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Opposition 2 Amended Complaint

Opposition 2 Amended Complaint

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Published by himself2462
Opposition to Motion to Amend
Opposition to Motion to Amend

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Published by: himself2462 on Feb 15, 2014
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02/20/2014

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BRETT KIMBERLIN, Plaintiff, v.

NATIONAL BLOGGERS CLUB, et al.. Defendants

! ! UNITED STATES DISTRICT COURT ! DISTRICT OF MARYLAND ! GREENBELT DIVISION ! !
Case No. 13-CV-03059-PWG

DEFENDANT HOGE’S OPPOSITION TO “PLAINTIFF’S MOTION TO CORRECT COMPLAINT CAPTION”

Comes Now Defendant William Hoge in opposition to Plaintiff’s Motion to Correct Complaint Caption (ECF No. 48) (“Motion to Correct”), and in opposition Mr. Hoge states as follows: Plaintiff Motion to Correct is really a motion to amend1. Plaintiff wishes to add a
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party to the suit who he neglected to include when he filed his Complaint and Amended Complaint four months ago. Plaintiff’s motion should be denied because 1.) it is untimely and 2.) it violates L.R. 103. Furthermore, Plaintiff’s motion is futile, and Plaintiff is acting in bad faith.

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Plaintiff is not asking for leave to amend. He is asking the Court to amend his Amended Complaint for him.
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PLAINTIFF IS ACTING IN BAD FAITH

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Plaintiff filed his original Complaint (ECF No. 1) on 15 October, 2013. He filed his Amended Complaint (ECF No. 2) two days later. Plaintiff added an additional Defendant to the caption of his Amended Complaint, DB Capitol Strategies. On or about 19 October, 2013, Plaintiff mailed Waiver of Service forms and copies of a document purported to be the Amended Complaint. However, the document which he mailed to at least some of the Defendants was not the same as the Amended Complaint filed with the Court. Non-Party Twitchy had been added to the caption of that “False Amended Complaint.”2
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Plaintiff’s sending of the False Amended Complaints just a few days after his filing of his Amended Complaint with the Court clearly shows that he was aware in Ocotober that Twitchy was missing from the caption as filed. Yet, he did not inform the Court of the discrepancy until he had been caught sending the False Amended Complaint and a forged summons to Twitchy in January, 2014. Plaintiff’s assertion that discrepancy is a “mere clerical error” is another one of his claims that cannot pass a laugh test.

Defendant Hoge received a copy of the False Amended Complaint on 22 October, 2013. Defendant Walker received a copy of the False Amended Complaint about the same time. See Walker Motion to Strike, p. 14 (ECF No. 54). Non-Party Twitchy reported receiving a copy in January, 2014. See Malkin/Twitchy Motion to Dismiss, pp. 2 - 5 (ECF No. 41).
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As the Supreme Court noted in Foman v. Davis, 371 U.S. 178, 182 (1962), a plaintiff’s bad faith can by itself be sufficient reason to deny a motion. Plaintiff’s Motion to Correct should be denied because of his bad faith.

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PLAINTIFF’S MOTION IS FUTILE

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As Mr. Hoge has pointed out in his Motion to Dismiss (ECF No. 5), Plaintiff has failed to properly alleged the elements of any of the torts or crimes that form the basis of his Amended Complaint. The flaws identified by Mr. Hoge apply to any possible Defendant, including Twitchy. Therefore, Plaintiff has not stated a claim upon which relief can be granted. Adding another Defendant will not remedy that failing in the Amended Complaint. Thus, Plaintiff’s Motion to Correct should be denied because it is futile. See U.S. v. Pittman, 209 F.3d 314, 318 (4th Cir. 2000).

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PLAINTIFF’S MOTION IS UNTIMELY

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As noted above, Plaintiff was clearly aware of the discrepancy between his Amended Complaint filed with the Court and the False Amended Complaint sent to some of the Defendants in October, 2013. However, his motion was not filed until the end of January, 2014. Plaintiff has offered no explanation for this unreasonable delay, and it is not in the

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interest of justice for the Court to grant what amounts to a dilatory motion. See Foman, 371 U.S. at 182. Thus, Plaintiff’s Motion to Correct should be denied.

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PLAINTIFF’S MOTION DOES NOT COMPLY WITH L.R. 103

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L.R. 103.6.c states that the party filing an amended pleading shall file and serve (1) a clean copy of the amended pleading and (2) a copy of the amended pleading in which stricken material has been lined through or enclosed in brackets and new material has been underlined or set forth in bold-faced type. Plaintiff has provided neither the clean copy of his proposed amended complaint nor the marked up version of the Amended Complaint his wished to change. Plaintiff provides yet another reason why his Motion to Correct should be denied (if not simply stricken).

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CONCLUSION

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Plaintiff’s Motion to Correct is a bad faith attempt to add a Defendant to the instant lawsuit. Given that Plaintiff has failed to properly allege any facts that establish a claim upon which relief could be granted, adding another Defendant is an untimely exercise in futility which only serves to prejudicially delay the progress of the case to the detriment of the existing Defendants. Consequently, the Court should deny Plaintiff’s motion and

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grant the existing Defendants and Non-Party Twitchy such other relief as it deems just and proper.

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Date: 14 February, 2014 Respectfully submitted,

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William John Joseph Hoge, pro se 20 Ridge Road Westminster, Maryland 21157 (410) 596-2854 himself@wjjhoge.com

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Certificate of Service

On this 14th day of February, 2014, I, William John Joseph Hoge, III, served copied of this Opposition to “Plaintiff’s Motion to Correct Complaint Caption” on the follow persons by U. S. Mail or email as shown: Brett Kimberlin at 8100 Beech Tree Road, Bethesda, Maryland 20817 Michael Smith, Esq., for Michelle Malkin and non-party Twitchy at smith@smithpllc.com Mark Bailen, Esq., for Erick Erickson, Redstate, Simon & Schuster, Glen Beck, MercuryRadio Arts, The Blaze, and James O'Keefe at mbailen@bakerlaw.com Caitlin Parry Contestable, Esq., for DB Capitol Strategies at caitlin@dbcapitolstrategies.com Linda S. Mericle, Esq., for The Franklin Center at linda.mericle@verizon.net Ron Coleman, Esq., for John Patrick Frey and Mandy Nagy at rcoleman@goetzfitz.com Aaron Walker, Esq., at aaronjw72@gmail.com Breitbart.com at loconnor@breitbart.com and larry@breitbart.com Ace of Spades at aceofspadeshq@gmail.com Lee Stranahan at stranahan@gmail.com Robert Stacy McCain at r.s.mccain@att.net Ali Akbar for himself and the National Bloggers Club at ali@blogbash.org Kimberlin Unmasked at kimberlinunmasked@hush.com!

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William John Joseph Hoge, pro se 20 Ridge Road Westminster, Maryland 21157 (410) 596-2854 himself@wjjhoge.com

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