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No. 16-1500
appellate brief, Dkt. No. 43,1 when pointing out that Kimberlin declined the
opportunity given him by the District Court to file an Amended Complaint,
did not elaborate that the Court also denied his Motion to Amend the
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did not mention Mr. Frey, the Frey case, the Frey protective order, the
confidential documents in Frey covered by it, or the District Courts ruling
on his Motion to Amend the Frey protective order. The H&W Appellees
therefore had no cause to address these matters in their brief. If any party is
guilty of failing to disclose relevant information to this Court it is Kimberlin
himself, who unfairly lambasted the District Court for supposedly applying a
strict construction approach to his Complaint, Appellants Br. at 10,
without disclosing that the District Court gave him an opportunity to file an
Amended Complaint after the H&W Appellees filed their Motion to Dismiss.
Third, in his informal brief, Kimberlin did not raise the District Courts
orders regarding amending his Complaint or denying his request to amend
the Frey protective order as grounds for reversal or otherwise contend that
these rulings were incorrect. Kimberlin therefore has waived any contention
that these orders were erroneous.2
2
4th Cir. L.R. 34(b) (The Court will limit its review to the issues raised in
the informal brief.); United States v. Smalls, 720 F.3d 193, 197 (4th Cir.
2013) (The fundamental problem with this contention is that new arguments
cannot be raised in a reply brief.); United States v. Leeson, 453 F.3d 631,
638 n.4 (4th Cir. 2006) (holding appellants failure to raise argument in
opening brief when authority was readily available constituted waiver of
the argument on appeal and collecting cases); United States v. Al-Hamdi,
356 F.3d 564, 571 n.8 (4th Cir. 2004) (It is a well settled rule that contentions
not raised in the argument section of the opening brief are abandoned.).
3
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conclusory, there is also no basis for concluding that any documents subject
to the Frey protective order have anything to do with the H&W Appellees.
It also bears emphasis that, while Kimberlin was told he could not
append the Frey protective-order documents to a publicly-filed Amended
Complaint, he was not prevented from seeking to submit these documents to
Judge Hazel in camera in support of a motion to amend the order.
Kimberlin made no attempt to do so. In any event, Judge Hazel acted well
within his discretion in refusing Kimberlins request to make public the
confidential documents subject to the Frey protective order. And, again,
Kimberlins informal brief did not challenge Judge Hazels rulings regarding
the Frey protective order and filing an Amended Complaint and thus has
waived any argument that his orders were erroneous.
2.
Kimberlin argues in his Motion to Show Cause that part one of Section
1985(b) is split into five distinct clauses and that it was his intention to invoke
only the first and third clauses, but not the second, which deals with
conspiracies to deter a witness from testifying freely, fully, and truthfully.
Mot. 5. This is the first time Kimberlin has invoked the first and third
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argument in his informal opening brief, he has waived any claim of error. See
note 2, supra. In addition, this new argument does nothing to advance
Kimberlins cause. He has not adequately alleged deterrence or retaliation,
as he must in order to proceed under any of the component clauses of part
one of Section 1985(b).5 And even if he had, his claim would remain deficient
because, in order to sufficiently plead a claim under any part of Section 1985,
a plaintiff must plead a cognizable injury.6 Kimberlin affirmatively
clauses of Section 1985(b). In the Complaint itself, he relied exclusively on
the second clause, asserting that Defendants conspired to use illegal means
to deter and intimidate Plaintiff from testifying about these matters and to
undermine his credibility so he would not be called to testify. Compl. 62
(pages 4142), ECF No. 1 (emphases added).
5
Kimberlins Section 1985 claim fares no better under the first and third
clauses than the second. Kimberlin does not allege that he was in any way
deterred from attending the Blankenship proceedings (Clause 1); to the
contrary, Kimberlin says that he was an actual witness at the Blankenship
trial because he submitted a victim-impact statement for consideration at
sentencing. Appellants Br. at 2223. Nor does Kimberlin assert that he was
retaliated against on account of his having so attended or testified at those
proceedings (Clause 3). Kimberlin states that he submitted his victim-impact
statement at some point after March 29, 2016, after he filed his Complaint.
Id. It is therefore impossible for the actions described in the Complaint to
have been retaliation for testimony that Kimberlin had yet to give.
Regardless, Kimberlins effort to parse Section 1985(b) ultimately is for
naught, because, as indicated, he does not allege a cognizable injury.
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acknowledged before the District Court that he has not alleged that he was
injured for having testified in the Blankenship matter. Pl.s Mot. for Relief
From Judgment at 2, ECF No. 137.
*
civil remedy for a violation of any of the subsections [in Section 1985] is
found at the end of 1985(3) (emphasis added)); Timmerman v. U.S. Bank,
N.A., 483 F.3d 1106, 1124 (4th Cir. 2007) (expressly recognizing injury
element in Section 1985(2) claim).
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CERTIFICATE OF SERVICE
I hereby certify that on this 14th day of July, 2016, I caused a true copy
of the foregoing Opposition of Defendants-Appellees Hunton & Williams
LLP, John Woods, Richard Wyatt, and Robert Quackenboss to PlaintiffAppellant Brett Kimberlins Motion to Show Cause to be filed through the
Courts electronic case filing system, served through the Courts electronic
filing system, and sent by Federal Express, postage prepaid, to the
following:
Brett Kimberlin
8100 Beech Tree Road
Bethesda, MD 20817
Pro Se Plaintiff-Appellant
William Hoge
20 Ridge Road
Westminster, MD 21157
Pro Se Defendant-Appellee
/s/ Barrett J. Anderson
Barrett J. Anderson