Case 8:13-cv-03059-GJH Document 254 Filed 01/23/15 Page 1 of 8

"1\ EO
D1Snill'\ COU:\T
IN THE UNITED STATES DISTRICT COU~JSf\\CT OF t-d\RYlAHD
FOR THE DISTRICT OF MARYLAND

Southem Division

zn\ 5 JMl 23

PM 3:

33

C' (~."S OFFICE

~T C,'p,:.Elm-LT

*
BRETT KIMBERLIN,

BY

(JU

DEPUTY

*
Plaintiff

*
v.

CASE NO.: G.IH-I3-3059

*
NATIONAL

BLOGGERS

CLUB, ET AL.

*
DEFENDANT

*
MCCAIN'S

OPPOSITION TO I)LAINTIFF'S
(ECF247)

MOTION FOR DEFAULT

COMES NOW Defendant Robert Stacy McCain for the sole purpose of filing this
opposition, without waiving any rights of jurisdiction, notice, process, service of process, or
venue, and prays that court deny Plaintiff's motion for default, and states the following:
I.

DEFAULT SHOULD BE DENIED BECAUSE PLAINTIFF

SUBMITTED CREDIBLE PROOF OF SERVICE

HAS NOT

I.

A plaintiff bears the burden of proving, by a preponderance of credible evidence, that

!

service is adequate. See Almonte v. Suffolk County, 2012 U.S. Dis!. LEXIS 69465
(E.D.N.Y.2012).
2.

Plaintiff has falsely stated in a letter motion for default (ECF 247) that "it was served on
[me] on or about June 25, 2014."

Case 8:13-cv-03059-GJH Document 254 Filed 01/23/15 Page 2 of 8

3.

As I informed this court on Aug. 7,2014, Plaintiff had not properly served me with the
Second Amended Complaint: "So far as I can tell, this [i.e., proper service, in compliance
with this court's Letter Order ECF 133] hasn't happened yet and, as I understand the
rules, my response is due two weeks after he obeys this court's order to serve me." (ECF
179) Unlike in his Report on Service (ECF 27), Plaintiff hasn't even bothered to provide
a bad forgery of such alleged service. He simply wants this court to take him at his word.

4.

Plaintiff is not trustworthy. Among the several crimes of which he has been convicted,
the first was for perjury. See United States v. Kimberlin, 805 F. 2d 210,232 (7th Cir.
1986). He also has convictions for forging documents bearing insignia of the U.S.
Government; he attempted to eat the evidence when caught. /d. at 228. Plaintiff altered
certified mail "green cards" provided as proof of service in the related case of Kimberlin
v. Walker. et a/.. No. 380966V (Md. Mont. Co. Cir. Ct. 2013), in which I was a codefendant. See Twitchy/Malkin's

"Supplemental Memorandum," ECF 124. In this casc,

{

Plaintiffforged

a summons to Twitchy and only at length admitted he had done so,

absurdly claiming he didn't know he wasn't supposed to alter court documents. (See
Plaintiffs "Verified Response," ECF 102.1) This court has itself said Plaintiffs

forgery

was "clearly improper" (ECF 122, at 3); that Plaintiff had taken the language of the Case
Management Order (CMO) "out of context" and "in violation of the CMO," (ECF 168, at
3-4); and that Plaintiff has a "checkered past with representations to the Court," (id. at fn.
2).

Recently, Virginia Delegate Joseph Morrissey was charged with a similar forgery of court
documents. See, Jenna Portman and Rachel Weiner,"Virginia Lawmaker Joseph D. Morrissey
Faces New Criminal Charges," Washington Post, January 21, 2015.
1

Case 8:13-cv-03059-GJH Document 254 Filed 01/23/15 Page 3 of 8

5.

As alluded to above, Mr. Kimberlin has also forged documents related to service on me.
.
I
On December 30, 2013, this court required Plaintiff to provide a detailed report on
service of process. ECF 21. On, January 9, 2014, Plaintiff filed his "Plaintiff's Status
Report Re Service of Complaint" purporting to provide proof of service. ECF 27. Page 3
of Exhibit E to that filing was a document that shouldn't exist. Plaintiff claimed it was
the image of a letter he attempted to send by certified mail, restricted delivery, but the
postage on it was only $1.25. In 2013, it cost $5.65, in addition to the normal cost of first
class postage, in order to mail a package certified mail. Given Plaintiffs prior
misconduct, the likely explanation is that this "proof' of service was another forgery
Plaintiff is attempting to impose on this court.

6.

Even Plaintiff's sworn statement in ECF 247 does not make out a proper allegation of
1

service. He does not state how he allegedly served me. He simply asserts this without any
details or extrinsic proof. The convicted forger and perjurer thus demands that this court
trust him. This court should not.
7.

When 1moved from my West Virginia residence in 2014, [ ensured that any mail
addressed to me would be forwarded to my new address. No one has reported any
difficulty mailing me, and bills have arrived on time. My Aug. 7, 2014, letter to this court
(ECF 179) asked that further correspondence in this case be sent to me in care of my codefendant John Hoge. Because some Defendants in this case have allegedly been
!
"SWATted," and because 1 have young children, 1 expect this court can understand why 1
would not wish to make my new address a matter of public record.

Case 8:13-cv-03059-GJH Document 254 Filed 01/23/15 Page 4 of 8

8.

To my knowledge and belief, I have never subsequently received proper service of the
Second Amended Complaint following this court's decision to allow Mr. Kimberlin's
amendment to be entered into the docket. The extreme irregularity of Mr. Kimberlin's
proceedings as a pro se Plaintiff(as noted by various co-defendants, e.g. ECF 140 and
ECF 184) has imposed an unjust burden on me, as a pro se defendant. Plaintiffs conduct
would seem to be motivated by bad faith, although he pleads that he is merely ignorant
and/or incompetent. At any rate, Plaintiffs extraordinary misconduct has made it difficult
for me to understand what my own legal obligations are in this matter. Therefore I sought
this court's guidance in August 2014 (ECF 179), a request to which the court did not
respond, leaving me to surmise that (a) "the clock had not started ticking" on my
response to the Second Amended Complaint; (b) Plaintiff was duly notified of his failure
to effect service; and (c) the court would notify me in a timely manner if it determined
that I was under any obligation to further respond to Plaintiffs additional allegations in
the Second Amended complaint.

9.

Now, more than five months after my letter to this court (ECF 179), Plaintiff dares assert
that he has properly served me, and requests that the court find me in default.

10.

In evidence, I ask that this court consider Exhibits A and B, which are the Declarations of
my co-defendants Walker and Hoge. In each, they state that Plaintiff has not served them
with the Second Amended Complaint either and they note persistent irregularities with
Plaintiff when it comes to service.

Case 8:13-cv-03059-GJH Document 254 Filed 01/23/15 Page 5 of 8

11.

Since there is no credible evidence of service of process, I ask this court to deny

Plaintiffs motion for default. At this point, Plaintiff's word is not credible evidence of
anything.
12.

It seems to me that this court would be correct to surmise that the purpose of

Plaintiffs improper request for default is part of Mr. Kimberlin's avowed intention to
employ abusive legal proceedings as a means to harass the defendants. Please see
attached Exhibit C ("Brett Kimberlin Threatens to Sue Me; UPDATED with Second EMail from Kimberlin," Patterico.com, Oct. 11,2010) in which Mr. Kimberlin wrote in an
email to my co-defendant Frey: "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." His
fulfillment ofthat threat is now made evident in the present case, which has imposed
upon the several defendants the cost of attorneys, to say nothing of the waste of time, to
respond to a nuisance lawsuit that has been demonstrated to be defective as a matter of
law, and which I know to be based on false allegations as to the facts. In order to avoid
burdening this court with unnecessary filings (in compliance with the spirit of the Case
Management Order, ECF 97), I have made only two previous communications

in this

case: A very brief and simple motion to dismiss the First Amended Complaint (ECF 50);
and my letter of Aug. 7, 2014 (ECF 179). Evidently, Plaintiff felt that he had not yet
wasted enough of my time and, in order to compel my further attention to his nuisance
litigation, he belatedly filed this improper motion for default.
13.

As noted above, and also as mentioned in my letter of Aug. 7, 2014, my previous motion
i
to dismiss was brief and simple, and "merely adopted the arguments made by several codefendants in their separate Motions to Dismiss" (ECF 179). While 1 waive no rights in

Case 8:13-cv-03059-GJH Document 254 Filed 01/23/15 Page 6 of 8

making this reply to Plaintiff's improper motion for default, and have no intention now to
I

argue the numerous faults of Plaintiffs claims against me, I do ask that the court take
into consideration the extraordinarily improbable nature of the fundamental accusation in
Mr. Kimberlin's complaint. Plaintiff would have this court believe that I, an award.
winning journalist who has earned his living in the news business since 1986, suddenly
decided in 2012 to embark on a career of making false accusations against him,
conspiring with others in a racketeering enterprise, etc. Furthermore, Plaintiff asks this
court to believe that I, having never before been accused oflibel during a journalism
career spanning more than 25 years, would have chosen as the target of my new career in
defamation a convicted criminal of notorious repute. This court may draw its own
conclusions, but the reality of this case seems obvious to me: Brett Kimberlin is not only
a liar, but an exceptionally incompetent liar.

II.

DEFAULT SHOULD BE DENIED BECAUSE PLAINTIFF

SUBMITTED AN AFFIDAVIT AS PROOF OF SERVICE

HAS NOT

14.

Additionally, Plaintiff has filed the wrong form of proof of service. Federal Rules of
Civil Procedure 4(1)(1) states that "[elxc~pt for service by a United States marshal or
deputy marshal, proof must be by the server's affidavit." Plaintiff has provided no such
affidavit. He has a provided a letter to t~is court, which has not been presented to a
notary. Therefore, it is at best a declaration and not an affidavit. This is an additional
reason to deny the motion for default.

Case 8:13-cv-03059-GJH Document 254 Filed 01/23/15 Page 7 of 8

CONCLUSION

15.

For all of these reasons, this court should deny Plaintiffs most recent fraud on the
Court-attempting

to obtain a default without serving me in the manner required by the

Rules. Plaintiff's motion for default should be denied.

16.

Further, this court should consider referral to the

u.s. Attorney

for peIjury (since his

motion for default is verified and sworn under penalty of peIjury to be true) and,
possibly, mail fraud charges.
17.

Finally, this court should provide me all other relief that is appropriate.

Case 8:13-cv-03059-GJH Document 254 Filed 01/23/15 Page 8 of 8

Respectfully submitted,

Friday. January 23, IS

Robert Stacy Mc
C/o W. J. 1. Hoge
20 Ridge Road,
Westminster, MD 21157
(240) 217-5249
Robertstacvmccain8@gmail.com
(no fax)

VERIFICATION

I, Robert Stacy McCain, declare under penalty of perjury under the laws of the United
States of America, that the foregoing information is ue and corre
that I exhibits a true
and correct copies of the originals.
I
Dated:

t /2.3/20 ]5
I

CERTIFICATE

OF SERVICE

I certify that on Friday, January 23, 2015, I served copies of this document on by mail on Mr.
Kimberlin and by electronic service on all Defendants.

Case 8:13-cv-03059-GJH Document 254-1 Filed 01/23/15 Page 1 of 4

EXHIBIT

Case 8:13-cv-03059-GJH Document 254-1 Filed 01/23/15 Page 2 of 4

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND
SOlltllem Division

*
BRETT KIMBERLIN,

*
Plaintiff

*
CASE NO.: GJH-13-3059

v.

*
NATIONAL

BLOGGERS

CLUB, et aI.,

*
Defendants

*
*

DECLARATION
1.

OF AARON J. WALKER,

ESQ.

My name is Aaron J. Walker, Esq., and I make these statements based upon my own

personal knowledge.

I am an attorney in good standing in Virginia and Washington, D.C. [am over 18

years of age, and if called to do so, I am competent to testify that the contents of this declaration are
accurate and true.
2.

When this Court accepted Brett Kimberlin's proposed Amendment on June 24, 2012, this

court ordered Mr. Kimberlin to serve the Second Amended Complaint upon the Defendants.
3.

I have not, since that date, received a copy of the Second Amended Complaint.

I have

remained at the same address [ have always lived at since Mr. Kimberlin first started his campaign to
silence me in December of2011: he has simply failed to successfully deliver a copy of it to my home. I
have chosen not to make an issue of this because I hoped in vain that by responding earlier than later,
the ease might be dismissed by October. But, in fact, because of his failure of service, I do not believe I

Case 8:13-cv-03059-GJH Document 254-1 Filed 01/23/15 Page 3 of 4

was ever technically required to file an answer or motion to dismiss In relationship to the Second
Amended Complaint.
4.

This is a common pattern throughout the more than three years of dealing with Mr.

Kimberlin's litigation. Besides the outright forgeries Ihave witnessed or Mr. Kimberlin has admitted to,
his certificates of service almost never reflect the actual date on which documents are mailed. He often
waits at least a day to mail it, according to markings set by the post office and indeed, often sometimes
waits as long as a week before mailing it. Sometimes, Inever receive service at all. For instance, Ihave
literally never received from Mr. Kimberlin a copy of any the letters or motions filed in related to his
pursuit of the identity of the non-party "Ace" of the blog "Ace of Spades" since December, despite Mr.
Kimberlin often assuring this Court that he had sent it to me.
5.
on time.
6.
24, 2014.

No other person or entity has reported any difficulty sending mail to me, and bills arrive
Simply put, Mr. Kimberlin is the only one who seems to have trouble mailing anything to me.
To sum up, Inever received a copy of Plaintiffs

Second Amended Complaint after June

And based on what I have laid out and observed, I believe he simply he never mailed it.

However, the Court can read the evidence for itself and draw its own conclusion.

Case 8:13-cv-03059-GJH Document 254-1 Filed 01/23/15 Page 4 of 4

1 declare under penalty of perjury under the laws of the United States of America that the
forgoing is true and correct to the best of my knowledge.

Executed on Friday, January 23, 2015 in Manassas, Virginia.

Aaron J. Walker, Esq.

Case 8:13-cv-03059-GJH Document 254-2 Filed 01/23/15 Page 1 of 3

EXHIBITB

Case 8:13-cv-03059-GJH Document 254-2 Filed 01/23/15 Page 2 of 3

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND
Southern Division

*
BRETT KIMBERLIN,

*
Plaintiff

*
CASE NO.: GJH-13-3059

v.
*
NATIONAL BLOGGERS CLUB, et aI.,

*
Defendants

*
*

DECLARATION
I.

OF WILLIAM JOHN JOSEPH HOGE III

My name is William John Joseph Hoge III, and I make these statements based upon my

own personal knowledge.

I am over 18 years of age, and if called to do so, I am competent to testilY

that the contents of this declaration are accurate and true.

2.

I have not received a copy of Plaintiffs Second Amended Complaint since this Court's

letter order of June 24, 2012 accepting it and ordering Mr. Kimberlin to serve it on me and the other
defendants.

I have remained at the same address throughout this litigation, but I have not received it.

See my Motion to Dismiss the Second Amended Complaint, ECF 149, '\I J.

3.

This has been a recurring problem with Mr. Kimberlin. I became aware of the instant

lawsuit via chatter on the Internet, and my knowledge was confirmed when Plaintiff personally handed
me what appeared to be a draft copy of the original complaint (ECF I). Later, I received by mail a copy
of what alleged to be the First Amended Complaint (ECF 4). However, that document was not identical

Case 8:13-cv-03059-GJH Document 254-2 Filed 01/23/15 Page 3 of 3

with the First Amended Complaint found on PACER.

See my Motion to Dismiss the Amended

Complaint, ECF 5, at 1. I have never received a copy the Second Amended Complaint (ECF 135) from
Plaintiff.
4.
on time.
5.
24,2014.

No other person or entity has reported any difficulty sending mail to me, and bills arrive
Mr. Kimberlin is the only one who seems to have trouble mailing anything to me.
To sum up, I never received a copy of Plaintiffs Second Amended Complaint after June
And based on the facts above, it would appear to be because he never mailed it.

I declare under penalty of perjury under the laws of the United States of America that the
forgoing is true and correct to the best of my knowledge.
I

Executed on Thursday, January 22, 2015 in We~tminster, Maryland.

Case 8:13-cv-03059-GJH Document 254-3 Filed 01/23/15 Page 1 of 3

EXHIBITC

Patterico's Pontifications Brett Kimberlin Threatens to Sue Me; UPDATED with Secon ... Page 1 of 41

Case 8:13-cv-03059-GJH Document 254-3 Filed 01/23/15 Page 2 of 3

10/11/2010
Brett Kimberlin
Filed under: Gcncral-

Tbreatens
Patterico@

to Sue Me; UPDATED

with Second E-Mail from Kimberlin

8: 16 pm

Just got this e-mail:

To Patterico:
Please take this email as an intent to sue you for your Oct 11,2010 post on Patterico.com which has defamed
and libeled me. I have just sued Socrates on which you rely for cyber stalking, defamation, libel, violation of
privacy and interference with business. Socrates has been banned from many sites and forums for stalking
many people including me. He is under criminal investigation for cyber bullying and cyber stalking. By
corresponding with him and relying on his defamatory, posts, you are conspiring with him and are just as
liable as he.
'
Most of the things you write about in your post are false. If you have not removed the defamatory piece
within 24 hours, I will proceed with legal action against you and will serve notice on your service provider
that you are violating your terms of service by engaging in false, defamatory and abusive postings.
Let me assure you that you are not the first blog that has posted lies about me, yet each of them has removed
the offending posts once I alerted them to the facts about Socrates and his spreading of lies.
Also, please provide me with your full name and address.
Thank you,
Brett Kimberlin
My response:
My post is based primarily on a number of published news articles. I ask you to specifY anything in my post
that you claim is false. If I have made any mistakes I am always happy to correct them. But I won't take
down anything that is true.
I
Stay tuned.
UPDATE: Kimberlin is referring to this post of mine in which I discussed his history as a convicted bomber, drug
smuggler, perjurer, and suspected murderer.
Ifhe actually sues, I'll let you know. I may need to establish a litigation fund. (Pay Pal buttons are on the right.)
UPDATE x2 9:21 p.m.: Just got this e-mail:
I appreciate the quick response. Most of the information in the post is false. As noted, I put up with Socrates'
shit for too long, and finally sued him, he has been polluting the Internet with lies about me and Brad and
now he gets a chance to defend it in a court of law.
I have no beef with you and I never even heard of you or your blog until today when I got the Google alert. I
don't want to get into a pissing match with you. 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 and for what. I run a small non
profit that works to inspire youth to get involved. I have only met Brad Friedman one time in my life. Your

http://patterico.com/2010/1

0/11 /brett-kimberlin-threatens-to-sue-me/

1/23/2015

Patterico's Pontifications Brett Kimberlin Threate~s to Sue Me; UPDATED with Secon ... Page 2 of 41

Case 8:13-cv-03059-GJH Document 254-3 Filed 01/23/15 Page 3 of 3

piece is a smear job against both me and Brad. I have gonen death threats all day today because of your and
Liberty Chick's post and I have to meet with the FBI tomorrow to give them copies. Have I ever posted
anything, anywhere? Have I ever said or done anything to you?
Maybe you have some beef with Brad, but going after me to get to him is really a shameful way of resolving
it. I can tell you for a fact that Brad Blog, Daily Kos, HuffPo, RawStory, and DU have all removed these type
of posts once they were advised that they were false and that Socrates was behind them. I really urge you to
pull the post and not post anything more about me.
Politics aside, I can see you are very passionate about what you do and I respect that. I would be happy to
meet you, shake hands, have a beer or soy chai, and just have a chat.
Thanks Pat.
Bren
My response:
Once again: my post was based primarily on published news articles. I repeat: please specifY anything in my
post that you claim is false. I will correct mistakes if there are any, but I will not remove the truth.
There are obviously a lot of other things I could say. But I am going to leave it at that for now.
Comments ( 186)

186 Responscs to "Brett Kimberlin Threatens to Suc Mc; UPDATED with Sccond E-Mail from
Kimbcrlin"
I. do NOT give this person your address he likes to blow stuff up
happy/eel (/9c1da) -

10/1112010@8:19pm

2. Full name and address? Creepy ....

Eric Blair (2e555/) -

10/11/20 I0 @ 8: 19 pm

3. The Aaron Klein equivalent on domestic political, social and legal issues. That is the positioning.
Javerl_is_alive!

(AKA .. .) (4j78dO) -10/11/2010

Iii) 8:19 pm

4. Please give me your real name and address.

Hahahahaha!!!!!
goalsred (b20383! -

10/11120 I0 iii) 8:20 pm

5. Any fool can find an address. But my recommendation

JaverUs_alive!

(AKA ...) (4j78dO) -

is get a PO Box for correspondence.

10/11/2010 Ii" 8:21 pm

6. Please give me your name and address ... ?! Are you kidding me? From someone that has blown people up, and
killed people ?!?! I will tell you what, Bren Kimberlin, post your current address, and see if anyone comes to visit
you ...
JD (3399cO) -

IO/lI/2010@8:22

pm

7. It is ironic, coming from someone with, um, such a flexible definition of"1Tee speech."

http://patterico.com/2010/l

0/11 /brett-kimberlin-threatens-to-sue-me/

1/23/2015