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IN THE UNITED STATES DISTRICT COURIjL9J courlTFOR THE DISTRICT OFMARYL~~b,;f~fIci}I'~:f\RYLMm

Southern Division "

LUlliJUl 22 A \0: 2 b

*

BRETT KIMBERLIN,

*

Plaintiff

*

v.

LYNN THOMAS,

and

PETER G. MALONE

Defendants

*

*

*

*

*

CASE NO.: 8:13-CV-02580-RWT

* *

*

* * * * *

DEFENDANTS' JOINT OPPOSITION TO PLAINTIFF'S MOTION FOR DEFAULT

COMES NOW Defendants Lynn Thomas and Peter G. Malone, inthe above-styled case,

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

the Defendants state the following:

I. Plaintiff did not comply with Maryland Rule of Civil Procedure 2-121. Inparagraph 2 of

Plaintiff's Motion for Default, ECF No. 18, Plaintiff states he mailed alleged service of

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process on March 30, 2014. However, he admits in the same paragraph that "a month

later, the envelopes were returned unclaimed." Maryland Rule of Civil Procedure

2-12'1(a) states that "Service by certified mail under this Rule is complete upon delivery."

Since by Plaintiff's own admission it was not delivered, it was not served.

2. Plaintiff tries to get around this clear failure by stating in paragraph 6 that "Defendants

have actual notice of the Complaint, have a copy of it, and are aware that they have a

right to respond to it." Even if this was true, this dilatory Plaintiff is not absolved from

complying with Federal Rule 4(e) simply because a defendant may have had actual notice

of the suit. SeeMcGuire v. Sigma Coatings, Inc., 48 F.3d 902, 907 (5th Cir. 1995); Mused

v.Us. Dep t of Agric. Food & Nutrition Serv., 169 ER.D. 28, 34 (W.D.N.Y. 1996).

Plaintiff still has the burden to prove that he has actually served the Defendants and he

has not done so. Inaddition, as we will demonstrate, Plaintiff has actually attempted to

perpetrate a fraud on this court, falsely claiming he had served the Defendants properly

when he had not.

A. DEFAULT SHOULD BE DENIED BECAUSE PLAINTIFF HAS NOT

SUBMITTED PROOF OF SERVICE

3. A Plaintiff bears the burden of proving, by a preponderance of the credible evidence, that

service is adequate. See Almonte v. Suffolk County, 2012 U.S. Dist. LEXIS 69465

(E.D.N.Y. 2012).

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4. There is documentary evidence that Plaintiff is attempting to perpetrate a fraud on this

court by claiming he has properly attempted service of process. Plaintiff writes in

paragraph 2 that "On March 30, 2014, Plaintiff secured new summons from the Clerk and

served the Defendants by Certified Mail, Return Receipt, Restricted Delivery. Exhibit A.

A month later, the envelopes were returned unclaimed. Id." (italics added).

5. Postal records show that this is not true.

6. Plaintiff is lying to this court when he claims to have sent these packages "Restricted

Delivery" as allowed under Md. Rule 2-221(a)(3). He has altered his Exhibit A by

checking the "Restricted Delivery" box after delivery had been attempted and failed.

7. Although this allegation might sound far-fetched, he has done this sort of thing before.

Plaintiff admitted to doing the exact same thing in a Mary land court Kimberlin v.Walker

et aI., Case # 380966V (Md. Mont. Co. Cir. Ct. 2013). As we are about to show, Plaintiff

stated in a hearing that when attempting to serve another person, he altered the Certified

Mail green card to falsely indicate that he has sent the package "Restricted Delivery."

Also, Plaintiff is a convicted perjurer, See United States v.Kimberlin, 483 F. Supp. 350,

351 (S.D. Ind., 1979), and he has a conviction related to the forgery of documents, United

States v.Kimberlin, 805 F. 2d 210 (7th Circuit 1986). Finally, he has recently admitted in

Kimberlin v.National Bloggers Club et aI., Case # 8:2013-cv-03059-GJH (D. Md.,

2013) that he forged a summons (see ECF 102 in that case). Compounding his lies, after

admitting to the forgery inKimberlin v.National Bloggers Club et aI., he denied in

Kimberlin v. Walker et al. that he was caught forging the summons in that federal suit or

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that he had admitted to it. See Kimberlin v.National Bloggers Club et al., ECF 149,

Exhibit D-2. In summary, there is strong evidence that he has altered the Certified Mail

green cards shown in his Exhibit A in this case to falsely indicate he had attempted

service in compliance with Maryland's Rule, and there is good reason to doubt anything

else he says in the instant case.

B. PLAINTIFF HAS ALTERED EXHIBIT A TO INDICATE THAT HE ATTEMPTED

TO SEND US RESTRICTED DELIVERY WHEN HE DID NOT.

8. Page 1 of Plaintiff's Exhibit A purports to be a copy of a package sent to defendant Peter

Malone, including a Certified Mail green card. The Restricted Delivery checkbox is

checked. The package has a tracking number of 7012 2920 0000 9200 0493.

9. Attached as Exhibit 1 is a print out of the USPS tracking page. As the Court can see, the

only features listed as being purchased are "Certified Mail" and "Return Receipt."

10. If "Restricted Delivery" had been chosen, that would have been listed under "Features."

We know this because if one enters the tracking number of a package that was sent

Certified Mail, Return Receipt, with Restricted Delivery, one sees that it is indicated. For

instance, Exhibit 2 is a print out for the mail piece with the tracking number 7013 3020

0001 8041 2479, under features "Certified Mail," "Return Receipt" and "Restricted

Delivery" are listed. So the lack of "Restricted Delivery" being listed under "Features"

in Exhibit I logically means that the Plaintiff did not send it with Restricted Delivery.

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11. Plaintiff did the same thing with the mailing to Lynn Thomas. Page 2 of Plaintiff's

Exhibit A is presented as a copy of a package sent to her, including a Certified Mail green

card with the "Restricted Delivery" option checked off. That tracking number is 7003

1680 0000 8911 9948. Again, if one enters that tracking information into the USPS

tracking system, the results will indicate that "Restricted Delivery" was not chosen as a

"feature." Exhibit 3 is a print out of the USPS tracking page for that tracking number.

12. Further, we invite your honor not to take our word for it, but to run this "experiment"

yourself. Enter the tracking numbers of a package known to have been sent Restricted

Delivery as the "control" and then run the tracking numbers in Plaintiff's Exhibit A as the

"experiment." We have no doubt you will get the same results: that USPS records clearly

indicate that Plaintiff did not send these packages Restricted Delivery.

13. There is more evidence offalsity. Plaintiff's Exhibit A lists the postage for the package

sent to Peter Malone as $11.60 and indicates that it was sent Certified Mail, Restricted

Delivery.

14. It is not possible that Plaintiff sent the package with all of those features he claims to

have chosen. The current Certified Mail fee is $3.30. The current cost of getting a Return

Receipt "green card" is $2.55. Finally, the Restricted Delivery service costs $4.75. (See

http://www.certifiedmaillabels.comlusps-postal-rates/). Therefore before taking into

account the weight of the package, the postage should cost a minimum of $10.60.

Plaintiff would have the Court believe that the remaining postage for this package

equaled a dollar ($1.00), to bring up the total postage to $11.60. That is impossible,

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because it is less tban the First Class postage for a large envelope weighing as much as

the document shown on PACER as the Amended Complaint.

15. Plaintiff has done this before in this lawsuit. He filed a "Verified Motion to Find That

Defendant KimberlinUnmasked Has Been Served Under Federal Rule Of Civil Procedure

4(e)(l) and Maryland Rule of Civil Procedure 2-121." ECF 7. As previously pointed out

in an attempted amicus motion, Plaintiff included an Exhibit D which also purported to

include a Certified Mail green card with a checkmark indicating that he had chosen

Restricted Delivery:

O~Mall

o P~I.l"" ~t:t lc' \'~,,"C"wo COO

::, Sr.'Ce Type

o Certified MallDRoglr~

o ].-wrlKl Mad...--_.~

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'.

$5.60'@ ... SA1NT CHARLES IL 60174

:00e-4

Iriority Mail 2-Day" at RateEnv

.0.40 02..Schedul ed De11very Day: Sat 01104/14Includes $50 insurance

$11.25

$2.55.10

70131090000124386922

Issue PVI:

Return Rcpt (Green Card)@@ Certifiedlabel #:

17. As the Court can see, that receipt matches the green card he submitted in this case and it

apparently cost Plaintiff $1 1.25 (under the old postal rates) to attempt the same service to the

same address. Plaintiff did not pay for Restricted Delivery in this instance, either.

18. A number of conclusions can be drawn from this evidence. First, it shows that Plaintiff

has a history of falsely presenting alleged packages mailed "Restricted Delivery" when

they had not been sent by that method. As we will show in a moment, this is not the only

time he has been caught doing this. Second, it shows that back when he sent his package,

the base cost of mailing service was $5.60. That was on January 4, 2014. Postal rates

increased on January 26, 2014, (http://about.usps.com/news/national-releasesI2013/

pr13_077.htm) and so if anything it should have cost more. Therefore it is logically

impossible for the Plaintiff to have sent the package, Certified Mail, Return Receipt,

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Restricted Delivery for only $11.60. Clearly he did not send it Restricted Delivery as

required, and he falsely represented to this Court that he did.

C. PLAINTIFF HAS PREVIOUSLY ADMITTED IN ANOTHER CASE THAT HE

ALTERED CERTIFIED MAIL GREEN CARDS TO FALSELY STATE THEY

WERE SENT RESTRICTED DELIVERY AND HE MADE STATEMENTS IN

THAT CASE INDICATING THAT NONE OF THE MAILINGS IN EXHIBIT A

WERE SENT RESTRICTED DELIVERY.

19. As difficult as it may be to believe, Plaintiff has a history of engaging in precisely this

kind of fraud on the Court.

20. As noted above, Plaintiff presently has another case in Montgomery County Circuit Court

against the named defendants in this case and against four other defendants: Ali Akbar,

John Hoge, Robert McCain and Aaron Walker. On April 9, 2014, Mr. Akbar sought

sanctions against Plaintiff for doing the same thing: Plaintiff sent service of process

without checking the Restricted Delivery checkbox or paying the fee for Restricted

Delivery, and then altered the green card after the fact to indicate that it had been sent

Restricted Delivery. In that case, Plaintiff carelessly provided a copy of the unchecked

green card in one filing and then provided a new copy with the checkmark added.

21. In that hearing, Plaintiff admitted to the alteration as follows:

THE COURT: Did you alter the return receipts between docket

entry 38 and 50 whatever, did you change them?

MR. KIMBERLIN: 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

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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.

THE COURT: This isn't about paying a fee.

MR. KIMBERLIN: That's what he said.

THE COURT: 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.

MR. KIMBERLIN: Your honor, like I said I asked the post office to

send it restricted delivery.

THE COURT: You're not answering my question.

MR. KIMBERLIN: Yes, I changed-

THE COURT: Did you change it?

MR. KIMBERLIN: Yes, I did.

THE COURT: And then you filed it representing that it accurately

reflected the green card that had been filled out.

MR. KIMBERLIN: No, no, no, I filed it and accurately said -- itaccurately 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 -

THE COURT: Don't even use that with me.

MR. KIMBERLIN: Okay, okay-

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THE COURT: 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.

22. A copy of the transcript has already been presented in the case ofKimberlin v.National

Bloggers Club et al. as ECF 124. For this court's convenience a true and correct copy of

that document is attached as Exhibit 4. This exchange can be found on pages 21-23.

23. In addition to being another example of the same Plaintiff engaging in the same deception

before a different court, it is also evidence of Plaintiff's serial failure to send service via

Restricted Delivery in this case as he is required under the Maryland Rules. According to

the tracking number information presented as Exhibit 1 and 3 to this Opposition it was

mailed on March 31, 2014. This is consistent with Plaintiff's Exhibit A but it is

inconsistent with his statements in paragraph 2 of his motion for default, where he states

that both packages were sent on March 30, 2014.

24. However, as noted above, on April 9, 2014, Plaintiff told the court in Kimberlin v.Walker

et ai, that "I've never paid an extra fee for Restricted Delivery" related to service of

process. Ifhe has "never" paid such a fee as of April 9, 2014, he did not pay it on MarchI

31,2014, either.

25. Plaintiff is likely to try to rely on his being pro se to justifY his failure to obey the rules

and to justifY presenting altered evidence before this honorable court. Aside from Judge

Ryon's sharp words quoted above, Plaintiff has more experience in the courtroom than

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some trial lawyers. As your honor observed in your Memorandum Opinion, ECF No. 12,

pp.3-4.

The Plaintiff is no stranger to the processes of this Court. Following his

conviction in the United States District Court for the Southern District of

Indiana for possession of a firearm not registered to him, manufacture of a

firearm, maliciously damaging by explosion the property of an entity

receiving federal financial assistance, and damaging property of a business

used in and effecting interstate commerce, which was affirmed in United

States v.Kimberlin, 805 F.2d 210 (1986), he commenced numerous cases

in this Court against the United States Parole Commission, inBrett C.

Kimberlin v.Department of Justice and Us. Parole Commission, Case

No. 8:98-cv-00730-AW; Brett Kimberlin v.United States Parole

Commission, et al., Case No. 8:97-cv-03829-AW; Brett C. Kimberlin v.

United States Parole Commission, Case No. 8:97-cv-02066-AW; Brett C.

Kimberlin v. Us. Parole Commission, et aI., Case No. 8:97-cv-01687-AW,

and Brett C. Kimberlin v.United States Parole Commission, Case No.

8:97-cv-00431-AW, apparently in relation to his efforts to be paroled from

his conviction affirmed by the 7th Circuit in 1986. Following his release

on parole, he also brought an action in this Court which was treated as an

effort to overturn his Indiana conviction under 28 U.S.c. S 2255. His

petition was denied, and the denial was affirmed by the 4th Circuit, Brett

C. Kimberlin v.Warden, Case No. 8:04-cv-02881-AW. Finally, he has been

involved in litigation concerning his personal bankruptcy in this Court,Brett Coleman Kimberlin v. USA v. In Re: Brett Coleman Kimberlin v.

James Turner, Case No. 8:98-cv-03586-AW and Brett Kimberlin v. US

Trustee, Case No. 8:98-cv-00490-AW.

26. This certified paralegal should not be held to the low standard of most pro se litigants.

And even ifhe should, how much legal education does one need to have to know not to

alter a document and present it to the court as legitimate? We have never been to law

school, we are not paralegals, but we know better than to even try to do that. This court

should respond to any plea ofpro se status the same way Judge Ryon did: "Don't even

use that with me."

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and even denied admitting to the alteration to then-presiding Judge Grimm. Kimberlin v.

National Bloggers Club et al., ECF 149, Exhibit D-2, P. 61.

30. Thus, a pattern of unrepentant dishonesty is established. InKimberlin v.National

Bloggers Club et aI., he is caught forging a summons and then in Kimberlin v.Walker et

ai,he denies forging the summons and denies admitting to having done it. Meanwhile, in

Kimberlin v.Walker et ai, he admits to altering a Restricted Delivery green card and

falsely presenting it to the court, pretending he is sorry and promising not to do it again.

Then he does it again in the instant case before you. It's as ifhe is hoping that the

different judges in each case do not learn what Plaintiff is doing in the other cases.

31. Again, it is Plaintiff's duty to provide credible evidence of service. Under the best

circumstances it would be difficult to credit Plaintiff's claims. Plaintiff is a convicted

perjurer, See United States v.Kimberlin, 483 F. Supp. 350, 351 (S.D. Ind., 1979). He is

one of the few Americans to have been convicted of misuse of the Seal of the President of

the United States, and the facts upon which he was convicted suggests that even then he

was engaged in the forgery of documents:

[FBI Special Agent] Lucas had been called to a printing establishment. He

observed defendant wearing clothing with badges and insignia. The

insignia was identical to that of the Security Police of the Defense

Department. Defendant had in hand a facsimile of the Presidential Seal

and other documents, one or more of which he attempted to chew up.

See United States v.Kimberlin, 805 F. 3d 210, 228 (7th Circuit 1986).

32. Another example of his dishonesty can be found inKimberlin v.Dewalt, 12 F. Supp. 2d

487 (D. Md., 1998) where this court found that Kimberlin had cheated a woman (that he

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widowed with one of his bombs) out ofa civil judgment she obtained, and also

committed mortgage fraud. His behavior was so outrageous in that case that his parole

was revoked.

33. All this suggests that under the best of circumstances Plaintiff's word should not be

trusted. This opposition has presented credible evidence that Plaintiff has misled the

Court by altering exhibits, in an, attempt to trick the Court into believing that he

attempted service Restricted Delivery. He did not.

34. The undersigned do state that we have not received service, and we have taken no action

to evade service, as Plaintiff so dishonestly claims. We are willing to answer this suit on

the merits if Plaintiff ever gets around to properly serving us.

E. PLAINTIFF'S DOCTORING OF PROOF OF SERVICE WARRANTS

DISMISSAL.

35. A Federal District Court possesses inherent powers that are necessary to the exercise of

all others. Johnese v.Jani-King, Inc., 2008 U.S. Dist. LEXIS 16435, **4-5 (N.D. Tex.

March 3, 2008), citing Chambers v.NASCa, Inc., 501 U.S. 32, 43 (1991), and United

States v.Hudson, 11 U.S. 32, 34, 3 L. Ed. 259 (1812). Though a court should exercise

those powers with restraint, they extend to dismissing a case with prejudice for a

litigant's misconduct ifthe court considers lesser sanctions, and determines they would

not suffice. Id. at *5, citing Shepherd v.American Broadcasting Cos., 62 F.3d 1469, 1479

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(D.C. Cir. 1995) (collecting cases). Fed. R. Civ. P. 41(b) also provides a basis for

dismissing with prejudice, where a plaintiff engages in misconduct constituting a

violation of the court rules or a court order. C.B.H Resources v.Mars Forging Co., 98

F.R.D. 564, 569 (W.D. Pa. 1983).

36. Fraud on the court has been described as "a scheme to interfere with the judicial

machinery performing the task of impartial adjudication, as by preventing the opposing

party from fairly presenting his case or defense." VonNichols v.Klein Tools, Inc., 949 F.

2d 1047, 1048 (8th Cir. 1991) (citations omitted). "A finding of fraud on the court is

justified only by the most egregious misconduct directed to the court itself, such as ...

fabrication of evidence by counsel, and must be supported by clear, unequivocal and

convincing evidence." Id. (citations omitted). Mr. Kimberlin's brazen misconduct by

twice altering Certified Mail receipts to try to indicate that they were sent Restricted

Delivery-once after he was warned not to do this again by an irate judge in another case

~arriounts to fraud on this Court. It is so egregious that the only appropriate sanction (in

this forum) is dismissal of his action with prejudice.

37. In C.B.H Resources, supra, the Plaintiff secured a witness's presence for deposition by

having its counsel present the witness with a document Plaintiff claimed was a valid

subpoena, but which was not. That plaintiff's abuse of the court's process under Fed. R.

Civ. P. 45 was a sufficiently egregious rule violation to warrant involuntary dismissal

under Rule 41(b). 98 F.R.D. at 568-569. Likewise, Mr. Kimberlin's actions violate

numerous provisions of Fed. R. Civ. P. 4 (Summons), 5 (Serving and Filing Pleadings and

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Other Papers), and II (Signing Pleadings and Representations to the Court), to name just

a few. And his pro se status is no excuse. Leaving aside that Mr. Kimberlin's ample

litigation experience probably makes him more knowledgeable of the rules than many

lawyers, every schoolchild knows not to take an official document, alter it, then try to

pass it off as something other than what it is. Most people would call that "forgery."

38. "Tampering with the administration ofjustice ...involves far more than an injury to a

single litigant. It is a wrong against the institutions set up to protect and safeguard the

public." Johnese at *5, citing Chambers, SOl U.S. at 44 and, inter alia, Aoude v.Mobil

Oil Corp., 892 F.2d IllS, 1118 (I st Cir. 1989) (dismissing case in which Plaintiff

attached fabricated document to complaint; "[i]t strikes us as elementary that a federal

district court possesses the inherent powers to deny the court's processes to one who

defiles the judicial system by committing a fraud on the court"). AndAoude noted that:

Courts cannot lack the power to defend their integrity against

unscrupulous marauders; if that were so, it would place at risk the very

fundament of the judicial system. As Justice Black wrote in a case

involving a not-dissimilar fraud:

Tampering with the administration of justice in the manner

indisputably shown here involves far more than an injury to

a single litigant. It is a wrong against the institutions set up

to protect and safeguard the public, institutions in which

fraud cannot complacently be tolerated consistently with

the good order of society ....The public welfare demandsthat the agencies of public justice be not so impotent that

they must always be mute and helpless victims of deception

and fraud.

All in all, we find it surpassingly difficult to conceive of a more

appropriate use of a court's inherent power than to protect the sanctity of

the judicial process -- to combat those who would dare to practice

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unmitigated fraud upon the court itself. [Aoude, 892 F.2d at 1119, citing

Hazel-Atlas Glass Co. v.Hartford-Empire Co., 322 U.S. 238, 246, 64 S.

Ct. 997, 88 L. Ed. 2d 1250 (1944)].

39. Leaving aside the issue of whether Mr. Kimberlin's actions amount to mail fraud or other

criminal conduct, they certainly constitute "defil[ing] the judicial system," ld., and "the

most egregious misconduct directed to the court itself," Von Nichols, 949 F.2d at 1048,

justifying dismissal under the Court's inherent authority and/or Rule 41(b). Plaintiff has

literally tried to deny Defendants their day in court, and for this, this case should be

dismissed with prejudice.

CONCLUSION

40. This Court should deny Plaintiff's most recent fraud on this Court-attempting to obtain

a default when not serving the defendants in the manner required by the Rules. Plaintiff's

motion for default should be denied.

41. Further as a sanction for this Plaintiff's fraud upon the Court, the entire case should be

dismissed with prejudice, and this Court should consider referral to the U.S. Attorney for

perjury (since his motion for default is verified and sworn under penalty of perjury to be

true as per page 4 of his default motion) and possibly mail fraud charges under 18 U.S.C.

S 1341.

42. Finally, we pray this court will provide all other relief as appropriate.

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Tuesday. July 22, 2014 Respectfully submitted,

Ly omas pro se

Em 11: [email protected]

Mailing address:847 South Randall Road Suite 257, Elgin,

IL 60123

Phone: 630-335-7229

:&~. ,'. /#'l; /~/.~~hi)Peter G. Malone prfo se

Email: [email protected]

Mailing address: 847 South Randall Road Suite 257, Elgin,

IL 60123

Phone: 630-397-8515

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mailto:[email protected]:[email protected]:[email protected]:[email protected]


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CERTIFICATE OF SERVICE

We hereby certify that a true and correct copy of the above Opposition and its Exhibits was filed in thiscase on July 21, 2014. Additionally, we are serving the documents sent via USPS mail on this date on

Plaintiff Kimberlin.

Dated: July 22, 2014

By:

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712112014

G: EngUlhL

o CUltomerServlce iD1 USPSNobU.

USPs.corr@- USPS Tracking '"

Register I Sign In

ii'lBUSPS.COM" Search USPS.com or Track Packages Cl

USPS Tracking Customer Service.

Have questions? We're here to help.

Tracking Number: 70122920000092000493

( (@, DELIVEREDExpected Delivery Day: Wednesday, April 2, 2014

Product & Tracking Information Available Actions

Postal Product:

Priority Mail 2.DalM

April 28, 2014 ,4:15 pm

Features:

Certified Mail"""

Delivered

Return Receipt

1 1"""'16

BETHESDA, MD 20817

April 26, 2014,7:19 pm Processed through USPS ELK GROVE

Sort Facility V1LLAGE, IL 60007

April 26, 2014,2:44 am Processed through USPS

FOREST PARK,IL 60130Sort Facility

April 25, 2014 , 11:49 am Processed through USPS

FOREST PARK, IL 60130

Sort Facility

April 21, 2014 , 9:48 am Unclaimed SAlNT CHARLES, Il60174

April 3, 2014,10:04 am Notice Left (No Authorized

SAINT CHARLES, IL 60174Recipient Available)

,April 3, 2014, 9:55 am Outfor Deliwry SAINT CHARLES, IL 60175

,April 3, 2014, 9:45 am Sorting Complete SAINT CHARLES, IL 60175

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\t1LLAGE, IL 60007

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Processed through USPS ELK GROVE

Sort Facility VILLAGE, IL 60007

, Ap ri l 1 ,2 01 4 , 2: 02a m D epa rt U SPS So rt F ac Jli ty CAPITOL

HEIGHTS, MD 20790

March 31, 2014,11:17 pm Processed at USPS Origin CAPITOL

Sort Facility HEIGHTS, MD 20790

March 31,2014,5:37 pm Depart Post Office CABIN JOHN, MD 20818

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22/56

712112014 USPS.com!!> - USPS Tracl


23/56

Exhibit 2-Control Tracking Information (with Restricted Delivery)

!"#$ &'()*+,*-./&-*012 34+56$78 (9*. :;?..?(@ A"B$ ( 4C )


24/56

712112014 USPS.com!ll- USPS Trac~ng '"

o C""tom., S.rvtc. Q USPSMobl'- Rcgls1tr I Sign in

iiJlJUSPS.COM' . Search USPS.com or Track Packages ~

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1---...-.-----..-..- ..-

Tracking Number: 70133020000180412479

( )} )} (@; DELIVEREDExpected Delivery Day:Wednesday. June 4, 2014


Postal Product:

First-Class tvlail~

Features:

Certified Mail.

Return Receipt

Resbicted Deliwry

f!!ji1ifiTE1)

June 6, 2014.8:57 am Delivered WESTMINSTER. MD 21157

----------------;0...._---------------

1AooIs.usps.com'g orr rackConfi rm'\ction.acti on?lRef=fullpag e&tL.c=1&text28m= &tLabels= 7013+ 3020+ 0001+8041 +2479

June 4,2014.3:28 pmNotice Left (No klthorized

WESTMINSTER, MD 21157Recipient Available)

June 4, 2014,9:44 am OutforOeliwry WESTMINSTER, MO 21157

June 4, 2014,9:34

am Sorting Complete IJIJESTMINSTER. MD21157

June 4, 2014 ,6:26 am lvTival at Unit V\o1::STMlNSTER, MD21157

June 4, 2014 , 5:32am Depart USPS Sort Facility LINTHICUM

HEIGHTS, MD21090

June 4, 2014 ,2:00 am Processed through USPS LINTHICUM

Sort Facility HEIGHTS, MD21090

June 3, 2014,10:47 pmProcessed through USPS

SAL.T1MORE, MD 21233Sort Facility

June 3, 2014 , 6:09 pm Depart Post Office ELKRIDGE, MD21075

June 3, 2014,9:31 am A:ceptance ELKRIDGE, MD21075


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!"#$ &'()*+,*-./&-*012 34+56$78 (9*. :;?..?(@ A"B$ . 4C )


25/56

USPS.comJi). USPS Tracl 2014 USPS. All Rights Reserved.

s.usps.corrIg ofT rackConfirm'\ction.action?tRel=full pag e&tLc= 1&te>!28m= &tLabels= 7013+ 3020


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Exhibit 3-Thomas Tracking Information

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27/56

7/21/2014

0' CuttomerServlce

j},JUSPS.COM"

uSPs.corr@ - uSPS Trac~ng OM

I Search USPS.com or Track Packages Q

QUIck Tools -

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------ -_...~..~- ---~--_._----~_.__ .

Tracking Number: 70031680000089119948

Expected Delivery Day: Wednesday, April 2, 2014


Postal Product:

Priority Mail 2_DayTM

I DATE & TIME

April 28, 2014 ,4:15 pm

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Certified MailTlol

5T ATUS OF ITEM

Delivered

Return Receipt

LOCATION

BETHESDA, MD20817

Your Item was dellwred at4 15 pm onApnl28, 201410 BETHESDA MD 20817

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April 3, 2014 , 1:00 am

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April 1,2014 ,2:02 am

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I1 _

Depart USPS Sort Facility

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Sort Facility


Sort Facility

Unclaimed

Notice Left (No Authorized

Recipient Available)

Out for Delivery

Sorting Complete

Arrival at Unit



Sort Facility


Processed at USPS Origin

Sort Facility

Depart Post Office

Acceptance

GAITHERSBURG, MD 20898

GAITHERSBURG, MD 20898

ELK GROVE

VILLAGE, IL 60007

SAINT CHARLES, IL 60174





ELK GROVE

VILLAGE, IL 60007

ELK GROVE

VILLAGE, IL 60007

CAPITOL

HEIGHTS, MD 20790

CAPITOL

HEIGHTS, MD 20790

CABIN JOHN, MD 20818

CABIN JOHN, MD 20818


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!"#$ &'()*+,*-./&-*012 34+56$78 (9*) :;?..?(@ A"B$ ) 4C )


29/56

Exhibit 4-Kimberlin v.National Bloggers Club, ECF No. 124

!"#$ &'()*+,*-./&-*012 34+56$78 (9*: ; -?@..@(: A"B$ ( 4C .&


30/56

Case 8:13-cv-03059-PWG Document 124-1 Filed 04/28/14 Page 1 of 27

IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY, MARYLAND

----------------------------x

BRETT KIMBERLIN

Plaintiff,

v.

AARON WALKER, ET AL

Defendant.

----------------------------x

ROckville, Maryland

Civil No. 380966

HEARING

April 9, 2014

NATIONAL CAPITOL CONTRACTING, LLC

200 North Glebe Road, Suite 1016

Arlington, VA 22203

(703) 243-9696

oORIGINAL

!"#$ &'()*+,*-./&-*012 34+56$78 (9*: ; -?@..@(: A"B$ . 4C .&


31/56

Case 8:13-cv-03059-PWG Document 124-1 Filed 04/28/14 Page 2 of 27

IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY, MARYLAND

----------------------------x

BRETT KIMBERLIN

Plaintiff,

v.

AARON WALKER, ET AL

Defendant.

----------------------------x

Civil No. 380966

Rockville, Maryland

April 9, 2014

WHEREUPON, the proceedings in the above-entitled

matter commenced

BEFORE: THE HONORABLE JOAN E. RYON, JUDGE

r

APPEARANCES:

FOR THE PLAINTIFF:

BRETT KIMBERLIN, Pro Se.

8100 Beech Tree Road

Bethesda, MD 20817

FOR THE DEFENDANT:

PATRICK F. OSTRONIC, Esq.

932 Hungerford Drive Ste. 28-A

Rockville, MD 20850

!"#$ &'()*+,*-./&-*012 34+56$78 (9*: ; -?@..@(: A"B$ ) 4C .&


32/56

ase 8:13-cv-03059-PWG Document 124-1 Filed 04/28/14 Page 3 of 27

3

r

1 PRO C E E 0 I N G S

2 THE COURT: Please be seated.

3 THE CLERK: Civil 380966 Brett Kimberlin versus Aaron

4 Walker et Al.

5 THE COURT: Good morning.

6 MR. KIMBERLIN: Good morning, Brett Kimberlin, Pro Se.

7 MR. OSTRONIC: Good afternoon, your honor, Patrick

8 Ostronic on behalf of Mr. Walker, Mr. Hoge, Ms. Malone, and Mr.

9 Akbar and today, myself included.

10 THE COURT: Okay, we are here this morning on the

11 plaintiff's motion for an order to show cause at docket entry

12 53; on plaintiff's motion for sanctions at docket entry 60;

13 there's a motion to compel at docket entry 78 that I'm going to

14 dismiss for failure to comply with Maryland Rule 2431 so we

15 won't be addressing that; and the motions at docket entries 81

16 and 94 are moot as there are court orders already addressing

17 those 50 we have a motion for show cause and a motion for

18 sanctions before the court this morning.

19 MR. KIMBERLIN: Okay, so you say 53 and 60?

20 THE COURT: Yes.

21 MR. KIMBERLIN: Okay, I would like to take this

22 opportunity to withdraw my request for sanctions against Mr.

23 Walker. That motion was the underlying motion that was ruled in

24 my favor by Judge Burrell and in my opinion the issues have been

25 dealt with. The--

!"#$ &'()*+,*-./&-*012 34+56$78 (9*: ; -?@..@(: A"B$ : 4C .&


33/56

53 against Mr. Walker, I

1

2

3

4

5

6

7


THE COURT: Which motion are you talking about? The

motion for sanctions I am looking at oh, against Mr.?

MR. KIMBERLIN: No, Mr.

guess that's 53.

THE COURT: Motion for a show-cause. So, you're

withdrawing that?

MR. KIMBERLIN: Yeah, I think so. I mean, the issue

4

8 was--

9 THE COURT: Okay.

10 MR. KIMBERLIN: the issue was whether Mr. Walker

11 could file papers for somebody else and Judge Burrell ruled

12 against that --

13 THE COURT: Okay, so number 53 is withdrawn.

14 MR. KIMBERLIN: Yeah.

15 THE COURT: That leaves number 60.

16 MR. KIMBERLIN: So 60 is the only left. I've asked

17 Mr. Ostronic to withdraw that. I think that Judge Burrell had

18 already--

19 THE COURT: It's your motion.

20 MR. KIMBERLIN: 60 is not my motion.

21 THE COURT: Unless I have it -- I have it as

22 plaintiff's motion for sanctions.

23 MR. OSTRONIC: We don't have a motion.

24 MR. KIMBERLIN: Oh, yeah, that's right. Motion for

25 sanctions againstMr. Ostronic; I'd like to withdraw that and so

!"#$ &'()*+,*-./&-*012 34+56$78 (9*: ; -?@..@(: A"B$ / 4C .&


34/56


1 everything -- in my opinion, everything's over.

2 THE COURT: Okay, well if you're withdrawing 53 and

3 6Q, the court is dismissing 78 and 81 and 94 are moot and that

4 is all that I had listed as being set for hearing today. Did

5 you have something else?

6 MR. KIMBERLIN: No, I'm happy with that.

7 MR. OSTRONIC: Does - did you miss my motion for

8 sanctions against Mr. Kimberlin?

9 THE COURT: Do you have the docket entry number? The

10 one I dismissed was the plaintiff's motion to compel --

11 MR. OSTRONIC: Correct.

12 THE COURT: which did not contain a good faith

13 certification as required by the rules. That's the one that I

14 dismissed.

15 MR. OSTRONIC: Right.

16 THE COURT: Then I have two that are moot, 81 --

17 MR. OSTRONIC: 81 should not be moot, your honor,

18 because that was a motion for sanctions against plaintiff for

19 presenting false documents to the court.

20 THE COURT: And there is an order

21 MR. KIMBERLIN: Your honor --

22 THE COURT: Oh, just hold on.

23 MR. KIMBERLIN: Okay.

24 THE COURT: Let's see. All right, maybe I have the

25 wrong one here. Hold on a second. 81 that was the protective

5

!"#$ &'()*+,*-./&-*012 34+56$78 (9*: ; -?@..@(: A"B$ C 4D .&


35/56


1 order, we're talking about 81 the motion for sanctions. It says

2 106 but 106 is an order granting alternate service. But that's

3 not w hat the motion 81 is, I don't think, unless it's

4 MR. OSTRONIC: I have a copy if you'd like, your

5 honor?

6 THE COURT: No, I have the docket entry. Just one --

7 yeah, number 81 is the defendant's motion for sanctions alleging

8 that the plaintiff filed altered exhibits. So, how does 106 --

9 which deals with alternative service?

10 [HUSHER ON]

11 [HUSHER OFF]

12 THE COURT: All right, so it looks like part of this

13 you had asked that the plaintiff's action be dismissed.

14 MR. OSTRONIC: I asked the plaintiff's action be

15 dismissed because he filed altered documents with the court,

16 your honor.

17 THE COURT: Right, right, but Judge Burrell ruled that

18 the plaintiff had served the defendant and that an answer is

19 due.

20 MR. OSTRONIC: Your honor, if I may? If I may

21 [unintelligible]. This was first brought to Judge Burrell's

22 attention in our January 9th hearing.

23 THE COURT: Right.

24 MR. OSTRONIC: At that time, Judge Burrell took note

25 of the altered documents, denied plaintiff's motion that he

6

!"#$ &'()*+,*-./&-*012 34+56$78 (9*: ; -?@..@(: A"B$ ? 4C .&


36/56

r.

se 8:13-cv-03059-PWG Document 124-1 Filed 04/28/14 Page 7 of 27

1 would be - that -- for his alternative service request --

2 THE COURT: Right.

3 MR. OSTRONIC: And then told the court, told us -- the

4 plaintiff and myself that looked at Mr. Kimberlin and said,

5 "He'll file something and you'll file a response to it.n Later

6 I filed a motion asking for sanctions because he had filed

7 altered documents. They were just brought to the court's

8 attention that day because he just filed it the day before -- or

9 two days before that.

10 THE COURT: Okay, so what is this sanction that you're

11 seeking?

12 MR. OSTRONIC: I would like to see the case dismissed

13 against Mr. Akbar because he filed altered documents to the

14 court.

15 THE COURT: Okay, all right. I'll hear from you. No,

16 I'll hear from you, go ahead.

17 MR. OSTRONIC: Thank you, your honor. As we outlined

18 in our motion, the plaintiff originally asked for alternative

19 service back in November. At that time he presented to the

20 court certain documents which showed that he had sent certified

21 letters to a certain address in Texas and Virginia. Mr. Akbar

22 at that time was not represented -- I was not representing Mr.

23 Akbar in any fashion at that time. We had a January 9th hearing

24 coming up at which time Mr. Kimberlin's motions would be heard.

25 On January 6th, I filed a motion in opposition for the alternate

7

!"#$ &'()*+,*-./&-*012 34+56$78 (9*: ; -?@..@(: A"B$ & 4C .&


37/56


1 service that Mr. Kimberlin had asked for. And at that time

2 stated that -- at that time I stated that Mr. Akbar had never

3 lived in Virginia which is what he was claiming. Mr. Kimberlin

4 came back the next day and asked for sanctions against me saying

5 that I had filed a false document. And at that time he filed

6 certain documents with the court which were purporting to be the

7 same documents that he had filed back in November, however,

8 these -- this time his two green cards that he showed were now

9 checked as restricted delivery where the ones that were filed

10 back in November clearly showed no restricted delivery.

11 In addition, your honor, the underlying documents, the

12 plaintiff's had put forward to the court to back up the idea

13 that there was alternate service clearly showed that he never

14 spent the money to do so and was never asked the Post Office to

15 do restricted li. Now as you know Maryland Rules clearly say,

16 if you're going to do it by certified letter on the initial

17 pleading, -- you have service on initial pleading -- you have to

18 do it with restricted delivery and you've never done restricted

19 delivery but he continued to insist that restricted delivery had

20 been done up to and including this last motion which he filed

21 docket number 85, which is the response to my motion for

22 sanctions at which time he continues to say that he was dealing

23 with restricted delivery, although, if you look at the receipt

24 on the next to last page it says -- you can see the receipt with

25 the post office which clearly shows there is no restricted

8

!"#$ &'()*+,*-./&-*012 34+56$78 (9*: ; -?@..@(: A"B$ 9 4C .&


38/56


1 delivery asked for --

2 THE COURT: Where were these receipts? I know you

3 said you showed Judge Burrell but I haven't seen them.

4 MR. OSTRONIC: Your honor, I can give you a fresh set

5 of -- y ou know, if it's easier.

6 THE COURT: So, you're saying that when he was before

7 Judge Burrell, at that point he had checked boxes that had not

8 been checked with the first filing, is that what you're saying?

9 MR. OSTRONIC: If you look at -- yes, your honor.

10 Because the original filing, which was docket number 59 -- no,

11 no -- yes. I'm sorry docket number 38, it's 38 in the original

12 filing -- if you look at that you will see the priority mail

13 receipt which you'll see it says

14 THE COURT: Exhibit C?

15 MR. OSTRONIC: Yes, it should be part of Exhibit C,

16 yes, your honor. I think it ends in 9892. The restricted

17 delivery one.

18 THE COURT: 98929871, okay.

19 MR. OSTRONIC: 9892, those are the -- those are the

20 two receipts that show you that he paid for -- what he paid for

21 there was n o restricted d elivery paid for. You c an take note

22 of that, please, your honor. Then you note a few days later --

23 a f ew pages later --

24 THE COURT: In the exhibit or a few more docket

25 entries?

9

!"#$ &'()*+,*-./&-*012 34+56$78 (9*: ; -?@..@(: A"B$ (- 4C .&


39/56


10

1 MR. OSTRONIC: No, a few pages later in that same

2 exhibit. I'm sorry, your honor. You'll see a green -- you'll

3 see the green sheet there. The green receipt picture and it

4 shows the green -- the receipt card, certified mail check; the

5 restricted delivery box is not checked.

6 THE COURT: Okay.

7 MR. OSTRONIC: And that is consistent with the fact

8 that he did not pay for restricted delivery. Now we fast

9 forward to docket number 59

10 THE COURT: Okay.

11 MR. OSTRONIC: Docket number 59, if you go to -- I

12 think Exhibit C which is probably towards the end of the -- and

13 you'll see there, your honor, the same card but it's checked

14 with restricted delivery.

15 THE COURT: Okay.

16 MR. OSTRONIC: So that tells you now that he altered

17 it to try to show that he was doing restricted delivery when, in

18 fact, he did not do restricted delivery.

19 THE COURT: So, where I'm confused though is these

20 pleadings are all well before the order that Judge Burrell

21 entered at docket entry 106.

22 MR. OSTRONIC: Yes, your honor, but that --

23 THE COURT: Which he found that he made appropriate

24 efforts.

25 MR. OSTRONIC: He came back a second time after our

!"#$ &'()*+,*-./&-*012 34+56$78 (9*: ; -?@..@(: A"B$ (( 4C .&


40/56

C se 8:13-cv-03059-PWG Document 124-1 Filed 04/28/14 Page 11 of 27

11

1 court's hearing on January 9th, he filed, again, for alternat

2 services and that is when she ruled on it.

3

4

THE COURT: So, it's been done properly now?

MR. OSTRONIC: No, it hasn't. I filed a motion

5 against that several times. Those motions have not been heard.

6 THE COURT: She ruled that it's been done

7 appropriately?

a

9

10

MR. OSTRONIC: No.

THE COURT: She didn't?

MR. OSTRONIC: All she ruled was that he was served as

11 of January 25th And I have a motion because I didn't get my 18

12 days to comment or anything, your honor.

13 THE COURT: I'm still confused. So, I'm looking at

14 Judge Burrell'5 order

15

16

MR. OSTRONIC: Uh-huh.

THE COURT: and it says that s he hereby finds

17 plaintiff has made reasonable efforts to serve defendant Ali

18 Akbar with the complaint and that defendant Akbar has notice of

19 the compliant but has evaded service. Okay. "Therefore the

20 court finds the plaintiff has served defendant Akbar as of

21 January 25th, 2014, and an answer is due from the defendant by

22 March 26th." That's what her order says -- I just --

23

24 says.

25

MR. OSTRONIC: Yes, your honor, that's what the order

THE COURT: Okay, so she's found that there's been

!"#$ &'()*+,*-./&-*012 34+56$78 (9*: ; -?@..@(: A"B$ (. 4C .&


41/56


12

1 service. At least that's what --

2 MR. OSTRONIC: She said -- yes, your honor, we already

3 put motions against that

4

5

6

7

THE COURT: But they haven't been ruled on yet?

MR. OSTRONIC: No, your honor.

THE COURT: Okay.

MR. OSTRONIC: But that still doesn't address the fact

8 that he altered a document --

9 THE COURT: Okay.

THE COURT: And either you or Mr. Akbar on his own --

THE COURT: When was the hearing date before Judge

Burrell in January?

MR. KIMBERLIN: The 13th.

THE COURT: It looks like all of these documents were

already in the file by then.

MR. KIMBERLIN: Yes.

MR. OSTRONIC: They had just gotten [unintelligible],

your honor, they had not been yet addressed as a motion for

sanctions.

10 MR. OSTRONIC: which is not part of her order or

11 part of his second motion. His motion that she ruled on came

12 after that court hearing and was not part of what I asked for

13 here. And all I asked for here was sanctions. I did not

this is not yet heard; this is the first time that it's been

heard.

14

15

16

17

18

19

20

21

22

23

r 24

25

!"#$ &'()*+,*-./&-*012 34+56$78 (9*: ; -?@..@(: A"B$ () 4C .&


42/56


13

1 I'm just looking to see -- made a motion to dismiss on that date

2 which was denied.

3

4 honor.

5

6

MR. OSTRONIC: I just made an oral one, yes, your

THE COURT: Based upon no service?

MR. OSTRONIC: No, your honor, he's made a motion that

7 -- I made a motion on this basically, saying --

8

9

10

THE COURT: Okay.

MR. OSTRONIC: But I

THE COURT: So, this has been ruled on in terms of

11 your request for dismissal?

12 MR. OSTRONIC: No, she said she would not dismiss it

13 at this time and she -- what she said, your honor, was she

14 referred to the plaintiff and said, "He's going to file

15 something about this, you're going to respond to it." She just

16 was not going to dismiss the case at that moment, that' 5 all.

17 But I think it's clear, your honor, that there has been an

18 alteration of documents. Furthe.r,your honor, this is not the

19 only time this has happened here and many [unintelligible]

20 clients, your honor --

21

22

23 Go ahead.

MR. KIMBERLIN: Objection.

THE COURT: Sorry, but he can tell me what he wants.

"'.\24 MR. OSTRONIC: We have another case involving the same

25 plaintiff over in the Federal Court in which [unintelligible]

!"#$ &'()*+,*-./&-*012 34+56$78 (9*: ; -?@..@(: A"B$ (: 4C .&


43/56


r 1

14

the plaintiff has already admitted to altering a court document

2 over there and this involves the same defendants here,

3 [unintelligible] .

4

5

6

7

MR. KIMBERLIN: Objection.

THE COURT: All right, so what is it that you want?

MR. KIMBERLIN: May I speak?

THE COURT: I want him to tell me what he wants and

8 then I'm going to let you address what he said and what he

9 wants.

10 MR. OSTRONIC: Ideally I would like to have the case

11 against Mr. Akbar dismissed because Mr. -Kimberlin here has tried

12 to put one over on the court and in an effort to look like he

13 has brought -- he has put forward for alternative service and

14 clearly he has not.

15

16

THE COURT: Okay.

MR. OSTRONIC: And any other sanctions he can oppose

17 on about that'd be more favorable.

18

19

THE COURT: Okay, Mr. Kimberlin?

MR. KIMBERLIN: Yes, your honor, I'm first pro se

20 litigant. I apologize. I made some errors in this case.

21 THE COURT: Well, if you falsified a document that has

22 nothing to do with being a first time pro se litigant.

23 MR. KIMBERLIN: No, no, I didn't falsify a document

24 but Judge Burrell heard this issue at the January 15th hearing.

25 She denied my motion for alternate service at that time. She's

!"#$ &'()*+,*-./&-*012 34+56$78 (9*: ; -?@..@(: A"B$ (/ 4C .&


44/56


15

1 saying there's confusion here and .reset it. I reset it to Mr.

2 Akbar, it came back, again, as undeliverable, and then I filed a

3 motion for alternate service; she granted that motion for

4 alternate service. Mr. Ostronic came back and asked for a

5 motion to reconsider and she issued another order. I don't have

6 the docket number on it but she amended her order which I have a

7 copy here if you want to see i t. And she said at that time that

8 he would have additional time in which to respond by April 4th.

9 So, I did exactly what Judge Burrell asked for and you know he's

10 trying to re-litigate something that was already ruled on by the

11 judge.

12

13

14

THE COURT: All right.

MR. KIMBERLIN: She had all this in front of her.

THE COURT: Why don't you have a seat for a minute?

15 I'm not cutting [unintelligible]; let's play Court Smart and

16 let's listen to Judge Burrell heard and what Judge Burrell said.

17

18

19

MR. KIMBERLIN: Okay.

THE CLERK: On the January 13th hearing?

THE COURT: Yes, please and I don't know if you're

20 going to be able to tell [unintelligible] notation, we're

21 specifically looking at her addressing the defendant Akbar's

22 motion to dismiss.

23 MR. OSTRONIC: It should be toward the end of the

24 hearing. Toward the end of the hearing it should be.

25 THE COURT: How long was the hearing?

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16

1 MR. KIMBERLIN: I'd say at least 40 minutes.

2 THE CoURT: How long?

3 MR. OSTRONIC: About 40 minutes, your honor. I don't

4 know if it was that long.

5 THE CLERK: Thank you, your honor.

6 (Where upon the audio recording was played.)

7 THE COURT: [unintelligible]court documentation and I

8 find that the [unintelligible].

9 UNIDENTIFIED FEMALE: Thank you, your honor.

10 (whereuponthe recording was stopped.)

11 THE COURT: Do you remember when you raised this

12 issue? In the beginning of the hearing or?

13 MR. OSTRONIC: No, it was towards the end, your honor.


15 THE COURT: The defendant [unintelligible].

16 MR. OSTRONIC: [unintelligible]we had provided

17 [unintelligible].

18 MR. KIMBERLIN: The order gives it 10 days.

19 THE COURT: [unintelligible].

20 MR. KIMBERLIN: I have no problem with that.

21 MR. OSTRONIC: Court [unintelligible].

22 THE COURT: All right, anything else?

23 MR. KIMBERLIN: No, I mean obviously [unintelligible]

24 very diligent trying to get this thing served on this guy and.

25 I'd like to do [unintelligible].I think they have an

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se 8:13-cv-030S9-PWG Document 124-1 Filed 04/28/14 Page 17 of 27

17

1 opportunity to appeal it directly and they didn't. I asked him

2 point blank if he's going to appeal and he said no. You know

3 for them to come in here now and say they're going to appeal

4 just seems disingenuous to me.

5 MR. OSTRONIC: Your honor may I be heard?

6 THE COURT: Yes.

7 MR. OSTRONIC: He had just misrepresented any

8 conversation he's had with me. I never said to him whether or

9 not -- I had never said [unintelligible].

10 MR. KIMBERLIN: [unintelligible] .

11 MR. OSTRONIC: I admit [unintelligible] to another

12 side.

13 THE COURT: I'm going [unintelligible].

14 (whereupon the audio recording was stopped.)

15 THE COURT: Go further.

16 (whereupon the audio recording was played.)

17 THE COURT: [unintelligible] based on [unintelligible]

18 to indicate that the defendants were targeting that

19 [unintelligible]. If the other defendant was [unintelligible]

20 at this time.

21 MR. OSTRONIC: Thank you, your honor. Your honor,


23 THE COURT: No. I read a lot of cases [unintelligible]

24 and based on what I understand [unintelligible).

25 MR. OSTRONIC: Your honor, [unintelligible] one more

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18

1 thing [unintelligible] talk about right now which is also in

2 your jurisdiction [unintelligible] in Virginia. Ms. McCain

3 [unintelligible] and Mr. Kimberlin was alleging that the reason

4 he [unintelligible] or anything like that. If, however,

5 [unintelligible] defendant's conspired together to have some

6 [unintelligible] -- prosecution and they [unintelligible] simply

7 malicious prosecution [unintelligible] by Mr. Walker. Ms.

8 McCain and everything that he had been [unintelligible]

9 complaint [unintelligible] in July 2013 [unintelligible]

10 allegations [unintelligible] Ms. McCain. Ms. McCain

11 [unintelligible] but not on the record that [unintelligible].

12 Those [unintelligible] all predated all the way back to the

13 [unintelligible] back in July. He filed for a protective order

14 [unintelligible]. That was made while he -- what you're hearing

15 right now is not something he just made up is based on an actual

16 charge [unintelligible].

11 THE COURT: [unintelligible].

18 MR. 05TRONIC: [unintelligible] is what I'm saying but

19 that's what the basis is.

20 THE COURT: [unintelligible] accurate in Maryland

21 [unintelligible] write it down. So, with respect to the

22 previous motion or order [unintelligible], I'm going to find

23 that [unintelligible] for relief so [unintelligible]. I think a

24 couple other motions?

25 MR. 05TRONIC: [unintelligible] composed

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19

1 [unintelligible], your honor, the plaintiff has filed

2 [unintelligible]. However not one time did [unintelligible I

3 otherwise nothing. He h as nothing to g o with [unintelligible].

4 I have no idea what [unintelligible] to say. I want


6 THE COURT: [unintelligible] everything


8 MR. OSTRONIC: [unintelligible] opportunity in one of

9 them [unintelligible] financial sanctions and there was not one

10 [unintelligible I --

11 THE COURT: [unintelligible] order [unintelligible].

12 The defendant's motions to dismiss are denied. The rule

13 [phonetic sp] order will be stayed for a period of one week to

14 allow defendant to file an a ppropriate [unintelligible] court of

15 appeals.

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MR. KIMBERLIN: Thank you.

MR. OSTRONIC: Thank you, your honor.

(whereupon the audio recording was stopped.)

THE C OURT: I'm--

MR. OSTRONIC: I may have misremembered when we did

that. It may have been in the very beginning. That part may

have been the first part we did.

THE COURT: Do you remember?

MR. KIMBERLIN: No, I don't remember but I'm ready to

continue my --

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20

1 THE COURT: Well the key, the crux to this is going to

2 be what Judge Burrell ruled on. And I can't take your memories

3 for it because you don't agree so let's go back to the beginning

4 and see if s he addressed it.

5 MR. KIMBERLIN: Okay, let's go to the beginning.


7 THE COURT: [unintelligible] court record


9 MR. OSTRONIC: No, your honor [unintelligible] last

10 time.

11 THE COURT: All right, we'll dismiss the

12 [unintelligible]. Motion to dismiss [unintelligible] and an

13 order to [unintelligible] denied and plaintiff's motion to find

14 [unintelligible] and [unintelligible] 2-1-210 [unintelligible]

15 motion for [unintelligible] docket entry [unintelligible].

16 MR. OSTRONIC: Your honor, the motion

17 [unintelligible].

18 THE COURT: Okay and then [unintelligible] motion

19 (whereupon the audio recording was stopped.)

20 THE COURT: Okay, we can stop it. All right,

21 regardless of what she may have said, she made it clear what she

22 was ruling on. She asked if there were any other motions. She

23 was told they weren't conductible today. I'm assuming that

24 meant these are the motions that just had been filed and they

25 weren't right. So, I'm not going to determine anything that she

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21

1 said as dispositive so I'll hear from you. Go ahead.

2 MR. KIMBERLIN: Okay, at that hearing, Mr. Ostronic

3 presented exactly what he's presented here, I think. And the

4 judge looked at it --

5 THE COURT: No, I just told you I'm not going to --

6 MR. KIMBERLIN: I know but --

7 THE COURT: consider what she said or didn't say

8 because she didn't rule on the motions before me.

9 MR. KIMBERLIN: No, she ruled on the motion to

10 dismiss. He had filed a motion to dismiss the case based on

11 that oral motion.

12 THE COURT: Okay, maybe so but she outlined what she

13 was ruling on and that wasn't one of the motions. So let's get

14 to the [unintelligible]; did you alter the certificates?

15 MR. KIMBERLIN: These are -- when I go to the post

16 office, I asked :--

17 THE COURT: Did you alter the return receipts between

18 docket entry 38 and 50 whatever, did you change them?

19 MR. KIMBERLIN: I did not change them intentionally.

20 When I g o t o the post office, I a sk them to do it so it's

21 registered or whatever it's called, restricted delivery, and

22 they did not do it. He's saying that there's an extra fee.

23 I've never paid an extra fee for restricted delivery. I've sent

24 literally 50 or 100 of these things and never once faked a

25 [unintelligible] restricted delivery, but, you know, Mr. Akbar

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r

r


22

1 here sitting right there that this was sent in January 2nd to

2 Mr. Akbar. It came back, it's restricted delivery. This one

3 here is January 25th, again, Mr. Akbar came back restricted

4 delivery, you know, undeliverable. And you know he keeps

5 accusing me of not paying the extra fee.

6 THE COURT: This isn't about paying a fee.

7 MR. KIMBERLIN: That's what he said.

8 THE COURT: This is about the exact same brief green

9 card being filed -- the support motions you filed, the different

10 docket entries, one showing the restricted delivery box checked

11 and one not.

12 MR. KIMBERLIN: Your honor, like I said I asked the

13 post office to send it restricted delivery.

14 THE COURT: You're not answering my question.

15 MR. KIMBERLIN: Yes, I changed

16 THE COURT: Did you change it?

17 MR. KIMBERLIN: Yes, I did.

18 THE COURT: And then you filed it representing that it

19 accurately reflected the green card that had been filled out.

20 MR. KIMBERLIN: No, no, no, I filed it and accurately

21 said -- it accurately reflected what I told the post office to

22 do and that's what it is. You know, like I s aid I'm a pro se

23 litigant a nd --

24 THE COURT: Don't even use that with me.

25 MR. KIMBERLIN: Okay, okay

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1 that I should get alternate service.

2 THE COURT: All right, I'm not going to dismiss this

3 case because it's just going to be we have to start this all

4 over again and at this point there's been another method of

5 service but I'm taking a recess because if I can do what I want

6 to do, sir, I'm going to fine you but I'm n ot sure I h ave the

7 authori ty so I'm g oing to g o f ind out. okay? Gi ve me a m inute.

8 MR. OSTRONIC: Your honor, if I may?

9 THE BAILIFF: All rise.

10 MR. OSTRONIC: Just one last thing, this is just a

11 personal thing, I have a 5:00 flight to Copenhagen so

12 THE COURT: I really meant a minute when I said a

13 minute.

14 MR. OSTRONIC: Okay. Thank you, your honor. Thank

15 you.

16 (Recording paused.)

17 (Recording resumed.)

18 THE COURT: All right, we're back on the record. So

19 as much as I want very much, Mr. Kimberlin, to fine you for what

20 for a ltering the r eceipts, I can't find any authority in the

21 rules for that given the posture in which we're here which is

22 the motion for sanctions not for contempt. So under the

23 discovery rules, they don't really apply so I'm going to deny

24 the request to dismiss. I think that Judge Burrell has now --

25 we're sort of past this. There's been another attempt, she's

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1 determined there's been service. I know that that's disputed

2 and you can still maintain that with her but I'm going to deny

3 the motion.

4 MR. KIMBERLIN: Thank you.

5 THE COURT: And for the record, Mr. Kimberlin, you

6 have withdrawn, it looks like, your motion -- your subpoena for

7 Mr. Delbianco (phonetic sp]?

8 MR. KIMBERLIN: Yes.

9 THE COURT: Okay, so that withdrawal is what renders

10 the motion at docket entry number 89 moot as well.

11 MR. KIMBERLIN: Right.

12 THE COURT: All right, thank you.


25

14 THE COURT: Mr. Kimberlin, I hope you're aware -- if

15 you weren't before -- you're aware now and you do not alter

16 anything you file with this court because by filing it you're

17 representing to the court that that document is as it was and

18 has been in its unaltered state to back up whatever you're

19 alleging.

20 MR. KIMBERLIN: I understand.

21 THE COURT: Okay.


23 MR. OSTRONIC: Thank you, your honor.

24 THE COURT: Right, yeah, yeah. Sorry.

25 MR. OSTRONIC: Thank you, your honor.

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THE COURT: Thank you. I hope you're going for fun.

MR. OSTRONIC: No, it's for business.

THE COURT: Oh.

MR. OSTRONIC: I'm going to Warsaw.

THE COURT: I hope you'll have time to have fun.

MR. OSTRONIC: I like to think so [phonetic sp] --

(The proceedings were concluded)

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By:


27

1 X D igitally signed by Olivia Palermo

2 Digitally signed certificate

3 NATIONAL CAPITOL CONTRACTING, LLC hereby certifies

4 that the foregoing pages represent an a ccurate transcript of t he

5 duplicated electronic sound recording of the proceedings in the

6 Circuit Court for Montgomery County, in the matter of:

7 Civil No. 380966

8 BRETT KIMBERLIN

9 v.

10 AARON WALKER, ET AL

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Transcriber

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BK v KU ECF 19 Redacted

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