to me: Brett Kimberlin is not only

a liar, but an exceptionally incompetent liar.

II. DEFAULT SHOULD BE DENIED BECAUSE PLAINTIFF HAS NOT

SUBMITTED AN AFFIDAVIT AS PROOF OF SERVICE

14. Additionally, Plaintiff has filed the wrong form of proof of service. Federal Rules of

Civil Procedure 4(1)(1) states that "[elxc~pt for service by a United States marshal or

deputy marshal, proof must be by the server's affidavit." Plaintiff has provided no such

affidavit. He has a provided a letter to t~is court, which has not been presented to a

notary. Therefore, it is at best a declaration and not an affidavit. This is an additional

reason to deny the motion for default.

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CONCLUSION

15. For all of these reasons, this court should deny Plaintiffs most recent fraud on the

Court-attempting to obtain a default without serving me in the manner required by the

Rules. Plaintiff's motion for default should be denied.

16. Further, this court should consider referral to the u.s. Attorney for peIjury (since his

motion for default is verified and sworn under penalty of peIjury to be true) and,

possibly, mail fraud charges.

17. Finally, this court should provide me all other relief that is appropriate.

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Friday. January 23, IS Respectfully submitted,

Robert Stacy Mc

C/o W. J. 1. Hoge

20 Ridge Road,

Westminster, MD 21157

(240) 217-5249

[email protected]

(no fax)

VERIFICATION

I, Robert Stacy McCain, declare under penalty of perjury under the laws of the United

States of America, that the foregoing information is ue and corre that I exhibits a true

and correct copies of the originals. I

Dated: t /2.3/20 ]5I 7

CERTIFICATE OF SERVICE

I certify that on Friday, January 23, 2015, I served copies of this document on by mail on Mr.Kimberlin and by electronic service on all Defendants.

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mailto:[email protected]:[email protected]


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EXHIBIT A

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

SOlltllem Division

*

BRETT KIMBERLIN,

NATIONAL BLOGGERS CLUB, et aI.,

Plaintiff

v.

Defendants

*****

CASE NO.: GJH-13-3059

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*

*

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* I

* *******

DECLARATION OF AARON J. WALKER, ESQ.

1. My name is Aaron J. Walker, Esq., and I make these statements based upon my own

personal knowledge. I am an attorney in good standing in Virginia and Washington, D.C. [am over 1

years of age, and if called to do so, I am competent to testify that the contents of this declaration ar

accurate and true.

2. When this Court accepted Brett Kimberlin's proposed Amendment on June 24, 2012, thi

court ordered Mr. Kimberlin to serve the Second Amended Complaint upon the Defendants.

3. I have not, since that date, received a copy of the Second Amended Complaint. I hav

remained at the same address [ have always lived at since Mr. Kimberlin first started his campaign t

silence me in December of2011: he has simply failed to successfully deliver a copy of it to my home.

have chosen not to make an issue of this because I hoped in vain that by responding earlier than later

the ease might be dismissed by October. But, in fact, because of his failure of service, I do not believe

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was ever technically required to file an answer or motion to dismiss In relationship to the Second

Amended Complaint.

4. This is a common pattern throughout the more than three years of dealing with Mr

Kimberlin's litigation. Besides the outright forgeries Ihave witnessed or Mr. Kimberlin has admitted to

his certificates of service almost never reflect the actual date on which documents are mailed. He often

waits at least a day to mail it, according to markings set by the post office and indeed, often sometimes

waits as long as a week before mailing it. Sometimes, Inever receive service at all. For instance, Ihave

literally never received from Mr. Kimberlin a copy of any the letters or motions filed in related to hi

pursuit of the identity of the non-party "Ace" of the blog "Ace of Spades" since December, despite Mr

Kimberlin often assuring this Court that he had sent it to me.

5. No other person or entity has reported any difficulty sending mail to me, and bills arrive

on time. Simply put, Mr. Kimberlin is the only one who seems to have trouble mailing anything to me

6. To sum up, Inever received a copy of Plaintiffs Second Amended Complaint after June

24, 2014. And based on what I have laid out and observed, Ibelieve he simply he never mailed it

However, the Court can read the evidence for itself and draw its own conclusion.

2

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1 declare under penalty of perjury under the laws of the United States of America that the

forgoing is true and correct to the best of my knowledge.

Executed on Friday, January 23, 2015 in Manassas, Virginia.

Aaron J. Walker, Esq.

3

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EXHIBITB

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Southern Division

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BRETT KIMBERLIN,

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Plaintiff

*

v.

NATIONAL BLOGGERS CLUB, et aI.,

Defendants

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*

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CASE NO.: GJH-13-3059

* * * * * * * * * * * * * * *

DECLARATION OF WILLIAM JOHN JOSEPH HOGE III

I. My name is William John Joseph Hoge III, and I make these statements based upon my

own personal knowledge. I am over 18 years of age, and if called to do so, I am competent to testilY

that the contents of this declaration are accurate and true.

2. I have not received a copy of Plaintiffs Second Amended Complaint since this Court's

letter order of June 24, 2012 accepting it and ordering Mr. Kimberlin to serve it on me and the other

defendants. I have remained at the same address throughout this litigation, but I have not received it.

See my Motion to Dismiss the Second Amended Complaint, ECF 149, '\I J.

3. This has been a recurring problem with Mr. Kimberlin. I became aware of the instant

lawsuit via chatter on the Internet, and my knowledge was confirmed when Plaintiff personally handed

me what appeared to be a draft copy of the original complaint (ECF I). Later, I received by mail a copy

of what alleged to be the First Amended Complaint (ECF 4). However, that document was not identical

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with the First Amended Complaint found on PACER. See my Motion to Dismiss the Amended

Complaint, ECF 5, at 1. I have never received a copy the Second Amended Complaint (ECF 135) from

Plaintiff.

4. No other person or entity has reported any difficulty sending mail to me, and bills arrive

on time. Mr. Kimberlin is the only one who seems to have trouble mailing anything to me.

5. To sum up, I never received a copy of Plaintiffs Second Amended Complaint after June

24,2014. And based on the facts above, it would appear to be because he never mailed it.

I declare under penalty of perjury under the laws of the United States of America that the

forgoing is true and correct to the best of my knowledge.I

Executed on Thursday, January 22, 2015 in We~tminster, Maryland.

2

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EXHIBITC

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Patterico's Pontifications Brett Kimberlin Threatens to Sue Me; UPDATED with Secon ... Page 1 of 41

10/11/2010

Brett Kimberlin Tbreatens to Sue Me; UPDATED with Second E-Mail from Kimberlin

Filed under: Gcncral- Patterico@ 8: 16 pm

Just got this e-mail:

To Patterico:

Please take this email as an intent to sue you for your Oct 11,2010 post on Patterico.com which has defamed

and libeled me. I have just sued Socrates on which you rely for cyber stalking, defamation, libel, violation of

privacy and interference with business. Socrates has been banned from many sites and forums for stalking

many people including me. He is under criminal investigation for cyber bullying and cyber stalking. Bycorresponding with him and relying on his defamatory, posts, you are conspiring with him and are just as

liable as he. '

Most of the things you write about in your post are false. If you have not removed the defamatory piece

within 24 hours, I will proceed with legal action against you and will serve notice on your service provider

that you are violating your terms of service by engaging in false, defamatory and abusive postings.

Let me assure you that you are not the first blog that has posted lies about me, yet each of them has removed

the offending posts once I alerted them to the facts about Socrates and his spreading of lies.

Also, please provide me with your full name and address.

Thank you,

Brett Kimberlin

My response:

My post is based primarily on a number of published news articles. I ask you to specifY anything in my post

that you claim is false. If I have made any mistakes I am always happy to correct them. But I won't take

down anything that is true. I

Stay tuned.

UPDATE: Kimberlin is referring to this post of mine in which I discussed his history as a convicted bomber, drug

smuggler, perjurer, and suspected murderer.

Ifhe actually sues, I'll let you know. I may need to establish a litigation fund. (Pay Pal buttons are on the right.)

UPDATE x2 9:21 p.m.: Just got this e-mail:

I appreciate the quick response. Most of the information in the post is false. As noted, I put up with Socrates'

shit for too long, and finally sued him, he has been polluting the Internet with lies about me and Brad and

now he gets a chance to defend it in a courtof law.

I have no beef with you and I never even heard of you or your blog until today when I got the Google alert. I

don't want to get into a pissing match with you. I have filed over a hundred lawsuits and another one will be

no sweat for me. On the other hand, it will cost you a lot of time and money and for what. I run a small non

profit that works to inspire youth to get involved. I have only met Brad Friedman one time in my life. Your

http://patterico.com/2010/1 0/11 /brett-kimberlin-threatens-to-sue-me/ 1/23/2015

!"#$ &'()*+,*-)-./*012 34+56$78 9.:*) ; -(?9)?(. @"A$ 9 4B )
http://patterico.com/2010/1http://patterico.com/2010/1


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Patterico's Pontifications Brett Kimberlin Threate~s to Sue Me; UPDATED with Secon ... Page 2 of 41

piece is a smear job against both me and Brad. I have gonen death threats all day today because of your and

Liberty Chick's post and I have to meet with the FBI tomorrow to give them copies. Have I ever posted

anything, anywhere? Have I ever said or done anything to you?

Maybe you have some beef with Brad, but going after me to get to him is really a shameful way of resolving

it. I can tell you for a fact that Brad Blog, Daily Kos, HuffPo, RawStory, and DU have all removed these type

of posts once they were advised that they were false and that Socrates was behind them. I really urge you to

pull the post and not post anything more about me.

Politics aside, I can see you are very passionate about what you do and I respect that. I would be happy to

meet you, shake hands, have a beer or soy chai, and just have a chat.

Thanks Pat.

Bren

My response:

Once again: my post was based primarily on published news articles. I repeat: please specifY anything in my

post that you claim is false. I will correct mistakes if there are any, but I will not remove the truth.

There are obviously a lot of other things I could say. But I am going to leave it at that for now.

Comments ( 186)

186 Responscs to "Brett Kimberlin Threatens to Suc Mc; UPDATED with Sccond E-Mail from

Kimbcrlin"

I. do NOT give this person your address he likes to blow stuff up

happy/eel (/9c1da) - 10/1112010@8:19pm

2. Full name and address? Creepy ....

Eric Blair (2e555/) - 10/11/20 I0 @ 8:19 pm

3. The Aaron Klein equivalent on domestic political, social and legal issues. That is the positioning.

Javerl_is_alive! (AKA ...) (4j78dO) -10/11/2010 Iii) 8:19 pm

4. Please give me your real name and address.

Hahahahaha!!!!!

goalsred (b20383! - 10/11120 I0 iii) 8:20 pm

5. Any fool can find an address. But my recommendation is get a PO Box for correspondence.

JaverUs_alive! (AKA ...) (4j78dO) - 10/11/2010 Ii" 8:21 pm

6. Please give me your name and address ... ?! Are you kidding me? From someone that has blown people up, and

killed people ?!?! I will tell you what, Bren Kimberlin, post your current address, and see if anyone comes to visit

you ...

JD (3399cO) - IO/lI/2010@8:22 pm

,

7. It is ironic, coming from someone with, um, such a flexible definition of"1Tee speech."

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ECF 254 Redacted

Documents

Transcript of ECF 254 Redacted