The Other McCain

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Will Judge Grimm Accept ‘Futile’ Complaint by Brett Kimberlin?

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:

“I have filed over a hundred lawsuits and another
one will be no sweat for me. On the other hand,
it will cost you a lot of time and money . . .”

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.”




 

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  • Pingback: Political Rift » Will Judge Grimm Accept ‘Futile’ Complaint by Brett Kimberlin?

  • cubanbob

    Just for forgery the judge ought to dismiss the case with prejudice and refer the forgeries to the Dept. Of Justice for prosecution.

  • http://wizbangblog.com/ Adjoran

    It boggles the mind to believe the judge – and his poor clerks – could react with anything but horror at Kimberlin’s attempted abuse of the courts for his own nefarious purpose of silencing those who tell the truth about his history and activities.

  • Dustin

    His decision on this matter will establish the precedent for future forgeries of this type. In my opinion there is no reasonable argument that this was not a forgery. And to think the culprit is on unsupervised parole for a series of crimes that involved similar offenses. He’s a top flight hustler who knows how to play dumb and aloof when he’s caught red handed. I pray that the court sees the lie of it.

    As Mr Smith and RSM say, “it should stop”. It’s been years of this now. I remember my dismay when watching the video of Aaron, which finally emerged weeks after reading Brett’s accusations of being decked and punched and Aaron being wrestled off by a number of officers. If only Maryland’s judicial system had taken that seriously…

    For any case involving speech, from defamation to copyright claims, “loser pays” ought to be mandatory. If you force a man to go to court to retain his freedom of speech, you better have a very compelling reason. …at least in my book. I do not think this is the law.

  • Quartermaster

    I don’t see USDOJ prosecuting Kimberlin because he’s on the side of angels as far as they are concerned. He should be jailed on the new charge, and his parole revoked for the bombing, but it ain’t gonna happen.

    Frankly, he’s exhibit no.____(you fill in the blank) as to why the US is toast. All we have a is a political corpse the Liberal Establishment is trying to pick clean.

  • robertstacymccain

    He’s a top flight hustler who knows how to play dumb and aloof when he’s caught red handed.

    That’s just it — his conduct toward the defendants, especially Patrick Frey and Aaron Walker, shows that Brett Kimberlin’s sociopathic personality has not fundamentally changed.

    In some of his motions, in both the state and federal lawsuits, Kimberlin says that the defendants believe that he should wear a “scarlet letter” for his criminal past. Yet it was not his past crimes that brought Kimberlin to our attention. What happened, if you trace this case back to its origin, was that Kimberlin (through Velvet Revolution) was engaged in a campaign of defamation — against Karl Rove, against the U.S. Chamber of Commerce, and then against Andrew Breitbart. The attempt to destroy Breitbart (July 2010) tipped over the first in a series of dominoes that brought us eventually (May 2012) to “Everybody Blog About Brett Kimberlin Day.” Everything since then has been about Kimberlin pursuing vengeance against those who exposed him.

  • samk

    Kimberlin should be required to pay the costs incurred by the 22 defendants named in his baseless lawsuit(s).

  • librarygryffon

    I am, as many other are, waiting to see if anyone ever conducts a real audit of BK’s “charities”. What little we’ve seen of his IRS filings would seem to have suggested to those more knowledgeable than I some significant, shall we say, deficiencies and/or irregularities.

    Though I personally also want to know how he can claim that the defendants tried to get him fired by his employer, said employer being one of the charities he runs, i.e. to get BK fired by himself.

  • CrustyB

    “Allege! Allege! Allege!”

    Isn’t that the liberal manifesto of “if you can imagine it in your head, that makes it so?”

  • robertstacymccain

    A careful reading of Kimberlin’s claims, both in his complaints and in his motions, could lead one to suspect that these “charities” exist primarily for Kimberlin’s personal benefit, so that the result of adverse publicity about Kimberlin is not harm to any philanthropic “cause” but rather to his own economic interests as an individual.

    Then you might notice Kimberlin’s repetitive accusations of “fraud” by the defendants and say to yourself, “Project much, Brett?”

    As I say, one could have such suspicions, and one might ask such a question, but anyone publicly expressing these suspicions and asking these kind of questions would be advised to do so quite carefully, because otherwise you might commit defamation.

    On the other hand, it is simply a statement of fact to call Brett Kimberlin a “lying felon,” an merely an expression of opinion to say that he is a vicious sociopathic douchebag.

  • librarygryffon

    Hence my use of “seem” and “suggested”. I suppose a full audit could show that everything is above board. And then again, it might not. I’d just be very interested to know which result said putative auditors might find.

  • librarygryffon

    I haven’t had the stomach to try to get a copy of Citizen K and wade through it, but I understand that it shows that Brett is a believer in the ability to change the world with one’s mind. Given that, it’s actually quite reasonable (to him) to allege what you want to be true, because by alleging, (and wishing hard enough), it might happen.

  • Kimmy84

    Interesting enough, I just ordered Citizen K from Amazon for $0.01 (and a couple dollars shipping).

  • Aaron Walker

    For those watching the news today is Brett filed a deluded letter with the judge. You can read, here: http://allergic2bull.blogspot.com/2014/03/my-opposition-to-convicted-and-admitted.html

  • http://wizbangblog.com/ Adjoran

    And there is another problem with plaintiffs like Kimberlin. He keeps his assets out of his own name, if he has any, and lives off his mother and whatever money he can still funnel through his “non-profits” so he is in effect “judgment proof.”

    Similar to his cohorts in slime, Rauhauser and Schmalfeldt. All of them worthless in more ways than one.

  • Pingback: In Which Brett Kimberlin Presumes to Lecture U.S. Judge Paul Grimm : The Other McCain

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  • Cube

    Remember, “It’s not the nature of the evidence, it’s the seriousness of the charge” that matters.

  • cubanbob

    Again the correct decision by the court would be dismissal with prejudice and a referral to the DoJ and from there a revocation of his parole. As it is the courts are too lenient with respects to perjury. This is something Congress ought to address.

  • cubanbob

    The question is if any of this guy’s actions to date merit the revocation of his parole? And if so how can you guys go about getting his parole revoked?