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Federal Rule of Civil Procedure 38 states that if this Court finds that
an appeal is frivolous, it may award just damages which can include attorneys
fees. Gorenstein Enterprises v. Quality Care-USA, 874 F. 2d 431 (7th Cir. 1989).
2.
A strong argument can be made that this entire appeal was frivolous
for all parties, given that the affirmation of the lower courts decision was
unanimous and required only per curium treatment. However, the argument is
particularly strong for Mr. Hoge.
3.
Hoge won below was because the district court declined to exercise supplemental
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jurisdiction and Mr. Kimberlin made no effort to challenge that decision before this
Court:
Throughout the Appellants informal brief [Dkt. No. 36], there is not a
single word from the Appellant about the decision to decline
supplemental jurisdiction.
Accordingly, this appeal should be
dismissed or the decision below should be summarily affirmed, at
least in reference to Mr. Hoges victory. The Appellant evidently
thinks that there is nothing worth appealing in the decision below, in
relation to Mr. Hoge, and Mr. Hoge heartily agrees.
Later, Mr. Kimberlin admitted that Mr. Hoge was not part of the appeal (see
Appellants Reply Brief (Dkt. No. 48), p. 1, n. 1). However, at no point during the
appeal process did Mr. Kimberlin take any steps to remove Mr. Hoge from this
appeal, and he did not indicate that he was not pursuing an appeal against Mr.
Hoge in his opening brief. Indeed, the caption of this case lists Mr. Hoge as an
appellee to this day.
4.
2015, asking that he be removed from the appealwith the threat that he would
seek sanctions, including attorneys fees, if Mr. Kimberlin did not. Exhibit B. So
having been warned by Mr. Hoge not to include him in the appeal, Mr. Kimberlin
kept Mr. Hoge in the appeal, never once indicating that Mr. Hoge was not part of
the appeal until after Mr. Hoge filed an opposition brief. There is not one single
word in the record in the district court or before this Court indicating affirmatively
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that Mr. Kimberlin was not seeking an appeal against Mr. Hoge until after Mr.
Hoge had filed an opposition.
5.
With Mr. Kimberlin having been warned about what the consequences
This appeal is the latest abuse of the courts by this serial litigant. It
shouldnt have been taken against anyone, especially not Mr. Hoge. Mr. Hoge
should not bear the costs of Mr. Kimberlins abuse of the courts and his failure to
remove Mr. Hoge from the appeal, and this Court should act to deter such abuse in
the future.
WHEREFORE, this Court find that Mr. Kimberlins appeal was frivolous, award
Mr. Hoge no less than $500 in just damages, and provide any other relief that is
just and equitable.
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Respectfully submitted,
CERTIFICATE OF COMPLIANCE
In accordance with Local Rule 27(d)(1) and (2), Mr. Walker certifies that the
accompanying brief is printed in 14 point typeface, with serifs, and, including
footnotes, contains no more than 5,200 words. According to Microsoft Word, it
contains approximately 638 words.
CERTIFICATE OF SERVICE
I certify that on December 11, 2016, all parties have been automatically served
through the electronic filing system by filing this through that system.
/s/ Aaron J. Walker
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EXHIBIT A
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I hereby state that Exhibit B is a true and correct copy of a letter that I
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I declare under penalty of perjury under the laws of the United States of
America that the forgoing is true and correct to the best of my knowledge.
Westminster
(city)
Maryland
(state/territory)
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EXHIBIT B
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EXHIBIT C
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that I devoted over four hours of work to filing Mr. Hoges Informal Opposition
Brief (Dkt. No. 44), including time spent familiarizing myself with the intricacies
of this case. Furthermore, I spent more than an hour to writing and preparing the
instant motion for sanctions. Although I represented Mr. Hoge pro bono, my
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ordinary rate for this kind of work is $100 an hour. Thus for more than five hours
work, I ordinarily would have charged my client a minimum1 of $500.
I declare under penalty of perjury under the laws of the United States of
America that the forgoing is true and correct to the best of my knowledge.
Manassas
(city)
Virginia
(state/territory)
I ordinarily round down my time when charging paying clients and I extend Mr.
Kimberlin the same courtesy here.
2