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Defendant Brett Kimberlin submits this motion in opposition to Defendant
Twitchy's Memorandum and stealth Motion to Dismiss.
Mr. Smith filed a motion/memorandum seeking dismissal of the Complaint
on the ground that Plaintiff made acheck mark on a certified green card and
submitted it in acase pending in Montgomery County Circuit Court Mr. Smith
asserts falsely that Plaintiff did so in order to mislead the court in that case. Mr.
Smith attached atranscript from astate court hearing on April 9, 2014, which has no
bearing on this case and does not support his argument inthe least. Heasks the
Court to cherry pick afew statements of Plaintiff and the judge at the hearing and to
then dismiss the instant case. This is amalicious and meritless allegation that has
been made to this Court in order to portray Plaintiff in afalse light to prejudice this
Court against Plaintiff and make him appear to flaunt the rules of the court.
Mr. Smith received this false narrative from unrepresented Defendants Walker
and Hoge who breathlessly raced down to the Montgomery County Court Reporter
the day of the hearing to get a recording of the hearing so they could publish their
Case 8:13-cv-03059-PWG Document 125 Filed 05/09/14 Page 1 of 5
falsenarrative ontheir blogs. Mr.Smithbought the transcript and then filedhis
meritless pleading. This Court has repeatedly admonished Defendants Walker and
Hogefor their conduct inthis case, and now Mr.Smith isrelying onand cooperating
with themto harass Plaintiff inthis case. This improper purpose for filingthe
pleading isanothe'r reason for denying the pleading.
Mr.Smithisnot anattorney inthe state caseand his Twitchy client isnot a
defendant Hewas not present at the hearing onApril 9, 2014 and has no idea of the
facts and context of the issue, yet hehas asked this Court to dismiss the Complaint in
the instant casebecause of the falsenarrative provided to himby Defendants
Walker and Hoge.
Hereare the facts inbrief: Plaintiff issuing Defendant Ali Akbar inthat state case
for matters distinct fromthose alleged inthe instant case. Kimberlin v. Walker, et al,
No 380966-V. Defendant Akbar, as inthis case, avoided service for months onend.
Therefore, Plaintiff filedaMotionfor Alternate Serviceand when doing so noticed
that the postal official had not checked the restricted delivery box onthe green card
as Plaintiff had requested. Therefore, Plaintiff checked it. Atahearing onJ anuary
13,2014, Defendant Akbar's attorney objected to the motion and complained tothe
judge that sheshould dismiss the casebecause of the check mark. J udgeBurrell
denied the motion to dismiss and simply asked Plaintiff to resend the complaint and
summons again with the restricted box checked properly. SeeExhibit A.
Case 8:13-cv-03059-PWG Document 125 Filed 05/09/14 Page 2 of 5
Plaintiff received anew summons and complaint from the Clerk and again sent
them to Defendant Akbar with the properly checked box. Undeterred, Defendant
Akbar's attorney filed amotion for sanctions again asking that the complaint be
dismissed on the basis of the prior check mark. When the Complaint was returned
as undeliverable, Plaintiff filed asecond Motion for Alternate Service. Defendant
Akbar's counsel objected and again asked that the case be dismissed but J udge
Burrell again denied the motion and granted Plaintiffs Motion for Alternate Service.
StilI undeterred, Plaintiffs counsel asked for reconsideration, which was also
denied and J udge Burrell ordered Defendant Akbar to answer the Complaint. Id.
Then on April 9,2014, J udge Ryon held ahearing on Defendant Akbar's Motion to
Sanctions and again counsel asked for dismissal of the Complaint. During the
hearing, J udge Ryon attempted to find J udge Burrell's prior oral ruling at the J anuary
13,2014 hearing but was unable to do so. Following the hearing, the judge denied
the motion to dismiss and for sanctions. ld.
Despite all of this, Mr. Smith has asked this Court to do something that two state
judges on multiple occasions refused to do in the state case - i.e., order dismissal.
Hehas asked this Court to sanction Plaintiff with attorney fees even though the state
court denied all requests to sanction Plaintiff. Hehas falsely accused Plaintiff of
nefarious conduct when he has no first hand knowledge of the issues or facts or
hearings, and he has done so in order to poison this case and make Plaintiff appear
Case 8:13-cv-03059-PWG Document 125 Filed 05/09/14 Page 3 of 5
Mr, Smith's conduct isreprehensible, unethical and unbecoming of amember of
thebar. Hehas bought into the falsenarratives of Defendants Walker and Hogewho
do not let aday gobywithout falsely accusing Plaintiff of some crime or malfeasance
online or incourt filings. Mr.Smithhas jettisoned his roleasanadvocate and has
become aharasser of Plaintiff using falsenarratives just as the Defendants have
done for the past several years. Mr.Smithhas used his "quote" Memorandum to
violate the Court's Management Order, which prohibits motions without permission
and ad hominem attacks. Hehas used his Memorandum to sneak infalseand
prejudicial information under the guiseof informing the Court of relevant
information. Relevant to what? All Motionsto Dismissand for Sanctions were
denied inthe state court sothe onlythings that are relevant are that (1) Defendant
Ali Akbar has been found to beavoiding service, and (2) Defendant Akbar's multiple
Motions to Dismisswere denied. Inwhat legal world does the denial of amotion
provide the basis for the granting of an unrelated motion inanunrelated case
involving an unrelated defendant??? That isnot precedent, it's AliceinWonderland.
Thisisnot relevant, it's irrelevant.
Thestate court onJ anuary 13, 2014 denied all of the state Defendants' Motions to
Dismiss for failureto state aclaim. Soif Plaintiff added atwist to Mr.Smith's
illogical argument, hecouldask this Court to deny all of the Defendants' Motionsto
Dismissfiledinthe instant casesimply because the state judge onJ anuary 13,2014,
denied all their similar motions inthe state case. Atleast Plaintiff would havesome
rational basis for that argument but of course it would beimproper for this Court to
consider such information indeciding the Motionsto Dismissinthe instant case.
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Wilen experienced lawyerssuc as
.claims, "a stmngi l l f e ~ r e r l e arises that.......,... h ..._gi g ofa actio ... was for an
improperpnrpose.''- Huettig&Schramm, Inc. v. Lanscape Contractors, 790F.Zd
1421,1427 (-9th Cir. 1986). Mr. Smith who promotes himselfas an expert in
appellate lawand civil procedure, filed his pleading containing outright false and
malicious allegations for an improper purpose. The pleading should be denied and
Certificate OfService
1certify that remailedacopyofthismotiontoMichaelSmith.Caitlin
Constestable, Ron Coleman, Paul Levy, James Skyles, Mark Bailen and Lee
Stranahan, and mailed copies to Defendants Walker, Hoge and McCain, this 7
of May 2014, pursuant to Rule 11(c)(2) prior to filing with the Court