Brett Kimberlin,

Plaintiff,

v.

National Bloggers Club, et al.
Defendants.





DEFENDANT HOGES MOTION TO DISMISS PLAINTIFFS
SECOND AMENDED COMPLAINT (ECF NO. 135)

COMES NOW Defendant William Hoge and moves this Court to dismiss with
prejudice Plaintiffs Second Amended Complaint (ECF No. 135) pursuant to Fed. R. Civ. P.
12(b)(1) and 12(b)(6); Fed. R. Civ. P 41(b); Md. Cts. & Jud. P. Code Ann. 5-807 (Anti-
SLAPP Statute); and the Courts inherent authority. Mr. Hoge offers the attached
Memorandum in support of his motion.
WHEREFORE, Defendant Hoge asks this Honorable Court to dismiss with prejudice
the instant suit pursuant to its inherent authority and Fed. R. Civ. P. 12(b)(1), 12(b)(6),
and/or 41(b) or, alternatively, Md. Cts. & Jud. P. 5-807 and to enter an order
i.) That Plaintiff shall have nothing,
ii.) That Plaintiff shall be enjoined from filing any further lawsuits against any of
the Defendants in the instant lawsuit without pre-clearance by a Magistrate Judge,
1

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION


Case No. GJH-13-CV-3059
TABLE OF CONTENTS

INDEX OF AUTHORITIES ... iii

THIS MOTION IS TIMELY FILED ... 1

THE COURT LACKS JURISDICTION .. 1

PLAINTIFFS SECOND AMENDED COMPLAINT (SAC) IS NOT WELL-PLEADED . 1

PLAINTIFF FAILS TO STATE A RICO CLAIM FOR WHICH RELIEF CAN BE GRANTED . 3

There is No RICO Enterprise . 4

Plaintiff Has Failed to Properly Allege Mail (18 U.S.C. 1341) or Wire Fraud
(18 U.S.C. 1343) . 5

Plaintiff Has Failed to Properly Allege Obstruction of Justice
(18 U.S.C. 1503) .... 6

Plaintiff Has Failed to Properly Allege Retaliation Against a Victim or
Witness (18 U.S.C. 1512 and 1513) . 7

Plaintiff Has Failed to Properly Allege Extortion (18 U.S.C. 1951) 11

Plaintiff Has Failed to Properly Allege Money Laundering (18 U.S.C. 1957) .. 12

Plaintiff Has Not Alleged Injury to Himself by the Mythical RICO
Enterprise . 13

Plaintiffs RICO-Base Claim Fails .. 15

PLAINTIFF FAILS TO STATE A CLAIM FOR VIOLATION OF 42 U.S.C. 1983 . 15

PLAINTIFF FAILS TO STATE A CLAIM FOR VIOLATION OF 42 U.S.C. 1985 . 17

PLAINTIFF FAILS TO STATE A CLAIM FOR DEFAMATION ... 18

PLAINTIFF FAILS TO STATE A CLAIM FOR FALSE LIGHT INVASION OF PRIVACY .. 21

i
PLAINTIFF DOES NOT ALLEGE INTERFERENCE WITH BUSINESS RELATIONS BY MR. HOGE .. 22

PLAINTIFF FAILS TO STATE A CLAIM FOR INTERFERENCE WITH ECONOMIC ADVANTAGE . 22

PLAINTIFF DOES NOT ALLEGE BATTERY BY MR. HOGE ... 23

PLAINTIFF IS ESTOPPED FROM ANY CLAIM OF INTENTIONAL INFLICTION OF EMOTIONAL
DISTRESS 23

CONSPIRACY IS NOT A TORT .. 25

PLAINTIFF IS NOT ENTITLED TO PUNITIVE DAMAGES ...... 26

PLAINTIFF HAS NOT SERVED THE SAC ON MR. HOGE . 26

THE SAC SHOULD BE DISMISSED PURSUANT TO FED R. CIV. P 41(b) .. 27

PLAINTIFF IS A VEXATIOUS LITIGANT .. 28

DISMISSAL SHOULD BE WITH PREJUDICE .. 30

INDEX OF EXHIBITS . 32


ii
INDEX OF AUTHORITIES


Cases Pertaining to Plaintiff Kimberlin

Kimberlin v. Allen,
Case No. 339254V, (Md. Cir.Ct. Montgomery Co. 2011) .. 9

Kimberlin v. Dewalt,
12 F.Supp.2d 487 (D.Md. 1998) .... 14, 19

Kimberlin v. Quinlan,
6 F.3d 789, 791 (D.C. Cir. 1999) .. 19

Kimberlin v. U.S. Dept. of Justice,
318 F.3d 228 (D.C. Cir. 2003) .. 19

Kimberlin v. Walker,
Case No. 0601SP005392012 (Md. D.Ct. 2012) ....... 9

Kimberlin v. Walker, et al.,
Case No. 380966V (Md. Cir.Ct. Montgomery County) ..... 23, 24, 29

U.S. v. Kimberlin,
483 F.Supp. 350 (S.D.Ind. 1979) ...... 17, 18

U.S. v. Kimberlin,
527 F.Supp. 1010 (S.D.Ind. 1981) . 18

U.S. v. Kimberlin,
805 F.2d 210 (7th Cir. 1986) .... 20, 27


Other Cases

Ashcroft v. Iqbal,
556 U.S. 662 (2009) .. 2, 3, 4

Bech v. Prupis, et al.,
529 U.S. 494 (2000) ... 25,26
iii
Cases (cont.)

Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007) .. 2, 3, 8

Benavidez v. Gunnell,
722 F.2d 615 (10th Cir.1983 . 16

Boyle v. U.S.,
556 U.S. 938, 129 S.Ct. 2237 (2009) ..... 4, 5

Byington v. NBRS Fin. Bank,
903 F.Supp. 2d 342, 352-353 (D.Md. 2012) ... 21

Carpenters v. Scott,
463 U.S. 825 (1985) .... 17

C.B.H. Resources v. Mars Forging Co.,
98 F.R.D. 564, (W.D. Pa. 1983) 27

Chambers v. Nasco, Inc.,
501 U.S. 32 (1991) .. 28

Cromer v. Kraft Foods,
390 F.3d 812 (4th Cir. 2004) .... 29

Dahlgren v. First Nat'l Bank of Holdrege,
533 F.3d 681 (8th Cir. 2008) .... 14

Daniel v. Ferguson,
839 F.2d 1124 (5th Cir.1988) 16

Deck v. Engineered Laminates,
349 F.3d 1253 (10th Cir., 2003) ... 12

Exxon Mobil Corp. v. Albright,
433 Md. 303, 71 A.3d 30 (2013) ... 25

Francis, et al. v. Giacomelli, et al.,
588 F.3d 186 (4th Cir. 2009) ..... 3
iv
Cases (cont.)

Grassick v. Holder,
Case No. 09-CV-587-PJB-LM, EFC No. 86 (D.R.I. 2012) ... 8

Hamilton v. Ford Motor Credit Co.,
66 Md. App. 46 (1986) ..... 24, 25

Harris v. Jones,
281 Md. 560 (1977) .... 24

Hosack v. Utopian Wireless Corp.,
Case No. 11-CV-00420-DKC, ECF No. 15 (D.Md. 2011) ..... 2

Independent Towers of Washington v. Washington,
350 F.3d 925 (9th Cir. 2003) ... 2

Jackson v. Longscope,
394 Mass. 577 (1985) .. 20

Johnson v. Miller,
680 F.2d 39 (7th Cir.1982) .... 16

Leopold v. Levin,
45 Ill. 2d 434 (1970) ... 20

Lord v. Riley,
921 F.2d 272 (4th Cir. 1991) . 16

Mixter v. Farmer,
81 A.3d 631, 638 (Md. Ct. Spec. App. 2013) .. 23

Naffe v. Frey,et al.,
Case No. 12-CV-08443-GW-MRW, ECF No. 67 (C.D.Cal. 2013) ... 15, 16

Natural Design, Inc. v. The Rouse Co.,
302 Md. 47 (Md. 1984) ... 22

NYT v. Sullivan,
376 U.S. 254 (1964) ... 19
v
Cases (cont.)

Pelletier v. Zweifel,
921 F.2d 1465 (11th Cir. 1991) .. 6

Proctor v. Metropolitan Money Store Corp.,
645 F.Supp.2d 464 (D. Md. 2009) .. 6

Robinson v. Vitro Corp.,
620 F.Supp. 1066 (D. Md., 1985) . 21

Scheidler v. National Organization for Women, Inc.,
537 U.S. 393 (2003) ........ 12

Sears, Roebuck and Co. v. Ulman,
287 Md. 397 (1980) . 18

Sedima S.P.R.L. v. Imrex Co.,
473 U.S. 479 (1995) .. 14, 15

Sellner v. Panagoulis,
565 F. Supp. 238 (D.Md. 1982) 17

Seville Indus. Machinery v. Southmost Machinery,
742 F. 2d 786 (3rd Cir. 1984) . 6

Smith v. Esquire, Inc.,
494 F.Supp. 967 (D.Md. 1980) ..... 21

U.S. v. Aragon,
983 F.2d 1306 (4th Cir. 1993) . 7

U.S. v. Ardito,
782 F.2d 358 (2d Cir. 1986) . 7

U.S. v. Hudson,
11 U.S. 32 (1812) ........ 27

U.S. v. Shively,
927 F. 2d 804 (5th Cir. 1991) .. 9
vi
Cases (cont.)

Virginia Society for Human Life, Inc. v. FEC,
263 F.3d 379 (4th Cir. 2001) . 29

Weller v. Dept. of Soc. Serv. for City of Baltimore,
901 F. 2d 387 (4th Cir. 1990) .. 2


Statutes

Md. Code Ann., Courts & Judicial Proceedings Article
5-105 .. 18
5-807 .. 30
9-104 .. 17

18 U.S.C. 1341 ..... 4, 5, 6

18 U.S.C. 1343 .. 4, 5, 6

18 U.S.C. 1503 .. 4, 6, 7

18 U.S.C. 1512 5, 7, 11
(d) .... 7, 8
(k) .. 8

18 U.S.C. 1513 ... 4, 7, 9, 11
(b) .. 8
(e) ... 10

18 U.S.C. 1515(a)(1) ..... 9

18 U.S.C. 1951 .. 4, 11, 12
(b)(2) ... 11

18 U.S.C. 1957 .. 5, 13, 14

Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C.
1962 .. 3
1964(c) ... 3, 14
vii
Statutes (cont.)

28 U.S.C. 1331 ... 1

28 U.S.C. 1332 ... 1

28 U.S.C. 1367(a) .. 1

42 U.S.C. 1983 .. 15, 16

42 U.S.C. 1985 .... 17
(2) ... 17
(3) ... 17


Court Rules

Fed. R. Civ. P. 8(a)(2) .. 1

Fed. R. Civ. P 9(b) . 6

Fed. R. Civ. P. 12(b)
(1) ..... 1
(6) ... passim

Fed. R. Civ. P. 15 (a)(3) 1

Fed. R. Civ. P. 41(b) . 27, 28

4th Cir. L.R. 32 16


Other Authority

Singer, Mark, Citizen K: The Deeply Weird American Journey of Brett Kimberlin,
Knoff, New York (1996) ..... 19
viii
THIS MOTION IS TIMELY FILED

1. Fed. R. Civ. P. 15(a)(3) allows 14 days after service of the amended pleading for
a response to Plaintiffs Second Amended Complaint (SAC). As of the date of this motion
is filed, Mr. Hoge has not yet been served a copy of the SAC by Plaintiff. Mr. Hoge is
relying on a copy of ECF No. 135 downloaded from PACER on 27 June, 2014. Because the
SAC has not been served on Mr. Hoge, the 14 days after service cannot have elapsed.

THE COURT LACKS JURISDICTION

2. As will be shown below, Plaintiffs fails to state a claim upon which relief can be
granted on any of his RICO or civil rights claims, leaving him with no federal questions
before the Court. He cannot rely on diversity of citizenship. Thus, the Court should not
have jurisdiction pursuant to 28 U.S.C. 1331 or 1332. Lacking that jurisdiction, the
Court should not assert jurisdiction over the state law claims pursuant to 1367(a).
Therefore, the Court should dismiss the instant lawsuit for lack of subject matter
jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1).

PLAINTIFFS SECOND AMENDED COMPLAINT (SAC) IS NOT WELL-PLEADED

3. Fed. R. Civ. P. 8(a)(2) requires that a complaint contain a short and plain
1
statement of the claim showing that the pleader is entitled to relief. Plaintiff has offered
up over 80 pages of wild imaginings for the Court to sort through. Plaintiffs SAC is rife
1
with conclusory statements but does not properly allege that he suffered actual damages
as a result of Defendant Hoges (or any other Defendants) actions. The Supreme Court
has said, Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice. Ashcroft v. Iqbal, 129 S.Ct. 1937, 556 U.S. 662, 678
(2009). The plaintiff must allege enough facts to state a claim to relief that is plausible
on its face. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 550 U.S. 544, 570 (2007). At
this point in the instant lawsuit, after over eight months and almost thirty often self-
contradictory filings by Plaintiff, the Court should ask if any claims made by Plaintiff are
plausible.
4. For example, in paragraphs 99 and 100 of the SAC Plaintiff alleges that one or
more of the Defendants made reports to law enforcement about him that resulted in a visit
from the FBI. Yet, in paragraphs 186-188 he alleges that Defendants retaliated against
him because of his contacts with law enforcement. Plaintiff would have the Court believe
that Defendants have simultaneously caused law enforcement to contact Plaintiff and
2
Although the legal theories within [the] pro se complaint are difficult to discern, courts
1
traditionally view civil rights complaints, particularly those brought pro se, with special
judicial solicitude. In truth, even a solicitous examination of the allegations reveals
little on which federal subject matter jurisdiction may be based. Weller v. Dept. of Soc.
Serv. for City of Baltimore, 901 F. 2d 387, 390-391 (4th Cir. 1990).
Judges are not like pigs, hunting for truffles buried in the briefs. Independent Towers of
Washington v. Washington, 350 F.3d 925, 929 (9th Cir. 2003).
sought to prevent his contact with law enforcement. [W]hen a complaint contains
inconsistent and self-contradictory statements, it fails to state a claim. Hosack v.
Utopian Wireless Corp., Case No. 11-CV-00420-DKC, ECF No. 15 (D.Md. 2011) at 12.
There are numerous other self-contradictions in the SAC.
5. As the Court of Appeals noted in Francis, et al. v. Giacomelli, et al., 588 F.3d 186
(4th Cir. 2009), determining whether a complaint states on its face a plausible claim for
relief and therefore can survive a Rule 12(b)(6) motion will be a context-specific task that
requires the reviewing court to draw on its judicial experience and common sense. Id. at
193, quoting Iqbal, 129 S.Ct. at 1950. Conclusory allegations require some factual
enhancement within a complaint to cross over the line between possibility and
plausibility of entitle[ment] to relief. Twombly, 127 S.Ct. at 1966. The allegations in the
SAC are insufficient to state a claim upon which relief can be grantedas is shown below.

PLAINTIFF FAILS TO STATE A RICO CLAIM FOR WHICH RELIEF CAN BE GRANTED

6. Plaintiff lacks standing to sue under 18 U.S.C. 1964(c) which requires that (1)
the plaintiff must be a person (2) who sustains injury (3) to its business or property (4)
by reason of a defendants violation of 1962. Under Iqbal, Plaintiffs conclusory
statements do not establish a claim upon which relief can be granted. In order to invoke
RICO Plaintiff is required to show that at least two predicate acts of racketeering activity
3
have been committed. Plaintiff fails to allege the necessary elements of even one. He
attempts to allege the following crimes:
a. Mail Fraud (18 U.S.C. 1341)
b. Wire Fraud (18 U.S.C. 1343)
c. Obstruction of Justice (18 U.S.C. 1503)
d. Retaliation Against a Victim and Witness (18 U.S.C. 1512 and 1513)
e. Extortion (18 U.S.C. 1951)
f. Money Laundering (18 U.S.C. 1957)
He also fails to properly allege the existence of a RICO enterprise or any conspiracy.

There is No RICO Enterprise

7. Plaintiff is required to allege the existence of a group with a common purpose
and course of conduct-and the actual commission of a pattern of predicate offenses. Boyle
v. U.S., 556 U.S. 938, 129 S.Ct. 2237, 2250 (2009). There is no rational demonstration of
the existence of such a RICO enterprise to be found among the smoke and mirrors of
Plaintiffs SAC.
8. Plaintiff makes the conclusory allegation that the named defendants, including
Mr. Hoge, engaged in the mythical RICO enterprise beginning in August 2010 and
continuing to the present time. SAC, 197. Specificity However, Mr. Hoge began
4
blogging on 24 July, 2011, and could not have participated in the imagined scheme even if
it had existed in 2010.
9. A core idea supporting Plaintiffs allegation of a RICO enterprise is the imagined
existence of some sort of scheme related to an allegedly false claim concerning NBCs
501(c)(3) status with the IRS. The Court should take judicial notice that NBCs 501(c)(3)
status has been recognized by the IRS. See Exhibit A. Plaintiffs implication that NBC
never filed an application with the IRS is clearly false. The IRS would not have made its
determination without an application being filed. Plaintiff offers nothing but conclusory
allegations unsupported by further factual enhancement.
10. While Plaintiff says that his SAC describes the framework of the mythical
RICO Enterprise, it simply does not. He fails to meet the specificity requirement of Boyle,
and he fails to meet the plausibility requirement of Iqbal. Because Plaintiff has failed to
properly allege the existence of a RICO enterprise, his First Claim for Relief should be
dismissed for failure to state a claim upon which relief can be granted pursuant to Fed. R.
Civ. P. 12(b)(6).

Plaintiff Has Failed to Properly Allege Mail (18 U.S.C. 1341) or
Wire Fraud (18 U.S.C. 1343)

11. Mail or wire fraud occurs when a person (1) intentionally participates in a
scheme to defraud another of money or property and (2) uses the mails or wires in
5
furtherance of the scheme. Pelletier v. Zweifel, 921 F.2d 1465, 1498 (11th Cir. 1991). The
elements of fraud are (1) a material, (2) false statement, (3) known by the defendant to be
untrue, (4) made with the intent of the defendant to deceive the alleged victim, (5) the
justifiable reliance of the victim on the statement, and (6) actual injury to the victim as a
result. When mail and wire fraud are asserted as predicate acts in a civil RICO claim,
each must be pled with particularity, pursuant to Rule 9(b). Proctor v. Metropolitan
Money Store Corp., 645 F.Supp.2d 464, 473 (D. Md. 2009). See also Seville Indus.
Machinery v. Southmost Machinery, 742 F. 2d 786, 789 (3rd Cir. 1984). However, Plaintiff
neither identifies a particular person reasonably deceived by any Defendant, nor does he
specify how any deception injured him in his business or property. At best, he offers a few
conclusory statements rather than properly alleging damages suffered. He shows no
knowingly false statement, no victim, no damages, and, therefore, no fraud.
12. Thus, Plaintiff has failed to properly allege either Mail Fraud ( 1341) or Wire
Fraud ( 1343) as predicate acts supporting a civil RICO claim.

Plaintiff Has Failed to Properly Allege Obstruction of Justice (18 U.S.C. 1503)

13. Obstruction of Justice under 18 U.S.C. 1503 is defined as endeavoring to
influence, intimidate, or impede any grand or petit juror, or officer in or of any court of the
the United States, or officer who may be serving at any examination or other proceeding
6
before any United States magistrate judge or other committing magistrate Plaintiff
fails to allege that he or any other alleged victim were federal jurors, officers of a federal
court, or Article I or Article III judges or that any Defendant obstructed any federal
proceeding. The obstruction of justice statute, 18 U.S.C. 1503, requires proof that
proceeding obstructed was a federal proceeding. See, e.g., U.S. v. Ardito, 782 F.2d 358, 359
(2d Cir. 1986); cited with approval in U.S. v. Aragon, 983 F.2d 1306 (4th Cir. 1993).
14. Thus, Plaintiff has failed to properly allege any instance of Obstruction of
Justice ( 1503) as a predicate act supporting a civil RICO claim.

Plaintiff Has Failed to Properly Allege Retaliation Against a Victim and Witness
(18 U.S.C. 1512 and 1513)

15. Plaintiff makes conclusory allegations that the Defendants have violated 18
U.S.C. 1512(d). That portion of the statute says
(d) Whoever intentionally harasses another person and thereby hinders,
delays, prevents, or dissuades any person from
(1) attending or testifying in an official proceeding;
(2) reporting to a law enforcement officer or judge of the United States
the commission or possible commission of a Federal offense or a
violation of conditions of probation supervised release,, parole, or
2 3
release pending judicial proceedings;
(3) arresting or seeking the arrest of another person in connection with
a Federal offense; or
(4) causing a criminal prosecution, or a parole or probation revocation
7
Thus in the original.
2
Thus in the original.
3
proceeding, to be sought or instituted, or assisting in such prosecution
or proceeding;
or attempts to do so, shall be fined under this title or imprisoned not more
than 3 years, or both.

Plaintiff fails to properly allege particular intentional acts by any Defendant that would
establish the mens rea required by 1512(d). See Grassick v. Holder, Case No. 09-CV-587-
PJB-LM, EFC No. 86 (D.R.I. 2012) at 22.
16. Plaintiff alleges (SAC, 189) that [t]he Defendants also engaged in a
conspiracy to threaten, assault and intimidate Plaintiff and therefore their conduct is
prohibited by 18 USC 1512(k). 18 U.S.C. 1512(k) reads
(k) Whoever conspires to commit any offense under this section shall be
subject to the same penalties as those prescribed for the offense the
commission of which was the object of the conspiracy.

Plaintiff fails to allege the elements of a conspiracy. Plaintiff alleges, for example, that
several Defendants wrote similar things about him, but as Justice Souter writing for the
majority noted in Twombly, 127 S.Ct. at 1961, parallel actions do not necessarily imply a
conspiracy.
17. The Retaliation Against a Witness statute 18 U.S.C. 1513(b) which Plaintiff
cites deals with conduct which causes bodily injury to another person or damages the
tangible property of another person, or threatens to do so, with the intent to retaliate
against that person Plaintiff alleges that Mr. Hoge has written bad things about him
on the Internet. He has alleged that criminal charges, peace orders, and civil lawsuits
have been filed against him by various Defendants. He claims that he has been subjected
8
to extortion by lawsuit. He alleges that some of the Defendants have advocated that he
should be sent back to prison. Even if any of that be true, none of those acts are
prohibited by 18 U.S.C. 1513.
18. Plaintiffs allegation of battery by Defendant Walker at the Montgomery
County Circuit Courthouse on 9 January, 2012, might be covered by 18 U.S.C. 1513if
it were true. However, such an allegation against Mr. Walker is barred by collateral
4
estoppel. Plaintiff attempted to use the alleged incident of assault as the basis of a peace
order against Mr. Walker in 2012, but the Maryland District Court ruled no assault
occurred. See Kimberlin v. Walker, Case No. 0601SP005392012 (Md. D.Ct. 2012).
Furthermore, the alleged assault was related to a Maryland civil lawsuit, Kimberlin v.
Allen, Case No. 339254V, (Md. Cir.Ct. Montgomery Co. 2011), but not any federal case.
An official proceeding is defined by18 U.S.C. 1515(a)(1) as relating to federal cases
only. See U.S. v. Shively, 927 F. 2d 804, 810 (5th Cir. 1991). Finally, Plaintiff alleges the
battery occurred in retaliation for Mr. Walker losing his job. (SAC, 186) However,
Plaintiff states that the alleged battery occurred on 9 January, 2012, (SAC, 55, 56) and
that Mr. Walker lost his job on 12 January. (SAC, 57) This allegation that the
imagined battery was in retaliation for a future event is a prime example of Plaintiffs
9
Defendant Hoge has standing to challenge this cause of action (and any other based on
4
federal law) because this Court can only have jurisdiction over the state law claims alleged
by the Plaintiff through supplemental jurisdiction under 28 U.S.C. 1367(a). Mr. Hoge
has a valid interest in seeing all federal claims dismissed so that the remaining state
claims should be dismissed for lack of jurisdiction.
inability to keep his implausible stories straight.
19. Plaintiff alleges that unknown persons have been threatening his family. See,
e.g., SAC, 217, 222, and 247. However, no particular threat is alleged, certainly none
that would have affected any federal proceeding. He does not allege that any of the
Defendants made threats to his family, and he does not properly allege that they incited
others to make threats. Such conclusory allegations should be disregarded.
20. As to 1513(e), Plaintiff does not plausibly allege interference with his truthful
reporting any particular crime to a federal law enforcement officer or how he might have
been harmed thereby. Plaintiff alludes to his alleged reports to unspecified law
enforcement officials concerning four complaints.
Plaintiff contacted law enforcement officials about (1) an intestate (sic)
murder threat against Plaintiff by Seth Allen that was communicated to
Defendants Walker, Nagy, Frey and another person, since deceased, (2)
the assault and battery by Defendant Walker against Plaintiff in the
Montgomery County Courthouse, (3) the false allegations of swatting, (4)
and the civil rights violations against Plaintiff by Defendant Frey.

SAC, 187. Furthermore, (1) the intestate (sic) murder threat was also passed along to
law enforcement by Defendant Nagy; why would Defendants retaliate against Plaintiff for
making the same report? (2) A state court has found that the alleged battery never
happened. (3) If Defendants had made accusations that Plaintiff was involved in
SWATting, they would have reasonably expected Plaintiff to deny any involvement when
interviewed by law enforcement. If their goal was to send Plaintiff back to prison, they
would be more likely to encourage law enforcement contact with Plaintiff than to retaliate
10
against him because of such contact. Finally, (4) Defendant Freys lawful efforts to pursue
justice for crimes perpetrated against him and his family cannot be counted as civil rights
violations.
21. Plaintiff alleges that one or more of the Defendants (who he does not specify)
retaliated against him because he talked with the FBI during an interview initiated by
5
the FBI and not Plaintiff. He offers no suggestion of how any Defendant might have
known of any such conversation. He doesnt allege when or how they found out about it, or
how they became aware of the substance of the conversation. His allegations are
insufficient of establish a reasonable possibility, let alone establish a plausible allegation
that he was retaliated against because of that conversation.
22. Thus, Plaintiff has failed to properly allege any instance of a violation of
1512 or 1513 as a predicate act supporting a civil RICO claim.

Plaintiff Has Failed to Properly Allege Extortion (18 U.S.C. 1951)

23. Extortion as defined by 18 U.S.C. 1951(b)(2) means the obtaining of property
from another, with his consent, induced by wrongful use of actual force, violence, or fear,
or under color of official right. Plaintiff does not allege that he consented to give up any
property because of actions by any of the defendants. Nor does he allege that any of the
11
The FBI is the only federal law enforcement agency Plaintiff ever mentions.
5
defendants made any extortionate threats. An ordinary settlement offer is not extortion.
See Deck v. Engineered Laminates, 349 F.3d 1253, 1258 (10th Cir., 2003).
24. Plaintiff asserts that he has a property interest in continuing his employment.
He has no such property interest under 18 U.S.C. 1951. The Supreme Court has ruled
that to be property under 1951, the thing obtained must be something tangible,
something that one could exercise, transfer or sell. Scheidler v. National Organization
for Women, Inc., 537 U.S. 393, 405 (2003). Because Plaintiff fails to explain what thing
any of the Defendants could have acquired as result of Plaintiffs being discharged,
seeking to have Plaintiff fired cannot be construed as extortion. In any event, Plaintiff
never shows any particular writing or speech by Mr. Hoge advocating that Plaintiff be
fired.
25. Thus, Plaintiff has failed to properly allege any instance of extortion (18 U.S.C.
1951) as a predicate act supporting a civil RICO claim.

Plaintiff Has Failed to Properly Allege Money Laundering (18 U.S.C. 1957)

26. The Money Laundering statute 18 U.S.C. 1957 punishes transactions dealing
with property derived from criminal activity and having a value greater than $10,000.
Plaintiff fails to properly allege any of the elements of this offense. He does not allege that
whoever made the transactions did so in the United States or within its maritime or
12
territorial jurisdiction or that he was a United States person. Indeed, he admits in
paragraph 193 of the SAC that he is not privy to any accounting of the funds. Therefore,
his allegation of any transactions valued in excess of $10,000 is purely conclusory and not
entitled to be assumed to be true.
27. Finally, Plaintiff has failed to properly allege any illegal activity from which the
funds in question were derived. As demonstrated above, he has not properly alleged wire
or mail fraud, obstruction of justice, witness tampering/retaliation, or extortion by any
Defendant that would have provided money to be laundered.
28. Thus, Plaintiff has failed to properly allege any instance of Money Laundering
(18 U.S.C. 1957) as a predicate act supporting a civil RICO claim.

Plaintiff Has Not Alleged Economic Injury to His Business or Property by the
Mythical RICO Enterprise

29. In attempting to allege economic injury Plaintiff conflates his personal interests
with those of his employers, Justice Through Music Project and Velvet Revolution US.
Plaintiff wishes to treat alleged injuries to his employers as personal injuries to himself.
They are not. If Justice Through Music Project or Velvet Revolution US have suffered
injuries, they should sue, not Plaintiff. Any alleged injuries to his employer and other
6
13
It may be that Plaintiff is reluctant to bring such a lawsuit on behalf of his non-profits
6
because of the expense of hiring a lawyer and the ethical limitations constraining
arguments presented by a member of the bar.
third parties are not injuries to Plaintiff himself.
30. The RICO statutes were [e]nacted to strengthen criminal and civil remedies
against organized crime. RICO provides a private right of action for any person injured in
his business or property by reason of a violation of its substantive prohibitions. Dahlgren
v. First Nat'l Bank of Holdrege, 533 F.3d 681, 689 (8th Cir. 2008), quoting 18 U.S.C.
1964(c), emphasis added. RICO does not allow Plaintiff to sue for damages allegedly
incurred by third parties.
31. Plaintiff knows better. In a previous lawsuit he claimed that the assets and
interests of a closely-held corporation which he controlled were separate from his own
when he tried to avoid paying a judgment owed to a victim of his bombing spree. See
Kimberlin v. Dewalt, 12 F.Supp.2d 487, 491-492 (D.Md. 1998).
32. Plaintiff tries, in part, to base his claim on his personal well-being, (SAC,
223) but that is, of course, a personal injury. [T]he statute permits recovery only for
injury to business or property. It therefore excludes recovery for personal injuries.
Sedima S.P.R.L. v. Imrex Co., 473 U.S. 479, 509 (1995).
33. Given no showing of economic injury to his business or property, Plaintiffs
insufficient allegations of RICO predicate acts are further undermined, providing yet
another reason for dismissal pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim
upon which relief can be granted.

14
Plaintiffs RICO-Based Claim Fails

34. Plaintiff does not establish a plausible case for civil damages under RICO
because he fails to allege the four necessary elements: (1) conduct, (2) of an enterprise,
(3) through a pattern, (4) of racketeering activity. Sedima at 496 (1995). Plaintiff has
failed to state a RICO claim upon which relief can be granted, and First Claim for Relief
should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6).

PLAINTIFF FAILS TO STATE A CLAIM FOR VIOLATION OF 42 U.S.C. 1983

35. Plaintiff makes no allegation against Defendant Hoge for violations of 42 U.S.C.
1983.

Instead, Plaintiff attempts to use this statute against Defendant Frey because of
7
his employment as a Deputy District Attorney for Los Angeles County, California.
However, Mr. Frey is not a state actor in connection with his blogging. In Naffe v. Frey,et
al., Case No. 12-CV-08443-GW-MRW, ECF No. 67 (C.D.Cal. 2013), a case involving the
same defendant and the same federal statute, Judge George Wu found that Freys
practice of simply (relatively frequently) mentioning the fact that he is a deputy district
attorney or prosecutor ... does not transform everything he says on his blog or on Twitter
into state action and also found that [q]uite simply, nothing Plaintiff has alleged
15
See footnote 7.
7
plausibly suggests that Frey acted, or purported or pretended to act, in performance of his
official duties. Id. at 2, 3. Plaintiff has not offered a single reason for this Court to find
otherwise.
36. Judge Wus ruling is consistent with the Fourth Circuits decision in Lord v.
Riley, 921 F.2d 272 (4th Cir. 1991). In that case the Court of Appeals ruled that a public
employee (a firefighter) acting in a private capacity was not a state actor in the sense of
1983. Other circuits have drawn similar conclusions concerning private acts and 1983.
See, e.g., Daniel v. Ferguson, 839 F.2d 1124 (5th Cir.1988), Benavidez v. Gunnell, 722 F.2d
615, 618 (10th Cir.1983), and Johnson v. Miller, 680 F.2d 39 (7th Cir.1982).
8
37. Plaintiff has failed to properly allege any instance of a violation of 42 U.S.C.
1983. Thus, he fails to state a claim upon which relief can be granted, and the Second
Claim for Relief should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6).

16
While Lord v. Riley is designated an unpublished disposition, Fourth Circuit Local Rule
8
32.1 states that while citation of such opinions are disfavored, they are not prohibited
and that:

If a party believes, nevertheless, that an unpublished disposition of this Court
issued prior to January 1, 2007, has precedential value in relation to a material
issue in a case and that there is no published opinion that would serve as well,
such disposition may be cited.

Mr. Hoge knows of no other precedent in either the District of Maryland or the
Fourth Circuit more on point and, therefore, this citation falls squarely within the
rule. Mr. Hoge has also provided precedents from other circuits to back up this
point of law.
PLAINTIFF FAILS TO STATE A CLAIM FOR VIOLATION OF 42 U.S.C. 1985

38. Plaintiff makes a pro forma recitation of the elements of a violation 42 U.S.C.
1985(2) or, perhaps, 1985(3) in alleging that the defendants conspired to deny him the
equal protection of the laws. He does so with no particularity. He does not even suggest
which defendant might have taken what action on what date or in connection with which
matter. On information and belief, the only times that Plaintiff has been prevented from
offering testimony have been in Maryland state courts where he is barred from testifying
(Md. Cts. & Jud. P. 9-104) because of his prior conviction for perjury. See U.S. v.
Kimberlin, 483 F.Supp. 350 (S.D.Ind. 1979), 3.
39. Nothing Plaintiff alleges has any connection with the language of 1985 or any
of the case law relating to it. In order to demonstrate a violation of either (2) or (3) of
1985, Plaintiff must show that there was some form of invidious race- or class-based
bigotry involved or that there was some nexus with a federal election or proceeding. See
Sellner v. Panagoulis, 565 F. Supp. 238, 245-46 (D.Md. 1982) and Carpenters v. Scott, 463
U.S. 825, 839, n 1 (1985), Justice Blackmun, dissenting. Plaintiff has made no such
showing with respect to any Defendant in his SAC. Plaintiff fails to state a claim based on
42 U.S.C. 1985 upon which relief can be granted, and Third Claim for Relief should be
dismissed pursuant to Fed. R. Civ. P.
12(b)(6).
17

PLAINTIFF FAILS TO STATE A CLAIM FOR DEFAMATION

40. Plaintiff has not pleaded with particularity any defamatory statement by any
Defendant. Nothing in his SAC allows the Court to determine how such statements might
have defamed Plaintiff. Further, Plaintiff has not alleged any actual damages or expenses
incurred because of any alleged defamation.
41. Plaintiff makes reference to certain statements by Mr. Hoge but does not
specify what parts of them might be defamatory. Even if the alleged statements be
defamatory, any claim by Plaintiff is barred by the statute of limitations (Md. Cts. & Jud.
P. 5-105.) because all alleged statements by Mr. Hoge were made more than one year
before the filing of the instant suit. See Sears, Roebuck and Co. v. Ulman, 287 Md. 397,
9
400 (1980).
42. Plaintiff is a public figure. He became the object of public attention when he
was tried and convicted as the Speedway Bomber. See U.S. v. Kimberlin, 527 F.Supp.
1010 (S.D.Ind. 1981) and U.S. v. Kimberlin, 483 F.Supp. 350 (S.D.Ind. 1979). He
broadened his fame when, while still in prison on bombing and drug smuggling charges,
he claimed to have sold marijuana to then-Vice-Presidential-candidate Dan Quayle. See
18
Plaintiff alleges that Mr. Hoge posted an open letter to a congressman on 8 June, 2012.
9
(SAC, 138). The instant lawsuit was filed in October, 2013. More than a year had
elapsed.
Kimberlin v. Quinlan, 6 F.3d 789, 791 (D.C. Cir. 1999). Further public interest was
generated when his parole for the bombing and drug charges was revoked. See Kimberlin
v. Dewalt, 12 F.Supp.2d 487 (D.Md. 1998). It was revoked, in part, because of failure to
make restitution to the widow of a bombing victim (herself a wounded victim) which was a
condition of his parole. He achieved another measure of fame when he sued the Bureau of
Prisons because he was not allowed to possess an electric guitar in prison. See Kimberlin
v. U.S. Dept. of Justice, 318 F.3d 228 (D.C. Cir. 2003). As a public figure, he has not
alleged any instance demonstrating actual malice or a reckless disregard for the truth by
any of the defendants. See NYT v. Sullivan, 376 U.S. 254 (1964).
43. As can be seen by the partial listing of Plaintiffs history in the paragraph
above, Plaintiff has considerable reputational baggage. Citizen K: The Deeply Weird
American Journey of Brett Kimberlin (Singer, Mark, Knoff, New York, 1996.) is an
authorized biography of Kimberlin. It insinuates that Plaintiff had an improper
relationship with a ten year old girl (Id. at 78), that he was suspected of having arranged
the murder-for-hire of the girls grandmother. (Id. at 82, 83), and that the subsequent
Speedway Bombings were an attempt to distract the murder investigation (Id. at 89). The
book tells of other unsavory actions, including Plaintiffs bragging about sabotaging
military equipment while working in a prison industry (Id. at 184). Plaintiffs status as a
public figure is not unlike Nathan Leopolds (of Leopold and Loeb); when one commits a
sufficiently infamous crime, one becomes a public figure from that day onward. See
19
Leopold v. Levin, 45 Ill. 2d 434 (1970). Like Ted Kaczynski (The Unabomber), Plaintiff is
an infamous convicted serial bomber.
44. In paragraph 225 of the SAC Plaintiff alleges that statements by the Defendants
concerning his behavior make him appear odious, infamous, and/or frightening without,
as noted above, specifying which particular statements by which particular Defendant(s)
were defamatory. However, Plaintiff in the past has tacitly acknowledged his reputation
(as a perjurer, drug smuggler/wholesaler/dealer, murder suspect, etc.) is bad. For
example, during one of his bombing trials, he sought a change in venue, in part, because of
his reputation. See e.g., U.S. v. Kimberlin, 805 F. 2d 210, 223-24 (7th Cir. 1986). Indeed,
his reputation has been so bad for so long (decades) as to render him defamation proof.
See Jackson v. Longscope, 394 Mass. 577 (1985). It is ridiculous for the Speedway Bomber
to assert that his reputation has been diminished by comments concerning his past and
present activities.
45. Plaintiff has failed to properly allege any instance of defamation committed
against him or to specify any damages suffered because of such defamation. Therefore, his
Fourth Claim for Relief should be dismissed for failure to state a claim upon which relief
can be granted pursuant to Fed. R. Civ. P. 12(b)(6).


20
PLAINTIFF FAILS TO STATE A CLAIM FOR FALSE LIGHT INVASION OF PRIVACY

46. As noted in paragraph 41 above, even if Plaintiffs allegations with respect to
false light and misrepresentation be true, any claim against Defendant Hoge is barred by
the statute of limitations. See Smith v. Esquire, Inc., 494 F.Supp. 967, 970 (D.Md. 1980)
and Robinson v. Vitro Corp., 620 F.Supp. 1066, 1071 (D. Md., 1985).
47. Under Maryland law, a false-light plaintiff must show 1) defendant gave
publicity to a matter concerning the plaintiff that placed him before the public in a false
light; 2) the false light would be highly offensive to a reasonable person, and 3) defendant
acted with knowledge of or reckless disregard for the falsity of the publicized matter and
the false light in which plaintiff would be placed. See Byington v. NBRS Fin. Bank, 903
F.Supp. 2d 342, 352-353 (D.Md. 2012). Plaintiff has not alleged with particularity which
statements made by which Defendant(s) placed him in a false light. Additionally, he has
not alleged any actual damages or expenses incurred because of any alleged portrayal in a
false light.
48. As noted in paragraph 42 above, Plaintiff is a public figure. He has not alleged
any instance demonstrating actual malice or a reckless disregard for the truth by any of
the Defendants.
49. Because Plaintiff has failed to properly allege any instance of his being
portrayed in a false light or to specify any damages caused by portrayal in a false light, his
21
Fifth Claim for Relief should be dismissed for failure to state a claim upon which relief can
be granted pursuant to Fed. R. Civ. P. 12(b)(6).

PLAINTIFF DOES NOT ALLEGE INTERFERENCE WITH BUSINESS RELATIONS BY
MR. HOGE

50. Plaintiff attempts to allege interference with business relation by specified
individuals but not by Mr. Hoge. Therefore, his Sixth Claim for Relief should be dismissed
with respect to Mr. Hoge for failure to state a claim upon which relief can be granted
pursuant to Fed. R. Civ. P. 12(b)(6).

PLAINTIFF FAILS TO STATE A CLAIM FOR INTERFERENCE WITH PROSPECTIVE
ECONOMIC ADVANTAGE

51. In order to properly allege the elements of tortious interference with
prospective advantage under Maryland law Plaintiff must establish (1) intentional or
willful acts (2) calculated to cause damage to his lawful business (3) that were done with
malice and (4) with actual damage or loss resulting. See Natural Design, Inc. v. The Rouse
Co., 302 Md. 47, 71 (Md. 1984). Plaintiff does not state with particularity which, if any,
Defendants committed such acts. Further, he makes no specific allegations describing any
actual damage to or losses suffered by his lawful business. He does not describe how any
22
specific prospective business relationships might have been affected. See Mixter v.
Farmer, 81 A.3d 631, 638 (Md. Ct. Spec. App. 2013). He does not make any showing of
malice. His vague conclusory allegations do not establish a single element of the tort.
52. Therefore, Plaintiffs first Seventh Claim for Relief should be dismissed for
failure to state a claim upon which relief can be based pursuant to Fed. R. Civ. P 12(b)(6).

PLAINTIFF DOES NOT ALLEGE BATTERY BY MR. HOGE

53. Plaintiff attempts to allege battery by Defendant Walker but not by Mr. Hoge.
Therefore, his second Seventh Claim for Relief should be dismissed with respect to Mr.
Hoge for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ.
P. 12(b)(6).

PLAINTIFF IS ESTOPPED FROM ANY CLAIM OF INTENTIONAL INFLICTION OF
EMOTIONAL DISTRESS

54. Plaintiff has filed a parallel lawsuit in the Circuit Court for Montgomery
County, Maryland, against Defendants Walker, McCain, Akbar, Thomas, and Hoge.
Count VI of the second amended complaint of that suit alleges intentional infliction of
emotional distress. See Kimberlin v. Walker, et al., Case No. 380966V, (Md. Cir.Ct.
Montgomery Co.), Docket No. 123, 110-115. In Count VI of the state case Plaintiff
23
alleges Defendants, by engaging in a multi-year course of conduct of malicious
prosecution, stalking, harassment, defamation, invasion of privacy, and conspiracy, have
caused Plaintiff infliction of emotional distress. Id., 111. This mirrors Plaintiffs
allegations in the instant lawsuit.
55. On 1 July, 2014, Judge Terrence McGann granted summary judgment for
Defendants Walker, McCain, Akbar, and Hoge with respect to Count VI. See Walker, et
al., Docket Nos. 193/194. The finding was based on the determine that Plaintiff had felt
no emotional distress. Logically, if Plaintiff showed no signs of emotional distress during
the overlapping period of the state suit with the instant suit, he could not have had any
such distress arising from action.
10
56. Even if his claim were not barred by collateral estoppel, Plaintiff simply does
not allege the elements of intentional infliction of emotional distress. Nothing in the SAC
alleges intentional or reckless behavior by Mr. Hoge that was extreme or outrageous.
Plaintiff has not alleged, except in the most conclusory manner, any causal connection
between Mr. Hoges actions and any distress he may have suffered. Nor has he
established that any of his alleged distress was severe. See Harris v. Jones, 281 Md. 560
(1977). More fundamentally, Plaintiff has not properly alleged that Mr. Hoge has
committed any other tortuous conduct. Under Maryland law, intentional infliction of
24
Exhibit C is Judge McGanns Order. A certified hearing transcript will be provided to
10
the Court when it is available. An extract of Kimberlins Second Amended Complaint for
the state suit containing his state intentional infliction of emotional distress claim is
attached as Exhibit B.
emotional distress is an element of damage, not an independent tort. Hamilton v. Ford
Motor Credit Co., 66 Md. App. 46 (1986). The Maryland Court of Appeals adds, In
Maryland, recovery of damages for emotional distress must arise out of tortious conduct.
Exxon Mobil Corp. v. Albright, 433 Md. 303, 71 A.3d 30, 58 (2013). Since all of Plaintiffs
other alleged torts fail, he cannot recover for intentional infliction of emotional distress.
57. Given the summary judgment in the parallel state case, Plaintiff is estopped
from making essentially the same claim in the instant lawsuit, and, even if he werent
barred, he fails to properly state a claim. The Eight Claim for Relief should be dismissed
for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P.
12(b)(6).

CONSPIRACY IS NOT A TORT

58. 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]n alleged conspiracy by or agreement between the
defendants 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). See Halberstam v. Welch, 705 F.2d 472, 479 (CADC
1983) (Since liability for civil conspiracy depends on performance of some
25
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 for failure to
state a claim upon which relief may be granted pursuant to Fed. R. Civ. P. 12(b)(6).

PLAINTIFF IS NOT ENTITLED TO PUNITIVE DAMAGES

59. Because Plaintiff has not properly alleged any claim for which compensatory
damages might be awarded, he is not entitled to any award of punitive damages.

PLAINTIFF HAS NOT SERVED THE SAC ON MR. HOGE

60. Throughout the course of the instant lawsuit, Plaintiff has played fast and loose
with service of court papers. See, e.g., ECF No. 5 at 1, ECF No. 26, ECF No. 41 at 2-5, and
ECF No. 124. The Court specifically instructed Plaintiff to serve his SAC on the
Defendants. Plaintiff is directed to serve all Defendants with the Second Amended
Complaint in accordance with the applicable Local Rules and Federal Rules of Civil
Procedure. ECF No. 133 at 1. As noted in paragraph 1 above, Mr. Hoge has not been
served.
26

THE SAC SHOULD BE DISMISSED PURSUANT TO FED. R. CIV. P. 41(b)

61. Plaintiffs failure to comply with the Courts order in ECF No. 133 concerning
service of the SAC is but one of many instances of his failure to comply with Fed. R. Civ.
P., the Local Rules, or this Courts orders. See, e.g., ECF No. 88 and ECF No. 132.
62. A U. S. District Court has the inherent power necessary to exercise all its other
powers.
To fine for contemptimprison for contumacyenforce the observance of
order, &c., are powers which cannot be dispensed with in a court, because
they are necessary to the exercise of all others, and so far our courts no
doubt possess powers not immediately derived from statute[.]

U.S. v. Hudson, 11 U.S. 32, 34 (1812). Additionally, Fed. R. Civ. P. 41(b) provides a basis
for dismissing with prejudice, where a plaintiff engages in misconduct constituting a
violation of the court rules or a court orderas had repeatedly been the case with
Plaintiff. See C.B.H. Resources v. Mars Forging Co., 98 F.R.D. 564, 569 (W.D. Pa. 1983).
63. Plaintiff is a convicted perjurer. He has admitted attempting to defraud this
11
Court in the instant lawsuit by forging a summons, and he has denied making that
12
27
See U.S. v. Kimberlin, 805 F.2d 210, 234 (7th Cir. 1986).
11
See ECF No. 102.
12
admission to a Maryland state court. He has admitted to spoliation of evidence related
13
to the instant lawsuit. Given the bad faith Plaintiff has demonstrated to date and the
14
fraud he has attempted to perpetrate on the Court, dismissal with prejudice of the instant
lawsuit under Rule 41(b) is fully justified. See Chambers v. Nasco, Inc., 501 U.S. 32, 50-51
(1991).
64. Plaintiffs continuing violations, taken with his forging of a summons and
spoliation of evidence, are sufficient grounds for dismissal. Accordingly, the Court should
dismiss the SAC with prejudice pursuant to Fed. R. Civ. P. 41(b).

PLAINTIFF IS A VEXATIOUS LITIGANT

65. Plaintiff is engaging in lawfare, the filing of nuisance legal proceedings for the
purpose of harassment. There is no merit to his allegations. The instant lawsuit is
another of Plaintiffs attempts to suppress the First Amendment rights of his perceived
enemies through brass knuckles reputation management intended to silence criticism.
Plaintiff wrote an email to Defendant Frey in which he stated, I have filed over a hundred
28
See Exhibits D, D-1, and D-2. Plaintiff is suing Mr. Hoge and Messrs. Walker, McCain,
13
and Akbar and Ms. Thomas in a related case in the Circuit Court for Montgomery County
(Case No. 380966V). Plaintiff denied making the admission found in ECF No. 102 in his
response to a Request for Admissions during discovery in that matter (Item 22 in
Admissions).
See ECF No. 124. A full transcript of the state court hearing is attached to that
14
memorandum. Plaintiff has sought to use the same altered Certified Mail green card at
issue in the state suit as proof of service in the instant lawsuit.
lawsuits and another one will be no sweat for me. On the other hand, it will cost you a lot
of time and money[.] http://www.patterico.com/20 10/10/11/brett- kimber lin-threatens-to-
sue-me/, viewed 3 July, 2014. Sure enough, the instant nuisance suit and the parallel
frivolous lawsuit filed in a Maryland court

have cost Defendant Hoge time and money.
66. The Court of Appeals has laid out the conditions under which a vexatious
litigant can be enjoined from further mischief.
In determining whether a prefiling injunction is substantively warranted,
a court must weigh all the relevant circumstances, including (1) the
partys history of litigation, in particular whether he has filed vexatious,
harassing, or duplicative lawsuits; (2) whether the party had a good faith
basis for pursuing the litigation, or simply intended to harass; (3) the
extent of the burden on the courts and other parties resulting from the
party's filings; and (4) the adequacy of alternative sanctions.

Cromer v. Kraft Foods, 390 F.3d 812, 818 (4th Cir. 2004). Plaintiff has such a history of
filing vexatious litigation. Indeed, the instant lawsuit is duplicative of the Kimberlin v.
Walker, et al. action discussed above. Comments by the Plaintiff such as in the email to
Mr. Frey cited above demonstrate his intention to use nuisance lawsuits to harass and to
burden both the courts and his victims. Plaintiffs bad faith in his prosecution of the
instant lawsuit has been manifest.
67. A narrowly tailored sanction such as an order requiring Plaintiff to pre-clear
future lawsuits against any of the Defendants in the instant lawsuit with a Magistrate
Judge would not be an overly-broad remedy. See, e.g., Virginia Society for Human Life,
Inc. v. FEC, 263 F.3d 379, 393 (4th Cir. 2001).
29
INDEX OF EXHIBITS



Exhibit Title Referring Page(s)
A
National Bloggers Club 501(c)(3) listing downloaded on
5 July, 2014, from
http://apps.irs.gov/app/eos/pub78Search.do?
ein1=45-4415151&names=National+Bloggers+Club
+Inc&city=Fort+Worth&state=TX&country=
US&deductibility=NONE&dispatchMethod=searchCharitie
s&submitName=Search
5
B
Extract from Second Amended Complaint, Kimberlin v.
Walker, et al., Case No. 380966V, (Md. Cir.Ct.
Montgomery Co.), Docket No. 123.
23, 24
C
Summary Judgment Order on Count VI, Kimberlin v.
Walker, et al., Case No. 380966V, (Md. Cir.Ct.
Montgomery Co.), Docket Nos. 193/194.
23, 24
D Declaration of F. Patrick Ostronic, Esq. 28
D-1
Brett Kimberlins Email Exchange with F. Patrick
Ostronic.
28
D-2
Kimberlins Admissions to Mr. Hoge from Discovery in
Kimberlin v. Walker, et al., Case No. 380966V (Md.
Cir.Ct. Montgomery Co.).
28
32








Exhibit A

National Bloggers Club 501(c)(3) listing downloaded on 5 July, 2014, from http://
apps.irs.gov/app/eos/pub78Search.do?ein1=45-4415151&names=National+Bloggers+Club
+Inc&city=Fort +Worth&state=TX&country=US&deductibility=NONE&dispatchMethod=
searchCharities&submitName=Search










Exhibit B

Extract from Second Amended Complaint, Kimberlin v. Walker, et al., Case No. 380966V,
(Md. Cir.Ct. Montgomery Co.), Docket No. 123.









Exhibit C

Summary Judgment Order on Count VI, Kimberlin v. Walker, et al., Case No. 380966V,
(Md. Cir.Ct. Montgomery Co.), Docket Nos. 193/194.









Exhibit D

Declaration of F. Patrick Ostronic, Esq. concerning authentication of Kimberlins Answers
to Discovery in Kimberlin v. Walker, et al., Case No. 380966V, (Md. Cir.Ct. Montgomery
Co.).

D-2








Exhibit D-1

Brett Kimberlins Email Exchange with F. Patrick Ostronic.








Exhibit D-2

Kimberlins Admissions to Mr. Hoge from Discovery in Kimberlin v. Walker, et al., Case
No. 380966V (Md. Cir.Ct. Montgomery Co.).