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 OPPOSITION TO THE PLAINTIFFS MOTION TO CORRECT COMPLAINT CAPTION AND MOTION TO STRIKE SAME COMES NOW Defendant Aaron J. Walker, Esq., and files this opposition to the Plaintiffs Motion to Correct Complaint Caption (ECF No. 48) and motion to strike the same, and states the following: 1. 2. 3. On October 15, 2013, the Plaintiff filed his Complaint, setting off the instant lawsuit. Two days later, on October 17, 2013, the Plaintiff filed his Amended Complaint. On January 30, 2014, the Plaintiff filed the above-referenced motion, seeking what

amounts to a second amendment to the complaint. 4. Although the certificate of service for that motion stated that the Plaintiff had served Mr.

Walker by mail on January 30, 2014, in fact, he sent it the next day on January 31, and it did not arrive

at Mr. Walkers home until February 1. See Exhibit A. Accordingly, any opposition by Mr. Walker is due on February 18, 2014. See, D. Md. local rule 105.2.(a) and Fed. R. Civ. P. 6(a)(1)(C).1 5. Although styled as a Motion to Correct Complaint Caption, the Plaintiff has effectively

asked this court for leave to amend the complaint, and should have instead filed one styled as such. For the purposes of this opposition, it will be treated as a motion for leave to amend. 6. While Mr. Walker doesnt purport to represent Twitchy before this court, he has an

interest in opposing this motion because the addition of parties will inevitably lengthen the proceedings and Mr. Walker has an interest in seeing this case concluded as soon as possible. As noted in Figueroa Ruiz v. Alegria: A civil RICO suit is in effect quasi-criminal in nature. Page v. Moseley, Hallgarten, Estabrook & Weeden, Inc., 806 F.2d 291, 298 (1st Cir.1986). The mere assertion of a RICO claim consequently has an almost inevitable stigmatizing effect on those named as defendants. In fairness to innocent parties, courts should strive to flush out frivolous RICO allegations at an early stage of the litigation. 896 F.2d 645, 650 (1st Cir. 1990); see also Taylor v. Brown, 953 F.2d 639, 639 (4th Cir. 1992) (citing Alegria with approval). Mr. Walker not only has an interest in seeing this frivolous case end at an early stage of litigation, but he has also an interest in seeing it end as soon as possible. Therefore, he doesnt wish to see the case lengthened by the futile and untimely addition of parties by a bad faith Plaintiff.

This Opposition only notes these facts in order to inform the court of the true deadline for filing this motion, and not because Mr. Walker is attempting to make a scandal of the Plaintiffs slight delay in service of process. 2

I. LEAVE TO AMEND SHOULD BE DENIED BECAUSE THE PLAINTIFF HAS DEMONSTRATED CONTINUOUS BAD FAITH IN THIS CASE 7. Laber v. Harvey held that under Fed. R. Civ. P. 15(a) 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 moving party, or the amendment would have been futile. 438 F. 3d 404, 426 (4th Cir. 2006). Mr. Walker will leave it to counsel for Twitchy to argue the obvious fact that adding them as a party to the suit is prejudicial since they are best able to speak to the negative effects of being added, but this opposition will point out that both of the remaining considerationsbad faith and futilityare present, even though either consideration is sufficient to justify denying leave to amend. 8. Previously in Kimberlin v. Dewalt, this very court has found that the same Plaintiff had

engaged in bad faith.2 In the instant case the Plaintiff has shown continuous bad faith. As documented in Mr. Walkers Motion to Strike Plaintiffs Oppositions, Notification and Declaration (hereinafter Mot. to Strike Opps., ECF No. 54), the Plaintiff has showed 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... he lied even when it was guaranteed he would be caught. Mot. to Strike Opps., p. 3. That motion is incorporated by reference into this opposition.

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

9.

Amazingly and, in the face of allegations of document forgery and mail fraud, the

Plaintiff has told additional, easily provable lies to this court. Mr. Walkers Reply to Plaintiffs Oppositions to Walkers Motion for Leave to Exceed Page Limitations and Motion to Strike (hereinafter Reply to Opp. to MFL), filed simultaneously with this opposition, documented six additional, easily provable falsehoods and that filing is incorporated by reference into this opposition. Furthermore, that same Reply to Opp. to MFL demonstrates that the Plaintiff has engaged in a new form of bad faith by attempting an appeal to disability bigotry. 10. For this reason alone, this court should deny to the Plaintiff any opportunity to amend his

complaint and add Twitchy as a party. II. LEAVE TO AMEND SHOULD BE DENIED BECAUSE IT WOULD BE FUTILE 11. Granting leave to amend would also be futile. As noted above, the Fourth Circuit held in

Laber that futility is a sufficient reason to deny leave to amend. 12. This amendment would be futile, because the Plaintiff has not alleged a proper cause of

action against Twitchy. As demonstrated by Mr. Walkers Memorandum of Points and Authorities in Support of Defendant Walkers Motion to Dismiss (ECF No. 11), his Reply to Plaintiffs Opposition to Walkers Motion to Dismiss (ECF No. 55) and the Memorandum in Support of Defendant Michelle Malkin and Non-Party Twitchys Motion to Dismiss First Amended Complaint, and For Attorney Fees and Costs (hereinafter Twitchy Memorandum, ECF No. 41), the Plaintiff has not stated a claim for which relief can be granted. While this filing will largely fall back on the arguments made in those previous filingswhich are incorporated by referencethis court should remember that the Plaintiff has made no proper, non-conclusory allegation that 1) he had been actually injured in his property or business by alleged RICO activities, 2) that a RICO enterprise existed, 3) that such enterprise engaged in 4

even a single predicate act under RICO, 4) that any RICO conspiracy existed, 5) that he has been denied any federal right by any state actor under 42 U.S.C. 1983, or 6) that any Defendant was motivated by discriminatory animus or there was a federal nexus as necessary under 1985. These are only some of the legion of flaws in the Amended Complaint (ECF No. 2). Further, the sole allegedly defamatory imputation that the Plaintiff attributes to Twitchy was made on June 25, 2012, Amend. Comp. 70, well outside of the one-year statute of limitations that applies to defamation claims and false light claims such as these. See Smith v. Esquire, Inc., 494 F.Supp. 967, 969 (D. Md, 1980) (when a false light claim is essentially analogous to a libel claim... [it] should be governed by the same statute of limitations). Additionally, the Plaintiff has not alleged such defamation/false light with appropriate specificity under Fed. R. Civ. P. 9(b). Finally, the Plaintiff also hasnt alleged any emotional distress or any damage caused by such distress as required to state a claim for intentional infliction of emotional distress. 13. Therefore, even if Twitchy is added as a party, any claim against them will inevitably be

dismissed. Because of Plaintiffs continual bad faith, such dismissal is likely to be with prejudice, 180S, INC. v. Gordini USA, Inc., 602 F.Supp.2d 635, 639 (D. Md. 2009). Therefore, the act of amending the complaint a second time to add them as a party would be futile and that futility is sufficient reason to deny leave to amend. III. LEAVE TO AMEND SHOULD BE DENIED BECAUSE IT IS UNTIMELY 14. An additional reason to deny a motion for leave to amend is when it is untimely, Minter

v. Prime Equipment Co., 451 F. 3d 1196, 1206 (10th Cir. 2006). 15. It is now 126 days since the Plaintiff first filed this suit, and his motion for leave to

amend was filed on the 107th day.

16.

The Plaintiff was obviously aware of this alleged clerical error almost immediately.

On October 19, 2013some 105 days before he filed the motion for leave to amendthe Plaintiff sent an alleged copy of the Amended Complaint along with waiver of service forms to several Defendants, including Mr. Walker and Mr. Hoge. As noted in Mr. Hoges Motion to Dismiss (ECF No. 11) and Mr. Walkers Mot. to Strike Opps., that copy included a falsified caption page with Twitchy added as a party. Logically speaking, if the Plaintiff was sufficiently aware of his error to falsify the documents he sent, the Plaintiff was also sufficiently aware to have filed leave to amend with this court as he was supposed to. 17. However, instead of filing a timely motion for leave to amend, the Plaintiff waited and

compounded his fraudulent conduct by sending a forged summons to Twitchy on or about January 3, 2014, according to the Twitchy Memorandum, p. 3-4. 18. The Plaintiff makes no attempt to excuse or justify his delay in filing this motion for

leave to amend and ignores entirely the serious allegations that he has attempted a fraud upon this court. This unexcused and unjustified delay in filing this motion for leave to amend presents an additional reason why that motion should be denied: because it is untimely. IV. THE PLAINTIFFS MOTION FOR LEAVE TO AMEND SHOULD BE STRICKEN FOR FAILURE TO COMPLY WITH LOCAL RULE 103 19. Finally, the Plaintiffs motion for leave to amend has not been filed in accordance with D. Specifically Rule 103.6(a) states that: [w]henever a party files a motion

Md. local rule 103.6.

requesting leave to file an amended pleading, the original of the proposed amended pleading shall accompany the motion. Meanwhile 103.6(c) further states that the party filing an amended pleading shall file and serve (1) a clean copy of the amended pleading and (2) a copy of the amended pleading in which stricken material has been 6

lined through or enclosed in brackets and new material has been underlined or set forth in bold-faced type. The Plaintiff has not complied with any of these requirements. Accordingly, the Plaintiffs filing is improper and should be stricken from the docket.

Accordingly, this court should strike the Plaintiffs Motion To Correct Complaint Caption. Alternatively, this court should deny the futile and untimely motion for leave to amend by this bad faith Plaintiff, and this court should grant any other relief it deems just and equitable.

Tuesday, February 18, 2014

Respectfully submitted,

Aaron J. Walker, Esq. [Personal information and verification removed]