IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY MARYLAND BRETT KIMBERLIN, Plaintiff, v. No. 403868V NATIONAL BLOGGERS CLUB, et al Defendants. PLAINTIFF'S RESPONSE IN OPPOSITION TO DEFENDANTS DAN BACKER AND DB CAPITOL STRATEGIES’ MOTION TO DISMISS FOR INSUFFICIENCY OF SERVICE Now comes Plaintiff Brett Kimberlin and responds in opposition to Defendants Dan Backer and DB Capitol Strategies’ Motion to Dismiss for Insufficiency of Service. ‘The motion is without merit and based on an incorrect understanding of the facts. 1. Inshort, Defendants argue that Plaintiff has not served them so this case should be dismissed, However, Plaintiff did serve them with the original complaint and summons as proven by Exhibit A, a copy of the certified envelope sent to them and returned unclaimed. A defendant cannot seck dismissal after refusing to accept service. 2. Moreover, on July 22, 2015, after an order from this Court to issue new summonses to the Defendants who did not appear at a July 17, 2015 scheduling hearing, the Clerk sent Plaintiff those new summonses, which Plaintiff received on July 28, On August 24, 2015, Plaintiff sent that summons along with the Complaint to Defendants at their new address in Alexandria, Virginia. Clearly, Defendants are required to respond to that Complaint unless they also refuse to claim it. 3. Also, the Defendants are being disingenuous regarding service. First, they were served with the complaint in this case while it was pending in federal court. In fact, they responded to it in that court. Second, when Plaintiff re-file« in thisCourt, he notified counsel for Defendants by email of the filing. Exhibit B. Therefore, they had notice of Complaint. As Judge Grimm stated in Kimberlin v. NBC, 13-3059 when this case was pending in federal court regarding another defendant who was avoiding service: “[TJhe real purpose of service of process is to give notice to the defendant that he is answerable to the claim of the plaintiff.” Karlsson v. Rabinowitz, 318 F.2d 666, 669 (4th Cir.1963). Here, there can be no serious question that Ace ‘of Spades is keenly aware of the instant lawsuit that has been filed against it. See e.g., ECF No. 75-1; ECF No. 75-1, Exhibit A. Indeed, Ace of Spades has retained counsel for its defense in this proceeding — Mr. Paul Levy. See ECF Case 8:13-cv-03059-GJH Document 162 Filed 07/18/14 Page 1 of 4 No. 75-1 3 (Affidavit of Mr. Levy) (“After Ace of Spades contacted me for assistance in opposing Kimberlin’s motion for leave to take discovery, I spoke to Kimberlin about his motion.”). Since that time, Mr. Levy has entered an appearance on behalf of Ace of Spades (see ECF No. 76) and has made several filings on the Court's docket (see ECF Nos. 75, 94, 106,159). Yet, despite having actual notice of Plaintiff's lawsuit and having itself contributed to the deluge of filings on the Court’s docket, Ace of Spades is now attempting (o hide behind a thinly cloaked veil of anonymity to avoid. facing this lawsuit. It should go without saying, of course, that “[s]ervice of process obviously is not something that should be abused by a defendant to evade a lawsuit.” Leach v. BB & T Corp., 232 F.R.D. 545, 551 (N.D-W. Va. 2005).” ECF 162, GLH 13-3059. 4. Inthe instant case, Defendants were “keenly aware of the instant lawsuit” and in fact they have retained counsel and filed the instant motion to dismiss. Apparently, Defendants want this Court to find that they were not properly served after avoiding service and having knowledge of the suit. Apparently, they have been watching the calendar and waiting to file the instant motion to dismiss as a “gotcha” moment. As Judge Grimm noted, “service of process is not something that should be abused by a defendant to evade a lawsuit.” 5, Nevertheless, Defendants have been served with the new summons and ‘Complaint and will have an opportunity to respond to it within the time limits set in therules, Wherefore, for all the foregoing reasons, this Court should deny Defendants’ Motion to Dismiss. Respectfully submit Brett Kimberlin Certificate of Service I certify that I emailed a copy of this response to the attomey for Defendants, to Patrick Ostronic, to Mark Bailen, to Lee Stranahan, and mailed it to Michael Smith and Aaron Walker this 25" day of August, 2015. Brett Kimbéeylin 9PRESS FIRMLY TO SEAL 07/19/35 To FORWARD SaotaN 28 Behe 717 Ving Sr B02 TO _ SENDER 223142063-1N sont sw tach tis fn thotort pace Pe Sr Saka es ter famrem OS waar aatey eras beet TINS Poe + OB Copsto( 717 Vint FFe° Alexoole, Abe re te tcal Treegeterd ( Reture Recap tor Mortendion ZULy Biwures at__T1GO0. 2, Ato Number Fo4 Elev O00 1201 947 (aster sre be {Be Fom 9811 February 2004 Dome Retin Bert VISIT US AT USPS.COM® ORDER FREE SUPPLIES ONLINE 3‘Tuesday, August 25, 2015 at 7:26:46 AM Eastern Daylight Time Subject: Re: New state suit against Backer DBS Date: Tuesday, April 21, 2015 at 1:25:31 PM Eastern Daylight Time From: Christina Siroi ee TT Mr. Kimber: You will need to properly serve the parties with whatever it is you have filed, Regards, Christina Sirois, Associate Attorney DB Capitol strategies PLLC (571) 207-6451 Direct, sirois@dbcapitolstrategies.com Sent: Monday, April 20, 2015 4:31:35 PM. To: Christina Sirois Subject: New state suit against Backer DBS Ms. Sirois, Last week, in Montgomery County Maryland Circuit Court, | refiled the state claims that were in the federal RICO suit, which include state torts committed by your clients. Please advise me whether or not you will be accepting service on their behalf and whether you will be representing them. Kimberlin v. National Bloggers Club, 403868 set Kimber = i Page 1 of