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BRETT KIMBERLIN, Plaintiff v. NATIONAL BLOGGERS CLUB, et al., Defendants Case No. PWG 13-3059
DEFENDANT WALKER’S MOTION TO DISMISS ACE OF SPADES, KIMBERLIN UNMASKED, BRIETBART.COM, NATIONAL BLOGGERS CLUB AND ALI AKBAR FROM THIS CASE COMES NOW Defendant Aaron J. Walker, Esq., and files this motion to dismiss the anonymous writers known as “Ace of Spades” and “Kimberlin Unmasked,” the organizational defendants known as National Bloggers Club (hereinafter “NBC”) and Breitbart.com, and the individual Ali Akbar for failure to serve them within 120 days from the instant case in accordance with Fed. R. Civ. P. 4(m) and states the following: 1. ECF No. 1. 2. The 120th day since the initiation of this suit is February 12, 2014, two days before this On October 15, 2013, the Plaintiff filed his Complaint, setting off the instant lawsuit,
motion was filed. 3. Upon information and belief the Plaintiff has not properly served the following
Defendants: the National Bloggers Club (hereinafter “NBC”), “Breitbart.com,” Ali Akbar and the
anonymous writers known “Ace of Spades” and “Kimberlin Unmasked” (hereinafter “Ace” and “KU” respectively). 4. While Mr. Walker doesn’t purport to represent any of them before this court, he has an
interest in seeing these parties dismissed because if they are not, their inclusion will inevitably lengthen the proceedings, and Mr. Walker has an interest in seeing this case concluded as quickly as possible. As noted in Figueroa Ruiz v. Alegria: “A civil RICO suit is in effect quasi-criminal in nature.” Page v. Moseley, Hallgarten, Estabrook & Weeden, Inc., 806 F.2d 291, 298 (1st Cir.1986). The mere assertion of a RICO claim consequently has an almost inevitable stigmatizing effect on those named as defendants. In fairness to innocent parties, courts should strive to flush out frivolous RICO allegations at an early stage of the litigation. 896 F.2d 645, 650 (1st Cir. 1990); see also Taylor v. Brown, 953 F.2d 639, 639 (4th Cir. 1992) (citing Alegria with approval). For the same reason that Mr. Walker has an interest in seeing this frivolous case end at an early stage of litigation, he has an interest in seeing that end come as soon as possible. 5. Even if the Plaintiff served all five un-served Defendants tomorrow, each Defendant
would still have twenty-one days in which to either file an answer or a motion to dismiss. If they file a motion to dismiss, that would set off the usual twenty-eight-day cycle of opposition and reply (assuming no further extensions of time are granted), easily taking this court into April. Further, that assumes service is instantaneous—which is unlikely to be the case. 6. In the case of Breitbart.com,1 the Plaintiff has claimed to have served them by mail, but
did not send it by certified mail, restricted delivery as required. See Mr. Hoge’s Motion for Amended Report of Status of Service ¶¶ 5-6 ECF No. 33. There is no excuse for this failure: it should be the
It is also worth noting that upon information and belief, there is no legal entity called “Breitbart.com,” but instead that name only denotes the address of a website. 2
easiest thing in the world to serve a business at a fixed address. Accordingly, they have not been served and they should be dismissed from this suit. 7. In the case of Akbar and NBC, upon information and belief, the Plaintiff has failed to
serve Mr. Akbar at his legal residence and has failed to serve NBC at its place of business, and, accordingly, they should be dismissed from this suit. 8. In the case of the two anonymous writers, the Plaintiff has not been able to locate either
the person or persons behind those pseudonyms and, therefore, he has not served either. Accordingly, they should be dismissed from this suit. 9. In the case of “Ace,” the Plaintiff made no attempt to locate this person until January 31,
2014 when he filed a “Verified Motion for Subpoena to Identify Defendant Ace of Spades,” ECF No. 51. If such a subpoena is issued one shouldn’t be surprised if “Ace” files a motion to quash and even if the motion to quash is not successful there is no guarantee that the records the Plaintiff has sought will actually identify the writer or writers known as “Ace of Spades.” 10. All of this was begun on January 31, 2014. That was the 108th day of this suit. The
Plaintiff knew on Day One of this suit that he was suing an unidentified plaintiff with an unknown address. His Amended Complaint pointedly states that Ace of Spades is a “blog created by Michelle Kerr.” He noticeably does not allege that Ms. Kerr actively writes for the blog or that she was “Ace” or one of the persons who might write under that name. For all the Plaintiff knows, Ms. Kerr merely created the blog and has had nothing to do with it ever since. 11. Meanwhile, his unadorned allegation that the blog or Ms. Kerr are located at a specific
address in Santa Clara, California is not supported by any evidence or even an allegation that there is evidence. Why does he think that either the blog or Ms. Kerr can be found there? Indeed, why does he 3
think she created the blog? Federal Rule of Civil Procedure 11(b) requires that all factual assertions be supported by evidence and it is past time for the Plaintiff to show the court what evidence he has on this point. 12. Federal Rule of Civil Procedure 4(m) states that
If a defendant is not served within 120 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. The Plaintiff has not acted with due diligence in locating the person or persons who writes as “Ace of Spades,” and because of that lack of diligence, the continued inclusion of “Ace” is likely to drag out this case for months longer than it would otherwise. Therefore, the writer or writers known as “Ace of Spades” should be dismissed from the suit. 13. Finally, in relation to “KU,” upon information and belief the Plaintiff is no closer today
to learning the identity and location of the person or persons writing as KU than he was 122 days ago. Just how long should this suit be held in limbo while he chases his “great white whale” on the Internet? 14. Further, when it comes to the anonymous writers, “Ace” and “KU,” the Amended
Complaint is particularly ridiculous. Under Fed. R. Civ. P. 11(b)(3) the Plaintiff, by signing the Amended Complaint, certified that its “factual contentions have evidentiary support[.]” If the Plaintiff doesn’t know who they are, how can he pretend to have sufficient evidentiary support for his allegations that 1) they are part of a RICO enterprise, 2) they are part of a RICO conspiracy, or 3) they violated 42 U.S.C. §§1983 or 1985? Plainly, all the Plaintiff knows about “Ace” and “KU” is that they wrote bad things about him on the internet which is not enough in and of itself to support a single federal claim against either person or persons. This court should not waste its time trying to serve anonymous writers
when the Plaintiff cannot pretend in good faith to know that they committed acts that are criminal or even merely tortious. 15. Perhaps in an effort to explain why he has not served “Ace,” “KU,” Akbar or NBC, the
Plaintiff falsely states that they are “evading” service in his “Status Report Re Service of Complaint” ¶¶ 5-6, ECF No. 27. In the case of Akbar and NBC, before he can claim a priori they are evading service, he must establish he has attempted service at the appropriate addresses; he has not. In the case of “KU” and “Ace” they have no duty to give up their right to anonymous speech just because the Plaintiff asks. As the Supreme Court wrote in McIntyre v. Ohio Elections Comm'n, the right to write anonymously is a precious one, grounded deeply in the traditions of this country: Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Great works of literature have frequently been produced by authors writing under assumed names. Despite readers’ curiosity and the public’s interest in identifying the creator of a work of art, an author generally is free to decide whether or not to disclose his or her true identity. The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible.2 Whatever the motivation may be, at least in the field of literary endeavor, the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry. Accordingly, an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment. 514 U.S. 334, 341-342 (1995). Indeed, several of the founders and those who opposed the ratification of the present Constitution wrote anonymously under names like Publius on the pro-ratification side, and Respectfully, the Supreme Court missed an obvious, additional reason why a person may wish to write anonymously: so their words will be read without prejudice. For instance the Brontë sisters published as Currer, Ellis, and Acton Bell, with the three women intentionally picking male pseudonyms. According to Charlotte Brontë, “we did not like to declare ourselves women, because... we had a vague impression that authoresses are liable to be looked on with prejudice.” Elizabeth Cleghorn Gaskell, THE LIFE OF CHARLOTTE BRONTË 218 (1870). 5
names like Brutus and Federal Farmer on the anti-ratification side. The Plaintiff has no right to expect these anonymous writers to shed that anonymity voluntarily just because the Plaintiff has filed a frivolous suit against them.3 Their refusal to give up that right at the Plaintiff’s whim can’t be held against them any more than this court can hold the fact that a criminal defendant has “pled the Fifth” against that person; these are constitutional rights that they are allowed to assert without prejudice or reprisal. Simply put, the Plaintiff has not demonstrated any legally cognizable evasion of service of process and therefore has no excuse for having failed to serve them.
Accordingly, this court should dismiss “Breitbart.com,” NBC, Ali Akbar, and the anonymous writers known as “Ace of Spades” and “Kimberlin Unmasked” from this suit, and this court should grant any other relief it deems just and equitable.
Friday, February 14, 2014
Aaron J. Walker, Esq. [personal information omitted]
Indeed any rational person would be reluctant to give their identity and home address to a convicted terrorist (whose actions have actually cost a man his life) for reasons that have nothing to do with the fear of being held civilly liable. 6
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