UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND GREENBELT DIVISION

BRETT KIMBERLIN, Plaintiff v. NATIONAL BLOGGERS CLUB, et al., Defendants Case No. PWG 13-3059

DEFENDANT WALKERS MOTION TO STRIKE PLAINTIFFS OPPOSITIONS, NOTIFICATION AND DECLARATION COMES NOW Defendant Aaron J. Walker, Esq., and hereby moves this court to strike the Plaintiffs three Oppositions filed on or about January 17, 2014 entitled Plaintiffs Response to Defendant The Franklin Centers Motion to Dismiss, Plaintiffs Response to Defendants Hoge and Walkers Motion to Dismiss, and Plaintiffs Response to Defendant DB Capital Strategies Motion to Dismiss (hereinafter the Opp. to TFC, Opp. to H&W and Opp. to DBCS respectively and collectively referred to as his Oppositions) as well as a Declaration of Brett Kimberlin (Declaration) filed as Exhibit F to the Opp. to DBCS and a Notification of Related Court Ruling (hereinafter the Notification) and states the following: I. THE PLAINTIFF HAS FILED AN IMPROPER DECLARATION Attached as Exhibit F to the Opp. to DBCS, the Plaintiff has written what purports to be a declaration pursuant to the provisions of 28 USC 1746 [sic]. Thus, the Plaintiff knows exactly what

statute governs the admissibility of such declarations: 28 U.S.C. 1746. Despite this, the Plaintiff ignored the instructions in 1746(2) that he must include the following language: I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature). (emphasis added). Specifically, the Plaintiff has not stated that he declares it under penalty of perjury. For this reason alone the Plaintiffs Declaration should be struck until and unless the Plaintiff shall amend the Declaration to include words to that effect, and sign the document again. II. THE PLAINTIFF HAS IMPROPERLY ATTEMPTED TO AMEND HIS COMPLAINT THROUGH HIS OPPOSITIONS AND THEREFORE THIS COURT SHOULD STRIKE THOSE OPPOSITIONS Under Fed. R. Civ. P. 15(a)(1) the Plaintiff is entitled to one amendment of his complaint as a matter of right. The Plaintiff has already amended his complaint once. No further amendments are allowed without written consent of opposing parties or with leave of court under Fed. R. Civ. P. 15(a)(2). However, the Plaintiff has attempted to amend his complaint1 without following that

procedure by making scores of additional allegations in his Oppositions. This is improper. Ashcroft v. Iqbal stated that [t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. 556 U.S. 662, 678 (2009) (emphasis added). A complaint must do this, not a complaint and opposition or a complaint and anything else he has filed. By alleging new facts and even alleging a new predicate act under RICO, the Plaintiff has improperly attempted to amend his complaint. Nor should this court grant him, ex post facto, leave to amend his complaint and treat his This is the second attempt on the Plaintiffs part to amend the complaint without following Rule 15(a)(2), with the first being when he sent out a copy of the complaint with non-party Twitchy added to the caption as will be discussed infra. 2
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Oppositions as a de facto amendment. As the Fourth Circuit said in Laber v. Harvey, leave to amend a pleading should be denied only when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the [party seeking to amend], or the amendment would have been futile. 438 F. 3d 404, 426 (4th Cir. 2006). This court has found that the instant Plaintiff has engaged in bad faith before,2 and in the instant case, the Plaintiff has demonstrated continuous bad faith by 1) the apparent attempt to trick non-party Twitchy into believing it was a defendant in this action by engaging in a course of conduct that included the apparent forgery of a summons, 2) the repeated failure to serve parties such as Mr. Walker and Mr. Hoge, 3) the apparent forgery of a document presented to this court claiming to represent attempted service on Mr. McCain, 4) telling easily verifiable lies in his Amended Complaint, and now 4) telling easily verifiable lies in his various oppositions. Indeed, this motion will demonstrate that he lied even when it was guaranteed he would be caught. The reasoning for this bad faith exception to the ordinarily liberal rule in favor of amendment of pleadings is particularly persuasive when the bad faith involves dishonesty. It is common in a motion to dismiss for a defendant to catalogue the shortcomings of a complaint in the style of the plaintiff has failed to allege X, Y and Z and therefore this claim should be dismissed. If leave to amend is granted, this invites an unscrupulous plaintiff to lie and simply say now I allege X, Y and Z, too! regardless of the truth. Ordinarily, this court is required to accept that risk, but not when a Plaintiff has demonstrated repeated bad faith, especially when it involves dishonesty. In that case, the danger that the plaintiff

See Kimberlin v. Dewalt, 12 F.Supp.2d 487, 494, 495, (D. Md 1998) (stating that Kimberlins settlement offers were not undertaken in good faith and that [d]espite his high earnings, [Kimberlin] failed to show any good faith by paying his crime victim). 3

might simply lie to keep the suit going for malicious reasons is simply too high.3 Therefore, this court should strike these Oppositions or, in the alternative, disregard every single new allegation. In order to aid this courts analysis, Exhibits A, B, and C to this Motion to Strike are copies of the Plaintiffs Oppositions to H&W, DBCS and TFC respectively, but in those copies all new facts have been struck out. The court can use these exhibits either to see how difficult it would be to simply disregard every single new allegation or to aid it in disregarding such allegations if it should choose to do so. In order to prove that bad faith, the following is stated: A. The Plaintiff has Demonstrated Bad Faith by Repeatedly Lying in his Oppositions. The most stunning thing about the Plaintiffs new allegations is how easily many of them are proven to be false. This is not a case where the court would be required to hold a hearing to determine that they were false (although Mr. Walker is amenable to a hearing if this court should choose to hold one). Instead the falseness of these allegations are clear on the face of the document, or by reference to publicly available court records. dishonesty are provided: (1) The Plaintiff Misstates the Contents of His Own Exhibit. To support this point, the following examples of the Plaintiffs

In paragraph 48 of the Opp. to H&W the Plaintiff purports to quote from an alleged email he received that he attached. However, the Plaintiff misstates what his exhibit says, writing: On May 23, 2012, Plaintiff received a threat on his non-profit website contact page saying: LEAVE HIM ALONE. DONT GO THERE. Plaintiff interpreted this as a threat to leave Mr. Frey alone and not to contact his supervisors. When Plaintiff checked the contact logs on for that
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Arguably the instant Plaintiff has behaved with such bad faith in this case that he is sui generis or nearly so. It would be surprising if this court has ever dealt with a plaintiff as thoroughly, brazenly and incompetently dishonest as this one. Thus even if ordinarily this court might not grant the relief sought, the court might find it is justified in this unique situation. 4

time and that website, he discovered that the email came from the Los Angeles County Sheriffs Department, at IP Address 146.233.0.202 in Whittier, California. Exhibit Y. Yet, if the court examines Exhibit Y, the entirety of the alleged message is Dont go there. The phrase leave him alone, was wholly made up. Thus, he changed the capitalization of the message and added an entire sentence to it. When one corrects for his provably false allegation, the Plaintiffs interpretation of that alleged message as a threat is rendered even less reasonable. (2) The Plaintiff Misstates His Criminal Record.

Second, in paragraph 14 of the Opp. to H&W the Plaintiff incredibly attempts to claim that he has only been convicted of a single crime. This can be proven false simply by reference to publicly available court records. The Plaintiff writes that Defendants Hoge and Walker argue that Plaintiff is defamation proof because... he was convicted of a crime that occurred in 1979[.] (emphasis added). He was not convicted of a single crime. He was convicted of dozens of them. He set off eight bombs in six days. U.S. v. Kimberlin, 781 F. 2d 1247 (7th Cir. 1985) catalogues how the instant Plaintiff was indicted for 34 counts following the Speedway Bombings, four were dismissed or he was acquitted from while he was convicted of the rest over multiple trials. Additionally, the Plaintiff had previously been convicted of selling a controlled substance and perjury. Kimberlin v. White, 798 F. Supp. 472, 482 (W.D. Tenn. 1992). Conservatively speaking, the Plaintiff has been convicted of over 32 crimes, and yet he dares to file a document with this court where he claims he was convicted of a single crime? Indeed, this is not the first time that the instant Plaintiff claimed to have been convicted of a crime, and this is not the first time Mr. Walker has called the instant Plaintiff on his deception. For instance, on February 8, 2012, in a Peace Order hearing the same Plaintiff said I was charged with a crime 33 years ago. I was released from prison. Ive done my time. Exhibit E to this Motion to Strike, page 9, line 5-6. When Mr. Walker had a chance to speak, he called him out for his deception: 5

This man is a convicted perjurer. He has indeed in this court right now just a few seconds ago told numerous lies. He, for example, said that he was convicted of a crime. He has 35 counts conservatively against him. He has been convicted of setting eight bombs in six days in Speedway, Indiana. He has been convicted of conspiracy to distribute 10,000 pounds of marijuana. Hes been convicted of perjury and he comes here to this court and says I was convicted of a crime? This is the character of him. He lies about everything. Exhibit E to this Motion to Strike, page 12, line 24 through page 13, line 8. (emphasis added). So even after being called out for this deception in another court by the same Defendant, he dares to repeat it here, knowing Mr. Walker would be almost certain to point it out again. Nor can the Plaintiff claim that Mr Hoge or Mr. Walker only accused him of having committed one crime. For instance page 42 of Mr. Walkers Memorandum of Points and Authorities in Support of Defendant Walkers Motion to Dismiss (the Walker Memorandum) states as follows: The instant Plaintiff is a convicted terrorist who set off eight bombs in six days in the town of Speedway, Indiana..... And that is in addition to being a convicted perjurer,... and drug smuggler[.] (citations omitted). By no stretch of the imagination can anyone conclude that Mr. Walker has only accused the Plaintiff of committing a single crime. Mr. Hoge also accused the Plaintiff of multiple crimes, including more than one for which he was convicted, in paragraphs 32-34 of his motion to dismiss. So the Plaintiff was not convicted of only one crime, and Mr. Walker and Mr. Hoge didnt say he had been. The Plaintiffs claim to the contrary is simply false and indeed ridiculous. But that is not the only deception in this line. (3) The Plaintiff Misstates What Mr. Hoge and Mr. Walker said in Arguing That The Plaintiff Was Defamation-Proof.

There is a second lie contained in that same passage: Defendants Hoge and Walker argue that Plaintiff is defamation proof because... he was convicted of a crime that occurred in 1979[.] A brief review of the Walker Memorandum demonstrates that he did not say the Plaintiff was 6

judgment proof simply because he committed a crime. Nor did Mr. Walker claim the Plaintiff was defamation proof solely based on the criminal conduct upon which the Plaintiff was convicted. Mr. Walker also listed the following facts in support of his argument that the Plaintiff is defamation proof: that the Plaintiffs bombs took a mans life; that he cheated a woman he left a widow out of a civil judgment; that he sued the woman he widowed, her lawyer, the probation officer, and various Bureau of Prisons and Department of Justice officials for attempting to collect that judgment; that he had his parole revoked because of that behavior; that contemporaneous news reports claimed that the Plaintiff attempted to put out an assassination contract on prosecutors while in jail, and the same report claimed he tried to frame someone else for the Speedway Bombings; that Slate magazine called him a habitual liar and sociopath; that his authorized biography implicated him in the murder of Julia Scyphers and insinuated that he had a sexual relationship with a pre-teen girl; that the Plaintiff confessed to a racist prison fight and to sabotaging military equipment placing our troops in danger. Defendant Hoges Motion to Dismiss made similar points and arguments. In short, the Plaintiffs characterization of their argument is false and indeed one wonders who exactly he expected to fool with such an obvious lie. (4) The Plaintiff Falsely Claims He Never had a Million Dollar Judgment Against Him.

This is not the only lie that the Plaintiff told that pertained to his reputation. In Paragraph 43 of his Opp. to DBCS, the Plaintiff writes: Even a cursory review of PACER would show that Plaintiff did not file 100 lawsuits and had no million-dollar judgments against him. Besides the fallacy of

pretending that his entire litigation record is on PACER, which covers only federal cases and only goes back so far in time, it is a lie to claim that he never had a million dollar judgment against him. As noted in the Walker Memorandum, the Plaintiff had been sued in Indiana state court by the widow DeLong for the wrongful death of her husband and for her own injuries. The damages awarded in that case were 7

described by the Indiana Supreme Court as follows: [A] jury trial resulted in judgments against defendant-appellant Brett Coleman Kimberlin in the sum of $360,000 for personal injuries to Sandra Sue DeLong and $1,250,000 for the wrongful death of Carl David DeLong[,] Kimberlin v. DeLong, 637 N.E. 2d 121, 123 (Ind: S.C. 1994). As this court remembers, Carl DeLong had committed suicide after being grievously injured by one of the Plaintiffs bombs. In that case, the instant Plaintiff callously claimed that he should not be held liable for Carl DeLongs suicideas though it was not foreseeable that a man might take his life after the Plaintiff hobbled himor alternatively that over a million dollars was too much in compensation for that death. The Supreme Court of Indiana affirmed every penny of that jurys verdict. The Plaintiffs claim that he never had a million dollar judgment against him is a lie. (5) The Plaintiff Falsely Claims He Never Sued a Conservative Blogger and Then in the Same Sentence, He Admits He Sued a Conservative Blogger.

In paragraph 9 of the Opp. to DBCS, the Plaintiff claims he never instituted a lawsuit against a conservative blogger, and then admits to having done so in the same sentence, writing: Incredibly, at that time, Plaintiff had never even filed a lawsuit against a conservative blogger, and the only legal proceedings Plaintiff had brought against anyone in 2012 or 2013 were Peace Orders and criminal charges against Defendant Aaron Walker... In other words, the Plaintiff is admitting to having sued Mr. Walker seeking equity in the form of Peace Orders.4 And the Plaintiff frequently refers to Mr. Walker as a conservative blogger as he is. The Plaintiff is correct about one thing: what the Plaintiff wrote was incredibleas in, not credible. (6) The Plaintiff Falsely Claims That Mr. Walker Lost Two Attempts to Have Him Declared a Public Figure.

There are two false statements, at issue here.

Kimberlin v. Walker (I) (Md. Mont. Co. Dist. Ct. 2012) case number 0601SP005392012 and Kimberlin v. Walker (II) (Md. Mont. Co. Dist. Ct. 2012) case number 0601SP019792012. 8

First, in paragraph 15 of the Opp. to H&W, the Plaintiff falsely claims that in the case of Kimberlin v. Allen, (Md. Mont. Co. Cir. Ct. 2011) case number 339254V Mr. Walker filed a motion seeking to have the Plaintiff declared a public figure. Specifically, he writes that: In fact, when Defendant Walker filed a motion for such a finding in another defamation case brought by Plaintiff, Kimberlin v. Allen, Montgomery County Circuit Court #339254, which resulted in a favorable judgment for Plaintiff, Judge Quirk denied the motion on February 2, 2012. However, amazingly, only a few lines later the Plaintiff accurately quoted an entry on the docket from the case which proves that this is a false statement. Specifically that docket entry reads as follows:

This is an accurate copy of the record, which can be accessed on the internet at http://casesearch.courts. state.md.us/inquiry/inquiry-index.jsp5 and this court can look it up for itself. And as the site indicates, it was a motion filed by the Defendant. That was Seth Allen, not Aaron Walker. Indeed, if this court looks up the record for itself, it is made exceedingly clear when one examines the Docket Entry that was being considered and denied (#119). It reads as follows:

The simpler method to find this site (instead of typing the quoted address) is simply by Googling the phrase maryland judiciary case search. It should be one of the first results. 9

Thus, the Plaintiff lied and then presented proof of his lie where the court could see it, apparently hoping the court would not understand the significance of what it was seeing or that the court would have trouble believing he would be so brazen when lying.6 Second, in the same paragraph (15) he claimed that in a lawsuit Mr. Walker filed against Mr. Kimberlin that the Court found that Mr. Kimberlin was not a public figure, writing: Defendant Walker made the same argument in a civil case in Prince William County Virginia [sic] but the judge implicitly rejected it when he excoriated Walker for filing a frivolous and malicious suit against Plaintiff. The Plaintiffs also attaches an Exhibit F, a true and correct copy of the transcript of the hearing where the case was dismissed, and yet this court would look in vain as to any reference to any claim that Mr. Kimberlin was a public figure or any determination of that claim. Indeed it would be illogical to make such a determination. In that suit Mr. Walker was claiming Mr. Kimberlin had defamed him (among other things). It is of no relevance in that circumstance that the defendant in such a suit might be a public figure. Therefore, it is obvious on the face of the Plaintiffs own documents that his claim that the court found that he was not a public figure is false.

Additionally, it is not certain that this is a determination on the merits. The same docket indicates that after Mr. Allen was found to be in default (Mr. Allen maintains he was never served) and a final judgment was entered against him on November 14, 2011. The motion to declare Kimberlin a public figure was filed on January 9, 2012, so the court might have denied it for untimeliness alone. 10

(7)

The Plaintiff Misstates the Contents of His Own Complaint.

In paragraph 33 of the Opp. to H&W the Plaintiff lies about his own complaint, writing: [t]he Complaint sets forth in great detail that the Defendants have... daily and sometimes hourly contact through various networks, mainly through the internet, for carrying out its objectives. In fact, neither the Complaint nor the Amended Complaint does any such thing. These pleadings barely allege any communication or even relationship at all between the Defendants, let alone set[ting] it forth in great detail as he claims. (8) The Plaintiff Misstates the Contents of His Own Exhibit (Again).

In the first paragraph 387 on page 18 of the Opp. to H&W, the Plaintiff lies about the contents of his own exhibit. He states that Mr. Frey wrote an email to Defendant Walker telling him that he had contacted and met with the FBI in Texas and elsewhere and provided false information about the Plaintiff. Exhibit O. (emphasis added). However, if this court actually reads that exhibit it will see that it does not say what the Plaintiff says it does. While it does indicate that Mr. Frey met with the FBI, it doesnt indicate what information Mr. Frey might have given them. For all the Plaintiff knows, Mr. Frey might have told the unnamed agent facts that are beyond reasonable dispute: that the Plaintiff has a grudge against Mr. Frey (justified or not) and that the Plaintiff has lengthy criminal history. Certainly nothing in that quoted portion of an email suggests that Frey said anything false to the unnamed FBI agent, and thus the Plaintiffs claim that Exhibit O showed an email from Mr. Frey to Mr. Walker telling [Walker] that [Frey] had... provided false information about the Plaintiff is simply false.

The Plaintiffs paragraph numbers are not always in order. There are two paragraphs designated 38. The page number is added in such cases to provide clarity. 11

(9)

The Plaintiff Misstates the Contents of His Own Exhibit (a Third Time).

In the same paragraph 38, on page 18-19 of the Opp. to H&W, the Plaintiff alleges that Frey threatened to criminally investigate Nadia Naffe after she gave Plaintiff evidence about Defendant OKeefe targeting Plaintiff. Exhibit R. However, once again if one reads the Plaintiffs actual exhibita news report on same Naffe v. Frey et al. (C.D. California, 2012) case number 2:12-cv-08443GW-MRW that Mr. Walker had noted had been dismissedone sees absolutely no reference to a threat to criminally investigate her or any reference to her giving over evidence to the instant Plaintiff. (10) The Plaintiff Misstates the Rulings in Two Cases.

While these are not facts relevant to this case, the Plaintiff misstates the rulings of two court cases. First, in paragraph 2 of the Opp. to H&W, the Plaintiff writes the following: In 1988, Marylands highest Court rejected the reasoning of Smith in Allen v. Bethlehem Steel Corp., 314 Md. 458 (1988): We disagree with Smith. What the district court judge said in Smith may be true, but the Maryland statute of limitations is vividly clear. An action for libel and slander shall be filed within one year of the date it accrues. Courts Art. 5-105. Other tort actions shall be filed within three years of the date they accrue. Courts Art. 5-101. Nowhere in 5-101 does it provide an exception for "false light" cases. Even though we recognize the district court judge's view as to how the statute of limitations will be avoided, that loophole must be plugged by the Legislature. But, in fact, the Plaintiffs citation doesnt lead to a Maryland Court of Appeals opinion at all. It leads simply to a record indicating that certiorari had been denied by that court. The actual quotation given above comes from a Maryland Court of Special Appeals decision, with a different citation: Allen v. Bethlehem Steel Corp., 76 Md. App. 642, 649 (1988). Nor is this a technical difference. It is the difference between a final determination of what a statute says, versus one that this court might only take as persuasive authority and in contradiction of the precedent of this jurisdiction. 12

Second, in an unnumbered paragraph on page 23 of the Opp. to H&W, the Plaintiff writes the following: In Donnelly v. DeChristoforo, 416 U.S. 637, [sic] 648 n.23 (1974), the Supreme Court cited to opinion of Chief Justice Tauro of the Supreme Judicial Court of Massachusetts: Unlike a newspaper, the prosecutor ostensibly speaks with the authority of his office. The prosecutor's' personal status and his role as a spokesman for the government tend(ed) to give to what he ... (said) the ring of authenticity . . . tend(ing) to impart an implicit stamp of believability. Hall v. United States, 419 F.2d 582,583-584 (5th Cir.). This is false. The Supreme Court didnt quote Chief Justice Tauro: Justice Douglas did, in dissent. (It is also irrelevant because the quote involved statements made during a closing statement in a criminal trial.) While a Supreme Court dissent might still prove persuasive in some cases, the Plaintiff had a duty to properly label it as a dissent. B. The Plaintiff has Demonstrated Bad Faith by Lying and Submitting False Documents Related to Service of Process. Service of process is one of the most basic steps in litigation, especially the initial service giving notice that a suit has been filed against them. The right to notice is one of the fundamental rights of due process, a necessary first step in the right to be heard. As Justice Jackson said, writing for the Court in Mullane v. Central Hanover Bank & Trust Co., Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case. 339 U.S. 306, 313 (1950). And, in all frankness, service is something that should have been handled without this much difficulty on Plaintiffs part. An inexperienced pro se litigant might be expected to make small

oversights now and then in a good faith effort to inform the defendants that they are being sued and this 13

court might have to patiently require that those oversights be corrected. But the Plaintiff is not an inexperienced litigant. He has bragged that I have filed over a hundred lawsuits and another one will be no sweat for me.8 A copy of the email where he made this boast is attached as Exhibit F to this Motion to Strike. And these are not simply oversights; it is malfeasance. As counsel for Ms. Malkin and the non-party Twitchy have demonstrated, the Plaintiff has engaged in a course of conduct calculated to trick Twitchy into believing it is part of this suit, including a clumsy attempt to forge a summons for Twitchy. As Mr. Hoge has demonstrated, the Plaintiff has presented an apparently forged document before this court, has now once utterly failed to serve motions upon Mr. Hoge, and a second time served him in a timely fashion. First, the Memorandum in Support of Defendant Michelle Malkin and Non-Party Twitchys Motion to Dismiss First Amended Complaint, and For Attorney Fees and Costs presents credible evidence that the Plaintiff engaged in a scheme to trick Twitchy into believing it is a party to this case. Specifically when he started seeking waiver of service and attempting to effect service, the Plaintiff altered the caption of the documents. In the copy that appeared on PACER, Twitchy was not named as a party. But when it came time to send out a version to the Defendants, many if not all of them received copies that unlawfully amended the complaint to insert Twitchy into the caption. Mr. Walker received such a version. A copy of the caption page from PACER and the caption page from the copy mailed to Mr. Walker are attached as Exhibits G and H (to this Motion to Strike) respectively. Then, according to the same filing, Mr. Kimberlin sent an apparently forged summons apparently removing Mr. Walkers

In a stunning bit of dishonesty, after having threatened Defendant Frey with this language, he is now claiming it is actually fraud to suggest he has filed over a hundred lawsuits. Opp. to DBCS, 43. Apparently the Plaintiff believes it is a failure of due diligence to take him at his word. 14

name and address from it, and inserting Twitchy in its place. Second, in Defendant Hoges Motion for Amended Report of Status of Service (hereinafter Motion for Amended Report), Mr. Hoge presented credible evidence that the Plaintiff has presented a forged document purporting to represent a refused mailing to Mr. McCain. Page 3 of Exhibit E to the Plaintiffs Status Report Re Service of Complaint was a document that shouldnt exist. It purported to be an attempt to mail a document by certified mail, but the postage on it was only $1.25. Upon information and belief, that is insufficient postage. In 2013, it cost $5.65, in addition to the normal cost of first class postage, in order to mail a package certified mail. Exhibit I to this Motion to Strike. Upon information and belief, when a person puts a package in the mail containing insufficient postage, it is immediately sent to the return address on the envelope with the marking postage due. The USPS does not attempt service at its destination. Would the Plaintiff have this court to believe that as an act of charity the USPS attempted delivery on a package that didnt have sufficient postage? Nor would document forgery be out of character for Mr. Kimberlin. As noted by Mr. Hoge, the Plaintiff is a convicted document forger, having been caught with forged copies of documents with the Presidential Seal on them. See, e.g. U.S. v. Kimberlin, 805 F.2d 210, 228 (7th Cir. 1986). More recently, he was caught trying to pass off an apparently altered document in a state suit that the Plaintiff now admits is related to this one. As detailed on pages three and four in Mr. Hoges Motion for Amended Report, the Plaintiff submitted what he purported to be a copy of an envelope indicating that he had attempted certified mail but the recipient had refused to accept the mail. In one copy, the restricted delivery option was not checked; in a later copy, suddenly the restricted delivery option was checked. This is another case where the Plaintiff was caught falsifying documents. In his Plaintiffs Response to Defendant Hoges Two Latest Filings (Opp. to Two Filings) 15

and his Motion to Correct Complaint Caption (in essence a motion for leave to amend), the Plaintiff doesnt dispute the most serious accusations. He doesnt dispute that he sent a forged summons to nonparty Twitchy. The Plaintiff doesnt dispute that in the parallel state case that he falsified a document purporting to show that he had served Mr. Akbar. He doesnt dispute that he apparently forged a document purporting to show attempted service on Mr. McCain in the present case. He doesnt even dispute that he is absurdly claiming to have mailed something by certified mail for only $1.25. Without disputing the facts, he simply tries to discredit the allegations by 1) ad hominem attacks on Mr. Hoge, 2) proclamations that the allegations are wild,9 Opp. to Two Filings, 9), and 3) by declaring that it is somehow harassment to have even raised the issue, id. These non-responsive points are simply a transparent attempt to distract this court from the fact that he has been caught red-handed. Further, Mr. Kimberlin has repeatedly failed to properly serve the parties. Mr. Hoge reports that Mr. Kimberlin failed to serve him at all when he filed his Plaintiffs Motion for Extension of Time in Which to Respond to Pending Motions by Defendants. Specifically, in his filing entitled Defendant Hoges Emergency Motion for Reconsideration of Order Granting Plaintiff an Extension of Time to Respond in paragraph one Mr. Hoge wrote that:

The Plaintiff tries to discredit Mr Hoges factual presentation by claiming that the allegations are wild. But it is no more wild than the Plaintiffs prior behavior as documented in court cases. For instance, in U.S. v. Kimberlin, he was caught red-handed with forged documents and then tried to eat them, 805 F.2d at 228. Meanwhile, this courts opinion in Kimberlin v. Dewalt, 12 F.Supp.2d 487, 490 (D. Md 1998) is a tour-de-force describing the ridiculous behavior of the instant Plaintiff as he used deceitful maneuvers to hide his ability to pay his debt to the widow DeLong. No summary or excerpt can quite capture what this court said in Dewalt, and thus it is recommended to read the entire opinion. In Mr. Walkers observation, the Plaintiff often engages in almost farcically dishonest behavior and then when people attempt to hold him responsible for his behavior, he tries to claim their story is too ridiculous to be believed. This court should not allow itself to be fooled. 16

Plaintiff filed his motion for extension of time to respond to defendants motions on 23 December, 2013. The certificate of service filed with the motion claimed that Plaintiff served his motion on Defendant Hoge by email on 23 December. Mr. Hoge has not been served a copy of that motion by email or any other means. This was a verified motion, and, thus, these facts are sworn to be true. When this court heard that the Plaintiff had failed to serve Mr. Walker by mail, and had failed to serve Mr. Hoge at all, this court admonished the Plaintiff in its Letter Order of January 7, 2014 that [p]roper service is a prerequisite for filing, and future motions will not be considered in the absence of proper service. If there was any doubt that the Plaintiff was doing this on purpose, and maliciously, he erased all question when, according to Mr. Hoge, he failed to serve Mr. Hoge again. In another verified motion, entitled Defendant Hoges Motion To Strike Multiple Filings By Plaintiff (Hoge MTS) filed on Friday, January 24, 2014, Mr. Hoge alleges that the Plaintiff apparently chose not to serve him again, refusing to serve his responses to the Motions to Dismiss as well as an additional document. While Mr. Walker received service of the same documents on January 18, 2014, apparently Mr. Hoge hadnt received the same service nearly a week later.10 The Plaintiff has provided to this court, on page 2 of Exhibit C to the Opp. to Two Filings, an image purporting to be a package that appears to have been sent to 29 Ridge Road, in Westminster, Maryland. Mr. Hoge lives at 20 Ridge Road. But given the Plaintiffs history of outright document forgery in his criminal past, and in this instant case, as well as the Plaintiffs rampant dishonesty, what possible assurance could this court have that this document is unaltered? At this point every document whose authenticity has been vouched for by the Plaintiff should be in doubt, and every chain of custody in which the Plaintiff is a link should be considered broken. To be blunt, any evidence presented by the Upon information and belief he received a copy of appropriate service on January 24, 2014, after Mr. Hoge informed the court of the Plaintiffs failure. 17
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Plaintiff and relying even slightly on his credibility, should be a nullity at this point. And even supposing the document was authentic, should this court believe that it is just a coincidence that he did not write down the correct address? Or is it more plausible that he intentionally spiked service in the hopes he could later claim plausible deniability? Indeed, failures and delays in service have been common in Mr. Walkers experience, having dealt with Mr. Kimberlin repeatedly in court for over two years. Mr. Walker has seen many times when the Plaintiff failed to serve documents that he was required to serve on him, or served them very late. It is also consistent with the Motion Regarding Service of the Amended Complaint and Scheduling For Filing of Motions, Answers, And/or Other Responses to the Amended Complaint filed by Defendants Red State, Erick Erickson, Simon & Schuster, Mercury Radio Arts, The Blaze, Glenn Beck and James OKeefe. In paragraphs two and three of this motion they note that the Plaintiff had not properly served them, either. Besides demonstrating bad faith, each of these acts was dishonest. The Plaintiff sent false copies of his own amended complaint. The Plaintiff presented forged documents and passed them off as real. Further, he assured this court repeatedly in certificates of service that he had served Mr. Hoge on a date certain, and that appears to be a lie and counsels against giving the Plaintiff additional opportunities to lie to this court again. It is also worth noting that Mrs. Malkin and non-party Twitchy, through counsel, has argued that the Plaintiff be sanctioned in relationship to his attempt to fool Twitchy into believing it was being summonsed in this court by having this case dismissed with prejudice. Mr. Hoge has argued that the failure to serve these latest documents is an independent reason for this court to strike the Plaintiffs Oppositions to our Motions to Dismiss. Mr. Walker joins both calls for relief without reservation. 18

C.

The Plaintiff has Demonstrated Bad Faith by Repeatedly Lying in his Complaint. Once again, this motion will limit itself to easily provable claims of falsehoodsthings that do

not require a full hearing to prove. These are not the only falsehoods in the Amended Complaint, but they are the most easily provable ones. As previously noted in Defendant Walkers Motion to Require the Plaintiff to File Verified Papers in Future Filings, (hereinafter Motion for Verification) on four separate occasions, the Plaintiff misstated the contents of websites he had cited in his Amended Complaint. In other words, the court need only have entered the cited website addresses into an internet browser to see that the Plaintiff was lying to this court. Specifically, the Plaintiff misstated the actual words of three of the Defendants: misstating what Mr. Frey said in an interview with Mr. Beck, misstating what Mr. Frey allegedly said to Barrett Brown, misstating what Mrs. Malkin wrote, and misstating what appeared on Mr. McCains site. (1) The Plaintiff Misstates What Defendant Frey Said in His Interview With Defendant Beck

In paragraph 63 of the Plaintiff Kimberlins First Amended Complaint, he writes that Mr. Frey appeared on Defendant Becks show and during that interview Defendant Frey stated that Plaintiff could have gotten me killed. He cites a YouTube video at the following address:

http://www.youtube.com/watch?v=o8F0gXl8bUE as support for this claim. This is an outright falsehood. If this court actually goes to this address11 and listens to the interview itself, Mr. Beck very specifically says that it is not certain that the Plaintiff had anything to do with Mr. Freys SWATting, and Mr. Frey agreed with the host on this point. When Mr. Frey makes the

11

For this courts convenience, a copy of the video has been downloaded and converted to a format appropriate for most windows-based computers and attached as Exhibit D to this Motion to Strike. Mr. Walker heard the interview live as it happened and certifies it is a true and correct copy of it. 19

quoted statement, he was clearly saying that his SWATter could have gotten him killed, without identifying who that SWATter was. And no person could have reasonably understood him to have said anything different. Therefore, this statement is a not only a lie, but one this court can easily verify. (2) The Plaintiff Misstates the Content of Defendant Freys Alleged Conversation with Barrett Brown.

At the same time, in paragraph 90 of the amended complaint, the Plaintiff falsely claimed that Mr. Frey had contacted Barrett Brown and 1) asked him to do something illegal, 2) offered to help him with his legal troubles and 3) offered Mr. Brown a quid pro quo. Specifically, the Plaintiff writes: Defendant Frey secretly contacted Barrett Brown and sought his help and the help of the hacker group Anonymous to intimidate Plaintiff. Defendant Frey used his position as Deputy District Attorney to make that contact and implied to Mr. Brown that because of his position he may be able to provide a quid pro quo to help Mr. Brown with his legal problems in exchange for Mr. Brown helping Defendant Frey. http://pastebin.com/WGdG5cBD Mr. Brown refused that request and posted his chat logs with Defendant Frey. Once again, all this court has to do is type in that internet address (http://pastebin.com/WGdG5cBD)12 and read the contents of that alleged discussion and it will see that the Plaintiff has wholly misrepresented the content and import of this conversation. There is nothing in that conversation where Mr. Frey asks Mr. Brown to do anything illegal. There is no passage where Mr. Frey offers to help him with his legal troublesindeed, since Brown is facing a Federal indictment in Texas and Mr. Frey is a California state prosecutor, Mr. Frey is powerless to help Mr. Brown. And there is no offer of a quid pro quo. They state that there was no deal. The document just doesnt say any of the things that the Plaintiff claims it does.

12

For this courts convenience, a copy of that conversation has been printed out and attached as Exhibit J to this Motion to Strike. 20

(3)

The Plaintiff Misstates the Content of a Piece Written by Mrs. Malkin.

Next, in paragraph 80 of his amended complaint, the Plaintiff writes that Defendant Michelle Malkin used her blog and Twitter compiler, Twitchy, to repeatedly state that Plaintiff committed the SWATtings. For example, on May 30, 2012, she wrote a blog post titled Breakthrough: Fox News Covers Brett Kimberlin/ Patterico Swattings. http://michellemalkin.com/2012/05/30/breakthrough-fox-covers-brett-kimberlinpatterico-swatting-bloggers-continue-pressing-the-story/ Once again, this court need only go to the stated address to see that the Plaintiff has misled this court.13 First, the Plaintiff misrepresents the title of the piece; it is actually called Breakthrough: Fox covers Brett Kimberlin/ Patterico SWATting, bloggers continue pressing the story. It is clear in context she is actually talking about two stories: Patterico getting SWATted and what she saw as the Plaintiffs thuggish activities (such as filing abusive Peace Orders against Mr. Walker to silence him). We refer to this as the Plaintiffs brass-knuckle reputation management. Second, the story does not once state that Mr. Kimberlin actually SWATted Mr. Frey (a.k.a. Patterico) or anyone. The Plaintiffs claims to the contrary are simply false. (4) The Plaintiff Misstates the Content of a Piece On Mr. McCains Website.

Finally, in paragraph 102 of the Amended Complaint, the Plaintiff claims Mr. McCain post[ed] an article on his blog that imputed and stated that Plaintiff committed SWATtings (emphasis added). For this proposition, he cited a post at http://theothermccain.com/2012/06/06/sen-saxby-chamblissrequests-doj-investigate-swatting/.14 Once again, this court need only examine the actual website cited

13

For this courts convenience, a copy of that web page has been printed out and attached as Exhibit K to this Motion to Strike. 14 For this courts convenience, a copy of that web page has been printed out and attached as Exhibit L to this Motion to Strike. 21

to see that the Plaintiffs allegations are false. At worst, the Plaintiffs involvement was implied by someone they quoted, and certainly not stated as a certain fact anywhere in the piece by its author. In summary, the Plaintiff has been caught in numerous acts of dishonesty and bad faith. He engaged in a course of conduct designed to convince non-party Twitchy that they were a party, including the forgery of a summons. He presented another apparently forged document purporting to represent refused service on Defendant McCain. He has failed to properly serve Mr. Walker, failed to serve Mr. Hoge once, and failed to serve him on a timely basis a second time, and indeed failed to properly serve Red State, Erick Erickson, Simon & Schuster, Mercury Radio Arts, The Blaze, Glenn Beck, James OKeefe and others. Turning to his Oppositions, he misstated the contents of his own exhibits three times. He misstated his criminal recordclaiming absurdly that he was convicted of a single crime. He misstated the contents of Mr. Walkers and Mr. Hoges respective motions to dismiss. He falsely claimed he never had a million dollar judgment against him. He claimed he never sued a conservative blogger, and then in the same sentence admitted to suing a conservative blogger. He falsely claimed that Mr. Walker lost two attempts to have him declared a public figure. He falsely claimed a quote from the Maryland Court of Special Appeals came from the Maryland Court of Appeals, and falsely claimed that a dissent in the Supreme Court was the opinion of the Court. Meanwhile his Amended Complaint misstates the truth about Mr. Freys conversation with Mr. Beck and Mr. Brown, and misstates the contents of Mrs. Malkins and Mr. McCains websites. He even lied about the contents of his own complaint, in his Oppositions. There is no innocent explanation for this constant stream of dishonesty. Therefore this court should find that the Plaintiff has acted in bad faith, and refuse to consider his Oppositions as improperly amending his complaints and either strike them in their entirety or refuse to consider the new allegations contained in those filings. 22

III. THE PLAINTIFF ALSO FAILED TO FOLLOW FED. R. CIV. P. 11(a) IN HIS FILINGS. In addition to all the previous arguments, since this court filed its Letter Order of January 7, 2014, the Plaintiff has repeatedly refused to comply with the Courts admonition that Plaintiff is cautioned to comply with the requirements of Rule 11(a) and to include his address, email address, and telephone number on all future filings. This failure would include Plaintiffs Response to Defendant The Franklin Centers Motion to Dismiss, Plaintiffs Response to Defendants Hoge and Walkers Motion to Dismiss, and Plaintiffs Response to Defendant DB Capital Strategies Motion to Dismiss as well as a Notification of Related Court Ruling. While surely this will not relieve him of his obligations under Fed. R. Civ. P. 11(b), it is another example of how the Plaintiff ignores the rules of court even after being reminded of them and represents an additional reason to strike those pleadings. CONCLUSION The Plaintiffs latest filings are riddled with improprieties. First, the Plaintiff has attempted to file a Declaration that wasnt even in the proper form, while citing the statute that informed him what the proper form was. Second, the Plaintiff has improperlywithout the consent of the parties or leave of courtattempted to amend his complaint by adding scores of new factual allegations. Third, upon information and belief, the Plaintiff did not serve Mr. Hoge with these documents on a timely basis. Finally, the Plaintiff has once again failed to comply with the signing requirements of Fed. R. Civ. P. 11(a). In regard to the new factual allegations, this court should not grant the Plaintiff leave to amend rendering his new factual allegations proper retroactively. This court should refuse to grant leave to amend when dealing with a person who has acted in bad faith, especially when that conduct involves dishonesty. The Plaintiff has demonstrated repeated bad faith by 1) attempting to trick non-party 23

Twitchy into believing it was a party to this case (including having sent a forged summons), 2) putting before this court an apparently forged document, 3) repeated failures of service that are so frequent as to be unlikely to be validly excused, 4) telling twelve easily verifiable falsehoods in his Oppositions and telling four easily verifiable falsehoods in his Amended Complaint. Simply put, the Plaintiff has shown that honesty is no limitation on his behavior and neither is the absolute certainty of being caught in his lies. He has no respect for this court, the judicial process or his obligations under Fed. R. Civ. P. 11(b). And if he is allowed to amend his complaint retroactively or in the future, this court should expect him to simply keep telling new lies until he can get his foot in the courthouse door. Especially considering that this case implicates freedom of expression, this court should deny this bad faith Plaintiff the opportunity to do so.

Accordingly, this court should strike the following documents and order them returned to the Plaintiff: Plaintiffs Response to Defendant The Franklin Centers Motion to Dismiss Plaintiffs Response to Defendants Hoge and Walkers Motion to Dismiss, Plaintiffs Response to Defendant DB Capital Strategies Motion to Dismiss Notification of Related Court Ruling

This court should grant Defendant Malkin and non-party Twitchys motion to dismiss with prejudice with respect to all parties as a sanction for the Plaintiffs outrageous conduct and this court should grant any other relief it deems appropriate.

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Monday, February 3, 2014

Respectfully submitted,

Aaron J. Walker, Esq. [personal information omitted]

VERIFICATION

I, Aaron Walker, state under penalty of perjury under the laws of the United States of America , that the foregoing information is true and correct and that all exhibits are true and correct copies of the originals. Dated:

__________________________________ __________________________________ (print name of notary public) NOTARY PUBLIC

My commission expires on:

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