IN THE UNITED STATES DISTRICT COURIjL9J courlT

FOR THE DISTRICT OF MARYL~~b,;f~f Ici}I'~:f\RYLMm
Southern Division "
LUlliJUl 22 A \0: 2b
*
BRETT KIMBERLIN,
*
Plaintiff
*
v.
LYNN THOMAS,
and
PETER G. MALONE
Defendants
*
*
*
*
*
CASE NO.: 8:13-CV-02580-RWT
* *
*
* * * * *
DEFENDANTS' JOINT OPPOSITION TO PLAINTIFF'S MOTION FOR DEFAULT
COMES NOW Defendants Lynn Thomas and Peter G. Malone, in the above-styled case,
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
the Defendants state the following:
I. Plaintiff did not comply with Maryland Rule of Civil Procedure 2-121. In paragraph 2 of
Plaintiff's Motion for Default, ECF No. 18, Plaintiff states he mailed alleged service of
Case 8:l3-cv-02580-RWT Document l9 Filed 07/22/l4 Page l of l9
process on March 30, 2014. However, he admits in the same paragraph that "a month
later, the envelopes were returned unclaimed." Maryland Rule of Civil Procedure
2-12'1(a) states that "Service by certified mail under this Rule is complete upon delivery."
Since by Plaintiff's own admission it was not delivered, it was not served.
2. Plaintiff tries to get around this clear failure by stating in paragraph 6 that "Defendants
have actual notice of the Complaint, have a copy of it, and are aware that they have a
right to respond to it." Even if this was true, this dilatory Plaintiff is not absolved from
complying with Federal Rule 4(e) simply because a defendant may have had actual notice
of the suit. See McGuire v. Sigma Coatings, Inc., 48 F.3d 902, 907 (5th Cir. 1995); Mused
v. Us. Dep t of Agric. Food & Nutrition Serv., 169 ER.D. 28, 34 (W.D.N.Y. 1996).
Plaintiff still has the burden to prove that he has actually served the Defendants and he
has not done so. In addition, as we will demonstrate, Plaintiff has actually attempted to
perpetrate a fraud on this court, falsely claiming he had served the Defendants properly
when he had not.
A. DEFAULT SHOULD BE DENIED BECAUSE PLAINTIFF HAS NOT
SUBMITTED PROOF OF SERVICE
3. A Plaintiff bears the burden of proving, by a preponderance of the credible evidence, that
service is adequate. See Almonte v. Suffolk County, 2012 U.S. Dist. LEXIS 69465
(E.D.N.Y. 2012).
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4. There is documentary evidence that Plaintiff is attempting to perpetrate a fraud on this
court by claiming he has properly attempted service of process. Plaintiff writes in
paragraph 2 that "On March 30, 2014, Plaintiff secured new summons from the Clerk and
served the Defendants by Certified Mail, Return Receipt, Restricted Delivery. Exhibit A.
A month later, the envelopes were returned unclaimed. Id." (italics added).
5. Postal records show that this is not true.
6. Plaintiff is lying to this court when he claims to have sent these packages "Restricted
Delivery" as allowed under Md. Rule 2-221(a)(3). He has altered his Exhibit A by
checking the "Restricted Delivery" box after delivery had been attempted and failed.
7. Although this allegation might sound far-fetched, he has done this sort of thing before.
Plaintiff admitted to doing the exact same thing in a Mary land court Kimberlin v. Walker
et aI., Case # 380966V (Md. Mont. Co. Cir. Ct. 2013). As we are about to show, Plaintiff
stated in a hearing that when attempting to serve another person, he altered the Certified
Mail green card to falsely indicate that he has sent the package "Restricted Delivery."
Also, Plaintiff is a convicted perjurer, See United States v. Kimberlin, 483 F. Supp. 350,
351 (S.D. Ind., 1979), and he has a conviction related to the forgery of documents, United
States v. Kimberlin, 805 F. 2d 210 (7th Circuit 1986). Finally, he has recently admitted in
Kimberlin v. National Bloggers Club et aI., Case # 8:2013-cv-03059-GJH (D. Md.,
2013) that he forged a summons (see ECF 102 in that case). Compounding his lies, after
admitting to the forgery in Kimberlin v. National Bloggers Club et aI., he denied in
Kimberlin v. Walker et al. that he was caught forging the summons in that federal suit or
3
Case 8:l3-cv-02580-RWT Document l9 Filed 07/22/l4 Page 3 of l9
that he had admitted to it. See Kimberlin v. National Bloggers Club et al., ECF 149,
Exhibit D-2. In summary, there is strong evidence that he has altered the Certified Mail
green cards shown in his Exhibit A in this case to falsely indicate he had attempted
service in compliance with Maryland's Rule, and there is good reason to doubt anything
else he says in the instant case.
B. PLAINTIFF HAS ALTERED EXHIBIT A TO INDICATE THAT HE ATTEMPTED
TO SEND US RESTRICTED DELIVERY WHEN HE DID NOT.
8. Page 1 of Plaintiff's Exhibit A purports to be a copy of a package sent to defendant Peter
Malone, including a Certified Mail green card. The Restricted Delivery checkbox is
checked. The package has a tracking number of 7012 2920 0000 9200 0493.
9. Attached as Exhibit 1 is a print out of the USPS tracking page. As the Court can see, the
only features listed as being purchased are "Certified Mail" and "Return Receipt."
10. If "Restricted Delivery" had been chosen, that would have been listed under "Features."
We know this because if one enters the tracking number of a package that was sent
Certified Mail, Return Receipt, with Restricted Delivery, one sees that it is indicated. For
instance, Exhibit 2 is a print out for the mail piece with the tracking number 7013 3020
0001 8041 2479, under features "Certified Mail," "Return Receipt" and "Restricted
Delivery" are listed. So the lack of "Restricted Delivery" being listed under "Features"
in Exhibit I logically means that the Plaintiff did not send it with Restricted Delivery.
4
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11. Plaintiff did the same thing with the mailing to Lynn Thomas. Page 2 of Plaintiff's
Exhibit A is presented as a copy of a package sent to her, including a Certified Mail green
card with the "Restricted Delivery" option checked off. That tracking number is 7003
1680 0000 8911 9948. Again, if one enters that tracking information into the USPS
tracking system, the results will indicate that "Restricted Delivery" was not chosen as a
"feature." Exhibit 3 is a print out of the USPS tracking page for that tracking number.
12. Further, we invite your honor not to take our word for it, but to run this "experiment"
yourself. Enter the tracking numbers of a package known to have been sent Restricted
Delivery as the "control" and then run the tracking numbers in Plaintiff's Exhibit A as the
"experiment." We have no doubt you will get the same results: that USPS records clearly
indicate that Plaintiff did not send these packages Restricted Delivery.
13. There is more evidence offalsity. Plaintiff's Exhibit A lists the postage for the package
sent to Peter Malone as $11.60 and indicates that it was sent Certified Mail, Restricted
Delivery.
14. It is not possible that Plaintiff sent the package with all of those features he claims to
have chosen. The current Certified Mail fee is $3.30. The current cost of getting a Return
Receipt "green card" is $2.55. Finally, the Restricted Delivery service costs $4.75. (See
http://www.certifiedmaillabels.comlusps-postal-rates/). Therefore before taking into
account the weight of the package, the postage should cost a minimum of $10.60.
Plaintiff would have the Court believe that the remaining postage for this package
equaled a dollar ($1.00), to bring up the total postage to $11.60. That is impossible,
5
Case 8:l3-cv-02580-RWT Document l9 Filed 07/22/l4 Page 5 of l9
because it is less tban the First Class postage for a large envelope weighing as much as
the document shown on PACER as the Amended Complaint.
15. Plaintiff has done this before in this lawsuit. He filed a "Verified Motion to Find That
Defendant KimberlinUnmasked Has Been Served Under Federal Rule Of Civil Procedure
4(e)(l) and Maryland Rule of Civil Procedure 2-121." ECF 7. As previously pointed out
in an attempted amicus motion, Plaintiff included an Exhibit D which also purported to
include a Certified Mail green card with a checkmark indicating that he had chosen
Restricted Delivery:
O~Mall
o P~I.l"" ~t:t lc' \'~,,"C"w
o COO
::, Sr.'Ce Type
oCertified Mall
DRoglr~
o ].-wrlKl Mad
•...--_.~
~. P.esl"Cted ~ •.•er," 'E~'7JF'H}
<[013 1090 0001 2438 b92[)
l)oriifjWt Al!iti f\" (l!ll"!
16. That tracking number is 7013 10900001 24386922. If the Court runs the tracking
number, one will discover that it was not sent via Restricted Delivery. This was
confirmed by a Post Office receipt shown on PACER. In Kimberlin v. National Bloggers
Club et aI., in which Lynn Thomas is also listed as a Defendant, Plaintiff was required to
submit a report on his service called "Status Report Re Service of Complaint," ECF 33.
That report attaches a number of receipts for postal services. This is a screen capture of
one oftbe entries:
6
Case 8:l3-cv-02580-RWT Document l9 Filed 07/22/l4 Page 6 of l9
'.
$5.60
'@ .•.•.• SA1NT CHARLES IL 60174
:00e-4
Iriority Mail 2-Day
" at RateEnv
.0.40 02..
Schedul ed De11very Day: Sat 01104/14
Includes $50 insurance
$11.25
$2.55
.10
70131090000124386922
Issue PVI:
Return Rcpt (Green Card)
@@ Certified
label #:
17. As the Court can see, that receipt matches the green card he submitted in this case and it
apparently cost Plaintiff $11.25 (under the old postal rates) to attempt the same service to the
same address. Plaintiff did not pay for Restricted Delivery in this instance, either.
18. A number of conclusions can be drawn from this evidence. First, it shows that Plaintiff
has a history of falsely presenting alleged packages mailed "Restricted Delivery" when
they had not been sent by that method. As we will show in a moment, this is not the only
time he has been caught doing this. Second, it shows that back when he sent his package,
the base cost of mailing service was $5.60. That was on January 4, 2014. Postal rates
increased on January 26, 2014, (http://about.usps.com/news/national-releasesI2013/
pr13_077.htm) and so if anything it should have cost more. Therefore it is logically
impossible for the Plaintiff to have sent the package, Certified Mail, Return Receipt,
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Restricted Delivery for only $11.60. Clearly he did not send it Restricted Delivery as
required, and he falsely represented to this Court that he did.
C. PLAINTIFF HAS PREVIOUSLY ADMITTED IN ANOTHER CASE THAT HE
ALTERED CERTIFIED MAIL GREEN CARDS TO FALSELY STATE THEY
WERE SENT RESTRICTED DELIVERY AND HE MADE STATEMENTS IN
THAT CASE INDICATING THAT NONE OF THE MAILINGS IN EXHIBIT A
WERE SENT RESTRICTED DELIVERY.
19. As difficult as it may be to believe, Plaintiff has a history of engaging in precisely this
kind of fraud on the Court.
20. As noted above, Plaintiff presently has another case in Montgomery County Circuit Court
against the named defendants in this case and against four other defendants: Ali Akbar,
John Hoge, Robert McCain and Aaron Walker. On April 9, 2014, Mr. Akbar sought
sanctions against Plaintiff for doing the same thing: Plaintiff sent service of process
without checking the Restricted Delivery checkbox or paying the fee for Restricted
Delivery, and then altered the green card after the fact to indicate that it had been sent
Restricted Delivery. In that case, Plaintiff carelessly provided a copy of the unchecked
green card in one filing and then provided a new copy with the checkmark added.
21. In that hearing, Plaintiff admitted to the alteration as follows:
THE COURT: Did you alter the return receipts between docket
entry 38 and 50 whatever, did you change them?
MR. KIMBERLIN: I did not change them intentionally. When I go to
the post office, I ask them to do it so it's registered
or whatever it's called, restricted delivery, and they
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Case 8:l3-cv-02580-RWT Document l9 Filed 07/22/l4 Page 8 of l9
did not do it. [Defendant Akbar is] saying that
there's an extra fee. I've never paid an extra fee for
restricted delivery. I've sent literally 50 or 100 of
these things and never once faked a [unintelligible]
restricted delivery, but, you know, Mr. Akbar here
sitting right there that this was sent in January 2
nd
to
Mr. Akbar. It came back, it's restricted delivery.
This one here is January 25th, again, Mr. Akbar
came back restricted delivery, you know,
undeliverable. And you know he keeps accusing me
of not paying the extra fee.
THE COURT: This isn't about paying a fee.
MR. KIMBERLIN: That's what he said.
THE COURT: This is about the exact same brief green card being
filed - the support motions you filed, the different
docket entries, one showing the restricted delivery
box checked and one not.
MR. KIMBERLIN: Your honor, like I said I asked the post office to
send it restricted delivery.
THE COURT: You're not answering my question.
MR. KIMBERLIN: Yes, I changed-
THE COURT: Did you change it?
MR. KIMBERLIN: Yes, I did.
THE COURT: And then you filed it representing that it accurately
reflected the green card that had been filled out.
MR. KIMBERLIN: No, no, no, I filed it and accurately said -- it
accurately reflected what I told the post office to do
and that's what it is. You know, like I said I'm a pro
se litigant and -
THE COURT: Don't even use that with me.
MR. KIMBERLIN: Okay, okay-
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THE COURT: You know it's one thing to say I'm pro se so I don't
understand rules or I don't understand how to get
something in and the rules of evidence and another
thing to alter something and file it.
22. A copy of the transcript has already been presented in the case of Kimberlin v. National
Bloggers Club et al. as ECF 124. For this court's convenience a true and correct copy of
that document is attached as Exhibit 4. This exchange can be found on pages 21-23.
23. In addition to being another example of the same Plaintiff engaging in the same deception
before a different court, it is also evidence of Plaintiff's serial failure to send service via
Restricted Delivery in this case as he is required under the Maryland Rules. According to
the tracking number information presented as Exhibit 1 and 3 to this Opposition it was
mailed on March 31, 2014. This is consistent with Plaintiff's Exhibit A but it is
inconsistent with his statements in paragraph 2 of his motion for default, where he states
that both packages were sent on March 30, 2014.
24. However, as noted above, on April 9, 2014, Plaintiff told the court in Kimberlin v. Walker
et ai, that "I've never paid an extra fee for Restricted Delivery" related to service of
process. Ifhe has "never" paid such a fee as of April 9, 2014, he did not pay it on March
I
31,2014, either.
25. Plaintiff is likely to try to rely on his being pro se to justifY his failure to obey the rules
and to justifY presenting altered evidence before this honorable court. Aside from Judge
Ryon's sharp words quoted above, Plaintiff has more experience in the courtroom than
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some trial lawyers. As your honor observed in your Memorandum Opinion, ECF No. 12,
pp.3-4.
The Plaintiff is no stranger to the processes of this Court. Following his
conviction in the United States District Court for the Southern District of
Indiana for possession of a firearm not registered to him, manufacture of a
firearm, maliciously damaging by explosion the property of an entity
receiving federal financial assistance, and damaging property of a business
used in and effecting interstate commerce, which was affirmed in United
States v. Kimberlin, 805 F.2d 210 (1986), he commenced numerous cases
in this Court against the United States Parole Commission, in Brett C.
Kimberlin v. Department of Justice and Us. Parole Commission, Case
No. 8:98-cv-00730-AW; Brett Kimberlin v. United States Parole
Commission, et al., Case No. 8:97-cv-03829-AW; Brett C. Kimberlin v.
United States Parole Commission, Case No. 8:97-cv-02066-AW; Brett C.
Kimberlin v. Us. Parole Commission, et aI., Case No. 8:97-cv-01687-AW,
and Brett C. Kimberlin v. United States Parole Commission, Case No.
8:97-cv-00431-AW, apparently in relation to his efforts to be paroled from
his conviction affirmed by the 7th Circuit in 1986. Following his release
on parole, he also brought an action in this Court which was treated as an
effort to overturn his Indiana conviction under 28 U.S.c. S 2255. His
petition was denied, and the denial was affirmed by the 4th Circuit, Brett
C. Kimberlin v. Warden, Case No. 8:04-cv-02881-AW. Finally, he has been
involved in litigation concerning his personal bankruptcy in this Court,
Brett Coleman Kimberlin v. USA v. In Re: Brett Coleman Kimberlin v.
James Turner, Case No. 8:98-cv-03586-AW and Brett Kimberlin v. US
Trustee, Case No. 8:98-cv-00490-AW.
26. This certified paralegal should not be held to the low standard of most pro se litigants.
And even ifhe should, how much legal education does one need to have to know not to
alter a document and present it to the court as legitimate? We have never been to law
school, we are not paralegals, but we know better than to even try to do that. This court
should respond to any plea of pro se status the same way Judge Ryon did: "Don't even
use that with me."
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D. PLAINTIFF'S ALTERATION OF THE CERTIFIED MAIL GREEN CARDS
REPRESENTS THE LATEST EXAMPLE OF HIS UNREPENTANT
DISHONESTY IN RELATION TO SERVICE OF PROCESS.
27. On April 9, 2014, in Kimberlin v. Walker et al., the court did not fine Plaintiff, because
the judge did not believe she had the power. However Judge Ryon did scold Plaintiff with
these words:
THE COURT:
Page 25.
Mr. Kimberlin, I hope you are aware-if you
weren't before-you're aware now and you do not
alter anything you file before this court because by
filing it you're representing to this court that the
document is as it was and has been in its unaltered
state to back up whatever you're alleging.
28. Plaintiff replied to that by saying "I understand," but it seems that he didn't--submitting
another altered green card in this case without informing this court that it had been
altered.
29. This is not the first time he has been caught engaging in dishonest behavior in relation to
service of process, feigning repentance when caught, and then proving himself
unrepentant in another court. In Kimberlin v. National Bloggers Club et aI, he was caught
forging a summons and admitted to it. See Kimberlin v. National Bloggers Club et at.,
ECF 102. There he claimed it was an "honest mistake." But when asked about the same
forgery in the case of Kimberlin v. Walker et aI, he not only denied altering the summons
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and even denied admitting to the alteration to then-presiding Judge Grimm. Kimberlin v.
National Bloggers Club et al., ECF 149, Exhibit D-2, P. 61.
30. Thus, a pattern of unrepentant dishonesty is established. In Kimberlin v. National
Bloggers Club et aI., he is caught forging a summons and then in Kimberlin v. Walker et
ai, he denies forging the summons and denies admitting to having done it. Meanwhile, in
Kimberlin v. Walker et ai, he admits to altering a Restricted Delivery green card and
falsely presenting it to the court, pretending he is sorry and promising not to do it again.
Then he does it again in the instant case before you. It's as ifhe is hoping that the
different judges in each case do not learn what Plaintiff is doing in the other cases.
31. Again, it is Plaintiff's duty to provide credible evidence of service. Under the best
circumstances it would be difficult to credit Plaintiff's claims. Plaintiff is a convicted
perjurer, See United States v. Kimberlin, 483 F. Supp. 350, 351 (S.D. Ind., 1979). He is
one of the few Americans to have been convicted of misuse of the Seal of the President of
the United States, and the facts upon which he was convicted suggests that even then he
was engaged in the forgery of documents:
[FBI Special Agent] Lucas had been called to a printing establishment. He
observed defendant wearing clothing with badges and insignia. The
insignia was identical to that of the Security Police of the Defense
Department. Defendant had in hand a facsimile of the Presidential Seal
and other documents, one or more of which he attempted to chew up.
See United States v. Kimberlin, 805 F. 3d 210, 228 (7th Circuit 1986).
32. Another example of his dishonesty can be found in Kimberlin v. Dewalt, 12 F. Supp. 2d
487 (D. Md., 1998) where this court found that Kimberlin had cheated a woman (that he
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Case 8:l3-cv-02580-RWT Document l9 Filed 07/22/l4 Page l3 of l9
widowed with one of his bombs) out ofa civil judgment she obtained, and also
committed mortgage fraud. His behavior was so outrageous in that case that his parole
was revoked.
33. All this suggests that under the best of circumstances Plaintiff's word should not be
trusted. This opposition has presented credible evidence that Plaintiff has misled the
Court by altering exhibits, in an, attempt to trick the Court into believing that he
attempted service Restricted Delivery. He did not.
34. The undersigned do state that we have not received service, and we have taken no action
to evade service, as Plaintiff so dishonestly claims. We are willing to answer this suit on
the merits if Plaintiff ever gets around to properly serving us.
E. PLAINTIFF'S DOCTORING OF PROOF OF SERVICEWARRANTS
DISMISSAL.
35. A Federal District Court possesses inherent powers that are necessary to the exercise of
all others. Johnese v. Jani-King, Inc., 2008 U.S. Dist. LEXIS 16435, **4-5 (N.D. Tex.
March 3, 2008), citing Chambers v. NASCa, Inc., 501 U.S. 32, 43 (1991), and United
States v. Hudson, 11 U.S. 32, 34, 3 L. Ed. 259 (1812). Though a court should exercise
those powers with restraint, they extend to dismissing a case with prejudice for a
litigant's misconduct ifthe court considers lesser sanctions, and determines they would
not suffice. Id. at *5, citing Shepherd v. American Broadcasting Cos., 62 F.3d 1469, 1479
14
Case 8:l3-cv-02580-RWT Document l9 Filed 07/22/l4 Page l4 of l9
(D.C. Cir. 1995) (collecting cases). Fed. R. Civ. P. 41(b) also provides a basis for
dismissing with prejudice, where a plaintiff engages in misconduct constituting a
violation of the court rules or a court order. C.B.H Resources v. Mars Forging Co., 98
F.R.D. 564, 569 (W.D. Pa. 1983).
36. Fraud on the court has been described as "a scheme to interfere with the judicial
machinery performing the task of impartial adjudication, as by preventing the opposing
party from fairly presenting his case or defense." VonNichols v. Klein Tools, Inc., 949 F.
2d 1047, 1048 (8th Cir. 1991) (citations omitted). "A finding of fraud on the court is
justified only by the most egregious misconduct directed to the court itself, such as ...
fabrication of evidence by counsel, and must be supported by clear, unequivocal and
convincing evidence." Id. (citations omitted). Mr. Kimberlin's brazen misconduct by
twice altering Certified Mail receipts to try to indicate that they were sent Restricted
Delivery-once after he was warned not to do this again by an irate judge in another case
~arriounts to fraud on this Court. It is so egregious that the only appropriate sanction (in
this forum) is dismissal of his action with prejudice.
37. In C.B.H Resources, supra, the Plaintiff secured a witness's presence for deposition by
having its counsel present the witness with a document Plaintiff claimed was a valid
subpoena, but which was not. That plaintiff's abuse of the court's process under Fed. R.
Civ. P. 45 was a sufficiently egregious rule violation to warrant involuntary dismissal
under Rule 41(b). 98 F.R.D. at 568-569. Likewise, Mr. Kimberlin's actions violate
numerous provisions of Fed. R. Civ. P. 4 (Summons), 5 (Serving and Filing Pleadings and
15
Case 8:l3-cv-02580-RWT Document l9 Filed 07/22/l4 Page l5 of l9
Other Papers), and II (Signing Pleadings and Representations to the Court), to name just
a few. And his pro se status is no excuse. Leaving aside that Mr. Kimberlin's ample
litigation experience probably makes him more knowledgeable of the rules than many
lawyers, every schoolchild knows not to take an official document, alter it, then try to
pass it off as something other than what it is. Most people would call that "forgery."
38. "Tampering with the administration ofjustice ...involves far more than an injury to a
single litigant. It is a wrong against the institutions set up to protect and safeguard the
public." Johnese at *5, citing Chambers, SOl U.S. at 44 and, inter alia, Aoude v. Mobil
Oil Corp., 892 F.2d IllS, 1118 (I st Cir. 1989) (dismissing case in which Plaintiff
attached fabricated document to complaint; "[i]t strikes us as elementary that a federal
district court possesses the inherent powers to deny the court's processes to one who
defiles the judicial system by committing a fraud on the court"). And Aoude noted that:
Courts cannot lack the power to defend their integrity against
unscrupulous marauders; if that were so, it would place at risk the very
fundament of the judicial system. As Justice Black wrote in a case
involving a not-dissimilar fraud:
Tampering with the administration of justice in the manner
indisputably shown here involves far more than an injury to
a single litigant. It is a wrong against the institutions set up
to protect and safeguard the public, institutions in which
fraud cannot complacently be tolerated consistently with
the good order of society ....The public welfare demands
that the agencies of public justice be not so impotent that
they must always be mute and helpless victims of deception
and fraud.
All in all, we find it surpassingly difficult to conceive of a more
appropriate use of a court's inherent power than to protect the sanctity of
the judicial process -- to combat those who would dare to practice
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Case 8:l3-cv-02580-RWT Document l9 Filed 07/22/l4 Page l6 of l9
unmitigated fraud upon the court itself. [Aoude, 892 F.2d at 1119, citing
Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 246, 64 S.
Ct. 997, 88 L. Ed. 2d 1250 (1944)].
39. Leaving aside the issue of whether Mr. Kimberlin's actions amount to mail fraud or other
criminal conduct, they certainly constitute "defil[ing] the judicial system," ld., and "the
most egregious misconduct directed to the court itself," Von Nichols, 949 F.2d at 1048,
justifying dismissal under the Court's inherent authority and/or Rule 41(b). Plaintiff has
literally tried to deny Defendants their day in court, and for this, this case should be
dismissed with prejudice.
CONCLUSION
40. This Court should deny Plaintiff's most recent fraud on this Court-attempting to obtain
a default when not serving the defendants in the manner required by the Rules. Plaintiff's
motion for default should be denied.
41. Further as a sanction for this Plaintiff's fraud upon the Court, the entire case should be
dismissed with prejudice, and this Court should consider referral to the U.S. Attorney for
perjury (since his motion for default is verified and sworn under penalty of perjury to be
true as per page 4 of his default motion) and possibly mail fraud charges under 18 U.S.C.
S 1341.
42. Finally, we pray this court will provide all other relief as appropriate.
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Case 8:l3-cv-02580-RWT Document l9 Filed 07/22/l4 Page l7 of l9
Tuesday. July 22, 2014 Respectfully submitted,
Ly omas pro se
Em 11: Imalone.thomas.legal@gmail.com
Mailing address:847 South Randall Road Suite 257, Elgin,
IL 60123
Phone: 630-335-7229
:&~
. ,'. /#'l; /~/.
~~hi£)
Peter G. Malone prfo se
Email: pmalone.legal@gmail.com
Mailing address: 847 South Randall Road Suite 257, Elgin,
IL 60123
Phone: 630-397-8515
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Case 8:l3-cv-02580-RWT Document l9 Filed 07/22/l4 Page l8 of l9
CERTIFICATE OF SERVICE
We hereby certify that a true and correct copy of the above Opposition and its Exhibits was filed in this
case on July 21, 2014. Additionally, we are serving the documents sent via USPS mail on this date on
Plaintiff Kimberlin.
Dated: July 22, 2014
By:
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Exhibit I-Malone Tracking Information
Case 8:l3-cv-02580-RWT Document l9-l Filed 07/22/l4 Page l of 3
712112014
G: EngUlh
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Tracking Number: 70031680000089119948
Expected Delivery Day: Wednesday, April 2, 2014
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I DATE & TIME
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Case 8:l3-cv-02580-RWT Document l9-3 Filed 07/22/l4 Page 3 of 3
Exhibit 4-Kimberlin v. National Bloggers Club, ECF No. 124
Case 8:l3-cv-02580-RWT Document l9-4 Filed 07/22/l4 Page l of 28
Case 8:13-cv-03059-PWG Document 124-1 Filed 04/28/14 Page 1 of 27
IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY, MARYLAND
----------------------------x
BRETT KIMBERLIN
Plaintiff,
v.
AARON WALKER, ET AL
Defendant.
----------------------------x
ROckville, Maryland
Civil No. 380966
HEARING
April 9, 2014
NATIONAL CAPITOL CONTRACTING, LLC
200 North Glebe Road, Suite 1016
Arlington, VA 22203
(703) 243-9696
oORIGINAL
Case 8:l3-cv-02580-RWT Document l9-4 Filed 07/22/l4 Page 2 of 28
Case 8:13-cv-03059-PWG Document 124-1 Filed 04/28/14 Page 2 of 27
IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY, MARYLAND
----------------------------x
BRETT KIMBERLIN
Plaintiff,
v.
AARON WALKER, ET AL
Defendant.
----------------------------x
Civil No. 380966
Rockville, Maryland
April 9, 2014
WHEREUPON, the proceedings in the above-entitled
matter commenced
BEFORE: THE HONORABLE JOAN E. RYON, JUDGE
r
APPEARANCES:
FOR THE PLAINTIFF:
BRETT KIMBERLIN, Pro Se.
8100 Beech Tree Road
Bethesda, MD 20817
FOR THE DEFENDANT:
PATRICK F. OSTRONIC, Esq.
932 Hungerford Drive Ste. 28-A
Rockville, MD 20850
Case 8:l3-cv-02580-RWT Document l9-4 Filed 07/22/l4 Page 3 of 28
ase 8: 13-cv-03059-PWG Document 124-1 Filed 04/28/14 Page 3 of 27
3
r
1 PRO C E E 0 I N G S
2 THE COURT: Please be seated.
3 THE CLERK: Civil 380966 Brett Kimberlin versus Aaron
4 Walker et Al.
5 THE COURT: Good morning.
6 MR. KIMBERLIN: Good morning, Brett Kimberlin, Pro Se.
7 MR. OSTRONIC: Good afternoon, your honor, Patrick
8 Ostronic on behalf of Mr. Walker, Mr. Hoge, Ms. Malone, and Mr.
9 Akbar and today, myself included.
10 THE COURT: Okay, we are here this morning on the
11 plaintiff's motion for an order to show cause at docket entry
12 53; on plaintiff's motion for sanctions at docket entry 60;
13 there's a motion to compel at docket entry 78 that I'm going to
14 dismiss for failure to comply with Maryland Rule 2431 so we
15 won't be addressing that; and the motions at docket entries 81
16 and 94 are moot as there are court orders already addressing
17 those 50 we have a motion for show cause and a motion for
18 sanctions before the court this morning.
19 MR. KIMBERLIN: Okay, so you say 53 and 60?
20 THE COURT: Yes.
21 MR. KIMBERLIN: Okay, I would like to take this
22 opportunity to withdraw my request for sanctions against Mr.
23 Walker. That motion was the underlying motion that was ruled in
24 my favor by Judge Burrell and in my opinion the issues have been
25 dealt with. The--
Case 8:l3-cv-02580-RWT Document l9-4 Filed 07/22/l4 Page 4 of 28
53 against Mr. Walker, I
1
2
3
4
5
6
7
ase 8:13-cv-03059-PWG Document 124-1 Filed 04/28/14 Page 4 of 27
THE COURT: Which motion are you talking about? The
motion for sanctions I am looking at oh, against Mr.?
MR. KIMBERLIN: No, Mr.
guess that's 53.
THE COURT: Motion for a show-cause. So, you're
withdrawing that?
MR. KIMBERLIN: Yeah, I think so. I mean, the issue
4
8 was--
9 THE COURT: Okay.
10 MR. KIMBERLIN: the issue was whether Mr. Walker
11 could file papers for somebody else and Judge Burrell ruled
12 against that --
13 THE COURT: Okay, so number 53 is withdrawn.
14 MR. KIMBERLIN: Yeah.
15 THE COURT: That leaves number 60.
16 MR. KIMBERLIN: So 60 is the only left. I've asked
17 Mr. Ostronic to withdraw that. I think that Judge Burrell had
18 already--
19 THE COURT: It's your motion.
20 MR. KIMBERLIN: 60 is not my motion.
21 THE COURT: Unless I have it -- I have it as
22 plaintiff's motion for sanctions.
23 MR. OSTRONIC: We don't have a motion.
24 MR. KIMBERLIN: Oh, yeah, that's right. Motion for
25 sanctions againstMr. Ostronic; I'd like to withdraw that and so
Case 8:l3-cv-02580-RWT Document l9-4 Filed 07/22/l4 Page 5 of 28
ase 8:13-cv-03059-PWG Document 124-1 Filed 04/28/14 Page 5 of 27
1 everything -- in my opinion, everything's over.
2 THE COURT: Okay, well if you're withdrawing 53 and
3 6Q, the court is dismissing 78 and 81 and 94 are moot and that
4 is all that I had listed as being set for hearing today. Did
5 you have something else?
6 MR. KIMBERLIN: No, I'm happy with that.
7 MR. OSTRONIC: Does - did you miss my motion for
8 sanctions against Mr. Kimberlin?
9 THE COURT: Do you have the docket entry number? The
10 one I dismissed was the plaintiff's motion to compel --
11 MR. OSTRONIC: Correct.
12 THE COURT: which did not contain a good faith
13 certification as required by the rules. That's the one that I
14 dismissed.
15 MR. OSTRONIC: Right.
16 THE COURT: Then I have two that are moot, 81 --
17 MR. OSTRONIC: 81 should not be moot, your honor,
18 because that was a motion for sanctions against plaintiff for
19 presenting false documents to the court.
20 THE COURT: And there is an order
21 MR. KIMBERLIN: Your honor --
22 THE COURT: Oh, just hold on.
23 MR. KIMBERLIN: Okay.
24 THE COURT: Let's see. All right, maybe I have the
25 wrong one here. Hold on a second. 81 that was the protective
5
Case 8:l3-cv-02580-RWT Document l9-4 Filed 07/22/l4 Page 6 of 28
ase 8:13-cv-03059-PWG Document 124-1 Filed 04/28/14 Page 6 of 27
1 order, we're talking about 81 the motion for sanctions. It says
2 106 but 106 is an order granting alternate service. But that's
3 not what the motion 81 is, I don't think, unless it's
4 MR. OSTRONIC: I have a copy if you'd like, your
5 honor?
6 THE COURT: No, I have the docket entry. Just one --
7 yeah, number 81 is the defendant's motion for sanctions alleging
8 that the plaintiff filed altered exhibits. So, how does 106 --
9 which deals with alternative service?
10 [HUSHER ON]
11 [HUSHER OFF]
12 THE COURT: All right, so it looks like part of this
13 you had asked that the plaintiff's action be dismissed.
14 MR. OSTRONIC: I asked the plaintiff's action be
15 dismissed because he filed altered documents with the court,
16 your honor.
17 THE COURT: Right, right, but Judge Burrell ruled that
18 the plaintiff had served the defendant and that an answer is
19 due.
20 MR. OSTRONIC: Your honor, if I may? If I may
21 [unintelligible]. This was first brought to Judge Burrell's
22 attention in our January 9th hearing.
23 THE COURT: Right.
24 MR. OSTRONIC: At that time, Judge Burrell took note
25 of the altered documents, denied plaintiff's motion that he
6
Case 8:l3-cv-02580-RWT Document l9-4 Filed 07/22/l4 Page 7 of 28
r.
se 8:13-cv-03059-PWG Document 124-1 Filed 04/28/14 Page 7 of 27
1 would be - that -- for his alternative service request --
2 THE COURT: Right.
3 MR. OSTRONIC: And then told the court, told us -- the
4 plaintiff and myself that looked at Mr. Kimberlin and said,
5 "He'll file something and you'll file a response to it.
n
Later
6 I filed a motion asking for sanctions because he had filed
7 altered documents. They were just brought to the court's
8 attention that day because he just filed it the day before -- or
9 two days before that.
10 THE COURT: Okay, so what is this sanction that you're
11 seeking?
12 MR. OSTRONIC: I would like to see the case dismissed
13 against Mr. Akbar because he filed altered documents to the
14 court.
15 THE COURT: Okay, all right. I'll hear from you. No,
16 I'll hear from you, go ahead.
17 MR. OSTRONIC: Thank you, your honor. As we outlined
18 in our motion, the plaintiff originally asked for alternative
19 service back in November. At that time he presented to the
20 court certain documents which showed that he had sent certified
21 letters to a certain address in Texas and Virginia. Mr. Akbar
22 at that time was not represented -- I was not representing Mr.
23 Akbar in any fashion at that time. We had a January 9th hearing
24 coming up at which time Mr. Kimberlin's motions would be heard.
25 On January 6th, I filed a motion in opposition for the alternate
7
Case 8:l3-cv-02580-RWT Document l9-4 Filed 07/22/l4 Page 8 of 28
ase 8:13-cv-03059-PWG Document 124-1 Filed 04/28/14 Page 8 of 27
1 service that Mr. Kimberlin had asked for. And at that time
2 stated that -- at that time I stated that Mr. Akbar had never
3 lived in Virginia which is what he was claiming. Mr. Kimberlin
4 came back the next day and asked for sanctions against me saying
5 that I had filed a false document. And at that time he filed
6 certain documents with the court which were purporting to be the
7 same documents that he had filed back in November, however,
8 these -- this time his two green cards that he showed were now
9 checked as restricted delivery where the ones that were filed
10 back in November clearly showed no restricted delivery.
11 In addition, your honor, the underlying documents, the
12 plaintiff's had put forward to the court to back up the idea
13 that there was alternate service clearly showed that he never
14 spent the money to do so and was never asked the Post Office to
15 do restricted li. Now as you know Maryland Rules clearly say,
16 if you're going to do it by certified letter on the initial
17 pleading, -- you have service on initial pleading -- you have to
18 do it with restricted delivery and you've never done restricted
19 delivery but he continued to insist that restricted delivery had
20 been done up to and including this last motion which he filed
21 docket number 85, which is the response to my motion for
22 sanctions at which time he continues to say that he was dealing
23 with restricted delivery, although, if you look at the receipt
24 on the next to last page it says -- you can see the receipt with
25 the post office which clearly shows there is no restricted
8
Case 8:l3-cv-02580-RWT Document l9-4 Filed 07/22/l4 Page 9 of 28
ase 8:13-cv-03059-PWG Document 124-1 Filed 04/28/14 Page 9 of 27
1 delivery asked for --
2 THE COURT: Where were these receipts? I know you
3 said you showed Judge Burrell but I haven't seen them.
4 MR. OSTRONIC: Your honor, I can give you a fresh set
5 of -- you know, if it's easier.
6 THE COURT: So, you're saying that when he was before
7 Judge Burrell, at that point he had checked boxes that had not
8 been checked with the first filing, is that what you're saying?
9 MR. OSTRONIC: If you look at -- yes, your honor.
10 Because the original filing, which was docket number 59 -- no,
11 no -- yes. I'm sorry docket number 38, it's 38 in the original
12 filing -- if you look at that you will see the priority mail
13 receipt which you'll see it says
14 THE COURT: Exhibit C?
15 MR. OSTRONIC: Yes, it should be part of Exhibit C,
16 yes, your honor. I think it ends in 9892. The restricted
17 delivery one.
18 THE COURT: 98929871, okay.
19 MR. OSTRONIC: 9892, those are the -- those are the
20 two receipts that show you that he paid for -- what he paid for
21 there was no restricted delivery paid for. You can take note
22 of that, please, your honor. Then you note a few days later --
23 a few pages later --
24 THE COURT: In the exhibit or a few more docket
25 entries?
9
Case 8:l3-cv-02580-RWT Document l9-4 Filed 07/22/l4 Page l0 of 28
se 8:13-cv-03059-PWG Document 124-1 Filed 04/28/14 Page 10 of 27
10
1 MR. OSTRONIC: No, a few pages later in that same
2 exhibit. I'm sorry, your honor. You'll see a green -- you'll
3 see the green sheet there. The green receipt picture and it
4 shows the green -- the receipt card, certified mail check; the
5 restricted delivery box is not checked.
6 THE COURT: Okay.
7 MR. OSTRONIC: And that is consistent with the fact
8 that he did not pay for restricted delivery. Now we fast
9 forward to docket number 59
10 THE COURT: Okay.
11 MR. OSTRONIC: Docket number 59, if you go to -- I
12 think Exhibit C which is probably towards the end of the -- and
13 you'll see there, your honor, the same card but it's checked
14 with restricted delivery.
15 THE COURT: Okay.
16 MR. OSTRONIC: So that tells you now that he altered
17 it to try to show that he was doing restricted delivery when, in
18 fact, he did not do restricted delivery.
19 THE COURT: So, where I'm confused though is these
20 pleadings are all well before the order that Judge Burrell
21 entered at docket entry 106.
22 MR. OSTRONIC: Yes, your honor, but that --
23 THE COURT: Which he found that he made appropriate
24 efforts.
25 MR. OSTRONIC: He came back a second time after our
Case 8:l3-cv-02580-RWT Document l9-4 Filed 07/22/l4 Page ll of 28
C se 8:13-cv-03059-PWG Document 124-1 Filed 04/28/14 Page 11 of 27
11
1
court's hearing on January 9th, he filed, again, for alternat
2 services and that is when she ruled on it.
3
4
THE COURT: So, it's been done properly now?
MR. OSTRONIC: No, it hasn't. I filed a motion
5 against that several times. Those motions have not been heard.
6
THE COURT: She ruled that it's been done
7 appropriately?
a
9
10
MR. OSTRONIC: No.
THE COURT: She didn't?
MR. OSTRONIC: All she ruled was that he was served as
11 of January 25
th
• And I have a motion because I didn't get my 18
12 days to comment or anything, your honor.
13 THE COURT: I'm still confused. So, I'm looking at
14 Judge Burrell' 5 order
15
16
MR. OSTRONIC: Uh-huh.
THE COURT: and it says that she hereby finds
17 plaintiff has made reasonable efforts to serve defendant Ali
18 Akbar with the complaint and that defendant Akbar has notice of
19 the compliant but has evaded service. Okay. "Therefore the
20 court finds the plaintiff has served defendant Akbar as of
21 January 25th, 2014, and an answer is due from the defendant by
22 March 26th." That's what her order says -- I just --
23
24 says.
25
MR. OSTRONIC: Yes, your honor, that's what the order
THE COURT: Okay, so she's found that there's been
Case 8:l3-cv-02580-RWT Document l9-4 Filed 07/22/l4 Page l2 of 28
se 8:13-cv-03059-PWG Document 124-1 Filed 04/28/14 Page 12 of 27
12
1 service. At least that's what --
2 MR. OSTRONIC: She said -- yes, your honor, we already
3 put motions against that
4
5
6
7
THE COURT: But they haven't been ruled on yet?
MR. OSTRONIC: No, your honor.
THE COURT: Okay.
MR. OSTRONIC: But that still doesn't address the fact
8 that he altered a document --
9 THE COURT: Okay.
THE COURT: And either you or Mr. Akbar on his own --
THE COURT: When was the hearing date before Judge
Burrell in January?
MR. KIMBERLIN: The 13th.
THE COURT: It looks like all of these documents were
already in the file by then.
MR. KIMBERLIN: Yes.
MR. OSTRONIC: They had just gotten [unintelligible],
your honor, they had not been yet addressed as a motion for
sanctions.
10 MR. OSTRONIC: which is not part of her order or
11 part of his second motion. His motion that she ruled on came
12 after that court hearing and was not part of what I asked for
13 here. And all I asked for here was sanctions. I did not
this is not yet heard; this is the first time that it's been
heard.
14
15
16
17
18
19
20
21
22
23
r
24
25
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I'm just looking to see -- made a motion to dismiss on that date
2 which was denied.
3
4 honor.
5
6
MR. OSTRONIC: I just made an oral one, yes, your
THE COURT: Based upon no service?
MR. OSTRONIC: No, your honor, he's made a motion that
7 -- I made a motion on this basically, saying --
8
9
10
THE COURT: Okay.
MR. OSTRONIC: But I
THE COURT: So, this has been ruled on in terms of
11 your request for dismissal?
12 MR. OSTRONIC: No, she said she would not dismiss it
13 at this time and she -- what she said, your honor, was she
14 referred to the plaintiff and said, "He's going to file
15 something about this, you're going to respond to it." She just
16 was not going to dismiss the case at that moment, that' 5 all.
17 But I think it's clear, your honor, that there has been an
18 alteration of documents. Furthe.r,your honor, this is not the
19 only time this has happened here and many [unintelligible]
20 clients, your honor --
21
22
23 Go ahead.
MR. KIMBERLIN: Objection.
THE COURT: Sorry, but he can tell me what he wants.
"'.
\
24 MR. OSTRONIC: We have another case involving the same
25 plaintiff over in the Federal Court in which [unintelligible]
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the plaintiff has already admitted to altering a court document
2 over there and this involves the same defendants here
,
3 [unintelligible] .
4
5
6
7
MR. KIMBERLIN: Objection.
THE COURT: All right, so what is it that you want?
MR. KIMBERLIN: May I speak?
THE COURT: I want him to tell me what he wants and
8 then I'm going to let you address what he said and what he
9 wants.
10 MR. OSTRONIC: Ideally I would like to have the case
11 against Mr. Akbar dismissed because Mr. -Kimberlin here has tried
12 to put one over on the court and in an effort to look like he
13 has brought -- he has put forward for alternative service and
14 clearly he has not.
15
16
THE COURT: Okay.
MR. OSTRONIC: And any other sanctions he can oppose
17 on about that'd be more favorable.
18
19
THE COURT: Okay, Mr. Kimberlin?
MR. KIMBERLIN: Yes, your honor, I'm first pro se
20 litigant. I apologize. I made some errors in this case.
21 THE COURT: Well, if you falsified a document that has
22 nothing to do with being a first time pro se litigant.
23 MR. KIMBERLIN: No, no, I didn't falsify a document
24 but Judge Burrell heard this issue at the January 15th hearing.
25 She denied my motion for alternate service at that time. She's
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1 saying there's confusion here and .resetit. I reset it to Mr.
2 Akbar, it came back, again, as undeliverable, and then I filed a
3 motion for alternate service; she granted that motion for
4 alternate service. Mr. Ostronic came back and asked for a
5 motion to reconsider and she issued another order. I don't have
6 the docket number on it but she amended her order which I have a
7 copy here if you want to see it. And she said at that time that
8 he would have additional time in which to respond by April 4th.
9 So, I did exactly what Judge Burrell asked for and you know he's
10 trying to re-litigate something that was already ruled on by the
11 judge.
12
13
14
THE COURT: All right.
MR. KIMBERLIN: She had all this in front of her.
THE COURT: Why don't you have a seat for a minute?
15 I'm not cutting [unintelligible]; let's play Court Smart and
16 let's listen to Judge Burrell heard and what Judge Burrell said.
17
18
19
MR. KIMBERLIN: Okay.
THE CLERK: On the January 13th hearing?
THE COURT: Yes, please and I don't know if you're
20 going to be able to tell [unintelligible] notation, we're
21 specifically looking at her addressing the defendant Akbar's
22 motion to dismiss.
23 MR. OSTRONIC: It should be toward the end of the
24 hearing. Toward the end of the hearing it should be.
25 THE COURT: How long was the hearing?
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1 MR. KIMBERLIN: I'd say at least 40 minutes.
2 THE CoURT: How long?
3 MR. OSTRONIC: About 40 minutes, your honor. I don't
4 know if it was that long.
5 THE CLERK: Thank you, your honor.
6 (Whereupon the audio recording was played.)
7 THE COURT: [unintelligible]court documentationand I
8 find that the [unintelligible].
9 UNIDENTIFIED FEMALE: Thank you, your honor.
10 (whereuponthe recordingwas stopped.)
11 THE COURT: Do you remember when you raised this
12 issue? In the beginning of the hearing or?
13 MR. OSTRONIC: No, it was towards the end, your honor.
14 (Whereupon the audio recording was played.)
15 THE COURT: The defendant [unintelligible].
16 MR. OSTRONIC: [unintelligible]we had provided
17 [unintelligible].
18 MR. KIMBERLIN: The order gives it 10 days.
19 THE COURT: [unintelligible].
20 MR. KIMBERLIN: I have no problem with that.
21 MR. OSTRONIC: Court [unintelligible].
22 THE COURT: All right, anything else?
23 MR. KIMBERLIN: No, I mean obviously [unintelligible]
24 very diligent trying to get this thing served on this guy and.
25 I'd like to do [unintelligible].I think they have an
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1 opportunity to appeal it directly and they didn't. I asked him
2 point blank if he's going to appeal and he said no. You know
3 for them to come in here now and say they're going to appeal
4 just seems disingenuous to me.
5 MR. OSTRONIC: Your honor may I be heard?
6 THE COURT: Yes.
7 MR. OSTRONIC: He had just misrepresented any
8 conversation he's had with me. I never said to him whether or
9 not -- I had never said [unintelligible].
10 MR. KIMBERLIN: [unintelligible] .
11 MR. OSTRONIC: I admit [unintelligible] to another
12 side.
13 THE COURT: I'm going [unintelligible].
14 (whereupon the audio recording was stopped.)
15 THE COURT: Go further.
16 (whereupon the audio recording was played.)
17 THE COURT: [unintelligible] based on [unintelligible]
18 to indicate that the defendants were targeting that
19 [unintelligible]. If the other defendant was [unintelligible]
20 at this time.
21 MR. OSTRONIC: Thank you, your honor. Your honor,
22 [unintelligible] .
23 THE COURT: No. I read a lot of cases [unintelligible]
24 and based on what I understand [unintelligible).
25 MR. OSTRONIC: Your honor, [unintelligible] one more
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1 thing [unintelligible] talk about right now which is also in
2 your jurisdiction [unintelligible] in Virginia. Ms. McCain
3 [unintelligible] and Mr. Kimberlin was alleging that the reason
4 he [unintelligible] or anything like that. If, however,
5 [unintelligible] defendant's conspired together to have some
6 [unintelligible] -- prosecution and they [unintelligible] simply
7 malicious prosecution [unintelligible] by Mr. Walker. Ms.
8 McCain and everything that he had been [unintelligible]
9 complaint [unintelligible] in July 2013 [unintelligible]
10 allegations [unintelligible] Ms. McCain. Ms. McCain
11 [unintelligible] but not on the record that [unintelligible].
12 Those [unintelligible] all predated all the way back to the
13 [unintelligible] back in July. He filed for a protective order
14 [unintelligible]. That was made while he -- what you're hearing
15 right now is not something he just made up is based on an actual
16 charge [unintelligible].
11 THE COURT: [unintelligible].
18 MR. 05TRONIC: [unintelligible] is what I'm saying but
19 that's what the basis is.
20 THE COURT: [unintelligible] accurate in Maryland
21 [unintelligible] write it down. So, with respect to the
22 previous motion or order [unintelligible], I'm going to find
23 that [unintelligible] for relief so [unintelligible]. I think a
24 couple other motions?
25 MR. 05TRONIC: [unintelligible] composed
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1
[unintelligible], your honor, the plaintiff has filed
2 [unintelligible]. However not one time did [unintelligible I
3 otherwise nothing. He has nothing to go with [unintelligible].
4 I have no idea what [unintelligible] to say. I want
5 [unintelligible] .
6
THE COURT: [unintelligible] everything
7 [unintelligible] .
8
MR. OSTRONIC: [unintelligible] opportunity in one of
9 them [unintelligible] financial sanctions and there was not one
10 [unintelligible I --
11
THE COURT: [unintelligible] order [unintelligible].
12 The defendant's motions to dismiss are denied. The rule
13 [phonetic sp] order will be stayed for a period of one week to
14 allow defendant to file an appropriate [unintelligible] court of
15 appeals.
16
17
18
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20
21
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24
25
MR. KIMBERLIN: Thank you.
MR. OSTRONIC: Thank you, your honor.
(whereupon the audio recording was stopped.)
THE COURT: I'm--
MR. OSTRONIC: I may have misremembered when we did
that. It may have been in the very beginning. That part may
have been the first part we did.
THE COURT: Do you remember?
MR. KIMBERLIN: No, I don't remember but I'm ready to
continue my --
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1 THE COURT: Well the key, the crux to this is going to
2 be what Judge Burrell ruled on. And I can't take your memories
3 for it because you don't agree so let's go back to the beginning
4 and see if she addressed it.
5 MR. KIMBERLIN: Okay, let's go to the beginning.
6 (Where upon the audio recording was played.)
7 THE COURT: [unintelligible] court record
8 [unintelligible] .
9 MR. OSTRONIC: No, your honor [unintelligible] last
10 time.
11 THE COURT: All right, we'll dismiss the
12 [unintelligible]. Motion to dismiss [unintelligible] and an
13 order to [unintelligible] denied and plaintiff's motion to find
14 [unintelligible] and [unintelligible] 2-1-210 [unintelligible]
15 motion for [unintelligible] docket entry [unintelligible].
16 MR. OSTRONIC: Your honor, the motion
17 [unintelligible].
18 THE COURT: Okay and then [unintelligible] motion
19 (whereupon the audio recording was stopped.)
20 THE COURT: Okay, we can stop it. All right,
21 regardless of what she may have said, she made it clear what she
22 was ruling on. She asked if there were any other motions. She
23 was told they weren't conductible today. I'm assuming that
24 meant these are the motions that just had been filed and they
25 weren't right. So, I'm not going to determine anything that she
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1 said as dispositive so I'll hear from you. Go ahead.
2 MR. KIMBERLIN: Okay, at that hearing, Mr. Ostronic
3 presented exactly what he's presented here, I think. And the
4 judge looked at it --
5 THE COURT: No, I just told you I'm not going to --
6 MR. KIMBERLIN: I know but --
7 THE COURT: consider what she said or didn't say
8 because she didn't rule on the motions before me.
9 MR. KIMBERLIN: No, she ruled on the motion to
10 dismiss. He had filed a motion to dismiss the case based on
11 that oral motion.
12 THE COURT: Okay, maybe so but she outlined what she
13 was ruling on and that wasn't one of the motions. So let's get
14 to the [unintelligible]; did you alter the certificates?
15 MR. KIMBERLIN: These are -- when I go to the post
16 office, I asked :--
17 THE COURT: Did you alter the return receipts between
18 docket entry 38 and 50 whatever, did you change them?
19 MR. KIMBERLIN: I did not change them intentionally.
20 When I go to the post office, I ask them to do it so it's
21 registered or whatever it's called, restricted delivery, and
22 they did not do it. He's saying that there's an extra fee.
23 I've never paid an extra fee for restricted delivery. I've sent
24 literally 50 or 100 of these things and never once faked a
25 [unintelligible] restricted delivery, but, you know, Mr. Akbar
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1 here sitting right there that this was sent in January 2nd to
2 Mr. Akbar. It came back, it's restricted delivery. This one
3 here is January 25th, again, Mr. Akbar came back restricted
4 delivery, you know, undeliverable. And you know he keeps
5 accusing me of not paying the extra fee.
6 THE COURT: This isn't about paying a fee.
7 MR. KIMBERLIN: That's what he said.
8 THE COURT: This is about the exact same brief green
9 card being filed -- the support motions you filed, the different
10 docket entries, one showing the restricted delivery box checked
11 and one not.
12 MR. KIMBERLIN: Your honor, like I said I asked the
13 post office to send it restricted delivery.
14 THE COURT: You're not answering my question.
15 MR. KIMBERLIN: Yes, I changed
16 THE COURT: Did you change it?
17 MR. KIMBERLIN: Yes, I did.
18 THE COURT: And then you filed it representing that it
19 accurately reflected the green card that had been filled out.
20 MR. KIMBERLIN: No, no, no, I filed it and accurately
21 said -- it accurately reflected what I told the post office to
22 do and that's what it is. You know, like I said I'm a pro se
23 litigant and --
24 THE COURT: Don't even use that with me.
25 MR. KIMBERLIN: Okay, okay
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1 THE COURT: You know it's one thing to say I'm pro se
2 so I don't understand rules or I don't understand how to get
3 something in and the rules of evidence and another thing to
4 alter something and file it. I'm .reading your motion right now
5 to see exactly what you represented it to be when you filed it
6 again at docket entry 59 so give me a minute.
7 So, in your motion at docket entry 59 and 60 at
8 paragraph seven, you say, ~Plaintiff does not need to provide an
9 affidavit because the documents on which this motion is based
10 are prima facie evidence, an official ticket from the Fairfax
11 County Sheriff, official U.S. Postal Service envelopes with
12 tracking numbers, and a statement by defendant Akbar whom
13 [unintelligible] sworn under the penalties as perjury.H So,
14 you're telling me that when you attached these copies of the
15 green card, you weren't intending to represent that those were
16 accurate?
17 MR. KIMBERLIN: They were accurate from what I
18 intended the post office to do and the judge -- Judge Burrell
19 had those in front of her. She denied this motion . She denied
20 that motion. She said you have to redo it because it's unclear
21 and 50 I redid it and then she granted the motion for alternate
22 service and she amended it after he requested it and I have the
23 amendment here. The amendment gives him additional dates and he
24 brought that up in his -- when he was contesting the alternate
25 service the second time and she still ruled that the case --
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1 that I should get alternate service.
2 THE COURT: All right, I'm not going to dismiss this
3 case because it's just going to be we have to start this all
4 over again and at this point there's been another method of
5 service but I'm taking a recess because if I can do what I want
6 to do, sir, I'm going to fine you but I'm not sure I have the
7 authori ty so I'm going to go find out. okay? Give me a minute.
8 MR. OSTRONIC: Your honor, if I may?
9 THE BAILIFF: All rise.
10 MR. OSTRONIC: Just one last thing, this is just a
11 personal thing, I have a 5:00 flight to Copenhagen so
12 THE COURT: I really meant a minute when I said a
13 minute.
14 MR. OSTRONIC: Okay. Thank you, your honor. Thank
15 you.
16 (Recording paused.)
17 (Recording resumed.)
18 THE COURT: All right, we're back on the record. So
19 as much as I want very much, Mr. Kimberlin, to fine you for what
20 for altering the receipts, I can't find any authority in the
21 rules for that given the posture in which we're here which is
22 the motion for sanctions not for contempt. So under the
23 discovery rules, they don't really apply so I'm going to deny
24 the request to dismiss. I think that Judge Burrell has now --
25 we're sort of past this. There's been another attempt, she's
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1 determined there's been service. I know that that's disputed
2 and you can still maintain that with her but I'm going to deny
3 the motion.
4 MR. KIMBERLIN: Thank you.
5 THE COURT: And for the record, Mr. Kimberlin, you
6 have withdrawn, it looks like, your motion -- your subpoena for
7 Mr. Delbianco (phonetic sp]?
8 MR. KIMBERLIN: Yes.
9 THE COURT: Okay, so that withdrawal is what renders
10 the motion at docket entry number 89 moot as well.
11 MR. KIMBERLIN: Right.
12 THE COURT: All right, thank you.
13 MR. KIMBERLIN: Thank you.
25
14 THE COURT: Mr. Kimberlin, I hope you're aware -- if
15 you weren't before -- you're aware now and you do not alter
16 anything you file with this court because by filing it you're
17 representing to the court that that document is as it was and
18 has been in its unaltered state to back up whatever you're
19 alleging.
20 MR. KIMBERLIN: I understand.
21 THE COURT: Okay.
22 MR. KIMBERLIN: Thank you.
23 MR. OSTRONIC: Thank you, your honor.
24 THE COURT: Right, yeah, yeah. Sorry.
25 MR. OSTRONIC: Thank you, your honor.
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THE COURT: Thank you. I hope you're going for fun.
MR. OSTRONIC: No, it's for business.
THE COURT: Oh.
MR. OSTRONIC: I'm going to Warsaw.
THE COURT: I hope you'll have time to have fun.
MR. OSTRONIC: I like to think so [phonetic sp] --
(The proceedings were concluded)
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By:
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1 X Digitally signed by Olivia Palermo
2 Digitally signed certificate
3 NATIONAL CAPITOL CONTRACTING, LLC hereby certifies
4 that the foregoing pages represent an accurate transcript of the
5 duplicated electronic sound recording of the proceedings in the
6 Circuit Court for Montgomery County, in the matter of:
7 Civil No. 380966
8 BRETT KIMBERLIN
9 v.
10 AARON WALKER, ET AL
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Transcriber
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