Professional Documents
Culture Documents
------------------------------X
:
BRETT KIMBERLIN,
:
:
Plaintiff,
:
:
v.
:
:
NATIONAL BLOGGERS CLUB, et al.:
:
Defendants.
:
:
------------------------------X
HEARING
Rockville, Maryland
September 3, 2015
------------------------------X
:
BRETT KIMBERLIN,
:
:
Plaintiff,
:
:
v.
:
:
NATIONAL BLOGGERS CLUB, et al.:
:
Defendant.
:
:
------------------------------X
Rockville, Maryland
September 3, 2015
WHEREUPON, the proceedings in the above-entitled
matter commenced
BEFORE:
APPEARANCES:
FOR THE PLAINTIFF:
KIMBERLIN BRETT, Pro se
8100 Beech Tree Road
Bethesda, Maryland 20817
FOR DEFENDANT BREITBART.COM:
MARK I. BAILEN, Esq.
Baker & Hostetler, LLP
1050 Connecticut Avenue, Suite 1100
Washington, D.C. 20036
FOR DEFENDANT WILLIAN HOGE:
PATRICK OSTRONIC, Esq.
932 Hungerford Drive, Suite 28A
Rockville, Maryland 20850
DEPOSITION SERVICES, INC.
APPEARANCES (Continued):
FOR DEFENDANTS MICHELLE MALKIN AND TWITCHY:
MICHAEL F. SMITH, Esq.
Smith Appellate Law Firm
7566 Main Street, Suite 307
Sykesville, Maryland 21784
FOR DEFENDANT AARON WALKER:
AARON WALKER, Pro se
P.O. Box 3075
Manassas, Virginia 20108
FOR DEFENDANTS DEBLASE INC., MERCURY RADIO ARTS,
AND GLENN BECK:
SCOTT J. SHOULDER, Esq.
Cowan, Debaiet, Abrahams & Sheppard, LLP
41 Madison Avenue, 34th Floor
New York, New York 10010
FOR DEFENDANT MANDY NAGY:
T. BRUCE GODFREY, Esq.
Jezic, Krum & Moyse, LLC
2730 University Blvd, Suite 604
Silver Spring, Maryland 20902
FOR DEFENDANTS DAN BACKER AND DB CAPITOL STRATEGIES:
CHRISTINA PAULINE SIROIS, Esq.
DB Capitol Strategies, PLLC
203 South Union Street, Suite 300
Alexandria, Virginia 22314
I N D E X
Page
Judge's Rulings
86
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P R O C E E D I N G S
THE COURT:
THE CLERK:
THE COURT:
Let's do this.
waves, okay.
MR. KIMBERLIN:
THE COURT:
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So go
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12
Yes, sir.
MR. KIMBERLIN:
I'm the
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THE COURT:
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MR. KIMBERLIN:
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THE COURT:
Yes.
-- Mr. Kimberlin.
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MR. WALKER:
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THE COURT:
Just
Sorry, sir.
Okay, with respect to your motion to
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dismiss which was the first that was filed which is docketed at
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tab 6 --
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MR. WALKER:
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THE COURT:
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25
ago.
Uh-huh.
Unfortunately I issued an order two days
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2
THE COURT:
MR. WALKER:
THE COURT:
MR. WALKER:
THE COURT:
consider it.
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MR. WALKER:
11
THE COURT:
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Okay.
So you can step back for a second.
MR. WALKER:
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THE COURT:
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THE CLERK:
Yes, I have it 6.
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THE COURT:
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MR. OSTRONIC:
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So
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for conspiracy.
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MR. OSTRONIC:
is --
THE COURT:
MR. OSTRONIC:
one is conspiracy.
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is conspiracy.
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word conspiracy.
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THE COURT:
Yes.
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MR. OSTRONIC:
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there's not --
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THE COURT:
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MR. OSTRONIC:
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THE COURT:
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MR. OSTRONIC:
It can be an
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THE COURT:
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MR. OSTRONIC:
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THE COURT:
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MR. OSTRONIC:
Yes.
Since he doesn't allege conspiratorial
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just there to allow him to file in this court and bring us all
in here.
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5
THE COURT:
MR. OSTRONIC:
doesn't allege how there was any conspiracy among the co-
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talking the same language, may have been talking about the same
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subject.
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THE COURT:
venue?
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MR. OSTRONIC:
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then this is not the courtroom, because Mr. Hoge doesn't live
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in Montgomery County.
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County.
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THE COURT:
you're saying.
MR. OSTRONIC:
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is Montgomery County.
the only person in the entire courtroom right now among us here
nothing alleged.
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THE COURT:
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MR. KIMBERLIN:
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THE COURT:
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MR. KIMBERLIN:
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THE COURT:
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MR. KIMBERLIN:
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THE COURT:
Okay.
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sort of a conclusion.
conspiracy existed.
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MR. KIMBERLIN:
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THE COURT:
And
Right.
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Hoge along with Mr. Walker having stalked you, but that's in
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a public proceeding.
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and Hoge constantly write blog posts stating they're armed and
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Akbar, Frey, and Hoge attack anyone online who questions their
conduct.
you.
termination.
to what did Mr. Hoge did as opposed to Mr. Walker or any of the
others.
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Walker,
And then on page 22, you say Walker, Hoge, Frey, and
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page 41 when you say Hoge who lives in Maryland wrote a letter
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is it that he wrote?
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That's protected.
Defendants Hoge,
What
That the
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actionable.
of those.
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So it's a recitation
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THE COURT:
Was he
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MR. KIMBERLIN:
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THE COURT:
Yes, he was.
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MR. KIMBERLIN:
THE COURT:
No, no --
did?
MR. KIMBERLIN:
were several federal questions under RICO and Section 1985 and
1983.
defendant.
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And so he
THE COURT:
So if --
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MR. KIMBERLIN:
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THE COURT:
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could not base a claim for stalking upon him appearing in court
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MR. KIMBERLIN:
THE COURT:
Right.
He has a right.
Any
member of the public, whether you like him or not, can come to
a public hearing.
protected --
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MR. KIMBERLIN:
11
THE COURT:
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MR. KIMBERLIN:
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THE COURT:
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MR. KIMBERLIN:
So if that's
Well --
To re-allege that.
I mean there are, like I stated in
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on a daily basis every single day of the year for three years.
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amendment or whatever and let a jury decide you know what he's
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I wanted to
If I
I would
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swattings at all.
THE COURT:
two camps.
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MR. KIMBERLIN:
THE COURT:
Right.
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form that suggests that after people attack you as you describe
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MR. KIMBERLIN:
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THE COURT:
Well --
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is that they have reported that people at odds with you after
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actionable.
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MR. KIMBERLIN:
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THE COURT:
MR. KIMBERLIN:
directed at me.
THE COURT:
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So I'm going to
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until he files his amended complaint and then I'll take up well
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complaint.
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But I'll leave this for the time being sitting here
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MR. OSTRONIC:
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THE COURT:
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MR. KIMBERLIN:
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THE COURT:
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MR. KIMBERLIN:
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2
THE COURT:
MR. KIMBERLIN:
THE COURT:
MR. KIMBERLIN:
THE COURT:
THE COURT:
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THE COURT:
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MR. KIMBERLIN:
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THE COURT:
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suggestion.
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to be enough so --
MR. KIMBERLIN:
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MR. OSTRONIC:
Right.
Your Honor, will it also have to be
conspiratorial?
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THE COURT:
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MR. OSTRONIC:
Pardon me?
It has to be conspiracy too, correct,
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Right.
-- but some --
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All right.
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Right.
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Right.
THE COURT:
with it.
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MR. OSTRONIC:
venue.
THE COURT:
tie to that.
MR. OSTRONIC:
THE COURT:
MR. KIMBERLIN:
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THE COURT:
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MR. OSTRONIC:
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THE COURT:
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Right.
Okay.
Thank you, Your Honor.
as to --
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MR. KIMBERLIN:
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THE COURT:
So as to Docket
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complaint.
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that.
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dismissals.
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THE COURT:
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MR. KIMBERLIN:
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THE COURT:
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MR. KIMBERLIN:
Yes.
And they were agreed to by the Mark
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THE COURT:
MR. KIMBERLIN:
THE COURT:
blogger?
MR. KIMBERLIN:
THE COURT:
MR. KIMBERLIN:
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MR. KIMBERLIN:
THE COURT:
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MR. KIMBERLIN:
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THE COURT:
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MR. KIMBERLIN:
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THE COURT:
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MR. KIMBERLIN:
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for your --
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Red State.
THE COURT:
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Okay.
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6
Which ones?
Okay.
through settlement.
THE COURT:
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MR. KIMBERLIN:
THE COURT:
Right.
dismissal?
COUNSEL:
THE COURT:
MR. KIMBERLIN:
THE COURT:
I got that.
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MR. KIMBERLIN:
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THE COURT:
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MR. KIMBERLIN:
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Okay.
And Mr. Walker filed motion regarding
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THE COURT:
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MR. KIMBERLIN:
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too.
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THE COURT:
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junction disclosure.
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MR. KIMBERLIN:
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THE COURT:
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MR. KIMBERLIN:
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THE COURT:
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response.
Right.
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motion.
defendants.
That is
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MR. KIMBERLIN:
That's at 47 is
So then --
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THE COURT:
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That was part of the other motions and they were withdrawn so
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that's gone.
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MR. KIMBERLIN:
separate.
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THE COURT:
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MR. KIMBERLIN:
Okay.
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THE COURT:
-- motions collectively --
MR. KIMBERLIN:
THE COURT:
All right.
motions, okay.
MR. SMITH:
the points that we've made in the brief, and I know Your Honor
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has read them and I would just like to reiterate that for all
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those reasons, and there are many reasons, we feel that the
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anti-statute.
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THE COURT:
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them to death, but you can go through them so that then his
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MR. SMITH:
We are arguing
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with regard to the false light claim, which is the second claim
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numerous reasons.
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malice.
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requirement.
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THE COURT:
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MR. SMITH:
Yes --
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THE COURT:
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MR. SMITH:
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THE COURT:
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to dismiss?
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MR. SMITH:
So then
How can
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that --
THE COURT:
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MR. SMITH:
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convictions.
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THE COURT:
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conviction dated?
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MR. KIMBERLIN:
1980.
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THE COURT:
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MR. SMITH:
I could
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ago.
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head of --
He's the
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THE COURT:
I mean,
that.
somebody --
MR. SMITH:
Okay.
THE COURT:
whistleblowers.
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MR. SMITH:
His
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THE COURT:
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MR. SMITH:
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function.
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into it as well.
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THE COURT:
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MR. SMITH:
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figure.
THE COURT:
I think there's --
So,
otherwise?
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MR. SMITH:
11
arguments against the false light claim and against the other
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period.
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THE COURT:
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limitations.
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MR. SMITH:
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THE COURT:
Okay.
MR. SMITH:
THE COURT:
MR. SMITH:
And so we
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motion.
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where that claim and the other claims fail to state a claim.
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THE COURT:
claims as well?
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MR. SMITH:
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THE COURT:
And she's in --
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MR. SMITH:
At the time
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But
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And they don't meet, neither of them meets the standard for
of purposeful availment the way that the case law has defined
THE COURT:
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generate.
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MR. SMITH:
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such.
assertions as to those.
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THE COURT:
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MR. KIMBERLIN:
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THE COURT:
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MR. KIMBERLIN:
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THE COURT:
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MR. KIMBERLIN:
I think compartmentalizing --
Go ahead.
First of all the argument and I won't
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belabor it, the argument about public figure you know I've been
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involved in a lot of cases over the last few years with some of
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THE COURT:
You know
I mean he actually
me.
MR. KIMBERLIN:
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made this argument over and over and it's never fallen into.
you know one thing I want to point out is these defendants made
THE COURT:
MR. KIMBERLIN:
THE COURT:
Okay.
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MR. KIMBERLIN:
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THE COURT:
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Every
All right.
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MR. KIMBERLIN:
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dismiss.
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altogether.
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arguments.
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He didn't do that.
THE COURT:
He dismissed it without
He dismissed other
So my point is
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favor?
MR. KIMBERLIN:
THE COURT:
MR. KIMBERLIN:
Yeah --
right now.
It's against one of the defendants in this case that's not here
today.
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THE COURT:
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court today, but Mr. Frey who is in this complaint who has not
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a 1983 claim.
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THE COURT:
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MR. KIMBERLIN:
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And it's
conspiracy claim?
MR. KIMBERLIN:
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the RICO was RICO's very difficult to plead and he found that
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9
THE COURT:
He could
to know
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Judge Hazel was just appointed, I'm surprised he's had this for
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was appointed.
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MR. KIMBERLIN:
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THE COURT:
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MR. KIMBERLIN:
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THE COURT:
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takes the matter off their plate, there's nothing wrong with
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doing it that way and a lot of judges do it that way and I have
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no doubt --
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MR. KIMBERLIN:
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THE COURT:
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No I'm not --
did.
MR. KIMBERLIN:
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he could have --
THE COURT:
MR. KIMBERLIN:
THE COURT:
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Yes, but --
probably could --
MR. KIMBERLIN:
With
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said no.
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here.
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Why?
He wrote a
You know this is a good faith case and I'm not trying to
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THE COURT:
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MR. KIMBERLIN:
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THE COURT:
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MR. KIMBERLIN:
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THE COURT:
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you, right?
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MR. KIMBERLIN:
I care if they
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care.
THE COURT:
MR. KIMBERLIN:
mind that.
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of crimes.
That's simple.
They
Okay.
It's not news worthy.
Who cares
I don't
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THE COURT:
Yes.
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MR. KIMBERLIN:
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County.
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THE COURT:
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MR. KIMBERLIN:
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THE COURT:
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MR. KIMBERLIN:
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Okay.
And so that case is moving forward.
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THE COURT:
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MR. KIMBERLIN:
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Yeah, exactly.
Okay.
And trying to use swatting to destroy
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THE COURT:
MR. KIMBERLIN:
THE COURT:
jurisdiction --
MR. KIMBERLIN:
THE COURT:
Yes.
Uh-huh.
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MR. KIMBERLIN:
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THE COURT:
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So we
jurisdiction.
MR. KIMBERLIN:
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know 20,000 tweets and blogs and stuff from all over the
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THE COURT:
I see 20.
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Maryland and so they knew the impact would come to rest here in
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Maryland and so while you've chosen not to sue the other 20,000
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people.
MR. KIMBERLIN:
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THE COURT:
here.
MR. KIMBERLIN:
THE COURT:
MR. KIMBERLIN:
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THE COURT:
Let me ask.
Go ahead.
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directed to you.
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Maryland.
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MR. KIMBERLIN:
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THE COURT:
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So okay, it's
They directed
Well --
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you read the case law that I cited Calder v. Jones that was a
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Supreme Court case and in that case the court found personal
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The actions
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were expressly aimed at California and they knew that het brunt
10
activity into the state which they did and with the manifested
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County's in Maryland.
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THE COURT:
They
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MR. KIMBERLIN:
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THE COURT:
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MR. KIMBERLIN:
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defendants.
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you know there was another case Hair v. Ritchie which was in
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the federal court and the court said the same thing but in that
And
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they said well not only do they direct it to the state but they
in Maryland.
And
That's what
And so that's --
THE COURT:
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MR. KIMBERLIN:
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But my point is
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I'm saying if
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Maryland Court of Appeals you know said that you know where
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That's
I mean if they're
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something else.
THE COURT:
government.
MR. KIMBERLIN:
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Maryland and the defendants are saying you know, destroy those
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activities, you know get this guy fired, throw him in prison,
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don't let him be an activist, don't let him you know work with
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the State Department, don't let him do any of these things that
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THE COURT:
You know
It's
Brett
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One
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MR. KIMBERLIN:
THE COURT:
Yes.
Maryland and that's not at all clear from the complaint that I
read.
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MR. KIMBERLIN:
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it's you know it's a stretch to say this court doesn't have
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THE COURT:
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MR. KIMBERLIN:
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I mean it's
So I just think
Okay.
-- you know when all these defendants
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THE COURT:
Okay.
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MR. KIMBERLIN:
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sounded like a minute ago that he backed off of that and said
I mean it
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2
3
THE COURT:
MR. KIMBERLIN:
THE COURT:
there's content.
It wouldn't apply --
MR. KIMBERLIN:
THE COURT:
Right.
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MR. KIMBERLIN:
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THE COURT:
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Right.
But --
All right, so --
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MR. KIMBERLIN:
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they just posted the link and I apologize, maybe that wasn't
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The Twitchy staff writes a blog post and then they say these
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issue.
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follow them.
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tweets you know would be content wouldn't fall under the CDA.
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THE COURT:
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MR. KIMBERLIN:
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So the headline?
Not the headline the, there's the
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staff.
THE COURT:
Okay.
MR. KIMBERLIN:
not out there arguing that some you know Joe Blow from Nebraska
this case.
goes out there and says you know Kimberlin swatted another
And I'm
That's not
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that's you know that's the issue because I didn't swat anybody.
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I had nothing to do with the swatting and you know in fact, you
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THE COURT:
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MR. KIMBERLIN:
So I mean it has
Okay.
And so the CDA doesn't apply there.
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THE COURT:
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MR. KIMBERLIN:
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basically the same you know that they've directed this at me.
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THE COURT:
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MR. KIMBERLIN:
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Okay.
If this court doesn't have
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creates the headline and sort of gets the ball rolling but puts
the narrative out there and that that is what this is aimed at.
MR. SMITH:
Well, and --
THE COURT:
MR. SMITH:
But
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THE COURT:
He agrees.
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MR. SMITH:
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THE COURT:
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MR. SMITH:
Young
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context test.
THE COURT:
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MR. SMITH:
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THE COURT:
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MR. SMITH:
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And as Your Honor points out and we have pointed out in our
reply some of the alleged injury even under the complaint's own
And if
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you accept the theory that the malicious intent was to sour the
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15
corners of Young.
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THE COURT:
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MR. SMITH:
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THE COURT:
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MR. BAILEN:
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behalf of Breitbart.com.
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THE COURT:
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MR. BAILEN:
Mr. Bailen.
Your Honor, as you know we filed two
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events.
Breitbart.com specifically.
THE COURT:
MR. KIMBERLIN:
THE COURT:
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MR. BAILEN:
Other than
There's a mention --
Go ahead.
There's a mention of Andrew Breitbart
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here.
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and the only allegations again were or is that there were four
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And one is
In
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The
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swatter.
He specifically said
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article right off the bat has problems because of the statute
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So that
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swatter.
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It
mentioned that Mr. Walker had won a court victory that day or
And it
That
Angeles had reported about Patrick Frey the Los Angeles County
Again no
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that.
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Breitbart.com.
14
the key issues with false light or defamation is that you need
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highly what they wrote, those articles are not highly offensive
19
to a reasonable person.
20
21
22
23
24
25
play that's where the public figure doctrine that the Supreme
It
It's not
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49
10
11
or public official.
12
13
14
15
16
17
malice.
18
19
20
21
22
23
either.
24
25
There's
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50
there the Court may not want to, but nonetheless we do believe
that false light and defamation really are one and the same
10
11
12
13
14
15
16
in the federal case he did allege the one year and I mean he
17
alleged defamation and then once he saw that he had the statute
18
19
20
But
And
He first
21
22
about the issue with respect to the Court dismissing claim and
23
so forth.
24
25
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51
an amended complaint.
complaint.
2014.
10
11
12
13
THE COURT:
14
MR. BAILEN:
And the
So he had
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25
And
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52
that Judge Hazel then dismissed for my clients and for all of
the defendants except for one all of the federal claims and
this out --
10
THE COURT:
11
12
13
federal claim?
14
MR. BAILEN:
15
rights act.
16
17
18
claims.
19
20
21
22
23
the three federal claims, then there were a number of state law
24
25
of that.
One was the 1983 and again that was only against
So those were
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53
1
2
THE COURT:
MR. BAILEN:
THE COURT:
MR. BAILEN:
He did.
As Mr.
And frankly
10
11
12
13
14
15
THE COURT:
So I don't know --
16
17
18
MR. BAILEN:
Again, I've
19
20
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22
23
MR. KIMBERLIN:
24
THE COURT:
25
MR. BAILEN:
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54
how they in any way interfered with any of his business other
him.
publication and the Supreme Court case basically said you can't
Again, there's
He's
10
"publication torts."
11
12
13
14
15
16
17
know I think again Mr. Smith, you know cogently argued the
18
19
20
that anyone would have which is you know this was targeted to
21
this, about your story about the warden, this was down in
22
23
24
not be targeted?
25
It's like he
How could you
We
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55
ruling and found that even though the article was about the
warden and it was about Virginia prisons which were based down
10
11
12
13
14
15
Enquirer case suing California and you know they pointed out
16
17
18
courts looked very carefully how you know where the newspaper
19
20
21
22
23
24
25
California.
The
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THE COURT:
MR. BAILEN:
And here
It's a website
just like any other you can access it as Your Honor pointed out
10
11
on the internet.
12
13
respect to Maryland.
14
15
not Maryland.
16
17
complaint that they knew nor did they know really anything
18
about Mr. Kimberlin other than what they were reporting on.
19
20
mention him.
21
jurisdiction.
22
23
24
25
publish four publications of which they did not make any direct
You
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57
THE COURT:
wanted.
MR. BAILEN:
10
11
party.
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13
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15
16
17
18
19
20
21
22
now and just had to file the third time that we had to file a
23
motion to dismiss.
24
25
He
He was
The fact
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58
that you know a SWAT team, police are being sent to people's
And
10
11
12
13
complaint?
14
15
16
17
that's not bad faith frankly you know they find it as vexatious
18
litigation.
19
litigation.
20
THE COURT:
21
22
23
24
25
court?
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MR. BAILEN:
defamation.
defamation can't --
THE COURT:
In federal court.
MR. BAILEN:
10
11
12
13
THE COURT:
14
15
16
17
18
MR. BAILEN:
19
20
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22
barred.
23
24
25
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60
THE COURT:
Yes.
MR. BAILEN:
don't think you can read into Judge Hazel's ruling either way
you know.
10
claims.
11
THE COURT:
12
13
14
prisons in general.
15
16
MR. BAILEN:
17
18
and that's why the New Haven advocate was interested in writing
19
20
21
22
prison.
23
24
have talked about how this is common that states will you know
25
cgg
61
2
3
THE COURT:
4
5
MR. BAILEN:
THE COURT:
MR. BAILEN:
THE COURT:
Okay.
-- in the article.
Okay, have a seat.
10
MR. KIMBERLIN:
11
THE COURT:
12
MR. KIMBERLIN:
13
14
statement.
15
16
THE COURT:
17
18
which is defamation.
19
20
21
light.
22
23
24
25
defamation.
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62
defendants.
or anybody else.
the way Judge Hazel had handled the case in federal court about
I mean these
10
There are
11
12
tweets.
13
14
would want.
15
16
portray me in false light, not that this specific you know each
17
18
19
20
21
You know
My
22
THE COURT:
Yes.
23
MR. KIMBERLIN:
24
25
defendants to do this.
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63
defendants to do this.
THE COURT:
Right.
MR. KIMBERLIN:
was Breitbart --
THE COURT:
MR. KIMBERLIN:
10
name.
11
13
12
THE COURT:
2010 --
14
MR. KIMBERLIN:
15
THE COURT:
16
MR. KIMBERLIN:
17
18
19
THE COURT:
That's
then?
20
MR. KIMBERLIN:
It shows
21
22
23
24
to call him and you know he has a very powerful blog and he can
25
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64
swatting, it doesn't.
So my point
THE COURT:
Okay.
MR. KIMBERLIN:
You know
10
11
THE COURT:
12
MR. KIMBERLIN:
13
14
15
16
17
18
19
funders --
20
21
THE COURT:
Yes.
23
THE COURT:
25
22
24
Yeah.
Uh-huh, right.
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65
THE COURT:
article where they post a picture of you and they said State
convicted bomber.
MR. KIMBERLIN:
10
THE COURT:
12
MR. KIMBERLIN:
14
15
16
11
13
And then
I don't have
17
18
19
THE COURT:
Yes.
20
MR. KIMBERLIN:
21
22
23
THE COURT:
24
MR. KIMBERLIN:
25
Yes.
You know I'm not out bombing people.
I'm
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66
THE COURT:
Okay.
MR. KIMBERLIN:
You know I
day long.
THE COURT:
10
That's just
11
12
MR. KIMBERLIN:
swatter.
13
THE COURT:
Right.
14
MR. KIMBERLIN:
15
16
17
is.
18
19
THE COURT:
20
MR. KIMBERLIN:
21
THE COURT:
Yeah --
22
23
24
that.
25
MR. KIMBERLIN:
I mean,
cgg
67
case law on these types of torts is you can impute and the
THE COURT:
When it is that
10
11
12
13
14
15
16
MR. KIMBERLIN:
17
THE COURT:
Well, but --
18
19
20
fraud --
21
MR. KIMBERLIN:
22
THE COURT:
23
24
25
And there
Right.
typically.
MR. KIMBERLIN:
Court, I'm not sure of the case but you know it says even
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68
Court.
5
6
THE COURT:
before me.
MR. KIMBERLIN:
THE COURT:
MR. KIMBERLIN:
10
THE COURT:
13
14
Well --
case.
11
12
You know so if
MR. KIMBERLIN:
I think he could.
15
THE COURT:
16
MR. KIMBERLIN:
17
18
19
20
21
22
23
day.
24
day.
25
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69
THE COURT:
MR. KIMBERLIN:
I mean they
Okay.
Okay, and that's the point.
You know
when you talk about personal jurisdiction for these guys they
10
11
12
THE COURT:
Is it correct that
13
MR. KIMBERLIN:
14
THE COURT:
15
MR. KIMBERLIN:
16
THE COURT:
Yeah --
17
not positive or not certain that Judge Hazel found among other
18
19
20
MR. KIMBERLIN:
21
THE COURT:
22
MR. KIMBERLIN:
No, he didn't.
23
correct.
24
25
So --
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70
THE COURT:
conspiracy.
MR. KIMBERLIN:
A conspiracy is a
you --
THE COURT:
MR. KIMBERLIN:
play.
10
THE COURT:
11
12
13
14
15
16
MR. KIMBERLIN:
And
that.
17
THE COURT:
Okay.
18
MR. KIMBERLIN:
19
20
21
court --
22
THE COURT:
Yes.
23
MR. KIMBERLIN:
24
He said these
25
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71
THE COURT:
Okay.
MR. KIMBERLIN:
So you know
filed to find bad faith as Mr. Bailen talks about I think the
THE COURT:
MR. KIMBERLIN:
He didn't.
I mean he could --
The
10
11
12
THE COURT:
13
MR. KIMBERLIN:
Yes.
He didn't.
14
15
16
THE COURT:
Okay.
17
MR. KIMBERLIN:
18
anti slap I don't know any case where anti slap has ever been
19
won in Maryland.
20
21
And you know there's several cases out there where people have
22
23
24
25
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72
filing.
THE COURT:
I understand --
MR. KIMBERLIN:
THE COURT:
MR. KIMBERLIN:
10
11
12
THE COURT:
13
MR. KIMBERLIN:
14
THE COURT:
15
MR. KIMBERLIN:
16
THE COURT:
17
MR. KIMBERLIN:
18
19
They can
I know.
Right there.
20,000.
They talk about me all day long.
Okay.
So just don't call me a swatter.
20
mean yes, it's 40 years ago but the fact remains you have a
21
criminal record.
22
MR. KIMBERLIN:
23
THE COURT:
24
MR. KIMBERLIN:
25
THE COURT:
So.
Okay.
They can talk about that.
Well --
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73
MR. KIMBERLIN:
THE COURT:
MR. KIMBERLIN:
THE COURT:
THE COURT:
-- for anything --
I understand.
MR. KIMBERLIN:
10
11
Don't call me --
THE COURT:
say in response?
12
MR. BAILEN:
Real brief.
13
anti-slap motions are filed all the time regardless of how many
14
lawsuits the plaintiff files and that's not simply the basis
15
16
17
18
19
20
personal jurisdiction.
21
22
23
24
25
hearing.
To the
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74
the extent that our grant's won that it would be cut in half in
clients.
THE COURT:
MR. BAILEN:
THE COURT:
MR. BAILEN:
Okay.
Is the issue.
Okay, just give me one second.
And just so the record is clear I was
10
11
case.
12
THE COURT:
13
14
finding based upon this record that he acted in bad faith which
15
16
17
18
19
20
21
MR. BAILEN:
I am
22
23
24
THE COURT:
25
MR. BAILEN:
Yes.
And he had noticed obviously when he was
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75
defend that.
THE COURT:
articles, okay.
THE CLERK:
All rise.
THE CLERK:
(Recess)
THE CLERK:
All rise.
10
THE COURT:
11
12
to at 11:30.
13
14
MR. SHOLDER:
15
16
Beck.
17
THE COURT:
18
MR. SHOLDER:
Okay.
I'll keep this brief, Your Honor,
19
because I feel like much has been covered already in the last
20
defendants.
21
22
23
24
25
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76
10
11
12
13
14
least one of our articles that really only deals with this
15
16
17
18
19
20
in Maryland.
21
22
23
24
25
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77
another state.
I wanted to point out that the ALS Scan case that Mr.
10
11
12
here.
13
14
15
16
17
18
19
20
21
22
that's all.
23
In the Hair v.
As I mentioned
24
25
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78
And Judge Hazel held that Mr. Kimberlin had not pled an ongoing
5
6
THE COURT:
So
So just to
MR. SHOLDER:
THE COURT:
MR. SHOLDER:
10
THE COURT:
11
MR. SHOLDER:
No enterprise.
Ongoing enterprise.
Correct, no ongoing enterprise and
12
13
14
15
16
17
it's clear in the Maryland case law that Mr. Kimberlin doesn't
18
19
20
sparingly.
21
22
society.
23
24
25
As a matter of law
It's a rarely
It's used
The
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79
distress.
10
11
12
13
14
15
16
17
18
unopposed.
19
positions.
20
21
22
23
various theories that don't fit this case and tries to throw
24
them out there to state some sort of claim but the fact of the
25
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80
1
2
THE COURT:
right?
MR. SHOLDER:
THE COURT:
MR. SHOLDER:
THE COURT:
MR. SHOLDER:
THE COURT:
9
10
Sorry?
Young is the Fourth Circuit case?
Yes.
Okay.
That's correct.
You can have a seat.
11
MR. KIMBERLIN:
12
THE COURT:
13
Mr. Kimberlin is
Yes --
14
MR. KIMBERLIN:
15
16
17
18
19
20
21
into silence.
22
23
24
Kimberlin?
25
editor-in-chief.
I mean Mr.
Meet Soror's
So
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81
you know --
2
3
THE COURT:
there, okay.
MR. KIMBERLIN:
THE COURT:
Right.
That's saying
one it's possible, it's not stating a fact and two it's saying
related.
So
10
11
12
13
things.
14
MR. KIMBERLIN:
Well I understand.
If it were just
15
16
17
THE COURT:
Okay.
18
MR. KIMBERLIN:
19
20
Appeals Maryland you know they found that there was an invasion
21
22
23
24
25
And
You know I
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82
that stuff.
my house.
lot of stuff that Beck wrote, you know his readers read that
I don't
I have two
10
11
12
You know they're going after my kids, Army of Davids are coming
13
14
marine.
15
16
17
18
19
20
invasion of privacy.
21
22
23
to intimidate me.
24
25
I'm a
You know all these guys they were out front taking
I had to put 24/7
I had to call 9-1-1
They
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83
have me arrested.
THE COURT:
MR. KIMBERLIN:
defamation.
10
11
They
THE COURT:
12
MR. KIMBERLIN:
13
THE COURT:
14
MR. KIMBERLIN:
15
case that I just mentioned the Summit Long v. Percola that was
16
17
18
19
20
21
22
Day to bring in all those other bloggers including Mr. Beck and
23
Maltin and all these other people to come down on me with this
24
25
And
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84
society.
THE COURT:
Okay.
MR. KIMBERLIN:
Kimberlin.
That's a conspiracy.
That's an agreement.
10
11
12
13
14
THE COURT:
To destroy
That's actionable.
15
MR. KIMBERLIN:
16
THE COURT:
17
Yeah --
18
MR. KIMBERLIN:
19
THE COURT:
Right.
20
21
22
23
24
25
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85
say is what they are doing and what gives rise to your claim
MR. KIMBERLIN:
THE COURT:
And, and --
MR. KIMBERLIN:
THE COURT:
10
11
Right.
12
13
14
THE COURT:
15
MR. KIMBERLIN:
16
17
THE COURT:
That's a conclusion.
18
MR. KIMBERLIN:
19
20
21
22
23
24
25
THE COURT:
I understand.
I have alleged
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86
MR. KIMBERLIN:
summary judgment --
THE COURT:
I understand.
MR. KIMBERLIN:
10
THE COURT:
11
MR. KIMBERLIN:
12
THE COURT:
13
MR. KIMBERLIN:
14
THE COURT:
15
MR. KIMBERLIN:
16
THE COURT:
17
COUNSEL:
18
19
20
21
Okay.
Let me --
Have a seat.
Okay.
No.
JUDGE'S RULING
22
23
24
25
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87
defendants.
10
11
defendants.
12
13
14
15
16
17
18
19
20
21
22
23
24
25
And so until
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88
don't believe that that is an issue that the Court could decide
the extent that the Court is asked to grant relief under the
10
11
12
13
14
that you've had a long time to know what they are alleging in
15
16
17
18
19
So,
20
21
22
23
24
25
Judge Albright.
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89
with the Court that had been altered or amended as Judge Ryan
MR. GODFREY:
THE COURT:
10
MR. GODFREY:
11
THE COURT:
Come on up.
May I approach?
Yes, and this is the motion at tab 58 for
12
13
14
15
16
17
18
representative capacity.
19
20
21
22
23
24
25
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90
but really it's the mother that's been sued, isn't it?
MR. GODFREY:
Kimberlin.
THE COURT:
MR. GODFREY:
10
line.
11
THE COURT:
12
13
14
15
16
capacity.
17
18
19
She's
And
Your Honor.
You know --
THE COURT:
20
enough for me that if the mother will hire you to represent her
21
22
23
MR. GODFREY:
24
THE COURT:
25
Okay.
And that is easier I think than trying to
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91
in her stead.
5
6
MR. GODFREY:
THE COURT:
MR. GODFREY:
Yes.
-- but do not independently know that
10
THE COURT:
11
MR. GODFREY:
Yes.
-- in New Jersey.
I am informed but do
12
not know because a) the Supreme Court of New Jersey has not
13
14
THE COURT:
15
MR. GODFREY:
Okay.
And b) my information comes primarily
16
17
18
THE COURT:
19
MR. GODFREY:
20
THE COURT:
21
22
person?
23
24
25
Why don't you just dismiss her and let's get rid of
MR. KIMBERLIN:
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92
THE COURT:
4
5
MR. KIMBERLIN:
content.
assume that Mr. Kimberlin's right and I'm wrong, Ms. Nagy is a
stroke survivor.
10
11
THE COURT:
12
MR. GODFREY:
13
14
THE COURT:
15
it.
18
Okay.
She can't remove anything.
MR. GODFREY:
Honor.
THE COURT:
19
20
21
MR. GODFREY:
22
THE COURT:
23
MR. GODFREY:
24
THE COURT:
25
She's not
16
17
But let's
Nagy, yes.
It's Hungarian.
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93
MR. GODFREY:
THE COURT:
Okay.
this ward.
MR. GODFREY:
THE COURT:
9
10
MR. GODFREY:
Thank you.
other point --
11
THE COURT:
12
MR. GODFREY:
Okay.
-- as court officer I may be compelled
13
14
Kimberlin.
15
as well.
16
17
18
motion.
19
THE COURT:
20
the record.
21
its current form except that I will extent the time for the
22
23
and in the meantime you can get the mother to retain you so
24
25
MR. GODFREY:
Thank you.
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94
THE COURT:
Yes, absolutely.
MR. GODFREY:
MR. KIMBERLIN:
THE COURT:
MR. KIMBERLIN:
THE COURT:
No.
Okay.
service of process.
10
MS. SIROIS:
11
THE COURT:
12
MS. SIROIS:
13
14
15
Strategies.
16
THE COURT:
17
MS. SIROIS:
18
THE COURT:
19
Good luck.
Under that new rule I hope you have the
20
MS. SIROIS:
21
THE COURT:
22
MS. SIROIS:
23
Good luck.
Yes, I do.
Okay, so you've entered it in writing?
I'm sorry?
24
THE COURT:
25
MS. SIROIS:
Do I
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95
1
2
THE COURT:
MS. SIROIS:
THE COURT:
Yes.
Okay, actually I think isn't there
MS. SIROIS:
THE COURT:
10
11
12
13
MS. SIROIS:
14
THE COURT:
15
16
17
18
served.
19
MS. SIROIS:
He says new
20
21
motion.
22
THE COURT:
Right.
23
MS. SIROIS:
So --
24
THE COURT:
25
MS. SIROIS:
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96
this motion and they were sent out before the time limits of
Rule 2-507 which provides 120 days from the issuance of the
original summons.
22nd.
5
6
THE COURT:
served --
MS. SIROIS:
THE COURT:
MS. SIROIS:
In July.
-- and he served you.
It was served, it was not sent until
10
after August 24th and that was an additional 39 days after the
11
second summons.
12
13
14
15
THE COURT:
But that
doesn't change the time period under the rules for dismissal.
16
THE COURT:
17
MS. SIROIS:
Okay.
He still allowed that to lapse and then
18
also the only reason he sent the service, yes, the complaint
19
20
THE COURT:
21
22
23
act within a 120 days they did take timely action thereafter.
24
25
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97
MS. SIROIS:
THE COURT:
of Spades.
hearing.
That was
Matter
10
11
based upon your phone call did I later agree not to dismiss it
12
13
14
granted.
15
MR. KIMBERLIN:
16
THE COURT:
Oh no --
17
18
19
20
hearing, and I basically mean only for counsel that have hired
21
22
MR. KIMBERLIN:
23
THE COURT:
Basically why
Okay.
24
25
to.
Those clients got a bill for that time which was wasted
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98
should that --
MR. KIMBERLIN:
THE COURT:
MR. KIMBERLIN:
And why
Well --
When I
10
going to be held.
11
12
13
after some time you know said they didn't know what was going
14
on.
15
and then the assignment office said they were going to patch me
16
18
MR. KIMBERLIN:
Right.
THE COURT:
hearing?
22
MR. KIMBERLIN:
23
THE COURT:
24
25
and --
20
21
17
19
She
Yeah --
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99
an answer from the clerk of the court and she told me to call
back.
answered they said they didn't know and they put me over to the
assignment office.
time and I told your clerk, I don't know who it was I talked to
but I said you know I thought that the case was going to be
continued and she said the lawyers are in the courtroom now.
And at
Let me call
10
you back.
11
she said that the Court had already made some rulings on some
12
other motions and that you had decided that I didn't need to be
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14
THE COURT:
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scheduling order --
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MR. KIMBERLIN:
18
THE COURT:
19
MR. KIMBERLIN:
20
THE COURT:
Right.
21
the face of it if you fail to appear you run the risk that your
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cgg
100
MR. KIMBERLIN:
was a miscommunication.
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THE COURT:
check?
MR. KIMBERLIN:
12
day before, two days before and I didn't even get the motion.
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other thing --
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THE COURT:
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MR. KIMBERLIN:
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And when
And the
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101
in.
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3
THE COURT:
No they weren't.
heard.
MR. KIMBERLIN:
a continuance.
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8
MR. KIMBERLIN:
THE COURT:
Go ahead.
July 13th.
MR. KIMBERLIN:
13
THE COURT:
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MR. KIMBERLIN:
Right.
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THE COURT:
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MR. KIMBERLIN:
it intentionally.
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Give me one
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second.
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15
THE COURT:
11
Okay.
So it wasn't, I mean I wasn't doing
I didn't do it --
THE COURT:
intentionally.
MR. KIMBERLIN:
21
You
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know I have, I know that there were some motions that were
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ruled on here.
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THE COURT:
was ruled.
cgg
102
MR. KIMBERLIN:
THE COURT:
Right.
MR. KIMBERLIN:
10
THE COURT:
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I apologize to them.
I mean I
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MR. KIMBERLIN:
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fees.
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THE COURT:
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COUNSEL:
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THE COURT:
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MR. BAILEN:
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THE COURT:
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On behalf of Breitbart.
Come forward for one second.
One at a time or -One at a time.
seeking?
MR. BAILEN:
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cgg
103
1
2
THE COURT:
clients?
MR. BAILEN:
well.
THE COURT:
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MR. BAILEN:
THE COURT:
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THE COURT:
17
defendants?
MR. BAILEN:
16
hours because you're saying you were two hours -MR. BAILEN:
18
THE COURT:
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MR. KIMBERLIN:
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his associate.
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THE COURT:
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MR. BAILEN:
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MR. KIMBERLIN:
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THE COURT:
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13
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I'll give you one half of one hour because I think some of the
cgg
104
MR. BAILEN:
THE COURT:
was next?
295.
295, you prepare the order.
Thank you.
Next, who
MR. SHOLDER:
defendants.
THE COURT:
MR. SHOLDER:
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THE COURT:
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MR. SHOLDER:
14
THE COURT:
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of $315.
Who is next?
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MR. SHOLDER:
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MR. OSTRONIC:
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THE COURT:
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MR. OSTRONIC:
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cgg
105
not yet been paid but I don't think 150 is unreasonable in this
case.
THE COURT:
MR. OSTRONIC:
manner.
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10
Okay.
Especially since it's an ongoing
My time is valuable.
THE COURT:
of $150.
MR. OSTRONIC:
THE COURT:
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have to pay for your mistake although I've reduced the amount
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17
But you should at least bare part of the expense that they
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You can e-
cgg
106
today.
MR. KIMBERLIN:
You
service --
THE COURT:
MR. KIMBERLIN:
8
9
Correct.
THE COURT:
10
MR. KIMBERLIN:
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was --
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THE COURT:
it.
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MR. KIMBERLIN:
17
THE COURT:
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MR. KIMBERLIN:
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THE COURT:
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Yeah, no --
Yeah --
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MR. KIMBERLIN:
23
THE COURT:
Okay.
24
involved.
25
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107
altered documents.
MR. KIMBERLIN:
THE COURT:
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5
Okay.
Mr. Walker --
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10
THE COURT:
MR. WALKER:
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THE COURT:
MR. WALKER:
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THE COURT:
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that I overlooked?
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Okay.
-- it's not before me.
Just
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to dismiss.
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least make sure that those are not removed from the courthouse?
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THE COURT:
25
MR. WALKER:
Can we at
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108
THE COURT:
MR. WALKER:
3
4
5
motion to dismiss.
MR. WALKER:
THE COURT:
MR. WALKER:
THE COURT:
I think
10
it's for the reasons I set forth on the record the motion to
11
dismiss is granted.
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COUNSEL:
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THE COURT:
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THE CLERK:
All rise.
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THE CLERK:
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109
By:
_________________________
Caroline G Gibson
Transcriber