Posted on | March 24, 2014 | 20 Comments
Nearly two weeks have passed since I’ve updated readers on the proceedings in Brett Kimberlin’s federal RICO suit:
U.S. District Judge Paul W. Grimm has been thrown onto the horns of a legal dilemma by the extraordinary procedural misconduct of pro se plaintiff Brett Kimberlin. As the attorney for Michelle Malkin and Twitchy has pointed out, this is unprecedented:
Mr. Kimberlin’s conduct has taken this Court into uncharted waters. Twitchy’s research has not found a single case, Federal or State, involving a party’s forgery of a court summons — much less, the subsequent sending of it through the U.S. Mail with the intent to deceive. This is a serious matter, and obviously one that calls for a severe sanction. . . . [D]ismissal with prejudice and a significant award of fees against Mr. Kimberlin is warranted. . . .
[T]he questions raised to date regarding Mr. Kimberlin’s “summons” to Twitchy and other certifications to the court, against the backdrop of his many crimen falsi convictions, make this lack of authentication central. Neither the defendants nor this Court can have any confidence that anything Mr. Kimberlin attaches to his filings, is what it purports to be.
You can read the rest of that to remind yourself where matters stood as of March 12, and you may also wish to revisit “the absurdity of the crackpot paranoia evident in Kimberlin’s Second Amended Complaint.” Michael F. Smith, attorney for Malkin and Twitchy, has now filed an opposition to Kimberlin’s motion to amend his complaint:
The First Amended Complaint (FAC) is 50 pages long, with 213 paragraphs. . . . After various defendants filed motions to dismiss it, Mr. Kimberlin indicated his intent to seek leave to amend. . . . This Court on February 21, 2014 allowed him to do so, though it acknowledged the “serious chance” of prejudice to defendants from repeated amendment, told Mr. Kimberlin this would be his last chance to amend, and specifically warned him to comply with Local Rule 103.6. . . .
On March 7, 2014, Mr. Kimberlin filed his motion for leave, attaching . . . copies of his proposed Second Amended Complaint (SAC). . . . Though the SAC removes some matter from the FAC, on balance it is a far more lengthy and convoluted document than the FAC — it contains 82 pages and 284 paragraphs, names three new defendants (in addition to Twitchy), and adds entire theories, factual allegations, and causes of action not present in the FAC.
What Smith points out here is something I’ve noted about Kimberlin’s habitual legal tactic — “Allege! Allege! Allege!” He seems to have the idea that, if he just piles up enough allegations, this will overcome all motions to dismiss, because the judge will figure that where there is so much smoke of allegations, somehow there must be a tortious fire. And this was exactly what happened in the Maryland case (Kimberlin v. Walker, et al.) at the Jan. 13 hearing: Our attorneys argued the legal deficiencies of Kimberlin’s complaint and the judge said (in so many words) “there’s enough alleged here” that she wouldn’t dismiss it on technical grounds.
That tactic doesn’t work so easily in federal court, however, and Judge Grimm’s irritation with this case has been obvious. Nevertheless, when Judge Grimm gave Kimberlin a chance to fix the obvious and fatal errors in his complaint, what did Kimberlin do? “Allege! Allege! Allege!” — three new defendants, more than 70 new paragraphs, 32 extra pages.
Smith remarks briefly on the craziness of the “Team Themis” stuff in Kimberlin’s Second Amended Complaint (SAC) before proceeding to demonstrate that the SAC would be “futile”:
Rule 8(a)(2) requires a complaint to contain a short and plain statement of the claim showing that the pleader is entitled to relief, while Rule 8(d) requires each allegation to be “simple, concise and direct.” The rule’s purpose is to avoid complaints that are “so verbose that the Court cannot identify with clarity the claims of the pleader and adjudicate them understandingly on the merits.” . . . Whether filed by a lawyer or a layperson, “[u]nnecessary prolixity in a pleading places an unjustified burden on the court and the party who must respond to it because they are forced to select the relevant material from a mass of verbiage.” . . .
Because Mr. Kimberlin’s proposed SAC will be subject to dismissal under those standards, leave to amend should be denied for futility. Pro-se complaints similar to this one have been dismissed for failing to comply with Rule 8. . . .
Prolixity in a proposed amendment also justifies denial of leave to amend even where the complaint asserts a RICO claim, with its more detailed pleading requirements. . . .
There is no point in this Court accepting the SAC for filing, because it will be subject to immediate dismissal upon motion for failure to comply with Rule 8.
That passage is studded with citations of federal court precedents, which I’ve omitted (“. . .”) to cut to the heart of the matter. And then Smith really lays down the smack on Kimberlin:
The SAC does not simply tweak a passage of the FAC here or there; instead it adds 32 densely worded pages, making the complaint an 82-page tome raising allegations even more incredible than those of the current pleading. Further, the SAC is deliberately vague, eschewing virtually all specifics regarding the allegedly defamatory comments in favor of frequently repeating the fuzzy charge that defendants fostered “false narratives” about Mr. Kimberlin. Of course, an allegation that a specific comment is defamatory can be defended against far more easily than can charges of having advanced a “false narrative.”
Permitting the SAC to be filed also will impose costs on all defendants, and this Court. . . .
Certainly, a District Court must grant some latitude to a pro-se defendant, and this Court has diligently done so. But every time Mr. Kimberlin ignores the rules and the Court’s directives, every time he certifies to this Court that he has done something when he has not, every time he seeks to expand his “conspiracy” theory further, a real and significant cost is imposed on the 20+ individuals and entities he has named as defendants. And this is not lost on Mr. Kimberlin; to the contrary it appears to be motivating his conduct. He is abusing the litigation process, and it should stop.
As to Kimberlin’s abuse of the litigation process, it’s helpful to remember his October 2010 e-mail to Patterico:
Certainly by now Judge Grimm has seen that e-mail quoted in more than one of the motions to dismiss Kimberlin’s suit, and must recognize the truth of Smith’s point: Kimberlin’s RICO lawsuit never had any chance of success, yet serves his own declared purpose of imposing “a real and significant cost” on defendants, who must pay their lawyers even to point out that Kimberlin’s motion to amend his complaint is “futile,” for the most obvious of reasons. Indeed, “it should stop.”