BK v NBC, Et Al Sanctions Redacted

8/13/2019 BK v NBC, Et Al Sanctions Redacted

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4 February, 2014

Mr. Brett Kimberlin8100 Beech Tree RoadBethesda, Maryland 20817

Dear Mr. Kimberlin:

Pursuant to Federal Rule of Civil Procedure 11(b), I am serving you with a copy of

Defendant Hoges Motion for Sanctions Against Plaintiff in the Kimberlin v. National Bloggers Club, et

al. lawsuit. If you have not withdrawn or corrected the court papers referenced therein within 21

days of your receipt of this letter, I will file the motion with the Court on the 22nd day following

service.

Very truly yours,

W. J. J. Hoge

www.hogewash.com

Snail Mail to 20 Ridge Road, Westminster, Maryland 21157

Email to [email protected]

(410) 596-2854

Hogewash! is a trademark of W. J. J. Hoge


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BRETT KIMBERLIN,

Plaintiff,

v.

NATIONAL BLOGGERS CLUB,

et al.,

Defendants

DEFENDANT HOGES MOTION FOR SANCTIONSAGAINST PLAINTIFF

COMES NOWDefendant William Hoge and hereby moves that this Court sanction

Plaintiff for multiple violations of Fed. R. Civ. R. 11. In support of this motion Mr. Hoge

states the following:

SUMMARY

1. Plaintiff has on more than one occasion attempted to deceive this Court. He has

refused to properly serve court papers on various Defendants. Any one of these actions

could warrant sanctions under Rule 11(b). Also, Plaintiff has refused to follow directions

relating to Rule 11(a) issued by the Court. This Court has discretion to dismiss the

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

GREENBELT DIVISION

Case No. 13-CV-03059-PWG


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to provide a report not later than 10 January, 2104, on the status of service of process on

Defendants. See ECF No. 21. Plaintiff filed his report (Service Report) on 9 January,

2014. See ECF No. 27. In paragraph 4 of that report he claims to have served a

Defendant named Twitchy and that Twitchy had accepted service.

4. On 27 January, 2014, Non-PartyTwitchy joined Defendant Michelle Malkin in a

Motion to Dismiss First Amended Complaint and for Attorney Fees and Costs (ECF No.

41) (Malkin/Twitchy MtD). Noting that it is not named in the caption of the Amended

Complaint (ECF No. 2) of the instant lawsuit, Twitchy advised the Court that it had

received a forged summons and forged Amended Complaint naming it as a Defendant.

5. The summons shown in Tab 1 of the Malkin/Twitchy Mtd is an crude forgery.

Plaintiff has taken the summons issued to Defendant Aaron Walker (cf., ECF No. 4, p. 14

of 18) and superimposed Twitchys name and address. The crudeness of the forgery is

breathtaking. Not only is the superimposed name and address done in the wrong

typeface, it is misaligned with the other legends the Clerk placed on the summons form.

However, that is trivial compared to Plaintiffs mistake of leaving the PACER Case 8:13-

cv-03059-PWG Document 4 Filed 11/12/13 Page 14 of 18 notation on the summons.

6. The Malkin/Twitchy MtD provides other facts concerning this fraudulent service,

and the Malkin/Twitchy MtD is hereby incorporated by reference.

7. Plaintiffs representation to the Court in the Service Report that he served

Twitchy and that Twitchy accepted service is clearly at odds with his obligations under

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Rule 11(b). Additionally, his alteration of a court document and use of it as part of an

official proceeding certainly runs afoul of 18 U.S.C. 1512(c). Plaintiffs bad faith

warrants a severe sanction.

Plaintiff Has Sent Altered Amended Complaints to Defendants

8. The caption on the Amended Complaint filed with the Court (ECF No. 2) does

not list Twitchy as Defendant. The caption of Amended Complaint sent by Plaintiff to

Defendant Hoge lists Twitchy as Defendant. Mr. Hoge advised of the Court that the

Amended Complaint he received was not the same as ECF No. 2 in his Motion Dismiss

(ECF No.5) filed in December, 2013.

9. On information and belief, the caption of Amended Complaint sent by Plaintiff

to Defendant Walker lists Twitchy as a Defendant.

10. According to Malkin/Twitchy MtD (pp. 2 - 5 and Tab 2), the caption of

Amended Complaint sent by Plaintiff to Non-Party lists Twitchy as Defendant.

11. Plaintiff has filed a Motion to Correct Complaint Caption (ECF No. 48) in an

attempt to amended his already Amended Complaint and portray his forgery as a clerical

error. Plaintiff is trying to obscure the fact that he must have been the aware of his

error in October, 2013, when he sent copies of Amended Complaint with the altered

caption to Defendants. Yet, he did not bother to inform the Court of the issue until he was

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called out by Twitchy.

12. Neither the Amended Complaint on PACER nor the Amended Complaint

received by Defendant Hoge or Non-Party Twitch have a Certificate of Service. That is, of

course, a violation of Fed. R. Civ. P. 5(d). Taken with the mismatch between what was

filed with the Court and sent to some of the Defendants, it is further evidence of Plaintiffs

bad faith. It is clearly at odds with his obligations under Rule 11(b). Additionally, his

alteration of a document and use of it as part of an official proceeding violates 18 U.S.C.

1512(c). Plaintiffs bad faith warrants a severe sanction.

Plaintiff Has Submitted an Altered Document to the Court

13. As noted in Defendant Hoges Motion for Amended Report of Status of Service

(ECF No. 28) (Motion for Amendment), Plaintiff has provided at least one altered

document as an exhibit in his Service Report. The Motion for Amendment is hereby

incorporated by reference. The copy of the envelope and Certified Mail green card on the

mail piece allegedly sent to Robert Stacy McCain (Motion for Amendment, Exhibit A) has

insufficient postage to be a valid document. The Court should take note that Plaintiff did

not offer any explanation for that envelope or deny altering it in Plaintiffs Response to

Defendant Hoges Two Latest Filings (ECF No. 49).

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14. Plaintiffs representation to the Court in the Service Report that the mail piece

to Defendant McCain is genuine is clearly at odds with his obligations under Rule 11(b).

Additionally, his alteration of a document and use of it as part of an official proceeding

violates 18 U.S.C. 1512(c). Plaintiffs bad faith warrants a severe sanction.

PLAINTIFF HAS REFUSED TO PROPERLY SERVE COURT PAPERS

ON SEVERAL DEFENDANTS

15. Although Defendant Hoge has been the noisiest complainer about service of

court papers, he has not alone. Defendants Walker (ECF No. 24) and Malkin and Non-

Party Twitchy (ECF No. 41) have also noted defective service at one time or another. The

Court admonished Plaintiff about service in its Letter Order dated January 7, 2014 (ECF

No. 26).

16. Plaintiffs initial attempt at service on Defendant Hoge was to hand him a copy

of the original Complaint. This was not done through a third party. Plaintiffpersonally

handed the Complaint to Mr. Hoge.

17. Plaintiff mailed what was purported to be an copy of the Amended Complaint to

Defendant Hoge along with the Waiver of Service forms. The caption on that Amended

Complaint sent to Mr. Hoge did not match the caption on the Amended Complaint found

on PACER (ECF No. 2). It was the same forged Amended Complaint sent to Non-Party

Twitchy.

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18. Plaintiffs failure to serve his Motion for Extension of Time (ECF No. 18) on

Defendants Hoge and Walker delayed the filing of their Oppositions until the day that the

Court ruled in favor of Plaintiff. Plaintiffs apparent purpose in failing to serve them was

to prejudice to their ability to conduct their defenses of the lawsuit. The right to due

notice and the opportunity to be heard are not mere technicalities.

In Holden v. Hardy, 169 U.S. 366, 389, the necessity of due notice and an

opportunity of being heard is described as among the immutable

principles of justice which inhere in the very idea of free governmentwhich no member of the Union may disregard.

Powell v. Alabama, 287 U.S. 45, 68 (1932).

19. Plaintiff again failed to serve Defendant Hoge with copies of four papers filed

with the Court on or around 17 January, 2014 (ECF Nos. 29 - 32). Five days elapsed

between the filings and the documents appearing on PACER, a delay which again

prejudiced Mr. Hoges ability to conduct his defense of the instant lawsuit. On information

and belief, Plaintiff mailed his service to Mr. Hoge to the wrong address. An image of

what is purported to be the envelope returned to Plaintiff was posted on the Twitter

account of one of Plaintiffs associates. It shows that the envelope was addressed to 29

Ridge Road. See Exhibit A. Mr. Hoges address is 20 Ridge Road. The USPS tracking

information shows that the Postal Service classified the mail as Undeliverable as

Addressed. See Exhibit B. The Court should not treat this as a harmless error. This is

Strike Four.

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20. Plaintiffs continuing submission of inaccurate and misleading certificates of

service is clearly at odds with his obligations under Rule 11(b). Additionally, his

alteration of a document and use of it as part of an official proceeding violates 18 U.S.C.

1512(c). Plaintiffs bad faith warrants a severe sanction.

PLAINTIFF HAS REFUSED TO FOLLOW DIRECTIONS ISSUED BY THE COURT

21. The Court admonished Plaintiff about his obligations under Fed. R. Civ. P 11(b)

and cautioned him on his need to comply with requirements of Rule 11(a) to include his

address, email address, and telephone number on all filings. See ECF No. 26. He has not

yet done so. Rule 11(a) says, The court must strike an unsigned paper unless the

omission is promptly corrected after being called to the attorney's or party's attention.

Plaintiff has had ample time to correct the signature blocks on the papers he has

submitted to the Court.

CONCLUSION

WHEREFOREfor the reasons state above, Defendant Hoge asks that this Honorable

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EXHIBITA

Alleged Envelope for Service to Defendant Hoge found on page 2 of 2

Exhibit C from Plaintiffs Response to Defendant Hoges Two Latest Filings (ECF No. 49)

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EXHIBIT B

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tRef=fullpage&tLc=1&tLabels=9114901159815532938543 on29 January, 2014

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