Case 8:13-cv-03059-PWG Document 124 Filed 04/28/14 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND GREENBELT DIVISION BRETT KIMBERLIN, Plaintiff, v. NATIONAL BLOGGERS CLUB, et al., Defendants * * * * * * * * * * * * * * * Civil Action PWG 13-3059

SUPPLEMENTAL MEMORANDUM OF DEFENDANTS MICHELLE MALKIN AND TWITCHY IN SUPPORT OF REQUEST FOR DISMISSAL (ECF No. 41)

Michael F. Smith The Smith Appellate Law Firm 1717 Pennsylvania Avenue N.W., Suite 1025 Washington, D.C. 20006 smith@smithpllc.com (202) 454-2860 Bar No. 29941 Counsel for Defendants Michelle Malkin and Twitchy Date: April 28, 2014

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Mr. Kimberlin has pending a Maryland state-court action against various defendants in this case, though not Mrs. Malkin or Twitchy. Kimberlin v. Walker et al., Montgomery Cir. Case No. 380966. At an April 9, 2014 oral argument on defendant Ali Akbar's motion to dismiss that case, he admitted altering a Postal Service return-of-service card in connection with his purported service of the complaint on Mr. Akbar, to indicate he had requested "restricted delivery" before filing it with the court: THE COURT: MR. KIMBERLIN: Did you alter the return receipts between docket entry 38 and 50 whatever, did you change them? I did not change them intentionally. When I go to the post office, I ask them to do it so it's registered or whatever it's called, restricted delivery, and they did not do it. [Defendant Akbar is] saying that there's an extra fee. I've never paid an extra fee for restricted delivery. I've sent literally 50 or 100 of these things and never once faked a [unintelligible] restricted delivery, but, you know, Mr. Akbar here sitting right there that this was sent in January 2nd to Mr. Akbar. It came back, it's restricted delivery. This one here is January 25th, again, Mr. Akbar came back restricted delivery, you know, undeliverable. And you know he keeps accusing me of not paying the extra fee. This isn't about paying a fee. That's what he said. This is about the exact same brief green card being filed -- the support motions you filed, the different docket entries, one showing the restricted delivery box checked and one not. Your honor, like I said I asked the post office to send it restricted delivery. You're not answering my question. Yes, I changed -Did you change it? Yes, I did. 1

THE COURT: MR. KIMBERLIN: THE COURT:

MR. KIMBERLIN: THE COURT: MR. KIMBERLIN: THE COURT: MR. KIMBERLIN:

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THE COURT: MR. KIMBERLIN:

And then you filed it representing that it accurately reflected the green card that had been filled out. No, no, no, I filed it and accurately said -- it accurately reflected what I told the post office to do and that's what it is. You know, like I said I'm a pro se litigant and -Don't even use that with me. Okay, okay -You know it's one thing to say I'm pro se so I don't understand rules or I don't understand how to get something in and the rules of evidence and another thing to alter something and file it.... [Ex A, TR 4/9/14, pp 21-23 (emphasis added)]. DISCUSSION

THE COURT: MR. KIMBERLIN: THE COURT:

I.

Mr. Kimberlin's statements show a pattern of misconduct that undermines his defense of inadvertent pro se mistake, and supports dismissal and/or a significant monetary sanction. After first ignoring the allegations regarding the Twitchy summons, ECF 67, Mr. Kimberlin

admitted forging it but offered this Court various excuses, including his pro-se status. ECF 102 Response. But as his comments to the state court show, Mr. Kimberlin's falsification of the summons is part of a pattern of similar litigation misconduct that vitiates the defense he has proffered here. In the state court, as in this Court, Mr. Kimberlin when caught in misconduct sought refuge behind his pro-se status. Ex A, TR 4/9/14, pp. 14, 22; also ECF 102 Response, pp. 1-2. In both courts, he claimed his action was necessitated by a public employee's improbable neglect of his or her routine duties. Ex A, TR 4/9/14, pp. 21-22 (postal clerk failed to honor his request for restricted delivery); ECF 102 Response, pp. 1-2 (deputy clerk of this Court failed to issue Twitchy summons). In both courts he assumed a chastened air and said he had learned his lesson but only after a defendant was forced to expend resources exposing his conduct, and extracting an admission of wrongdoing. Ex A, TR 4/9/14, pp. 22, 25 ("I understand"); ECF 102 Response, pp. 1-2 (private session with Clerk for summons 2

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instruction). And in each court he has blamed the victim of his unsuccessful deception for complaining about it. Ex A, TR 4/9/14, pg. 22 (criticizing Mr. Akbar for supposedly objecting that he failed to pay for restricted delivery); ECF 111-1 Response, pg. 1 (Twitchy is being "petty" and "wasting the court's time" in continuing to seek dismissal and sanctions). This Court's inherent authority "extends to a full range of litigation abuses," Chambers v. Nasco, Inc., 501 U.S. 32, 46 (1991), and a pattern of litigation misconduct may justify dismissal under it. Vargas v. Peltz, 901 F. Supp. 1572, 1579-82 (S.D. Fla. 1995) (persistent pattern of misconduct by plaintiff and her husband that amounted to fraud on the court, including fabrication of evidence, perjury, and repeated false deposition testimony) (collecting cases); Riverside Mem. Mausoleum, Inc. v. Sonnenblick-Goldman Corp., 80 F.R.D. 433, 435-436 (E.D. Pa. 1978) (dismissal justified by plaintiff's pattern of ignoring court orders and deadlines). The April 9 hearing transcript establishes such a pattern, and shows that falsification of the Twitchy summons was no innocent or accidental pro-se mistake. It warrants the strongest possible sanction, up to and including dismissal. Respectfully submitted, /s/ Michael F. Smith Michael F. Smith The Smith Appellate Law Firm 1717 Pennsylvania Avenue N.W., Suite 1025 Washington, D.C. 20006 smith@smithpllc.com (202) 454-2860 Bar No. 29941 Counsel for Defendants Michelle Malkin and Twitchy

Date: April 28, 2014

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CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above Supplemental Memorandum and its Ex A was electronically filed in this case on April 28, 2014 and thus served on counsel of record via the Court's ECF system. Additionally, I am serving the document via email this date on plaintiff Kimberlin and on defendants Hoge, McCain, and Walker by the express permission of each. By: /s/ Michael F. Smith Dated: April 28, 2014

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