The Brett Kimberlin Saga:


Thursday, February 13, 2014

My Reply to Convicted Terrorist Brett Kimberlin’s Opposition to My Motion to Dismiss His Silly RICO Suit


So as the snow falls on the mini-blizzard here in the D.C. area (something like 6-10 inches, which is moderately impressive for the area in my experience), I am going to finally drop on you my reply to Brett Kimberlin’s Opposition to my motion to dismiss that I filed nearly two weeks ago.  Or really, my reply to his oppositions because as I stated earlier, he has sewn all three oppositions together.  I previously shared with you his oppositions here and here.  And yesterday I showed how he apparently was extremely, extremely upset with my Reply.  So what is so horrible about it, you wonder?

Well, nothing, really.  But don’t take my word for it, judge for yourself, below the fold:

(Your computer is not screwing up.  The first page is only a half page for the title.)

There are two exhibits.  They are described in the motion (the second one is mistakenly labeled Exhibit C, oh well).  John Hoge has already shown you the first one, at least the non-certified version of it.  As for the second exhibit, the Amended Complaint in the state case, I will ask around if anyone has published it.  If they haven’t, maybe I will Friday.

I will say that I was frankly surprised at the poor quality Kimberlin’s oppositions.  If I was writing Brett’s opposition and wasn’t limited by honesty or ethics as he isn’t, I could have written one that was at least fifty times better than what he wrote.

And of course his claim that I was purporting to represent anyone but myself is laid bare for the tawdry lie that it is.  Yes I addressed federal claims that related wholly to other persons, especially my friend Patrick Frey.  I admit I would be very happy personally if Patrick benefits from what I filed, but it also represents an act of “enlightened self-interest” as one of my professors used to say.*  If every federal claim is dismissed for every Defendant, then the court no longer even has jurisdiction over the state law claims.  So even if the judge normally would not dismiss the state law claims, if every federal claim is dismissed, he would dismiss those claims for want of jurisdiction.  That gives me a direct, personal stake in whether the federal claims against the other Defendants are dismissed, even when my personal conduct is not at issue.

And yes, I asked for a dismissal for all parties on page 1 and 31 of my Reply.  I think I might have even repeated that sentiment a few times within.  But the justification wasn’t because I represented them but instead I suggested it in the interests of “judicial economy.”  If that phrase sounds familiar, it is because it is the same exact phrase Brett used when asking for an extension, which you can read here.  Indeed unlike myself, Brett has absurdly claimed to advance the interests of the Defendants in this case in that same motion, making his complaints that I am doing so wholly hypocritical.

But is any of this a surprise?  What it comes down to is this.  Anyone Brett targets is not allowed to fight him.  If he files a motion in court, you are not allowed to oppose him. You are not allowed to hire a lawyer to help you to oppose him.  Any such lawyer is presumed to be evil or in some kind of conspiracy to do something or other with you.  Brett is allowed to send those motions to be doxxed all over the internet and treated as gospel truth by people like “Baghdad Blob” Bill Schmalfeldt, but if you dare to share your motions with the world you are evil, evil, evil.  If you dare to report that Brett has engaged in any kind of criminal, immoral or merely creepy behavior, you are harassing him and inciting dangerous violence against him.  This is true even if you specifically tell people not to do anything like that because everyone knows you can convince them to do such violence by a reverse psychology Jedi mind trick.  On the other hand he is allowed to falsely claim you hate all Muslims and try to rile up terrorists to kill you and your wife.  Because this is Brett’s First Amendment and you’re just living under it.  Got it?

As for his whiny opposition that I shared with you yesterday, I think the best and simplest explanation is that it amounts to almost a primal scream as he saw how effectively I toppled what few arguments he had left.  I think it is a sign of fear that my Motion to Dismiss and my Reply might get the whole case dismissed, for everyone and with prejudice.  He hasn’t shown any injury in relation to his RICO claims and the judge is very likely to latch on to that as a reason to dismiss them.  He hasn’t alleged invidious animus or a federal nexus as required by 42 U.S.C. §1985.  And for all his whining he is nowhere near claiming that Patrick Frey was acting as a state actor under §1983.  Not to mention that his foul ups related to the statute of limitations in relationship to his defamation and false light, and his failure to allege any distress or damage by such distress.  There is a saying in law, and although its exact wording varies I like this version the best: if the facts are against you, pound the law; if the law is against you, pound the facts; and if the facts and the law are against you, pound the table.  Brett’s opposition that I shared with you yesterday represented him pounding the table and pretty impotently, too.  Don’t think the judge won’t notice that—especially not after I finish pointing it out.  After all, I have a right to reply to that, too.

Indeed, I am really wondering if he has gotten to the point where he believes the case is doomed and is just trying to inflict maximum damage while he can.  Or perhaps he was drunk as he wrote that opposition I shared yesterday.  Seriously, I am grasping at straws here, because that thing is awful even by Brett standards.

Finally, looking back in this post I linked to a moment ago, I found where I had written this when discussing the judge’s decision to deny my motion to require the Plaintiff to verify all documents:

I would say that I concur with John’s analysis, here, but I would add that in relation to the motion to require verification, that this is one of those times when I just can’t tell you, dear reader, about all of the strategy involved, and therefore I cannot tell why it really, truly doesn’t bother me overly much that the motion to require verification was denied.  I figured it was a long shot (at least at this stage of the game), but even if it failed, it would likely further other important goals, setting the stage for other motions down the road.

Well, that was then and this is now.  And the motion I was setting the stage for has arrived.  You see, dear reader, I was playing three dimensional chess against Brett Kimberlin...

(That’s me, chilling...)

...and this part of my reply is what we call “checkmate” when asking for dismissal with prejudice:

Further, this court should also grant that dismissal with prejudice.  As this court noted in Bhari Info. Tech. Sys. Private, Ltd. v. Sriram, 2013 U.S. Dist. LEXIS 169622, *13 n.2 (D. Md. 2013), “[t]he determination whether to dismiss with or without prejudice under Rule 12(b)(6) is within the discretion of the district court.”  When determining whether to dismiss a claim with prejudice, “courts apply the same standard as if a motion for leave to amend [had] been filed.” Loren Data Corp. v. GXS, Inc. (D. Md. August 30, 2011) case number DKC 10-3474 (internal quotation marks omitted).  Accordingly, just as leave to amend should be denied when a Plaintiff has demonstrated bad faith, Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006), a motion to dismiss with prejudice should be granted when bad faith is shown, 180S, INC. v. Gordini USA, Inc., 602 F.Supp.2d 635, 639 (D. Md. 2009).  Not only has this court previously found this same Plaintiff to have acted in bad faith, but his bad faith in this case is demonstrated in Mr. Walker’s accompanying Motion to Strike pp. 4-22.  For the reasons stated therein, this court should find that the Plaintiff has acted in bad faith and dismiss the instant case with prejudice.

You see when I was first researching the law for this case, I quickly found Judge Grimm’s decision in Bhari Info. Tech., which in turn led me to the Gordini USA, Inc. which set out at least one consideration when a court determines whether to grant a motion to dismiss with prejudice or not: whether or not the Plaintiff has demonstrated bad faith.  So part of the purpose of that motion was to start to plant the seed in the judge’s mind that Brett Kimberlin was acting in bad faith.  This is not to say that I also didn’t want the motion for its own benefit but sometimes a thing can have more than one purpose.  And that purpose was the hope that this might lead the judge to realize on his own—without my saying so—that Brett’s case should be dismissed with prejudice.  But there is also no good reason not to remind the judge in my Reply... when Brett no longer has a chance to respond.  As I told you before, the pattern is motion => opposition => reply.  There are no further steps after that.  And of course Brett has been extremely generous in supplying me with examples of his bad faith. So...

Indeed things worked out better than I hoped: I admit I was surprised that Brett actually had the stupidity nerve to attempt to forge a summons on Twitchy but I was downright tickled when Twitchy’s lawyer called him on it.  There is no guarantee that any of it will work.  But still part of me wants to light a cigar and say:

And I don’t even smoke!

Anyway, that is probably the last document in this case I will be sharing in the near term, but that of course won’t be the last document filed.  I still get to reply to the silly opposition that Brett filed yesterday and it’s going to be a doozy.  Seriously, he is going to hate what I say in it, because it will logically and factually dismantle him further.  So get out the popcorn, dear reader because I will share that the moment it doesn't prejudice my interests to do so.  Just because his abuse of the court is an outrage doesn’t mean we can’t have fun while fighting it.


* Let me give you an example of enlightened self-interest.  A few years back I was at an ice cream shop and a very little girl—probably around 8 years old—made the mistake of licking her ice cream cone from the bottom up.  The entire “sphere” of ice cream unfastened itself and rolled out of the cone and right onto the floor and she looked devastated.  We were probably five seconds away from her crying.  But the man behind the counter said something like, “here, sweetie, let me get you another.”  So she handed him the cone, he gave her a new scoop and the little girl and her mother smiled and said thank you.

Watching this, my lawyer mind knew that as a matter of law they had no duty to give her a new scoop.  But imagine how that scenario would have played out.  The little girl would have cried.  She would have associated this ice cream place ever so slightly with that sadness.  Mom might have felt entitled to a new scoop and argued with the guy behind the counter and thought in general that these people were not very nice.

So what the guy did behind the counter was nice, giving her a free scoop.  But it also was good business.  Those people were more likely to come back now in the future, when if he didn’t do that, they might have lost a customer.  That’s enlightened self-interest, when you do something that many people think is merely nice—and let me be clear, niceness is a factor in that decision—but you also recognize that this niceness makes solid business sense.

Mmm, if only Brett Kimberlin would develop a little enlightened self-interest and instead of brass knuckle reputation management, simply accepted that people were going to talk badly about him?  Imagine if he simply recognized that this was the price of his criminal conduct instead of engaging in fresh criminal conduct in order to try to silence others?  Imagine how much better off he would be today, if he was just nicer?













  1. I have trouble following the argument about why you didn't mind that the motion to require Kimberlin to verify all documents was denied. How does that prove his bad faith?

  2. Did you mean to open your kimono this much?

  3. Hey Walker, I caught you right in the middle of a lie! You're about to get OWNED by a federal judge because of this huge inconsistency that anybody could see if he were paying attention:

    In this post title, you say that Brett Kimberlin is a convicted terrorist.
    But just ONE DAY BEFORE, you called Brett Kimberlin a convicted perjurer!
    As if that isn't bad enough, a day before that, you said that Brett Kimberlin is a convicted perjurer and document forger.

    Can't even make up your mind! Well, I just went and did some research of my own, and it turns out he's ACTUALLY a GOOD MUSICIAN and a philanthropist who works for multiple charities! In his spare time, he is a legal genius who's suing something like 24 defendants at the same time! Let's see you do that. Jealous much?

    1. I am trying to figure out if this comment is Bill Schmalfeldt, a.k.a. Baghdad Blob, or a spot-on parody of him. The good musician party makes me lean toward it being a parody...

    2. A hilarious parody or the real thing? Only Memorex knows...

    3. I admit it was me. How about it, though, aren't you impressed by how he's suing so many people at once? Isn't it just like those chess master exhibitions where they play against a whole crowd of different people?

  4. I don't think BK could be a philanthropist, could he? Wouldn't that entail having money and giving it away? And isn't it in the public domain that BK lives in his mother's basement, in space rented by his employer?, and that he is paid an insubstantial amount as a salary? Such that he can't satisfy judgements against him? So how could he be a philanthropist?

    1. Easy: Brett Kimberlin's a philanthropist if you count him giving away other peoples' money. To himself.

  5. Nah, lawyers sue lots of people all the time. They generally don't have too much trouble serving all defendants.

    Hey, speaking of, you might wonder what happens when a Plaintiff fails to serve his defendants. Is there some kind of time limit? And what happens what that limit is passed?

    Stay tuned. I figure I can start revealing what I know is afoot on monday... Tuesday at the latest...

  6. Ah, crap, that last part was supposed to be tuesday or wednesday. i keep think of tomorrow as monday, bc of the holiday.