BRETT KIMBERLIN,

Plaintiff,
v.
FiLED
US. DIS ff:/CT COUHT
UNITED STATES DISTRICT COORlj1RI~: =:~;~,:\r-:YLMm
DISTRICT OF MARYLAND
GREENBELT DIVISION zn! ::\Y - PI: 1+ 3
C!.i-i~."
NATIONALBLOGGERSCLUB, etal,
Defendants.
PLAINTIFF'S RESPONSE TO DEFENDANT TWITCHY'S MEMORANDUM
Defendant Brett Kimberlin submits this motion in opposition to Defendant
Twitchy's Memorandum and stealth Motion to Dismiss.
Facts
Mr. Smith filed a motion/memorandum seeking dismissal of the Complaint
on the ground that Plaintiff made a check mark on a certified green card and
submitted it in a case 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 a transcript from a state court hearing on April 9, 2014, which has no
bearing on this case and does not support his argument in the least. He asks the
Court to cherry pick a few statements of Plaintiff and the judge at the hearing and to
then dismiss the instant case. This is a malicious and meritless allegation that has
been made to this Court in order to portray Plaintiff in a false 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:l3-cv-03059-PWG Document l25 Filed 05/09/l4 Page l of 5
false narrative on their blogs. Mr. Smith bought the transcript and then filed his
meritless pleading. This Court has repeatedly admonished Defendants Walker and
Hoge for their conduct in this case, and now Mr. Smith is relying on and cooperating
with them to harass Plaintiff in this case. This improper purpose for filing the
pleading is anothe'r reason for denying the pleading.
THE PLEADING IS FACTUALLY FRIVOLOUS, LEGALLYGROUNDLESS, AND
BROUGHT FOR AN IMPROPER PURPOSE
Mr. Smith is not an attorney in the state case and his Twitchy client is not a
defendant He was not present at the hearing on April 9, 2014 and has no idea of the
facts and context of the issue, yet he has asked this Court to dismiss the Complaint in
the instant case because of the false narrative provided to him by Defendants
Walker and Hoge.
Here are the facts in brief: Plaintiff is suing Defendant Ali Akbar in that state case
for matters distinct from those alleged in the instant case. Kimberlin v. Walker, et al,
No 380966-V. Defendant Akbar, as in this case, avoided service for months on end.
Therefore, Plaintiff filed a Motion for Alternate Service and when doing so noticed
that the postal official had not checked the restricted delivery box on the green card
as Plaintiff had requested. Therefore, Plaintiff checked it. At a hearing on January
13,2014, Defendant Akbar's attorney objected to the motion and complained to the
judge that she should dismiss the case because of the check mark. Judge Burrell
denied the motion to dismiss and simply asked Plaintiff to resend the complaint and
summons again with the restricted box checked properly. See Exhibit A.
Case 8:l3-cv-03059-PWG Document l25 Filed 05/09/l4 Page 2 of 5
Plaintiff received a new summons and complaint from the Clerk and again sent
them to Defendant Akbar with the properly checked box. Undeterred, Defendant
Akbar's attorney filed a motion 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 a second Motion for Alternate Service. Defendant
Akbar's counsel objected and again asked that the case be dismissed but Judge
Burrell again denied the motion and granted Plaintiffs Motion for Alternate Service.
ld.
StilI undeterred, Plaintiffs counsel asked for reconsideration, which was also
denied and Judge Burrell ordered Defendant Akbar to answer the Complaint. Id.
Then on April 9,2014, Judge Ryon held a hearing on Defendant Akbar's Motion to
Sanctions and again counsel asked for dismissal of the Complaint. During the
hearing, Judge Ryon attempted to find Judge Burrell's prior oral ruling at the January
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.
He has asked this Court to sanction Plaintiff with attorney fees even though the state
court denied all requests to sanction Plaintiff. He has 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
odious.
Case 8:l3-cv-03059-PWG Document l25 Filed 05/09/l4 Page 3 of 5
Mr, Smith's conduct is reprehensible, unethical and unbecoming of a member of
the bar. He has bought into the false narratives of Defendants Walker and Hoge who
do not let a day go by without falsely accusing Plaintiff of some crime or malfeasance
online or in court filings. Mr. Smith has jettisoned his role as an advocate and has
become a harasser of Plaintiff using false narratives just as the Defendants have
done for the past several years. Mr. Smith has used his "quote" Memorandum to
violate the Court's Management Order, which prohibits motions without permission
and ad hominem attacks. He has used his Memorandum to sneak in false and
prejudicial information under the guise of informing the Court of relevant
information. Relevant to what? All Motions to Dismiss and for Sanctions were
denied in the state court so the only things that are relevant are that (1) Defendant
Ali Akbar has been found to be avoiding service, and (2) Defendant Akbar's multiple
Motions to Dismiss were denied. In what legal world does the denial of a motion
provide the basis for the granting of an unrelated motion in an unrelated case
involving an unrelated defendant??? That is not precedent, it's Alice in Wonderland.
This is not relevant, it's irrelevant.
The state court on January 13, 2014 denied all of the state Defendants' Motions to
Dismiss for failure to state a claim. So if Plaintiff added a twist to Mr. Smith's
illogical argument, he could ask this Court to deny all of the Defendants' Motions to
Dismiss filed in the instant case simply because the state judge on January 13,2014,
denied all their similar motions in the state case. At least Plaintiff would have some
rational basis for that argument but of course it would be improper for this Court to
consider such information in deciding the Motions to Dismiss in the instant case.
Case 8:l3-cv-03059-PWG Document l25 Filed 05/09/l4 Page 4 of 5
Conclusion
When experienced lawyers such as Mr. Smith assert meritless and malicious
claims, "a strong inference arises that their bringing of an action ... was for an
improper purpose." Huettig & Schromm, Inc. v. Lanscape Contractors, 790 F.2d
1421, 1427 (9th Cir. 1986). Mr. Smith who promotes himself as an expert in
appellate law and civil procedure, filed his pleading containing outright false and
malicious allegations for an improper purpose. The pleading should be denied and
stricken.
Respectfully submitt ,
Brett Kimbe~'~
8100 Beech ree
Bethesda, M 817
(301) 3205921
justi cejtmp@comcast.net
Certificate Of Service
I certify that I emaileda copy of this motion to MichaelSmith,Caitlin
Constestable, Ron Coleman, Paul Levy, James Skyles, Mark Bailen and Lee
Stranahan, and mailed copies to Defendants Walker, Hoge and McCain,this 7
th
day
of May 2014, pursuant to Rule 11( c)(2) prior to filing with the Court.
Case 8:l3-cv-03059-PWG Document l25 Filed 05/09/l4 Page 5 of 5
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01/13/2014 Docket Number: 62
HEARING
Ruling Filed By: Court Status: Denied
BURRELL, SHARON V
Motion: 38 Opposition: 58
HEARING (BURRELL, J.) ON PLAINTIFF'S MOTION TO FIND
DEFENDANT ALI AKBAR SERVED UNDER RULE 2-121 (B) (#38) -
DENIED. ORDER SIGNED. PLAINTIFF APPEARED WITHOUT
COUNSEL. DEFENDANT, AARON WALKER'S COUNSEL, MR.
OSTRONIC. DEFENDANT, ANONYMOUS BLOGGER'S COUNSEL, MR.
OSTRONIC. INTERESTED PARTY, GOOGLE INC. COUNSEL, MR.
REINGOLD.
02-011314 Start: 11:20:25 Stop: 11:55:40
01/13/2014 Docket Number: 63
MOTION, DISMISS (PARTIAL - CASE NOT CLOSED)
Motion Filed By: Defendant Status: Denied
DEFENDANT, ALI AKBAR'S ORAL MOTION TO DISMISS (BURRELL,
J.) - DENIED.
03/14/2014 Docket Number: 106
ORDER, ALTERNATIVE SERVICE
Ruling Filed BV: Court Status: Granted
BURRELL, SHARON V
Motion: 102 Opposition: 111
ORDER OF COURT (BURRELL, J.) COURT FINDS THAT PLAINTIFF
HAS SERVED DEFENDANT AKBAR AS OF JANUARY 25, 2014 WHEN
HE SENT THE COMPLAINT BY CERTIFIFIED MAIL TO DEFENDANT
AKBAR'S LAST KNOWN ADDRESS. THEREFORE THAT AN ANSWER
IS DUE FROM DEFENDANT AKBAR ON OR BEFORE MARCH 26, 2014,
ENTERED. (COPIES MAILED)
03/17/2014 Docket Number: 112
MOTION, VACATE ORDER
Motion Filed BV: Defendant Status: Denied
Opposition: 115 Ruling: 139
DEFENDANT, ALI AKBAR'S MOTION TO SET ASIDE AND RESCIND
THE ORDER GRANTING ALTERNATIVE SERVICE AND REQUEST FOR
HEARING, FILED. (LP)
03/27/2014 Docket Number: 119
ORDER, PLACE CASE ON STAY DOCKET
Ruling Filed BV: Court Status: Granted
BURRELL, SHARON V
Motion: 118
AMENDED ORDER OF COURT (BURRELL, J.) THAT IN
CONSIDERATION DEFENDANT AKBAR'S MOTION THIS COURT'S
ORDER GRANTING ALTERNATIVE SERVICE, ORIGINALLY ENTERED
ON MARCH 14, 2014; AND THAT THE ORDER IS AMENDED TO
REQUIRE DEFENDANT AKBAR TO FILE AN ANSWER ON OR BEFORE
APRIL 4, 2014, ENTERED. (COPIES MAILED)
04/09/2014 Docket Number: 131
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HEARING, DISCOVERY
Ruling Filed By: Court Status: Denied
RYON, JOAN ELIZABETH
Motion: 81 Opposition: 85
HEARING (RYON, J.) ON DEFENDANT, ALI AKBAR'S MOTION TO
SANCTION PLAINTIFF AND PLAINTIFF'S CASE AGAINST MR.
AKBAR BE DISMISSED WITH PREJUDICE (DE #81) - DENIED.
20-040914 Start: 12:07:53 Stop: 12:51:45
EXHIBIT A
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