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BRETT KIMBERLIN,
Plaintiff,
v.
NATIONAL BLOGGERS CLUB,
et al ..
Defendants
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UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
GREENBELT DIVISION
Case No. 13-CV-03059-PWG
DEFENDANT ROGE'S MOTION TO DISMISS UNSERVED DEFENDANTS
Comes Now Defendant William Roge and pursuant to Fed. R. Civ. P. 4(m) files this
Motion to Dismiss Unserved Defendants. In support of his motion Mr. Roge states as
follows:
SUMMARY
1. Plaintiff filed his original Complaint (ECF No.1) on 15 October, 2013, and his
Amended Complaint (ECF No.2) on 17 October, only two days later. This motion is filed
on the 124th day following the filing of the Amended Complaint. 16 of the 21 Defendants
named in the caption of the Amended Complaint have been served or have effectively
waived service of process. Plaintiff has failed to properly serve three of the remaining five
Case 8:l3-cv-03059-PWG Document 68 Filed 02/l8/l4 Page l of 8
Defendants, and, upon information and belief, does not know the identities of the
remaining two anonymous Defendants or where they might be found to be served.
2. Fed. R. Civ. P. 4(m) states
If a defendant is not served within 120 days after the complaint is filed,
the court-on motion or on its own after notice to the plaintiff-must
dismiss the action without prejudice against that defendant or order that
service be made within a specified time. But if the plaintiff shows good
cause for the failure, the court must extend the time for service for an
appropriate period.
Plaintiff has not only failed to show a good cause for his failure to serve the unserved
Defendants, he also has demonstrated bad faith in his efforts at service. The Court should
not grant Plaintiff any more time for service. Instead, the Court should dismiss the
instant lawsuit against the five unserved Defendants so that the suit may proceed without
further delay. As Mr. Roge has noted in numerous previous filings, additional delays in
bringing the instant lawsuit to a conclusion are not in the interest of justice or the interest
of judicial economy. Furthermore, it is in Mr. Roge's best interest for the instant lawsuit
to be terminated as soon as possible.
PLAINTIFF HAS FAILED TO PROPERLY SERVE BREITBART.COM
3. As noted in Mr. Roge's Motion for Amended Report on Status of Service
2
Case 8:l3-cv-03059-PWG Document 68 Filed 02/l8/l4 Page 2 of 8
(ECF No. 33) ("Motion for Amended Report")!, Plaintiff failed to use Certified Mail, Return
Receipt Requested, Restricted Delivery to serve those Defendants to whom Md. Rule
2.121a was applicable. Breitbart.com, a business with a fixed address in California, is one
such defendant. Given Plaintiffs failure to properly serve Breitbart.com after more than
120 days, the instant lawsuit should be dismissed against that Defendant.
PLAINTIFF RAS FAILED TO PROPERLY SERVE NATIONAL BLOGGERS CLUB
ORAL! AKBAR
4. As noted in Mr. Roge's Motion for Amended Report, Plaintiff failed to use
Certified Mail, Return Receipt Requested, Restricted Delivery to those Defendants to
whom Md. Rule 2.121a was applicable. Although Plaintiff does not seem to know the
correct locations of either the National Bloggers Club or Mr. Akbar, he attempted to serve
them in Virginia. However, as can be seen in the Exhibits in Plaintiffs Status Report Re
Service of Complaint (ECF No. 27) ("Status Report"), Restricted Delivery was not used,
and, therefore, even if mailed to the correct address, service was defective.
5. Given Plaintiffs failure to properly serve the National Bloggers Club after more
than 120 days, the instant lawsuit should be dismissed against that Defendant.
I The Multi.Party Motion Regarding Service of the Amended Complaint (ECF No. 37) also
notes deficiencies in Plaintiffs attempts at service of process. "As Plaintiffs own filing
confirms, the attempted service on the Moving Defendants was incomplete, defective, and
not in compliance with Rule 4, Federal Rules of Civil Procedure." Id., ~ 3.
3
Case 8:l3-cv-03059-PWG Document 68 Filed 02/l8/l4 Page 3 of 8
6. Furthermore, as noted in the Motion for Amended Report, Plaintiff filed two
different versions of the same Certified Mail green card for Mr. Akbar in exhibits to
motions filed in the related Maryland lawsuit
2
, calling into question the authenticity of the
copy of that card proffered as an exhibit in his Status Report. Plaintiff has not denied
either that his proffered exhibit was altered or that the actual green itself has been
altered. Alteration of the green card compromises its value as evidence if it is ever
presented to the Court as required by Fed R. Civ. P. 4(1).
7. Given Plaintiffs failure to properly serve Mr. Akbar after more than 120 days
and given the disingenuous nature of Plaintiffs report to the Court with respect to service
on Mr. Akbar, the instant lawsuit should be dismissed against that Defendant.
PLAINTIFF HAS FAILED TO SERVE ANONYMOUS DEFENDANT "ACE OF SPADES"
8. It is obvious that Plaintiff does not know the identity of the person or person(s)
blogging under the pseudonym Ace of Spade ("Ace"). This is demonstrated by Plaintiffs
recent seeking of third-party subpoenas for information that might lead to Ace's identity.
Plaintiffs egregious delay in identifying this Defendant should not be permitted to stall
the progress of the instant lawsuit. Given Plaintiffs lack of service on Ace after over 120
days, the instant lawsuit should be dismissed against that Defendant.
2 Kimberlin v. Walher, et al., Case No. 380966V (Md. Cir.Ct. Mont.Co.).
4
Case 8:l3-cv-03059-PWG Document 68 Filed 02/l8/l4 Page 4 of 8
PLAINTIFF HAS FAILED TO SERVE ANOjl,'YMOUS DEFENDANT "KIMBERLIN UNMASKED"
9. Plaintiff has been struggling to learn the identity of the person or persons behind
the anonymous blog Kimberlin Unmaslled since at least May, 2013.:
1
Plaintiff has
obtained a third-party subpoena in a copyright lawsuit.J aimed at developing information
related to the identity of Kimberlin Unmasked. On information and belief, Plaintiff has
failed in his efforts to identifY Kimberlin Unmasked, and, as of 17 February, 2014, no
service of process has been effected in the copyright lawsuit or the instant case.
10. Given that Plaintiff has not been able to identify and serve Kimberlin
Unmasked after months of searching and over 120 days elapsed time since the Amended
Complaint was filed, the instant lawsuit should be dismissed against that Defendant.
CONCLUSION
It is in Mr. Roge's interest for the instant lawsuit to be disposed of as quickly as
3 During cross examination in May, 2013, in a peace order case, Hage v. Kimberlin ,Case
No. 1S00058388 (Md. Cir.Ct. Carr. Co 2013), one of the questions Plaintiff asked Mr. Roge
was whether he knew the identity of Kimberlin Unmasked. Mr. Roge answered truthfully
that he did not.
I Kimberlin v. Kimberlin Unmasked, Case No. 13-CV-02580 (D. Md.) was filed on 5
September, 2013. On 17 October, 2103, Judge Titus granted an order allowing an
extension of time until 14 February, 2014, for Plaintiff to serve Kimberlin Unmasked in
the copyright matter. See Exhibit A. On information and belief, Kimberlin Unmasked
has not been served as of 17 February, 2014.
5
Case 8:l3-cv-03059-PWG Document 68 Filed 02/l8/l4 Page 5 of 8
possible. As noted in Mr. Hoge's Motion to Dismiss (ECF NO.5), Plaintiff has failed to
state a claim upon which relief can be based. That fatal error applies not only to
Plaintiffs allegations aimed as Mr. Hoge but also against any other possible Defendant.
Even if Plaintiff were to eventually serve the as yet unserved Defendants, his case would
have no viable chance of surviving their motions to dismiss. Therefore, allowing Plaintiff
additional time to serve (or, in most cases, find and serve) additional Defendants is not in
the interest of justice. Furthermore, keeping such a frivolous lawsuit alive is not in the
Court's interest in judicial economy.
WHEREFORE, Mr. Hoge asks this Honorable Court to ORDER
1. That the instant lawsuit be DISMISSEDwith respect to the following Defendants:
a. Breitbart.com,
b. National Bloggers Club,
c. Ali Akbar
d. Ace of Spades, and
e. Kimberlin Unmasked; and
2. Such other relief as the Court may deem just and proper.
6
Case 8:l3-cv-03059-PWG Document 68 Filed 02/l8/l4 Page 6 of 8
Date: 18 February, 2014
Respectfully submitted,
William John Joseph Roge, pro se
20 Ridge Road
Westminster, Maryland 21157
(410) 596-2854
himself@wjjhoge.com
Verification
J1J IlL
;
haJftv U~,) __
(print name of notary public)
NOTARY PUBLIC
My Commission expires on: S - dS - L'C
Date:
I, William John Joseph Roge, III, state under penalty of perjury that the foregoing
information is true and correct and that all exhibits attached are true and correct copies of
the originals
7
Case 8:l3-cv-03059-PWG Document 68 Filed 02/l8/l4 Page 7 of 8
Certificate of Service
On this 18th day of February, 2014, I, William John Joseph Hoge, III, served copied of this
Motion to Dismiss Unserved Defendants on the following persons by U. S. Mail or email as
shown:
Brett Kimberlin at 8100 Beech Tree Road, Bethesda, Maryland 20817
Michael Smith, Esq., for Michelle Malkin and non-party Twitchy at smith@smithpllc.com
Mark Bailen, Esq., for Erick Erickson, Redstate, Simon & Schuster, Glen Beck,
MercuryRadio Arts, The Blaze, and James O'Keefe at mbailen@bakerlaw.com
Caitlin Parry Contestable, Esq., for DB Capitol Strategies at
cai tlin@dbcapitolstrategies.com
Linda S. Mericle, Esq., for The Franklin Center at linda.mericle@verizon.net
Ron Coleman, Esq., for John Patrick Frey and Mandy Nagy at rcoleman@goetzfitz.com
Aaron Walker, Esq., at aaronjw72@gmail.com
BreitbarLcom at 10connor@breitbarLcom and larry@breitbarLcom
Ace of Spades at aceofspadeshq@gmail.com
Lee Stranahan at stranahan@gmail.com
Robert Stacy McCain at r.s.mccain@att.net
Ali Akbar for himself and the National Bloggers Club at ali@blogbash.org
Kimberlin Unmasked at kimberlinunmasked@hush.com
William Jo n Joseph Hoge, pro se
20 Ridge Road
Westminster, Maryland 21157
(410) 596-2854
himself@wjjhoge.com
8
Case 8:l3-cv-03059-PWG Document 68 Filed 02/l8/l4 Page 8 of 8
EXHIBIT A
Order Granting Plaintiff Extension of Time to Serve Kimberlin Unmasked
Case No. 13-CV-02580 (D. Md.)
Case 8:l3-cv-03059-PWG Document 68-l Filed 02/l8/l4 Page l of 2
Case 8:13-cv-02580-RWT Document 6 Filed 10/17/13 Page 1 of 1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
BRETT KIMBERLIN
Plaintiff
v
ANONYMOUS BLOGGER UNMASKED
Defendant

Civil Action No. RWT-13-2580

CORRECTED ORDER
The Court having considered Plaintiffs Motion for Extension of Time to Serve
Defendant, it is this 17th day of October, 2013, by the United States District Court for the
District of Maryland, hereby ORDERED that Plaintiffs Motion for Extension of Time is
GRANTED IN PART and Plaintiff is given until February 14, 2014 to effect service on
Defendant.
/s/
ROGER W. TITUS
UNITED STATES DISTRICT JUDGE
Case 8:l3-cv-03059-PWG Document 68-l Filed 02/l8/l4 Page 2 of 2